text:
    A96A2282.
    MILES v. CARR.
    (480 SE2d 282)
   Ruffin, Judge.

Alyce Carr was involved in an automobile collision and was cited for failing to stop at a red light. Because she did not have insurance at the time and failed to post the required security, the Georgia Department of Public Safety (“DPS”) suspended Carr’s driver’s license pursuant to the Georgia Motor Vehicle Safety Responsibility Act. OCGA § 40-9-1 et seq. Carr was subsequently found not guilty of the charge. Nevertheless, following an administrative review, a hearing officer upheld the suspension of Carr’s driver’s license. The superior court reversed this decision and ordered the reinstatement of Carr’s license. Sid Miles, DPS’s commissioner, filed a petition for discretionary review, which we granted. For reasons which follow, we reverse the superior court’s order.

“When sitting in review of a department’s affirmance of an administrative decision, the superior court sits only as an appellate court. [Cit.] . . . The ‘any evidence’ test is the applicable touchstone and the presence of conflicting evidence is sufficient to satisfy that test. [Cit.]” Bowman v. Palmour, 209 Ga. App. 270 (1) (433 SE2d 380) (1993). The superior court “shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.” OCGA § 50-13-19 (h). See also Hardison v. Fayssoux, 168 Ga. App. 398, 401 (309 SE2d 397) (1983). In turn, in reviewing a superior court’s order in a case under the Administrative Procedure Act, our function “is to determine whether the . . . superior court has in [its] own final ruling committed an error of law.” DeWeese v. Ga. Real Estate Comm., 136 Ga. App. 154, 155 (1) (220 SE2d 458) (1975).

1. If an individual is involved in an accident and does not have liability insurance, the Georgia Motor Vehicle Safety Responsibility Act provides that the DPS must require the individual to deposit security sufficient to satisfy any judgment for damages resulting from an accident. OCGA §§ 40-9-32; 40-9-34. If the individual fails to post the required security, the DPS must suspend the operator’s license and vehicle registration. OCGA § 40-9-33. “The requirements of depositing security under this Code section shall not apply to any person against whom the department has found that there is not a reasonable possibility of a judgment being rendered.” OCGA § 40-9-32 (c) (1).

Following an administrative review in the present case, a hearing officer determined that there was . a reasonable possibility of a judgment being rendered against Carr in an action arising out of the collision and, therefore, upheld the suspension of Carr’s driver’s license due to her failure to provide security for any such judgment. Carr has failed to present any evidence other than her acquittal in traffic court to support her argument that the hearing officer was incorrect in rendering his determination.

The superior court concluded that there was no reasonable possibility that a judgment could be rendered against Carr, basing its determination strictly on the fact that the traffic court found Carr not guilty of failing to stop at the red light. Miles contends the superior court committed legal error in finding no reasonable possibility of a judgment being rendered against Carr and reinstating her driver’s license. Specifically, Miles argues that the standard of review for the criminal action of failure to stop at a red light is a higher standard than that for a civil action against Carr. See Wilkes v. State, 210 Ga. App. 898 (437 SE2d 837) (1993) (failure to obey official traffic control device is a criminal offense) (physical precedent only). We agree.

We have previously held that “while it may be presumed that evidence sufficient to convict beyond a reasonable doubt would also support a finding of guilt under the preponderance of evidence standard applicable in civil cases, it does not follow that an acquittal under the criminal standard would demand a finding of [non-liability] under the civil one. [Cit.]” Neal v. Neal, 160 Ga. App. 771, 772 (287 SE2d 109) (1982). In a more analogous situation, we have stated that “[although we are not unmindful that the decision to revoke appellee’s license seems inconsistent with the decision of the probate court adjudicating appellee not guilty of the offense of DUI, a lesser standard of proof is required to impose the civil or administrative penalty of suspension of license . . . than is required to convict for the criminal offense. . . . Therefore, the two decisions are not necessarily inconsistent. [Cit.]” Earp v. Harris, 191 Ga. App. 414, 416 (382 SE2d 156) (1989).

Based on the foregoing, we conclude that, as a matter of administrative law, the superior court erred in reversing the DPS’s decision and holding that merely because Carr was found not guilty of the criminal offense of failure to stop at a red light, there could be no reasonable possibility that a civil judgment could be rendered against her.

2. In her appellate brief, Carr presents a number of alternative grounds for the superior court’s decision, including errors in the police report and the expiration of the applicable statute of limitation. However, the superior court did not rule on these grounds, and no appeal or cross-appeal was filed by Carr. “Thus, we are without jurisdiction to consider these arguments on this appeal.” Cofer v. Schultz, 146 Ga. App. 771 (2) (247 SE2d 586) (1978).

Decided January 15, 1997.

Michael J. Bowers, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, NealB. Childers, Senior Assistant Attorney General, Carol A. Callaway, Assistant Attorney General, for appellant.

Alyce P. Carr, pro se.

Judgment reversed.

McMurray, P. J., and Johnson, J., concur.


source: Caselaw Access Project

author: Andrews, Chief Judge.

license: Public Domain

text:
    A96A2295.
    WALTON v. THE STATE.
    (480 SE2d 284)
   Andrews, Chief Judge.

Terry Walton appeals the conviction entered on a jury verdict finding him guilty of two counts of simple battery. Walton argues the evidence was insufficient to support the verdict and the trial court erred in denying his race and gender based discrimination challenges to the State’s use of peremptory strikes to remove two men from the jury pool.

The evidence at trial, taken in the light most favorable to the jury’s verdict, was that on May 31, 1995, around 11:30 in the morning, Officer Stewart responded to a 911 call concerning a domestic dispute. Stewart entered the house and saw Linda Norman, Walton’s wife, sitting on a sofa holding her head. Norman was crying and had a cut on one side of her face and a knot above her eye. Stewart testified that when he asked her what was going on, Norman said, “Terry’s hitting me.” Stewart said Norman continued to cry and appeared to be scared and upset. She told Stewart that Walton wanted her to leave but she could not because of their 14-year-old child who was in a wheelchair and in need of constant care. She also said Walton had hit her in the face with his fist.

Officer Stewart then questioned Walton who was in a back bedroom when the officers arrived. Walton claimed Norman came at him with a knife and, when he pushed her away, she fell and hit her head on a chair.

At trial, Linda Norman testified that she and Walton were arguing about “financial matters” and she called the police. She said she waited outside until the police got there. Norman stated that she got the bump on her head when she fell and hit her head on a chair. She testified that Walton did not hit her.

1. Walton contends the evidence was insufficient to support the verdict. We disagree. On appeal, this Court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Blackshear v. State, 199 Ga. App. 839 (406 SE2d 269) (1991). The evidence was sufficient to convince a rational trier of fact that Walton was guilty of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Next, Walton argues the trial court erred in denying his race and gender based discrimination challenges to the State’s striking of two men from the jury panel. In Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), the United States Supreme Court prohibited the use of peremptory strikes in a racially discriminatory manner. “In J E. B. v. Alabama,_U. S._(114 SC 1419, 128 LE2d 89) (1994), the United States Supreme Court extended its holding in Batson v. Kentucky to instances where peremptory strikes are exercised solely on the basis of gender.” Tedder v. State, 265 Ga. 900, 901 (463 SE2d 697) (1995). Once the defendant has made a prima facie showing of discrimination in the State’s use of its peremptory jury strikes, the burden shifts to the State to articulate a gender or race neutral reason for striking the juror. Kelly v. State, 209 Ga. App. 789, 790 (434 SE2d 743) (1993).

In this case, the jury panel was composed of three white men, five white women, one African-American man, and two African-American women. The State struck the African-American man and one of the white men.

Here, since the trial court ruled on the ultimate question of intentional discrimination, the preliminary issue of whether Walton made a prima facie case of discrimination is moot. Lewis v. State, 262 Ga. 679, 680 (424 SE2d 626) (1993). Therefore, we need only address the sufficiency of the prosecutor’s explanations for exercising the peremptory strikes. Chunn v. State, 210 Ga. App. 209, 210 (435 SE2d 728) (1993).

The prosecutor gave several race and gender neutral reasons for striking the African-American male juror. The juror was the foreperson on a jury in a case the prosecutor tried earlier in the week. There was an acquittal in the case and the prosecutor stated that the juror was never receptive, never made eye contact with her, fell asleep during her closing argument, and she felt unable to make any connection with him. As to the white male juror,' the prosecutor stated she also struck him from a jury in a previous case because of the flippant response he gave when she asked if he had a problem with a man hitting a woman.

Decided January 15, 1997.

Deborah N. Bedsole, Debra G. McDonald, for appellant.

Kenneth W. Mauldin, Solicitor, Ethelyn N. Simpson, Assistant Solicitor, for appellee.

“In reviewing the trial court’s disposition of a Batson motion, we must bear in mind that the prosecutor’s explanation need not justify a challenge for cause, but must be neutral, related to the case to be tried, and reasonably specific. The trial court’s decision rests largely upon assessment of the prosecutor’s state of mind and credibility; it therefore lies peculiarly within a trial judge’s province. The trial court’s factual findings must be given great deference and may be disregarded only if clearly erroneous.” (Citations and punctuation omitted.) Hightower v. State, 220 Ga. App. 165, 166 (469 SE2d 295) (1996).

Here, the State gave several sufficient race and gender neutral reasons for striking the jurors. A reasonable suspicion that a juror may be biased in a particular case may well justify the exercise of a peremptory strike. Chunn, supra at 210. Further, lack of attentiveness and a concern that a juror might not appreciate the seriousness of the trial process have also been found to be sufficient race and gender neutral explanations. Jackson v. State, 220 Ga. App. 98, 99 (469 SE2d 264) (1996). Accordingly, taking into account the great deference to be accorded the trial court’s findings, the court did not err in denying Walton’s challenges to the prosecution’s peremptory strikes.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


author: Blackburn, Judge.

text:
    A96A2420.
    COOK v. PARTAIN.
    (480 SE2d 279)
   Blackburn, Judge.

Jo Ellen Cook sued Lee Partain, Jr., for assault, battery, and negligent and intentional infliction of emotional distress. Cook claimed that Partain, who was vice-chairman of a bank with which Cook had outstanding and overdue loans, placed his hand on her breast during a business meeting in June 1990. At a jury trial of the case, Cook testified the incident caused her psychological injury and “devastated” her ability to run her realty and advertising businesses. Her psychiatrist testified the incident caused a recurrence of post-traumatic, stress disorder, resulting in the need for therapy and medication to control anxiety. Partain, who had known Cook as a business associate and friend for several years, testified that he merely touched Cook on the sternum, outside her clothing, to emphasize a point during the private meeting. The jury found in his favor. On appeal, Cook claims the trial court erred by admitting into evidence several exhibits showing Cook’s financial condition and instances of prior litigation. None of her enumerations mandate reversal of this case.

1. Cook claims error in the trial court’s admission of documents showing Cook’s involvement in four other lawsuits. This enumeration has no merit.

“The trial court has great discretion to determine relevancy and materiality of evidence, and admission is favored in doubtful cases.” Crozier v. State, 263 Ga. 866, 867 (2) (440 SE2d 635) (1994). Unless the trial court abused its discretion, this Court will not interfere with the trial court’s determinations on these evidentiary issues. Hendricks v. Southern Bell Tel. &c. Co., 193 Ga. App. 264, 266 (4) (387 SE2d 593) (1989).

(a) The first lawsuit of which Cook complains is a verified complaint for false arrest she filed against a car dealership in April 1993, relating to an incident which occurred in November 1991. In that lawsuit, Cook sought in excess of $7,000 in psychiatric bills for treatment she claimed resulted from her false arrest. The verified complaint in that case contradicted Cook’s testimony in this case that she had incurred $7,000 in psychiatric bills because of Partain’s actions. It also contradicted her own psychiatrist’s testimony that none of his treatment related to the “false arrest” incident. Therefore, the complaint was admissible as impeachment evidence. See Krasner v. Lester, 130 Ga. App. 234, 235 (1) (202 SE2d 693) (1973) (written statements by a witness and allegations in pleadings contradictory to her testimony at trial may be admissible for purposes of impeachment).

This evidence was also admissible to challenge and contradict Cook’s assertion that her psychological treatment resulted from Partain’s acts, as the source of her anxiety was a material issue in this case. See Goforth v. Wigley, 178 Ga. App. 558, 560 (2) (343 SE2d 788) (1986); Barnes v. Cornett, 134 Ga. App. 120, 122 (6) (213 SE2d 703) (1975). “[E]vidence concerning a plaintiff’s ‘other’ injuries may be admissible to show that the injuries currently at issue are not the result of the defendant’s alleged [acts].” Wages v. Sibran, Inc., 171 Ga. App. 14, 15 (1) (318 SE2d 679) (1984).

(b) Two additional lawsuits admitted into evidence involved actions against Cook arising from transactions which occurred near the time of the incident involving Partain. The first of these was an action against Cook by her former boyfriend and his children over the assets of a business in which they were involved. Cook testified in the present case that when she created her realty and advertising businesses, she owned 100 percent of the stock in those ventures. She also claimed on direct that her personal and business relationship with her former boyfriend was damaged by Partain’s act and stated that the boyfriend had since sued her. On cross-examination, however, Partain introduced a copy of this lawsuit, which included a document she signed in 1988 stating she owned only 49 percent of the business. The suit, filed in December 1993, contained allegations that Cook had improperly transferred all the company stock to another person, in violation of the rights of her boyfriend and his children, and sought damages.

The second of these complaints was an action brought in May 1992, by another of Cook’s business associates. He alleged that Cook had misappropriated money from him. In the present case, Cook denied on direct that she had ever lied to a business partner and claimed Partain’s actions resulted in her business problems.

In addition, Cook and her psychiatrist testified that during the time he treated her, she was having anxiety related to these lawsuits. The trial court did not err in admitting evidence regarding these lawsuits. Such evidence was admissible to impeach Cook’s assertions that her business failures resulted from Partain’s actions, and to provide an alternative source for the anxiety which resulted in her psychiatric treatment. Krasner, supra; Goforth, supra; Barnes, supra.

(c) The final lawsuit involved an action Partain filed against Cook’s company in 1992. As her own psychiatrist testified he treated Cook for anxiety resulting from this suit, this evidence was relevant on the issue of damages. Barnes, supra. This suit, as well as the other suits involving Cook’s business problems, were also relevant as evidence of motive to support Partain’s theory that Cook, involved in a business dispute with Partain, created false claims against Partain to gain leverage over the banker. See David Jordan Logging Co. v. Sales, 203 Ga. App. 410, 411-412 (416 SE2d 803) (1992) (evidence showing plaintiff had a motive to make false claims is relevant and admissible).

2. Cook also claims error in the trial court’s admission of testimony showing Cook or her business had many loans in default to the bank at the time she claims Partain assaulted her. This evidence directly contradicts her testimony that Partain’s acts "devastated” her business. It impeaches her testimony that her business was doing well at the time of Partain’s alleged assault. See West v. Nodvin, 196 Ga. App. 825, 828 (3) (c) (397 SE2d 567) (1990) (tax liens admissible to impeach party’s testimony that he paid all his bills). This evidence also shows an alternative source of Cook’s anxiety. See Barnes, supra. Finally, this evidence supports Partain’s theory that Cook falsely created these allegations to improperly influence Partain’s or the bank’s decisions regarding the refinancing of her loans. Sales, supra.

Decided January 15, 1997.

Kevin T. Moore, for appellant.

Smith, Howard & Ajax, Matthew G. Moffett, Dupree, Johnson & Poole, Hylton B. Dupree, Jr., for appellee.

3. Cook asserts error in the trial court’s admission of testimony that the IRS placed a lien on her business assets before the incident involving Partain. For each reason discussed in Division 2, supra, the admission of this evidence was not error. See West, supra.

Judgment affirmed.

Birdsong, P. J., and Beasley, J, concur.


author: Ruffin, Judge.

text:
    A96A1811.
    SHIVERS v. WEBSTER et al.
    (480 SE2d 304)
   Ruffin, Judge.

John G. Shivers and Lee Webster, Jr. filed two separate specific performance actions to require John W. Walker, Jr. and Louise P. Walker, as executors of the estate of Marion N. Walker, to sell each of them the same 1,200-acre tract of land. Webster sought to enforce an alleged verbal right of first refusal to purchase the land, and Shivers sought to enforce a subsequent written option to purchase the land. The cases were consolidated, and a jury returned a general verdict in favor of Webster. Shivers appeals this verdict, and, for reasons which follow, we affirm.

The record shows that Webster and his family had leased the 1,200-acre farm owned by Marion Walker for over 30 years. John Walker, Sr. (“Walker”) was married to Marion Walker, who had given him power of attorney to handle her affairs, including the right to sell the 1,200-acre farm. In the winter of 1988, Walker gave Webster a verbal right of first refusal to purchase the property in the event it was sold. Webster subsequently made valuable improvements to the property and remained in possession of the property. Walker and Webster discussed the right of first refusal repeatedly over the years, and Walker restated it in 1993. Webster admitted the right of first refusal was of unspecified duration, without specific terms, and without any consideration.

On August 25, 1993, John Walker signed a real estate listing agreement for the property with Ann Harden. Walker testified that he repeatedly discussed Webster’s right of first refusal with Harden and wrote the following sentence on his copy of the listing agreement at Harden’s office and in her presence: “It’s understood that Lee Webster has first refusal on this property.” The original listing agreement did not contain this sentence.

Shivers testified that on August 27, 1993, he signed an option to purchase the property and gave $1,000 to Ann Harden. Walker admitted that his signature is on Shivers’ option agreement. He testified, however, that he did not recall reading or signing the option. According to Walker, he met with Harden and Shivers and informed Shivers that Webster had the right of first refusal.

Shivers denied that he was informed of Webster’s right of first refusal and testified that the only thing discussed during his meeting with Harden and Walker was the termination of the farm lease. Shivers’ written option did not disclose Webster’s right of first refusal, but contained a merger clause providing that neither party was liable for any agreements not included in the option. According to Shivers, Walker subsequently signed a second written agreement on August 30, 1993, extending the option period for an additional 30 days. This agreement likewise did not disclose any right of first refusal.

Walker testified that on the recommendation of Ann Harden and her husband, who was an attorney, he wrote Webster on August 30, 1993. The letter confirmed Webster’s right of first refusal and provided him with instructions regarding how to exercise the right. According to the letter, Webster had until September 10, 1993, to advise Walker if he wished to purchase the property. According to Walker, Ann Harden’s secretary, whose name was Owens, wrote and typed the letter to Webster, which was approved by Ann and Doc Harden. The letter, dated August 30, 1993, contains the notation “JWW:ro” on the bottom. At trial, however, Doc Harden testified that he did not see the letter, and Ann Harden did not testify.

After receiving the August 30, 1993 letter, Webster met with Walker on September 4, 1993, and gave him a $5,000 check as down-payment on the property. Webster and Walker subsequently selected a closing attorney and agreed to close the sale by the end of the week. Webster checked the courthouse records and found that title was clear. He also attempted to record the August 30, 1993 letter from Walker, but could not because it was not notarized. On September 10, 1993, Webster secured a $250,000 cashier’s check to bring to the closing, which was scheduled for the following Monday. On Sunday, however, Webster was contacted regarding a problem with the closing, and he discovered on Monday that an option had been filed by Shivers on September 9, 1993, and that his purchase could not be closed. Webster tendered the $250,000 cashier’s check to Walker, but the tender was not accepted. Webster testified he had no prior knowledge of any dealings between Walker and Shivers.

Subsequently, Shivers informed Walker by letter dated September 13, 1993, of his intent to exercise the written option and scheduled a closing. On September 28, 1993, Shivers tendered the $500,000 purchase price to Walker’s attorney, but Walker refused to convey the warranty deed.

Both Webster and Shivers filed complaints for specific performance, which were consolidated. Shivers appeals from a jury verdict in Webster’s favor.

1. We note intitially that Shivers has violated Court of Appeals Rule 27 (c) (1) by combining his first ten enumerations into a single argument. “Accordingly, we shall consider the enumerations en masse, as treated by [Shivers]. Any enumeration not so treated in this opinion is deemed abandoned by [Shivers]. [Cit.]” McMullan v. Georgia Girl Fashions, 180 Ga. App. 228, 229 (2) (348 SE2d 748) (1986).

According to Shivers, the overriding issue presented by his first ten enumerations is whether “the trial court erred in denying [his] motion in limine which sought to exclude evidence which added to and contradicted two valid written contracts which are at the heart of this controversy.” This statement, however, mischaracterizes the real issue in the case: whether a prior oral contract for right of first refusal entitles a party to specific performance in the presence of a subsequent written contract for sale of land.

This case involves more than just a parol evidence question. It involves two different parties with two different contracts. Shivers sought to exclude as parol evidence Walker’s testimony that Walker informed Shivers of Webster’s right of first refusal, as well as Walker’s copy of the listing agreement on which he wrote that Webster had a right of first refusal. This evidence, however, was admissible not to vary the terms of the contract between Shivers and Walker, but to show what knowledge, if any, Shivers had of Webster’s rights. “Questions of the relevancy of evidence are for the court. [Cit.] When facts are such that the jury, if permitted to hear them, may or may not make an inference pertinent to the issue, according to the view they may take of them, in connection with the other facts in evidence, they are such that the jury ought to be permitted to hear them. [Cits.]” Ackerman/Adair Realty Co. v. Coppedge, 155 Ga. App. 903, 907 (2) (273 SE2d 645) (1980). Furthermore, evidence inadmissible for one purpose may be relevant and admissible for another purpose. Gordon v. Gordon, 133 Ga. App. 520, 521 (1) (211 SE2d 374) (1974). Here, the evidence was admissible on the issue of Shivers’ knowledge. The jury could then decide whether Shivers knew about Webster’s claim or whether Shivers was put on notice and had a duty to further inquire into Webster’s claim.

While Shivers attempts to attack the validity of Webster’s oral contract, it is clear that specific performance of this parol contract can be decreed because Walker admitted the contract. OCGA § 23-2-131 (a). Shivers further argues that the merger clause in his written contract controls the case. As between Walker and Shivers, this may be true. However, Webster was not a party to this contract and is not bound by the terms of the agreement between Walker and Shivers. Webster seeks specific performance of his contract and shows that a jury could conclude from the evidence that Shivers had notice of Webster’s agreement with Walker.

Thompson v. Arrington, 209 Ga. 343 (72 SE2d 293) (1952), cited by Shivers as controlling authority, is distinguishable. The question in Thompson was whether an antecedent parol agreement between the grantor and grantee of an option had merged with the option agreement. While this case may control the issue between Shivers and Walker, it does not control the issue between Webster and Walker. In the present case, the question is, as between two parties with a contract, who is entitled to specific performance. Moreover, the cases cited by Shivers for the proposition that Webster’s oral agreement with Walker merged into the written contract are likewise inapplicable. While this proposition would apply as between Shivers and Walker, once again, Webster was not a party to this written contract.

Based on the foregoing and the liberal rule of admissibility in this state, we find no error in the trial court’s admission of the complained of evidence.

2. As in Division 1, Shivers violated Court of Appeals Rule 27 (c) (1) by combining enumerations of error 11, 12 and 13 into a single argument. Furthermore, enumerations of error 12 and 13, which alleged error in the number of jury strikes given to Webster and Walker and error in allowing Webster to present his case first, are not supported in Shivers’ brief by citation of authority or argument. Accordingly, these two enumerations are deemed abandoned. Court of Appeals Rule 27 (c) (2).

In his eleventh enumeration of error, Shivers contends the trial court erred in not realigning the parties for trial according to their respective interests. The trial court has broad discretion in determining how it will conduct a trial. See Hanie v. Barnett, 213 Ga. App. 158, 160 (1) (444 SE2d 336) (1994); Ellis v. Cameron & Barkley Co., 171 Ga. App. 211 (1) (319 SE2d 38) (1984). This includes wide discretion in assigning positions of the parties, especially where there are more than two sides and more than two parties. See Goforth v. Wigley, 178 Ga. App. 558, 561 (3) (343 SE2d 788) (1986). “The trial court’s exercise of that discretion will not be controlled unless it is abused. [Cit.]” Cohen v. William Goldberg & Co., 202 Ga. App. 172, 184 (7) (413 SE2d 759) (1991), vacated in part on other grounds, 207 Ga. App. 174 (428 SE2d 117) (1993).

In the present case, Shivers fails not only to recognize that he and Webster were two different plaintiffs with different theories of recovery, but also to demonstrate how the trial court’s refusal to realign the parties constituted an abuse of discretion. “ ‘Both error and harm must be shown affirmatively by the record before appellate relief is mandated.’ [Cit.]” Automated Drawing Systems v. Integrated Network Svcs., 214 Ga. App. 122, 124 (3) (447 SE2d 109) (1994). Accordingly, we will not reverse the trial court’s exercise of its discretion in this instance.

3. As in Divisions 1 and 2, Shivers violated Court of Appeals Rule 27 (c) (1) by combining enumerations of error 14, 15 and 16 into a single argument. However, since we can easily discern the separate arguments, we will address the enumerations.

In his fourteenth enumeration of error, Shivers asserts the trial court erred in allowing Webster to testify about conversations he had with Walker concerning the purchase of the 1,200 acres. Shivers argues that this testimony was irrelevant and constituted hearsay. However, the same testimony regarding Webster’s conversation with Walker was presented to the jury without objection when Walker’s deposition was read into evidence. Where evidence of comparable import is adduced in the trial without objection, the allowance of objectionable testimony is not reversible error. Goodyear Tire &c. Co. v. Johnson, 120 Ga. App. 395, 397 (2) (170 SE2d 869) (1969). Accordingly, we find no merit in this enumeration.

In his fifteenth enumeration, Shivers contends the trial court erred in allowing Webster’s witness Bill Craven to give his personal opinion about why Walker would sign an option with a third party that did not disclose the right of first refusal. According to Shivers, this testimony was speculative. However, following Shivers’ objection, counsel rephrased the question, which was asked and answered without objection. Thus, even if the court erred in allowing Craven’s initial answer, this error was rendered harmless by the introduction of comparable evidence admitted without objection. Goodyear Tire &c. Co., supra.

In his sixteenth enumeration of error, Shivers maintains the trial court erred in allowing witness Bill Craven to testify about Walker’s character. Shivers argues Walker’s character and his conduct in other transactions were irrelevant. However, the conduct of a party in other transactions is admissible if “the nature of the action involves such character and renders necessary or proper the investigation of such conduct.” OCGA § 24-2-2. An investigation into Walker’s character was proper in this case, which involved an oral promise. This is especially true in light of Doc Harden’s previous testimony that Walker, in his opinion, was not truthful about the existence of Webster’s right of first refusal. Moreover, as with the previous two enumerations, evidence of Walker’s reputation was admitted without objection during the trial.. Thus, this enumeration lacks merit. Goodyear Tire &c. Co., supra.

Decided January 16, 1997

Burnside, Wall, Daniel, Ellison & Revell, Thomas R. Burnside, Jr., Harry D. Revell, for appellant.

Dye, Tucker, Everitt, Wheale & Long, A. Rowland Dye, Glover & Blount, Percy J. Blount, for appellees.

4. In his seventeenth enumeration of error, Shivers contends the trial court erred in not submitting his requested special verdict form to the jury. Shivers argues that under OCGA § 9-11-49, the trial court should have used the special verdict form submitted by him. However, OCGA § 9-11-49 provides that the trial court “may” submit the case on a special verdict form. “In the absence of an abuse of discretion, this court would not reverse a trial judge in submitting a case for a general, rather than a special, verdict, and we find no abuse of discretion in the present case.” Pressley v. Jennings, 227 Ga. 366, 376 (20) (180 SE2d 896) (1971).

Judgment affirmed.

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


author: Judge Harold R. Banke. McMurray, Presiding Judge,

text:
    A96A1916.
    VASS v. GAINESVILLE BANK & TRUST.
    (480 SE2d 294)
   Judge Harold R. Banke.

Robert G. Vass, Sheriff of Hall County, appeals the summary judgment in favor of Gainesville Bank & Trust (“GBT”) and further contends that he is entitled to summary judgment as a matter of law.

All American Bonding Company, Inc. (“All American”) provided a standby letter of credit payable to Robert G. Vass, Sheriff of Hall County, in the amount of $100,000 to secure its outstanding bail bond obligations under OCGA § 17-6-15. GBT issued an irrevocable letter of credit (No. 146) to the Sheriff of Hall County on behalf of All American. The letter of credit became effective on April 18, 1993, and required that the Sheriff present a signed statement to GBT on or before April 18, 1994, certifying that the invoice(s) had been presented to All American for payment but remained unpaid for 30 days after presentment. The letter further required that claims made thereunder “must be presented on or before, 4/18/94, but subject to a claim made accuring [sic] prior to that date unless the Letter of Credit is cancelled by the Sheriff of Hall County.”

On April 7, 1994, shortly before the expiration of the letter of credit, Vass, as Sheriff, presented a written demand to All American, requesting payment of $46,079 for judgments for delinquent bail bonds pledged by All American. After All American refused this demand, Vass presented a written draft for payment under the letter of credit to GBT on April 18, 1994, the last day under the terms of the letter of credit. GBT refused to honor the demand because it was not worded properly. Meanwhile, All American contacted GBT and instructed the bank not to make any payment under the irrevocable letter of credit because 30 days had not passed since Vass presented the invoice(s) to it. All American cautioned GBT that it faced possible liability to All American if GBT made wrongful payment to Vass under the letter. Vass made another demand to GBT on May 9, this time certifying that the invoice had been unpaid for 30 days after its presentation to All American.

Following the rejection of the demands, Vass filed suit against GBT and All American seeking judgment for $46,079 plus interest. GBT cross-claimed against All American and its guarantors. The trial court granted summary judgment to GBT determining that Vass’s failure to strictly conform with the requirements of the letter of credit excused the bank from making payment. Held:

1. Vass contends that the trial court incorrectly applied the rules of contract construction to the letter of credit in that the letter is ambiguous and requires parol evidence to illuminate the parties’ intent.

Letters of credit are contracts and are subject to the same general principles that apply to other written contracts. First Nat. Bank of Atlanta v. Wynne, 149 Ga. App. 811, 816 (256 SE2d 383) (1979). According to the international document to which the letter was subject, “All credits must stipulate an expiry date for presentation of documents for payment, acceptance or negotiation” and subject to an exception not applicable here, “documents must be presented on or before such expiry date.” See Art. 46 (a) and (b) of the Uniform Customs and Practice for Documentary Credits. The letter of credit at issue specified “on or before April 18, 1994” as the expiry date.

It is undisputed that the demand although made on April 18, 1994, did not satisfy all the conditions precedent in that it failed to state that the invoices were “still unpaid 30 days after such presentation” but instead stated that “the attached invoices have been presented to All American Bonding Company for payment and payment has been refused by All American Bonding Company.” The omission of the requisite language was not due to an oversight. GBT’s branch manager, Gregory Langford, testified that Vass’s demand could not be worded otherwise because the invoices were not 30 days past due as of April 18. Vass’s failure to specify that the invoices had been presented to All American and were unpaid 30 days after such presentation is not a minor deviation from the conditions precedent for payment according to the letter of credit. Compare First Nat. Bank v. Wynne, 149 Ga. App. at 815-817.

GBT, as the issuer of the letter of credit, had a duty to examine the documents Vass submitted with care so as to ascertain that on their face they appeared to comply with the terms of the credit letter. OCGA § 11-5-109 (2). Because the documents submitted to GBT failed to strictly comply with the terms of the letter of credit, GBT had no obligation to honor Vass’s demand. Wynne, 149 Ga. App. at 814.

Vass contends that the misspelling or mistyping of “accuring,” created ambiguity as to the meaning of the phrase “must be presented on or before, 4/18/94, but subject to a claim made accuring [sic] prior to that date. . . .” He argues that the contracting parties intended to allow for claims accruing before April 18 but not fully maturing until after that date if the claims remained unpaid by All American for 30 days after presentment. Vass’s ambiguity argument is undercut by evidence that it was the Sheriff who specifically required and drafted the language used and also rejected the use of GBT’s standard form. Even if the meaning of “accuring” is ambiguous, any such ambiguity must be construed most strongly against the drafter of the contract, Vass. OCGA § 13-2-2 (5); Kennedy v. Brand Banking Co., 245 Ga. 496, 500 (2) (266 SE2d 154) (1980). Nor has Vass offered any evidence that the parties’ intent was contrary to the otherwise plain and unambiguous terms of the letter. In fact, Lang-ford testified that it was his understanding that under no circumstances would GBT have paid a claim after April 18.

Although the trial court agreed that the sentence containing “accuring” was ambiguous, it resolved the matter by using the established rule of construction that in the event of a conflict, the first provision prevails over the latter ambiguous language. Wilner’s, Inc. v. Fine, 153 Ga. App. 591, 594 (3) (266 SE2d 278) (1980). The court found all other aspects of the letter to be “clear, specific, and unambiguous.” Where the terms of a contract are otherwise plain on the face of the contract, and the trial court applies the applicable rules of construction to resolve an ambiguity, the construction of a contract remains a question of law for the trial court. Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700 (342 SE2d 308) (1986); OCGA § 13-2-1; see Westminster Group v. Perimeter 400 Partners, 218 Ga. App. 293, 294 (1) (460 SE2d 827) (1995). We find no error in the trial court’s interpretation of the contract. Therefore, GBT was entitled to summary judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

2. Because GBT was entitled to summary judgment, the trial court correctly denied Vass’s motion for summary judgment.

Judgment affirmed.

Birdsong, P. J., Beasley, Johnson and Smith, JJ, concur. Andrews, C. J, McMurray, P. J., Pope, P. J., and Blackburn, J., dissent.

McMurray, Presiding Judge,

dissenting.

As my application of the same authority differs from my colleagues in the majority, I respectfully dissent from the affirmance of summary judgment to defendant Gainesville Bank & Trust (“the Bank”) in Sheriff Vass’ contract action on a letter of credit issued by the Bank to secure the outstanding bail bond obligations of All American Bonding Company, Inc. to Hall County. I further dissent from the denial of summary judgment in favor of Sheriff Vass.

“[I]f from all the documents presented to the issuer . . . there is substantial compliance with the terms of the letter of credit and there is no possibility that the documents submitted could mislead the issuer to its detriment, there has been compliance with the letter of credit. [Cits.]” (Emphasis in original.) First Nat. Bank of Atlanta v. Wynne, 149 Ga. App. 811, 814 (1), 817 (256 SE2d 383). In my view, the failure to allege that the submitted invoices were “still unpaid 30 days after such presentation,” is not a material variance, upon which the issuing Bank proved that it reasonably relied to its detriment. Rather, such a condition precedent is an implied premise, subject to confirmation by amendment as events warrant. Otherwise, an overly strict application of this form of the notice requirement in the Bank’s letter of credit would make it impossible for the Sheriff to comply with that certification during the last 30 days of coverage. This would render the certain date of expiration superfluous and defeat the very purpose of issuing the letter of credit.

According to OCGA § 17-6-15 (b) (1), “the sheriff shall publish and make available written rules and regulations defining acceptable sureties and prescribing under what conditions sureties may be accepted.” These rules and regulations are deemed to constitute a part of the letter of credit issued to a bonding company to secure that bonding company’s obligations to the county, as if fully incorporated. “ ‘ “[W]hatever is included in [such a letter of credit] which is not thereby required must be read out, and whatever is not expressed and ought to have been incorporated must be read in, so as to conform to the requirements of the law.” ’ Home Indem. Co. v. Battey Machinery Co., 109 Ga. App. 322, [325 (2),] 326-327 [(2) (a)] (136 SE2d 193), and cases cited therein.” Wooten v. G. M. H. Auto Sales, 187 Ga. App. 331, 334-335 (2) (370 SE2d 165). In my view, Sheriff Vass reasonably interpreted the Bank’s form of an acceptable certification as permitting an amendment to show that invoices submitted by the certain expiration date were, 30 days thereafter, still unpaid. That interpretation gives meaning to the reasonable intentions of all parties and beneficiaries under the letter of credit, and consequently should be read into the letter of credit issued as security for the public obligations owed by All American Bonding Company to Hall County. I conclude that Sheriff Vass, and not the Bank, is entitled to summary judgment, because the Sheriff’s certification was in substantial compliance with the reasonable mutual intendment of the parties. As my colleagues in the majority would nevertheless affirm the unwarranted grant of summary judgment to the Bank, I respectfully dissent.

Decided January 16, 1997

Stewart, Melvin & Frost, William H. Blalock, Jr., for appellant.

Hulsey, Oliver & Mahar, Joseph D. Cooley III, Abbott S. Hayes, Jr., Douglas E. Smith, for appellee.

I am authorized to state that Chief Judge Andrews, Presiding Judge Pope, and Judge Blackburn join in this dissent.

       The two preceding letters of credit between the Sheriff of Hall County and GBT dated April 1992 and April 1991 also use the same spelling for “accuring.”


author: Birdsong, Presiding Judge. Beasley, Judge,

text:
    A96A2095.
    METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY v. MEHRETAB.
    (480 SE2d 310)
   Birdsong, Presiding Judge.

Metropolitan Atlanta Rapid Transit Authority (“MARTA”) appeals a judgment based on a jury verdict in favor of Mesfin Mehretab on his claims arising from an automobile accident in which a MARTA bus pulled into Mehretab’s lane of traffic and forced him off the road and into a sign. The witnesses testified that Mehretab and a MARTA bus were traveling in the same direction on a multilane street when a third vehicle pulled into the lane of travel of the MARTA bus. When the bus then pulled into Mehretab’s lane of travel, Mehretab ran off the road. The MARTA bus did not stop, and no MARTA bus driver admitted any role in the accident.

At the trial, the trial court initially gave a charge on sudden emergency, but upon Mehretab’s objection later withdrew the charge from the jury’s consideration. MARTA contends the trial court erred by withdrawing the defense of sudden emergency from the jury, by denying MARTA’s motion for a directed verdict, and by denying MARTA’s motion for judgment n.o.v. or in the alternative a new trial. Held-.

1. The trial court did not err by withdrawing the defense of sudden emergency. Although under appropriate circumstances, the defense of sudden emergency might be established without the testimony of the person faced with the emergency, this is not one of those cases. “The defense of emergency is not available unless the evidence shows that there has been a sudden peril caused by circumstances in which the defendant did not participate and which offered him a choice of conduct without time for thought so that negligence in his choice might be attributable not to lack of care but to lack of time to assess the situation. . . . The doctrine requires that the person confronted by the emergency have the opportunity to exercise one of several reasonable alternative courses of action. In the absence of such factors, there can be no conduct to which to apply the standard and the doctrine is inapplicable.” (Citation and punctuation omitted; emphasis in original.) Thomas v. Stairs, 215 Ga. App. 288, 289 (450 SE2d 326). Here there is no evidence a MARTA driver, while driving without negligence, perceived that he was faced with a sudden emergency and then exercised an unplanned choice in the matter. See Johnston v. Woody, 148 Ga. App. 152, 153 (250 SE2d 873). All the MARTA bus drivers called as witnesses, who drove the bus route on the day and time of the incident, denied having been involved in any such incident. This testimony effectively destroyed any claim of sudden emergency. Even if this testimony shows, as MARTA claims, the bus driver was unaware of the accident, that is not sufficient to establish this defense because there is no evidence that the MARTA driver was not himself negligent, actually was faced with an emergency, or took an unplanned choice. See Davis v. Calhoun, 128 Ga. App. 104, 105 (195 SE2d 759). Moreover, the blind spot, mentioned by the dissent, had nothing to do with this incident; the blind spot is immediately behind the bus in the same lane. Neither the white pickup truck nor Mehretab’s car was located in that position.

Although we do not disagree with the dissent’s basic proposition that a jury charge on sudden emergency does not require testimony from the person who may have faced a sudden peril and would agree that standing alone the testimony from the other witnesses would authorize a sudden emergency charge, we cannot agree that such a charge was authorized by the evidence in this case because of the drivers’ testimony. What the dissent proposes would allow MARTA to have its cake (by disclaiming any involvement in the collision before the jury) and eat it too (by claiming that if the MARTA bus did cause the collision, it was the result of a sudden emergency). Our law, however, does not allow that result. MARTA did not assert that some missing bus driver caused the collision; instead, it called all the drivers who might have been involved and had each of them testify that although they remembered driving that route on the day in question, they did not remember any white truck pulling into their lane and causing them to change lanes abruptly. Such testimony denies that any bus driver faced a sudden peril — the essential element of the defense of sudden emergency — and denies that MARTA’s driver made a choice of action without time for thought. See Thomas v. Stairs, supra; Johnson v. Woody, supra. By having its witnesses testify in this fashion, MARTA disproved the essential elements of the sudden emergency defense. Further, under the evidence MARTA presented denying any involvement in the incident, it is disingenuous to assert that MARTA did not deny that the incident took place. Unless MARTA’s purpose was to show that all of the bus drivers on the route that day had bad memories, what was the purpose of calling each of them to deny any recollection of a white pickup truck pulling into the drivers’ lane of travel? If MARTA truly wanted to show that the drivers were unaware that a car was forced off the road, why then was that question not asked?

There is no competent evidence establishing the defense of sudden emergency. The dissent’s reliance upon the other witnesses’ perception of the event is misplaced. The dissent assumes the MARTA driver shared these perceptions and assumes these perceptions caused the bus driver’s actions. This focus, however, ignores the bus drivers’ denials that they were involved in any incident. Although it is possible a bus driver faced the emergency the witnesses perceived and acted as these witnesses believe (and forgot it happened or lied about it on the witness stand), it is equally possible the bus driver involved did not consider the white pickup truck pulling into his lane as an emergency, pulled into Mehretab’s lane for some other reason, and negligently caused Mehretab to hit the sign. The testimony of these other witnesses is perfectly consistent with either possibility. Yet, to find a charge on sudden emergency warranted from this testimony, however, one must accept the first possibility as established fact, and reject the second. That cannot be done.

Although the witnesses’ testimony about what they saw is direct evidence, their testimony explaining why these events occurred, and particularly why the bus driver pulled into the other lane, is only their inadmissible guess about the bus driver’s motivation. At best, this testimony might be circumstantial evidence from which one could infer that the bus driver was faced with a sudden emergency and acted for that reason. Because this testimony is circumstantial evidence, however, it cannot overcome the unimpeached, direct evidence from MARTA’s bus drivers that none of them faced the sudden emergency.

“The test is whether the circumstantial evidence is ‘perfectly consistent’ or ‘inconsistent’ with the direct evidence. Circumstantial evidence which could be taken as inconsistent with the direct, positive testimony is sufficient to get the case to a jury. However, the rule where the circumstantial evidence is consistent with the direct, positive testimony is different. Circumstantial evidence from which the existence of a fact might be inferred, but which did not demand a finding for [MARTA] to that effect, will not support a verdict, when by positive and uncontradicted testimony of unimpeached witnesses, which was perfectly consistent with the circumstantial evidence relied on by [MARTA], it was affirmatively shown that no such fact existed.” (Citation and punctuation omitted; emphasis in original.) Douglas v. Gilbert, 195 Ga. App. 796, 798 (395 SE2d 9). Consequently, the testimony from the other witnesses was not evidence sufficient to warrant a charge on sudden emergency.

In reaching this result, we recognize that a jury charge is authorized if some evidence exists from which a legitimate process of reasoning can be carried on in respect to the charge even if the great preponderance of the evidence is to the contrary. Lyles v. State, 130 Ga. 294 (60 SE 578); T.G.&Y. Stores Co. v. Waters, 175 Ga. App. 884, 886 (334 SE2d 910). In this case, however, the testimony of the other witnesses simply was not such evidence.

Because MARTA’s motion for a new trial was based upon the trial court’s withdrawing this defense from the jury, the trial court also did not err by denying the motion for new trial.

2. MARTA’s contention that the trial court erred by denying its motions for a directed verdict and judgment n.o.v. because Mehretab’s evidence did not show that MARTA was negligent is also without merit. “In determining whether the trial court erred by denying appellants’ motions for a directed verdict and motion for judgment n.o.v., this court must view and resolve the evidence and any doubt or ambiguity in favor of the verdict. A directed verdict (and judgment n.o.v.) is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.” (Citations and punctuation omitted; emphasis in original.) Southern Store &c. Co. v. Maddox, 195 Ga. App. 2, 3 (392 SE2d 268). “The motion for judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a ‘one-way’ verdict proper, judgment n.o.v. should not be awarded. In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict. And this approach governs the actions of appellate courts as well as trial courts.” (Citations and punctuation omitted.) Denson v. City of Atlanta, 202 Ga. App. 325, 326 (414 SE2d 312). As the witnesses testified that the MARTA bus suddenly veered into Mehretab’s lane of traffic causing him to run off the road, it cannot be said that no evidence supported Mehretab’s negligence claim against MARTA. Therefore, the trial court properly submitted the issue to the jury, and then did not err by denying the motion for judgment n.o.v.

Judgment affirmed.

McMurray, P. J., Johnson, Blackburn, Smith and Ruffin, JJ, concur. Andrews, C. J., Pope, P. J., and Beasley, J., dissent.

Beasley, Judge,

dissenting.

I agree that defendant was not entitled to a directed verdict or judgment n.o.v., as held in Division 2, but it is entitled to a new trial in which the jury is permitted to consider the defense of sudden emergency, contrary to the holding in Division 1.

Two of plaintiff’s witnesses saw the incident occur. They were bystanders, sitting on the second-story deck of the restaurant in front of which plaintiff collided with the pole bearing the restaurant sign. Both testified that a white pickup truck which was to the left of the bus and partially ahead of it suddenly turned to the right, cutting off the forward movement of the bus. The bus driver reacted by moving the bus to the right, which caused plaintiff, in a 1992 Honda Accord traveling next to the bus, to also turn to the right to avoid the bus. He hit his brakes, skidded, and hit the pole.

Witness Davis testified that the truck “cut off the bus and the bus reacted by swerving, eventually into . . . the far right lane. . . . [The truck] was almost past [the bus] when it moved over, but it wasn’t quite. All I know is that if the bus had not reacted, the truck would have struck the bus if the bus did not react.” When asked whether he observed any reason the bus driver did not slow for the truck and let it into the center lane, the witness responded: “Well, first of all, the truck, it didn’t — it looked like the truck just all of a sudden said, Whoa. I got to get over, and I am going to do this. I don’t remember seeing blinkers or anything. I just remember that it just immediately took a bolt into the next lane, you know.”

Witness Woodall, who had been idly watching the vehicles come up the street, saw the truck come into the bus driver’s lane and the bus move into the curb lane as a result. The front of plaintiff’s car was about midway the length of the bus. When the truck cut in front of the bus, it appeared that the bus driver “just turned the wheel to get over from hitting the truck and going into the other lane.” The truck had not cleared the bus when it turned into the center lane, “[s]o when the truck came over, the bus went over.” Part of the truck was still beside the bus when “the truck darted in front of the bus.” When asked what would have happened if the bus had not moved to the right, witness Woodall stated: “The bus would have ate the truck if he wouldn’t have moved. Excuse my slang.” He explained: “If the bus wouldn’t have come over, the bus would have collided with the truck. There would have been no way. The only way he could have stopped it was either slowing down or moving out of its way, and he moved out of its way instead of slowing down.” All of this happened very quickly. He told the officer on the scene that the “white pickup truck ran MARTA bus over into plaintiff’s lane.”

These two witnesses had a clear view of the occurrence. Plaintiff himself testified that he noticed the white truck “trying to be fast going in and out in between [vehicles] . . . and . . . just switching the lanes” as the traffic moved up the street. The driver appeared to be trying to get in front of everybody and seemed to be in a hurry. Plaintiff was beside the rear of the bus, when the bus “jumped” into his lane, without using turn signal or horn, and stayed in that lane as it moved up the street. It did not hit plaintiff’s car. Plaintiff could not see the truck when it was on the other side of the bus so he did not observe its movement, although he agreed that when the case was first filed, he alleged that “the pickup truck immediately to the left of the MARTA bus suddenly and without warning came into the lane of the MARTA bus.” He explained that he was not 100 percent sure how it happened, but he guessed that is what occurred because he saw the truck and saw it zigzagging, “and my understanding maybe that truck pulled on the side of him and forcing, but how it happened, how the transaction, whatever the thing happened, I don’t have any clue.” When the bus moved into his lane, he shifted the clutch and put on the brake and the hand brake and hit the pole.

The majority concludes that MARTA was not entitled to a charge on sudden emergency because it disclaimed any involvement in the accident, in that it called the seven drivers who drove buses that afternoon on that route and had each of them affirmatively deny that any white truck suddenly pulled into their lane. The record shows that the MARTA bus drivers did not give such testimony. Rather, they testified that they did not recall such an incident. None was aware of it. One of the drivers did testify that he saw the wrecked car against the pole when traveling in the opposite direction later, going into Atlanta. This driver also testified that when driving the bus, there is a blind spot behind it. Thus, MARTA did not deny that the incident took place. In fact, it relies on the testimony of bystanders with respect to how it occurred.

Thus there was direct physical evidence in the form of what the eyewitnesses saw occur, which supported the theory that the bus driver was faced with a sudden emergency created by the driver of the pickup truck, and there was no evidence to contradict it. This evidence also provided a reason for the bus driver’s action. Of course, whether the action taken was negligent or not is a jury question, but the law does not require the actor himself to testify that he was confronted with a sudden emergency. A sudden emergency “ ‘may properly be defined as any event or combination of circumstances which call for immediate action without giving time for the deliberate exercise of judgment or discretion, in short, an exigency.’ ” (Citation omitted.) Ware v. Alston, 112 Ga. App. 627, 629 (145 SE2d 721) (1965). See also Luke v. Spicer, 194 Ga. App. 183, 184 (3) (390 SE2d 267) (1990). There is no reason that proof of the event or combination of circumstances which creates the emergency cannot be established by the testimony of observers. What was seen in the instant case to occur is evidence that a sudden emergency was presented to the bus driver by the veering of the truck into the bus driver’s lane, that the bus driver realized that the truck would hit the bus if some evasive action was not taken, and that he chose to move the bus away from the advancing truck into the next lane, which was empty adjacent to the front of the bus. There is no evidence that the bus driver knew, or should have known, that plaintiff was at the rear of the bus when the bus driver moved the bus to avoid a collision with the truck. The bystanders watched the situation develop, watched the emergency materialize, and observed what the bus driver did to avert it. I do not agree with the majority that “there is no evidence the MAKTA driver, while driving without negligence, perceived that he was faced with a sudden emergency and exercised an unplanned choice in the matter.”

Indeed, the actor may be killed in the incident brought about by the sudden emergency, or may suffer loss of memory due to injuries sustained, or may die following the incident but prior to trial. This handicap does not preclude the establishment of the existence of a sudden emergency. The physical factors are what establish it, and others who witness it can testify that it existed. The persuasiveness of their testimony depends on their vantage point, attention, and clarity of vision, as well as upon the strength of recollection and honesty which is common to all witnesses. Pollard v. Weeks, 60 Ga. App. 664, 672-673 (1) (4 SE2d 722) (1939), is a case in which sudden emergency was deemed provable by evidence other than by the person who was faced with it, acted, and was killed. As the Court reasoned, the plaintiff’s decedent “was called on to act quickly under circumstances which might reasonably be found by a jury to constitute an emergency, a situation caused by the alleged negligence of the defendant. Whether or not, in the manner he responded, he was entirely free from negligence or could have avoided the consequences of the extraordinary risk which the jury would be authorized to find was present, and whether or not he was guilty of any contributory negligence, are questions for the jury.” Id. at 673.

Bryant v. Ga. R. &c. Co., 162 Ga. 511 (134 SE 319) (1926), is another case in which sudden emergency was shown by the testimony of eyewitnesses and not by testimony of the person who was faced with it. In that instance, too, the latter was killed, and the suit was brought by his widow.

The court in Mehretab’s case charged the jury on the defense of sudden emergency but, after discussion following plaintiff’s objection to it, recharged the jury to eliminate consideration of this doctrine. The court explained that it was inapplicable because there was no testimony from the driver, and the driver himself or herself had to testify that the action taken was upon realization of peril. The withdrawal of this defense was material to the jury’s deliberation, as demonstrated by its request for clarity on the definition of sudden emergency before the court withdrew the charge.

Decided January 16, 1997

David R. Autry, for appellant.

Andrew W. Estes, E. Graydon Shuford, for appellee.

Circumstantial evidence of motive and intent is frequently admitted, when that is an issue. See Unden v. State, 218 Ga. App. 463, 465 (2) (462 SE2d 408) (1995). Although there is no direct evidence as to why the bus driver did not brake, there is evidence to explain why the bus driver moved the bus into the right lane. Even plaintiff used the word “forcing” in referring to the movement of the truck in relation to the forward moving bus.

The act of a third party may cause “a sudden emergency which forces a driver to choose one of two courses of conduct, either of which would, in the absence of such emergency, constitute negligence or a violation of a statute, but which, because of the emergency, becomes necessary either in self-defense or to avoid a greater injury than that which in fact resulted.” Cruse v. Taylor, 89 Ga. App. 611, 617 (2) (80 SE2d 704) (1954).

The majority also concludes that the testimony of the eyewitnesses to the accident would not support a charge on sudden emergency, because their testimony is “perfectly consistent” with either of two possibilities: (1) that a bus driver faced the emergency the witnesses perceived and acted as these witnesses believed, or (2) that the bus driver involved was unaware of any emergency and negligently caused Mehretab to hit the sign. While the eyewitnesses’ testimony technically does not exclude the second possibility, a jury could find that it preponderates toward the first. To hold that such testimony does not warrant a charge on sudden emergency is to embrace the very proposition which the majority purports to reject, i.e., that a jury charge on sudden emergency does not require testimony from the person who may have faced a sudden peril.

I am authorized to state that Chief Judge Andrews and Presiding Judge Pope join in this dissent.


author: Judge Harold R. Banke.

text:
    A96A2222.
    INGRAM v. THE STATE.
    (480 SE2d 302)
   Judge Harold R. Banke.

William L. Ingram was convicted of 11 counts of forgery in the second degree. Following the denial of his motion for new trial, Ingram alleges three errors.

This case arose after members of a metro fugitive squad arrested Ingram when he came to the Powerco Federal Credit Union to sign some loan documents and presented himself as Ronald Cooperman. While executing a search warrant at Ingram’s apartment for a related investigation, police discovered several temporary Georgia driver’s licenses, Southern Bell calling cards, an automatic teller machine card, and various credit and identification cards which had been issued in other persons’ names. On some documents Ingram’s photograph appeared accompanied by someone else’s name.

Shortly after Ingram’s arrest at the credit union, he was extradited to South Carolina to answer several fraud charges and was subsequently extradited to Oklahoma to face pending federal charges. When the United States Attorney in Tulsa dismissed the federal charges, he contacted the DeKalb County District Attorney’s office which indicated it wanted Ingram extradited here. Following his extradition from Oklahoma, Ingram was prosecuted under an 11 count accusation. Held:

1. The trial court did not err in allowing the State to prosecute Ingram on an accusation rather than an indictment. OCGA § 17-7-70.1 (a) permits prosecution by accusation for the offense of forgery in the second degree, so no indictment was required. As to Ingram’s claim that his convictions must be reversed because the accusation was not supported by an affidavit, we find that issue was not preserved for appeal. The record indisputably shows that Ingram failed to object to the lack of an affidavit and only objected to being tried without having first been indicted. See OCGA § 17-7-70.1 (a); compare McBride v. State, 213 Ga. App. 857, 860 (8) (446 SE2d 193) (1994). An objection not raised at trial cannot be raised for the first time on appeal as it is deemed waived. Jacobson v. State, 201 Ga. App. 749, 751 (2) (b) (412 SE2d 859) (1991).

For the first time and notwithstanding his repeated claims that his constitutional rights were violated because he was prosecuted without having been indicted, Ingram now alleges that the State violated OCGA § 17-7-70.1 (d) by proceeding on an accusation after a grand jury heard evidence and returned an indictment against him. Ingram’s failure to raise and preserve this issue below forecloses appellate review. Jacobson, 201 Ga. App. at 751 (2) (b).

2. Ingram cannot raise for the first time on appeal a complaint that hearsay testimony was elicited during his cross-examination of the State’s witnesses. Morgan v. State, 212 Ga. App. 394, 395 (1) (442 SE2d 257) (1994). The trial court had cautioned Ingram about the perils of discharging his appointed counsel and proceeding pro se. Ingram’s failure to object to the comments he inadvertently elicited precludes appellate review. Jefferson v. State, 157 Ga. App. 324, 326 (2) (277 SE2d 317) (1981).

Decided January 16, 1997.

Paul J. McCord, for appellant.

J. Tom Morgan, District Attorney, Desiree S. Peagler, Keith E. Adams, Assistant District Attorneys, for appellee.

3. The trial court properly determined that Ingram’s statutory speedy trial demand was untimely. Ingram filed a speedy trial demand on October 23, 1995. OCGA § 17-7-170 requires that a demand for trial be entered at the court term in which the accusation is filed or at the next succeeding regular court term thereafter unless the court grants special permission. It is undisputed that the accusation at issue is file stamped March 14, 1995. The terms of court in the Stone Mountain Judicial Circuit begin on the first Mondays of January, March, May, July, September, and November. OCGA § 15-6-3 (37). Because Ingram’s demand was not filed within the statutory time period and the trial court did not grant special permission for an untimely filing, the denial of the demand was proper. OCGA § 17-7-170 (a).

Ingram further alleges that his constitutional right to a speedy trial was violated due to the State’s delay in prosecuting him. Even assuming that this challenge was properly asserted, the facts negate his constitutional argument. Although an accusation was filed in March 1995, the State could not prosecute Ingram until he was extradited back to Georgia on September 28, 1995. Ingram was tried less than five months later. Inasmuch as Ingram presented no evidence that the length of delay was unreasonable, that the delay was the product of deliberate action by the State and that he was actually prejudiced, his claim necessarily fails. See Ould v. State, 186 Ga. App. 55, 56 (2) (366 SE2d 392) (1988).

Judgment affirmed.

McMurray, P. J., and Johnson, J, concur.


author: McMurray, Presiding Judge.

text:
    A96A2370.
    FLANAGAN v. THE STATE.
    (480 SE2d 299)
   McMurray, Presiding Judge.

Defendant was convicted of child molestation following a jury trial at which he represented himself. The trial court denied defendant’s motion for new trial because defendant failed to qualify for a court-appointed attorney under the county’s indigency standard. This judgment was disapproved in Flanagan v. State, 218 Ga. App. 598 (462 SE2d 469), and the case was remanded for the trial court to exercise discretion in determining whether defendant (an “almost” illiterate chicken coop builder) was fairly compelled to trial without an attorney. To assist this determination, this Court directed the trial court to consider factors such as defendant’s diligence in obtaining an attorney’s services, defendant’s purported illiteracy and the trial court’s power to appoint counsel and order defendant to reimburse the county for the cost of any such appointment. Id. at 600-601. This Court also observed that a “review of the record, particularly defendant’s colloquy with the [trial court] immediately prior to his trial, [makes] it . . . clear that defendant preferred to have an attorney and only ‘chose’ to represent himself because he could not afford one.” Id.

After conducting a hearing upon remand, the trial court entered the following findings of fact and conclusions of law: “Reasonable diligence in attempting to employ counsel is one circumstance to be evaluated. On this issue the court finds that the defendant (or members of this family) contacted several attorneys and obtained fee quotes after the defendant was denied appointment of counsel because of his income. The defendant did not have cash on hand (or property readily convertible to cash) to pay the entire fee of any fee quoted. The defendant sought to borrow money from his employer about a month before trial (who agreed to loan him $1,200.00). The defendant did not ask for a larger loan because he says he knew his employer would not loan him any more. He attempted to borrow money from family members who had no money to loan him. He did not attempt to borrow money from friends, a bank or other commercial lender.

“The court has no evidence before it from which it may be concluded that the defendant could not have obtained a loan sufficient to pay an attorney’s fee if he had made the effort. There is no evidence of efforts to obtain a loan from friends, or that there were no friends to ask. There is no evidence that the defendant asked his employer for any more than the original $1,200.00 he loaned when it was thought that amount would retain an attorney. In fact, the evidence is that no such an attempt was made, with the defendant guessing as to the probable outcome. There is no evidence of any attempt to borrow from a commercial lender. While it is likely some lenders would have required collateral (which the defendant did not have), some lenders may not have. The court simply cannot assume the defendant would have been unsuccessful in obtaining a loan if he had made the effort to do so.

“The court now turns to the issue of the defendant’s eighth-grade education, specifically the effect of his limited' ability to read and write on the exercise of the court’s discretion to appoint or not appoint counsel. Clearly, one with an eighth-grade education will rarely conduct a defense of himself in a criminal case as effectively as a lawyer could. In most instances, the same thing can be said with one with a high school education, or even a college degree. But, it is not one’s ability to act in their own behalf in a criminal prosecution that is at issue here. At issue is whether the defendant’s inability to obtain counsel is due to special circumstances. Specifically, [Uniform Superior Court Rule] 29.5 provides in part: ‘(t)he court may appoint counsel for representation of any accused person who is unable to obtain counsel due to special circumstances such as emergency, hardship, or documented refusal of the case by members of the private bar because of financial inability to pay for counsel.’

“The defendant failed to exercise reasonable diligence in attempting to employ counsel. Should he be excused, or should a lower standard be applied because of the defendant’s limited ability to read and write? The amicus curiae brief. . . describes well some of the difficulties an illiterate person would have in successfully working their way through the criminal justice system. But again, the issue before the court is more narrow than that. It is whether the defendant’s limited formal education caused or materially contributed to his inability to obtain counsel. On this issue there is no evidence that the defendant’s failure to ask his employer for a further loan, to ask friends for a loan, or to apply for a loan with a business engaged in making loans was caused by his limited education or that his limited education materially contributed to his failure to do any of those things. Again, the court cannot simply make assumptions not supported by the evidence.”

This appeal followed the denial of defendant’s motion for new trial. Held:

Article I, Section I, Paragraph XTV of the 1983 Georgia Constitution provides that “[e]very person charged with an offense against the laws of this state shall have the privilege and benefit of counsel. . . .” And while a non-indigent defendant may forfeit this right by failing to act with reasonable diligence in obtaining an attorney’s services, Hasty v. State, 215 Ga. App. 155, 156 (1), 157 (450 SE2d 278), the trial court must exercise discretion in resolving the “reasonable diligence” issue by considering all factors which militate for or against the appointment of counsel — including the fairness of forcing a low income illiterate to trial without an attorney in light of the trial court’s power to appoint counsel and require the non-indigent to reimburse the county for any such representation. Flanagan v. State, 218 Ga. App. 598, 600-601, supra. Of course, the trial court’s judgment in such matters is reversible only upon a manifest abuse of discretion. See Shaw v. State, 251 Ga. 109, 111 (303 SE2d 448), and Hasty v. State, 215 Ga. App. 155, 156 (1), supra.

As recognized in the opinion resulting from the first appearance of the case sub judice in this Court, defendant earned a gross monthly income before trial of $1,169 and defendant and his family contacted several attorneys before trial and discovered that none would represent him at trial for less than $5,000. Flanagan v. State, 218 Ga. App. 598, 599, supra. Further, the trial court’s findings of fact and conclusions of law recognize that defendant had no assets before trial; that defendant’s employer loaned him $1,200 before trial — a little over a month’s wages; that defendant’s family had no money to loan and that defendant has an eighth grade education and limited reading and writing abilities. Moreover, defendant testified at the motion for new trial hearing conducted after remand of this case to the trial court that one attorney refused to extend him credit even though defendant presented this attorney with a $1,200 down payment. Nonetheless, the trial court concluded — based on a silent record — that defendant could have raised the extra $3,800 he needed to hire an attorney had he asked to borrow the money from his employer, a friend or a lender. We find this judgment speculative and not in line with the reality of defendant’s circumstances.

Although it is undisputed that defendant’s employer had already advanced defendant more than a month’s wages ($1,200), defendant testified that his relationship with his employer was not such that he could successfully obtain an additional $3,800 advance on his wages. We find defendant’s estimation of his employer’s generosity plausible in light of the fact that defendant would have been asking for an aggregate loan well over four times defendant’s gross monthly income near the eve of a trial which threatened defendant’s future ability to work. (That is, defendant faced long-term incarceration if convicted.) Further, there is no proof that defendant had any friends to help him before trial, much less a friend with $3,800. And evidence of defendant’s relatively low educational and economic standing in the community, along with a lack of proof regarding defendant’s ability to persuade or coerce others to loan him $3,800, indicated little hope of defendant’s ability to raise such revenue before trial. Finally, it appears that no responsible lender would extend a $3,800 attorney fee loan to an individual with a credit handicap such as defendant — an “almost” illiterate chicken coop builder who owed his employer $1,200, owned or had access to no collateral, had a gross income of less than $295 per week and faced felony charges which diminished the prospects of defendant’s future ability to produce income.

The circumstances in the case sub judice — including the trial court’s failure to consider its power to order defendant to reimburse the county for the cost of a court-appointed attorney — persuades us that the trial court not only manifestly abused its discretion in finding that defendant failed to act reasonably in attempting to raise the money required to retain an attorney, the evidence adduced at the motion for new trial hearing conducted after the first appearance of this case in the Court of Appeals does nothing to change the view enunciated in Flanagan v. State, 218 Ga. App. 598, supra, “that defendant preferred to have an attorney and only ‘chose’ to represent himself because he could not afford one.” Id. at 600. Consequently, the trial court erred in denying defendant’s motion for new trial.

Decided January 16, 1997.

Valpey & Walker, Gregory W. Valpey, for appellant.

Lydia J. Sartain, District Attorney, for appellee.

Chambliss & Bahner, T. Maxfield Bahner, amicus curiae.

Judgment reversed.

Johnson and Ruffin, JJ, concur.


text:
    A96A2487.
    PORTER v. THE STATE.
    (480 SE2d 291)
   McMurray, Presiding Judge.

Defendant was charged in an indictment in Count 1 with “CRIMINAL ATTEMPT — THEFT BY TAKING MOTOR VEHICLE,” in that he “enter[ed] a 1987 Cadillac, a motor vehicle, property of Shervan Lee Wilson, and [broke] the steering column of said vehicle!.]” Defendant was further charged in Count 2 with “OBSTRUCTION OF AN OFFICER,” in that he fled from arrest. At defendant’s jury trial, Ray Earl Carter .testified that about 1:00 a.m. on September 20, 1995, as he was watching the news on television, he observed a brown Cadillac automobile slowly cruise up and down the street in front of his apartment. “And then when it got to this end [of the street] down here, [he] saw it turn the lights out and come back up this street here and park.” Mr. Carter then “saw two individuals walking down the walkway [after exiting the brown Cadillac. Mr. Carter was suspicious because he knew] most of the people in [his] complex and they didn’t look . . . like anybody [he] knew. . . .” “One was a male, . . . about 6’1”. The other was a male, . . . about 5T0” . . ■. They started walking down towards building G. When they got to building G, they stopped in front of a car which was a Cadillac, a white Eldorado Cadillac.” “When they got to that car, they started turning and looking around like they were trying to find out if somebody was watching them.” “It looked suspicious. . . . When they got to the car, [Mr. Carter] dialed 9-1-1.” Mr. Carter “saw them get inside the Cadillac, which he knew the owner.” “The 6T” . . . gentleman got on the driver’s side. The 5’10” . . . gentleman got on the passenger’s side.” Mr. Carter is “from California. And the guy that owns the [white] car, he’s from California.. . . And [Mr. Carter] knew that was somebody else in his car. It wasn’t him. [Mr. Carter] knew it.” The two men were inside the car “[t]hree to five minutes.” In response to Mr. Carter’s call to 9-1-1, two units from the Clayton County Police came to the scene. As the police pulled up to the white car, Mr. Carter “saw the two gentlemen exit the car on each side and run through the breezeway. . . .”

Officer David Brian Hardwick, a Clayton County police officer, “and Officer Smithwick were dispatched [in separate cars] to Lake of the Woods apartments on a call of. . . entering auto in progress or a theft of auto in progress.” “When [they] arrived, Officer Smithwick pulled in directly behind the white Cadillac, as if to block it in. Simultaneously, as he did that, [Officer Hardwick] observed two heads. . . . When Officer Smithwick pulled up, [Officer Hardwick] saw a head pop up here and a head pop up here.” “The one on the driver’s side of the vehicle was the tallest.” “At that point, they looked and saw the police vehicle. They stood up and fled on foot.” “[The officers] lost visual of the subjects in that wood line. However, [Officer Hardwick] could still here [sic] them running for a period of time. Then the running stopped.” A “helicopter came over and was searching once [the police] had the perimeter set up.” “In approximately ten minutes after [the police] lost visual, they [the suspects] were located down in this area in some thick brush laying down, down in some briars covered up. Both subjects were located within about ten feet of each other, laying down in the briars.” Officer Hard-wick identified defendant as “[t]he person [he] saw when [that person] popped out of the driver’s side of the vehicle. . . .” Defendant was also identified as that “person [Officer Hardwick] found ... in the woods. . . .” Once “the subjects were secured, [Officer Hardwick] went back and looked at the vehicle. The steering column of the vehicle was damaged, as if there was an attempt to hot wire the vehicle.” In Officer Hardwick’s experience, “the subjects were attempting to steal that vehicle. There’s no other motive for doing damage to the steering column other than attempting to steal the vehicle.”

Shervan Lee Wilson, the owner of a white and gold 1987 Cadillac Eldorado, testified that on the evening of September 19,1995, his car doors “were locked.” When he next examined the car, he “noticed that the steering column was broke.” Officer Alan Edward Smithwick of the Clayton County Police Department “saw Officer Hardwick enter the breezeway following two . . . males. . . .” He affirmed that “the people [he and Officer Hardwick] arrested fit the description of the people [they had] chased. . . .” Officer Smithwick “recognize[d] [defendant as] the person that Officer Hardwick took down[.]”

Faheem Ameer Reed was called as a defense witness and admitted persuading defendant to drive him to that particular apartment complex. Faheem Ameer Reed “[n]ever [told defendant] that he [was] planning on stealing the car[; rather, . . . Faheem Ameer Reed] was lying to [defendant] the whole time about this just so that [defendant] would take [him] to the apartments.” Defendant took the stand and denied any knowing involvement in his companion’s attempted theft of the vehicle. He confirmed that, as the police approached, they “had their lights off, their headlights off. It wasn’t no sirens on; it was just like the blue [strobe light on] top of the car.” Defendant was “running with him[, i.e., the companion], but . . . didn’t run the same path he ran. [Defendant] ran at the opposite, around the building.” Defendant further conceded: “I’m taller than Faheem. I’m taller than Reed.”

The jury found defendant guilty of both charges and he was sentenced to serve ten years as to Count 1 and a concurrent twelve months to serve as to Count 2. His motion for new trial was denied and this appeal followed. Held:

1. Defendant’s second enumeration contends the trial court erred “in re-opening the State’s case. ...”

In this regard, the record shows that Officer Smithwick failed to abide by a subpoena to appear and testify at trial. At the close of the first day of trial, on April 3, 1996, the State “rest[ed].” But the trial court announced it would “send this jury home until 8:30 tomorrow morning, at which time we will continue the case[,. . . with the dual-edged promise to the State’s Attorney that,] if the State has [Officer] Smithwick here and can testify, fine. If not, I’m going to grant a directed verdict in behalf of the Defendant.”

(a) The State argues in reply that defendant waived any valid exception to reopening the prosecution’s case, because he failed to make a contemporaneous exception to the trial court’s sua sponte ruling. This argument was previously considered by the whole court and found to be without merit. Ford v. State, 200 Ga. App. 376 (408 SE2d 166).

(b) “The trial court has a wide discretion in permitting the [S]tate to introduce additional evidence after it has closed its case. See Britten v. State, 221 Ga. 97, 100 [(4), 101] (143 SE2d 176), and cits." King v. State, 230 Ga. 581, 582 (3) (198 SE2d 305). In Burden v. State, 182 Ga. 533, 534 (3) (186 SE 555), the Supreme Court of Georgia unanimously held it was within the discretionary authority of the trial court to reopen the case and allow the State to introduce further testimony, even though such testimony was not in rebuttal of evidence offered by the defendant.

The authorities cited by defendant, regarding the impropriety of a trial court’s comments on the merits of defense strategy, are not germane to the question whether the trial court in the case sub judice abused its discretion in permitting Officer Smithwick to testify after the State had rested. The trial court’s decision to permit the State to reopen the evidence will not be disturbed on appeal when no abuse of discretion is shown, and in the case sub judice, defendant has failed to demonstrate any such abuse of discretion. Edwards v. State, 219 Ga. App. 239, 245 (5) (464 SE2d 851). Compare Smith v. State, 156 Ga. App. 563, 564 (1) (275 SE2d 140).

2. Defendant enumerates the general grounds.

“On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appeh late court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Conflicts in the testimony of the witnesses, including the State’s witnesses, is a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citations and punctuation omitted.) Ferguson v. State, 221 Ga. App. 415, 419 (2) (471 SE2d 528).

In the case sub judice, defendant’s own evidence places him at the scene, and identifies him as the taller of the two suspects flushed out of the nearby woods. Yet he denied any knowledge of or participation in his accomplice’s plan to steal the car. Thus, the jury was faced with a conflict in the evidence. “The jury resolved this conflict in favor of the State, and this Court will not substitute its judgment as to witness credibility for that of the jury.” (Citations and punctuation omitted.) Green v. State, 218 Ga. App. 648, 649 (1) (463 SE2d 133). Ray Earl Carter saw two unknown persons approach and enter his neighbor’s car, the taller of the two on the driver’s side. “The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. The suspects spent a matter of moments in the vehicle and both fled at the sight of the police car’s flashing blue lights. The pair left the car with a broken steering column. Defendant and his accomplice were arrested within minutes near the scene. The police found no other persons hiding in the woods. In our view, the evidence, although largely circumstantial, was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307, supra, to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, as a party to the offense of criminal attempt — theft by taking a motor vehicle as alleged in the indictment. Sapp v. State, 222 Ga. App. 415, 417 (1) (474 SE2d 233). But as to the misdemeanor offense of obstruction of an officer (obstructing or hindering a law enforcement officer) under OCGA § 16-10-24 (a), the evidence shows only that the pair fled at the sight of the police. While the officers gave chase, there simply is no evidence that either Officer Smithwick or Officer Hard-wick, in a show of lawful authority, called out to the suspects to halt and that the defendant failed to submit to that lawful authority. Consequently, the evidence is not sufficient under the standard of Jackson v. Virginia, 443 U. S. 307, supra, to sustain defendant’s misdemeanor conviction for obstruction of an officer (obstructing or hindering a law enforcement officer). See Chaplin v. State, 141 Ga. App. 788, 790 (2) (234 SE2d 330).

Decided January 16, 1997.

Steinberg & Vrono, Charles J. Vrono, for appellant.

Robert E. Keller, District Attorney, Brian J. Amero, Assistant District Attorney, for appellee.

Judgment affirmed in part as to felony conviction for criminal attempt theft by taking motor vehicle. Judgment reversed in part as to misdemeanor conviction for obstruction of an officer (obstructing or hindering a law enforcement officer).

Johnson and Ruffin, JJ, concur.


text:
    A96A2498, A96A2499.
    ATHA v. ATHA; and vice versa.
    (480 SE2d 298)
   McMurray, Presiding Judge.

This is an action by plaintiff William M. Atha against his nephew Thomas Alan Atha on two promissory notes which were executed and delivered by defendant to plaintiff in exchange for two checks. The transactions occurred in order to finance defendant’s attempts to develop landfill sites.

Plaintiff’s first check in the amount of $22,000 was given to defendant in exchange for a handwritten note dated January 9, 1991 and stating: “I, Alan.Atha, agree to pay William Atha $22,000 at the time Able Properties [a corporate entity of which defendant was president and through which he was attempting the landfill development] has secured financing from a financial institution. One year from this date I agree to pay another $22,000 to Wm. Atha or to his estate.” A further check for $65,000 was delivered by plaintiff to defendant for a second note dated “2-12-91” stating: “I, Alan Atha, do agree to pay on behalf of Able Properties, Inc. to William Atha, $65,000.00 at the time of Bond Program and a additional $65,000.00 within one year after landfill business is in operation.”

Maintaining that the notes were due and payable, plaintiff sought a judgment in the amount of $87,000 plus interest. On opposing motions, the superior court granted a partial summary judgment in favor of plaintiff in the principal amount of $22,000 based on the first note and granted a partial summary judgment in favor of defendant regarding the claim based on the second note. In Case No. A96A2498, plaintiff appeals the partial summary judgment in favor of defendant while Case No. A96A2499 is the cross appeal of defendant from the partial summary judgment in favor of plaintiff. Held:

We affirm. The superior court correctly concluded that with one exception the conditions for repayment stated in the notes did not occur.

The one exception involves the proper construction of the second sentence of the first note. What point in time is meant by “this date” is ambiguous so that the superior court properly looked to parol evidence to explain this term. In his deposition defendant explained the first agreement as follows: “Q. You told William Atha that you would pay him his money back and double it when you secured financing? A. That’s correct. Q. And when did you anticipate securing financing? A. No more than a year. Q. And you also assured him that you would pay him $22,000 a year after you executed the agreement? A. Yes.” While defendant now maintains that “this date” refers to a future date when Able Properties, Inc. would secure financing, this contradiction in defendant’s testimony places upon him a burden to offer a reasonable explanation which he has not done. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1), 30 (343 SE2d 680). Under these circumstances the superior court did not err in finding that “this date” was the date of the note and consequently, that the condition for repayment of $22,000 on the first note had occurred.

None of the remaining conditions of repayment under either note has occurred. Able Properties, Inc. never obtained financing from a financial institution, began the Bond Program, or operated a landfill business.

With regard to the failure of Able Properties, Inc. to obtain financing from a financial institution, it is true that there was an implied duty to diligently seek such funding. Defendant testified that he filled out forms and applied for such a loan. That loan application suggests due diligence and the fact that a loan application was submitted to only one financial institution does not, without more, show a lack of diligence. Nalley v. Harris, 176 Ga. App. 553, 554 (1) (336 SE2d 822).

Furthermore, and contrary to plaintiff’s argument there was never any landfill in operation. The activity involved in engineering studies of the proposed sites did not culminate in the acceptance of any garbage for disposal. The preparatory work did not constitute the “operation” of a landfill within the usual meaning of the word.

Decided January 16, 1997.

Potts & Badaruddin, James H. Potts II, Shandor S. Badaruddin, for appellant.

Zachary & Segraves, Stephen M. Gibbs, for appellee.

Judgments affirmed.

Johnson and Ruffin, JJ, concur.