author: Sognier, Chief Judge.

text:
    A90A1550.
    A90A1551.
    BRIDGESTONE FIRESTONE, INC. v. GREEN. AMALGAMATED CLOTHING & TEXTILE WORKERS UNION et al. v. GREEN.
    (403 SE2d 442)
   Sognier, Chief Judge.

William Green brought this action to recover damages for injuries allegedly incurred in an October 1985 automobile accident on Interstate 20 in Newton County. He named as defendants General Motors Corporation, the manufacturer of the car he was driving; Canton Motor Sales, Inc., the dealer which sold the vehicle; Hertz Corporation, the car owner; the Amalgamated Clothing & Textile Workers Union (ACTWU), the entity which leased the car from Hertz; James Orange, the ACTWU employee for whom the car was leased; and Bridgestone Firestone, Inc. (formerly the Firestone Tire & Rubber Company), which had performed the routine maintenance on the car. Green alleged that the accident occurred because of a defect in the steering mechanism. In Case No. A90A1550, we granted Bridgestone’s application for interlocutory appeal from the denial of its motion for summary judgment, and in Case No. A90A1551 we authorized the appeal of ACTWU and Orange from the denial of their summary judgment motions.

In late 1983 or early 1984, ACTWU leased from Hertz a new 1984 Buick Regal for use by James Orange, an ACTWU organizer. Orange testified by deposition that he did extensive travelling in the car for his work with ACTWU, and that he regularly had the car serviced at Bridgestone’s repair facility. Orange stated that he occasionally had the front end of the car aligned when it would begin to pull slightly to the right, but he never experienced any problems with the steering mechanism. He did testify that his wife, who sometimes drove the car, had difficulty steering the car on one occasion shortly after Bridge-stone had serviced it, and it had to be towed back to Bridgestone for repair. Although Orange could not recall precisely when this problem occurred, Bridgestone repair records Orange identified during his deposition indicate that Bridgestone performed an alignment in late January 1985, the car was towed to Bridgestone on March 22, 1985, and Bridgestone repaired a loose drag link on that day at no charge. Orange stated he experienced no further problems after that repair.

On October 1, 1985, Orange was scheduled to travel from Atlanta to North Carolina on business. Because he had been awake for most of the prior night attending to some charitable activities, he asked appellee, with whom he had been acquainted for many years, to accompany him on the drive. They departed around noon and drove on Interstate 20 in a steady downpour. After about 18 miles, Orange asked appellee to take over the driving, and Orange then fell asleep in the front seat. He testified that he awoke to hear appellee screaming that “he couldn’t control the car” because “the steering [was] gone.” The car slammed into a bridge rail on the right, caromed across two lanes to hit a guard rail on the left, and then came to rest straddling the two eastbound lanes.

State Trooper Gary Townsend, who investigated the accident, testified by affidavit that when he arrived at the scene at 1:06 p.m., approximately ten minutes after the accident occurred, it was raining and the road was wet. He stated that appellee told him “a car had run him off of the road,” and that neither appellee nor Orange mentioned any problems “with the tires, brakes, steering, or other parts of the automobile.” Townsend found no skid marks prior to the first point of impact. He attempted to turn the steering wheel but was unable to do so because of the extensive damage to the front end of the car. Based on his investigation, Townsend opined that the accident occurred either because appellee was driving too fast for conditions and hydroplaned on the wet road or because, as appellee had claimed, another vehicle forced him off the road. The car, which was a total loss, was towed from the scene and was not available to any party for subsequent examination.

1. On January 8, 1990, judgment was entered in favor of Hertz, General Motors, and Canton Motor Sales on their motions for summary judgment. Appellants then moved for summary judgment on the same grounds asserted by the other defendants. The case was assigned to another judge who denied appellants’ motions. They contend they are entitled to summary judgment because of the prior ruling in favor of their co-defendants. We do not agree. Appellants are not entitled to judgment on the basis of either res judicata or collateral estoppel because complete identity or privity of parties is required as a prerequisite to application of either principle. Norris v. Atlanta & West Point R. Co., 254 Ga. 684-685 (333 SE2d 835) (1985). What appellants really seek is application of the doctrine of binding precedent, which was expressly disavowed by the Supreme Court in Norris. Accordingly, the prior adjudication of appellee’s negligence claims against Hertz, General Motors, and Canton Motor Sales does not bar his negligence claims against appellants. Id. at 686.

2. Accordingly, we must determine whether, as appellants contend, the trial court erred by concluding they were not entitled to summary judgment on appellee’s claim of negligent maintenance and repair. It has long been the law in Georgia that one “ ‘who negligently repairs a vehicle ... is liable to others who may be injured because of that negligence, to the same extent as if he had made and sold the [vehicle] in the first instance.’ [Cits.]” Griffith v. Chevrolet Motor Div. &c., 105 Ga. App. 588, 593-594 (2) (b) (125 SE2d 525) (1962). Nonetheless, a well-established principle of negligence law is that “the occurrence of an unfortunate event is not sufficient to authorize an inference of negligence. [Cits.]” Hill v. Hosp. Auth. &c., 137 Ga. App. 633, 639 (4) (224 SE2d 739) (1976). Here, the evidence shows only that a one-car accident occurred on a rainy day; that Orange, the regular driver of the car, experienced no problems with the steering mechanism for at least six months prior to the accident; and that there were no skid marks prior to impact. There is no testimony from appellee in the record and no direct evidence of the existence of a mechanical defect. Appellee points to his outcry at the time of impact as circumstantial evidence of the presence of such a defect; however, that evidence is contradicted by appellee’s statements to Townsend immediately after the incident. On motion for summary judgment, the testimony of the respondent is to be construed against him if it is contradictory, vague, or equivocal, and if no reasonable explanation is offered for the contradiction. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (1, 2) (343 SE2d 680) (1986). This rule applies to statements made by the respondent to others. See Aubrey Silvey Enterprises v. Bohannon, 182 Ga. App. 738, 739 (356 SE2d 693) (1987). Accordingly, appellee’s res gestae statement must be eliminated from consideration because it contradicts the statement he gave to Townsend and no explanation for the contradiction was given. Stone v. Dayton Hudson Corp., 193 Ga. App. 752, 755 (388 SE2d 909) (1989).

Thus, there is no evidence of negligence other than the occurrence of an incident resulting in injury to appellee. Consequently, we must consider whether the evidentiary rule of res ipsa loquitur may be used to create a jury question. See Simonds v. Conair Corp., 185 Ga. App. 664, 665 (3) (365 SE2d 507) (1988); see also Jenkins v. Roper Corp., 185 Ga. App. 219, 220 (363 SE2d 625) (1987). “ ‘ “The elements of the doctrine are: ‘(1) injury of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.’ (Cit.)” (Cit.)’ [Cit.]” Simonds, supra.

Decided February 20, 1991

Rehearing denied March 7, 1991

Wildman, Harrold, Allen, Dixon & Branch, Alfred B. Adams III, for appellant (case no. A90A1550).

Freeman & Hawkins, Warner S. Fox, William G. Scoggin, for appellants (case no. A90A1551).

Daniel T. Donohue, for appellee.

With regard to Bridgestone’s motion, the evidence shows Bridge-stone performed no repair work on the car for six months prior to the accident, that Orange experienced no steering problems during that period of time, and that the car was in Orange’s control for that period. Consequently, as to Bridgestone, the exclusive control requirement cannot be met, and the doctrine of re ipsa loquitur is inapplicable. See Jenkins, supra. As to the applicability of the doctrine to Orange and ACTWU, the evidence demonstrates several possible intervening intermediary causes for the accident, including negligent driving by appellee. See Molden v. Atlanta Coca-Cola Bottling Co., 175 Ga. App. 298, 299-300 (333 SE2d 175) (1985); accord Parker v. Dailey, 226 Ga. 643, 645 (177 SE2d 44) (1970). Appellee would have us disregard the driving conditions and his statements to Townsend immediately after the accident and speculate that the accident resulted from a steering mechanism defect which had not previously been manifest but which on this occasion caused a complete failure of the steering capacity of the car. This we decline to do. See Jackson v. Sides & Pope, 178 Ga. App. 886, 887 (344 SE2d 685) (1986). Accordingly, the doctrine of res ipsa loquitur is inapplicable, and the trial court erred by denying summary judgment to appellants. See Savannah Coca-Cola &c. Co. v. Denmark, 182 Ga. App. 883, 885 (2) (357 SE2d 286) (1987).

Judgments reversed.

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


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A90A1572.
    DEPARTMENT OF CORRECTIONS v. BROWN et al.
    (403 SE2d 452)
    Decided February 22, 1991
    Rehearing denied March 7, 1991

      Michael J. Bowers, Attorney General, Wayne P. Yancey, Senior Assistant Attorney General, for appellant.

      Christopher A. Townley, for appellees.
   McMurray, Presiding Judge.

J. Farrell Brown, Curtis Nuckolls, Cleo B. Jenkins, Leslie Dodson, Wirt W. Garmany III, Terry H. Jones, Sylvia Hill and Janet Landers (plaintiffs) filed a declaratory judgment action against the Georgia Department of Corrections (defendant) and alleged that they are employed by defendant as probation officers in the Lookout Mountain Judicial Circuit and alleged facts showing that a conflict exists between the counties of the Lookout Mountain Judicial Circuit and defendant as to whether the counties should be allowed to supplement plaintiffs’ salaries. Plaintiffs prayed for “an interlocutory order . . . allowing [them] to receive and use any supplements paid by the counties of the Lookout Mountain Judicial Circuit [and a declaration of their] right and status ... to receive pay supplements from the counties of the Lookout Mountain Judicial Circuit.” Defendant challenged plaintiffs’ complaint, but the trial court subsequently entered an order and declared that plaintiffs “are legally entitled to and should receive the pay supplements in question from the counties of the Lookout Mountain Judicial Circuit. . . .” Defendant appeals. Held:

“[A]n action for declaratory judgment will lie only when necessary to protect plaintiffs against the risk of undirected future action which would jeopardize their interests. Pinkard v. Mendel, 216 Ga. 487 (117 SE2d 336) (1960), later appeal, 217 Ga. 562 (123 SE2d 770) (1962).” Moss v. Central State Hosp., 255 Ga. 403, 404 (339 SE2d 226). In the case sub judice, plaintiffs failed to demonstrate that they were in need of direction with respect to undirected future conduct on their part which might jeopardize their interests. Consequently, “ “the trial court was without jurisdiction to enter [a declaratory] judgment. This being so, the judgment must be set aside as nugatory.” (Cit.) . . .’ Oxford Fin. Cos. v. Dennis, 185 Ga. App. 177, 178 (363 SE2d 614) (1987).” Logan Paving Co. v. Peoples Bank & Trust, 196 Ga. App. 42, 43 (395 SE2d 287).

Judgment vacated.

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


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

text:
    A90A1770.
    TARVESTAD v. THE STATE.
    (403 SE2d 446)
   McMurray, Presiding Judge.

Defendant was indicted for being a habitual violator in that he did “operate a motor vehicle after having received notice that his driver’s license had been revoked as provided in O.C.G.A. 40-5-58 without having obtained a valid driver’s license after said revocation. ...” Defendant was tried before a jury and found guilty of the offense charged. This appeal followed the denial of defendant’s motion for new trial. Held:

Defendant contends the trial court erred in failing to give his orally requested charge on justification, OCGA § 16-3-20 (6). Defendant argues that the evidence authorized such an instruction.

Defendant testified and admitted that he knowingly drove a motor vehicle after being declared a habitual violator, but defendant explained that he intentionally violated the law so. that he could drive his pregnant wife to a scheduled doctor’s appointment. These circumstances do not authorize the “lesser of two evils” defense of OCGA § 16-3-20 (6).

OCGA § 16-3-20 “should provide a defense to an actor who commits a relatively minor offense in order to prevent an imminent harm less than death or great bodily injury.” Kurtz, Criminal Offenses & Defenses in Ga. (2d ed.), pp. 250, 252. In the case sub judice, there is no evidence that defendant was faced with an emergency. Defendant was merely taking his wife to the doctor for a scheduled examination. Further, even if defendant’s wife had been in labor, defendant’s intentional violation of the law would not be justified. Defendant was aware that his wife was eight-and-one-half months pregnant and he knew that she would soon be in need of transportation for medical treatment. Nonetheless, he failed to make arrangements for the expected emergency, disregarding his status as a habitual driving violator. Consequently, the trial court did not err in refusing to give defendant’s orally requested charge on justification.

Judgment affirmed.

Banke, P. J., Cooper and Andrews, JJ., concur. Beasley, J., concurs in the judgment only. Sognier, C. J., Birdsong, P. J., Carley and Pope, JJ., dissent.

Sognier, Chief Judge,

dissenting.

I respectfully dissent.

It is undisputed that justification was appellant’s sole defense. Appellant testified that he was driving his wife, who was eight-and-one-half months pregnant and experiencing what proved to be false labor pains, to the doctor because she could not drive his truck. Contrary to the majority’s conclusion, I find that appellant’s testimony, even though disputed by other evidence, constituted some evidence of the defense of justification so as to authorize a charge on OCGA § 16-3-20 (6). Cf. Pippins v. State, 224 Ga. 462, 464-465 (4) (162 SE2d 338) (1968) (defendant’s testimony regarding his whereabouts on night of crime held to constitute some evidence of alibi even though other witnesses disputed his version of the events). Ordinarily, the failure to charge a sole defense is reversible error even in the absence of a written request. Id. However, the Supreme Court has modified that rule as applied to affirmative defenses such as justification so that an affirmative defense need not be charged in the absence of a written request if the court’s charge as a whole fairly presents the case, including the defense’s theory, to the jury. Rivers v. State, 250 Ga. 288, 299-300 (8) (298 SE2d 10) (1982); Booker v. State, 247 Ga. 74 (274 SE2d 334) (1981). Here, the court’s general charge included the principles of proof beyond a reasonable doubt and presumption of innocence, and the elements of the crime of habitual violator. I find this charge, taken as a whole, did not fairly present appellant’s sole defense to the jury. See Johnson v. State, 253 Ga. 37 (315 SE2d 871) (1984); compare Booker v. State, 157 Ga. App. 872, 874-875 (278 SE2d 745) (1981); Tabb v. State, 148 Ga. App. 13, 14 (3) (251 SE2d 16) (1978). Accordingly, I would reverse.

Decided February 21, 1991

Rehearing denied March 7, 1991

Billy L. Spruell, for appellant.

Thomas C. Lawler III, District Attorney, Terry L. Lloyd, Ally son Fritz, Assistant District Attorneys, for appellee.

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


text:
    A90A2038, A90A2039.
    GUNNIN et al. v. PARKER et al.; and vice versa.
    (403 SE2d 822)
   Sognier, Chief Judge.

In the earlier appeal of the judgment in favor of plaintiffs Philip and Carolyn Parker, we reversed the award of expenses of litigation against defendants Ray Gunnin, Gunnin Properties, Inc., and Gunnin Development Company (collectively referred to as “Gunnin”). Gunnin v. Parker, 194 Ga. App. 426 (390 SE2d 596) (1989). Upon the remittitur being entered, the trial court reduced the jury’s award from $275,000 to $151,000 to reflect the exclusion of litigation expenses. The trial court then entered judgment for postjudgment interest on $151,000. Gunnin appeals from the entry of postjudgment interest in Case No. A90A2038; the Parkers cross appeal in Case No. A90A2039 from the trial court’s subtraction of $124,000 in litigation expenses from the jury’s award.

1. In Case No. A90A2038, we first note that in view of the language in OCGA § 7-4-12 that “[a]ll judgments in this state shall bear interest upon the principal amount recovered at the rate of 12 percent per year,” (emphasis supplied), see West v. Jamison, 182 Ga. App. 565, 569 (356 SE2d 659) (1987), we find no merit in Gunnin’s argument that the trial court improperly amended its judgment of April 1987 in August 1987 by following the statutory mandate and providing for postjudgment interest. See generally Giant Peanut v. Carolina Chemicals, 135 Ga. App. 597, 598 (218 SE2d 305) (1975). Accordingly, entry of the August 1987 judgment to reflect the statutory interest did not render that judgment null and void.

Citing OCGA § 9-11-67, Gunnin contends the trial court erred by awarding postjudgment interest on the $112,275 amount Gunnin deposited in the office of the clerk of the court before trial started. OCGA § 9-11-67 provides that “[i]n an action in which any part of the relief sought is a judgment for a sum of money ... a party, upon notice to every other party, and by leave of court, may deposit with the court all or any part of such sum or thing to be held by the clerk of the court, subject to withdrawal, in whole or in part, at any time thereafter upon order of the court, upon posting of sufficient security. Where the thing deposited is money, interest thereupon shall abate.”

Pretermitting the issue whether the trial court erred by failing to reach the merits of Gunnin’s argument by ruling that the issue was res judicata, but see City of Fairburn v. Cook, 195 Ga. App. 265, 267-269 (2) (393 SE2d 70) (1990), we affirm the trial court’s ruling based on the principle that a correct decision of a trial court will not be reversed regardless of the reasons given therefor. Manderson & Assoc, v. Gore, 193 Ga. App. 723, 732 (7) (389 SE2d 251) (1989). The record reflects that in its first amended answer, Gunnin recited that it “hereby tenders into the Registry of the Court the sum of $112,275.00, which represents the purchase price and closing costs for the house and lot.” OCGA § 9-11-67 specifically requires that the deposit be made “by leave of court.” Compare OCGA §§ 22-2-110 through -114 (deposit of special master award in court registry in eminent domain proceeding); OCGA § 44-7-54 (payment of rent into court registry in dispossessory proceeding); OCGA § 44-7-75 (same, distress warrants). No motion for leave to deposit this sum or any order by the trial court granting leave to make the deposit is included in the records of the instant appeals or the earlier appeal. Since we are not authorized to disregard any of the words of a statute and must give meaning and due weight to all the words used, see generally Taco Bell Corp. v. Calson Corp., 190 Ga. App. 481, 482 (379 SE2d 6) (1989), in order to effect the requirements of OCGA § 9-11-67 Gunnin was required to obtain leave of the trial court to make its deposit, and its failure to do so rendered the deposit not in conformity with OCGA § 9-11-67. Thus, we need not address the Parkers’ argument, based on the fact that the check deposited in the clerk’s office (a photostatic copy of which is attached to the answer), which was made out to the Parkers with an endorsement that “the undersign [sic] payees accept the amount of this payment in full satisfaction of all claims against drawer to property located at” the premises in issue, failed to comply with the requirements of OCGA § 9-11-67 because it attempted to impose conditions on its acceptance, thereby rendering the money unavailable to the Parkers for withdrawal. See United States ex rel. Garrett v. Midwest Constr. Co., 619 F2d 349, 353-354 (5th Cir. 1980) (construing the similar requirement of FRCP 67). In view of Gunnin’s failure to deposit its $112,275 check in compliance with OCGA § 9-11-67, we need not address Gunnin’s remaining arguments asserting the propriety of the deposit. Accordingly, there is no merit to Gunnin’s claim that OCGA § 9-11-67 relieved it from all liability for postjudgment interest on the sums deposited in the court, and the trial court did not err by entering judgment therefor.

Decided February 13, 1991

Rehearing denied March 7, 1991

Butler, Wooten, Overby & Cheeley, Robert D. Cheeley, Joseph E. Cheeley, Jr., for appellants.

2. In Case No. A90A2309, the transcript (filed in this court for our consideration of the matters raised in Gunnin, supra) reveals that after the jury returned a general verdict for $275,000, the trial court, without objection, requested the jury to break down that figure awarded to the Parkers into the individual amounts claimed. In response, the jury foreperson announced that the $275,000 included, inter alia, $124,000 for litigation expenses. In Gunnin, supra, this court reversed that part of the judgment awarding the Parkers expenses of litigation, although the precise figure to be written off the judgment was not set forth in the body of the opinion. However, “the trial court has the authority and power to amend its judgments to effect the intendment of this court, whether or not specifically directed to do so by this court.” City of Fairburn, supra at 268. The trial court did not err by effecting the intendment of this court by striking $124,000 from the judgment in favor of the Parkers.

Judgments affirmed.

McMurray, P. J., and Carley, J., concur.

Frank A. Lightmas, Jr., for appellees.


author: Carley, Judge.

text:
    A90A2134.
    MAYOR &c. OF SAVANNAH et al. v. SOUTHERN BULK INDUSTRIES, INC.
    (403 SE2d 447)
   Carley, Judge.

The relevant facts in this appeal are as follows: Appellant-defendant City of Savannah (City) contracted to supply water to Union Camp Corporation (UCC) through the City’s water supply system. Thereafter, the City’s pipeline supplying water to UCC was allegedly damaged by appellee-third-party-defendant Southern Bulk Industries, Inc. (SBI) and, as the result, UCC’s water supply was interrupted. Originally, UCC brought suit directly against SBI, seeking to recover for the curtailment in its industrial production that was occasioned by the interruption in its supply of water from the City. SBI filed a motion to dismiss UCC’s complaint for failure to state a claim for relief. SBI’s motion was granted and, on appeal, that ruling was affirmed: “[UCC] alleges that [SBI] negligently damaged the property of [the City] and that, consequently, the [City] was unable to fulfill its contractual obligations to [UCC]. We agree with the superior court that these allegations do not state a claim upon which relief can be granted. [Cits.]” Union Camp Corp. v. Southern Bulk Indus., 193 Ga. App. 90, 92 (386 SE2d 866) (1989), aff’d 259 Ga. 828 (388 SE2d 524) (1990). Thereafter, UCC brought suit against the City, seeking to recover the damages that it had originally sought as against SBI. The City answered UCC’s complaint and filed a third-party complaint against SBI. SBI moved for summary judgment as to the City’s third-party claim and that motion was granted. In the instant appeal, the City appeals from the trial court’s grant of summary judgment in SBI’s favor.

1. A “third-party complaint must be against one who is or may be liable to the third-party plaintiff for all or part of the original plaintiff’s claim against him. [Cit.] [OCGA § 9-11-14] does not allow the tender of another defendant who is or may be liable to the plaintiff. [Cit.]” Balkcom v. Mull, 129 Ga. App. 277, 278 (199 SE2d 346) (1973).

UCC’s claim against the City is for damages allegedly caused by a breach of the City’s contract to supply water. The City’s third-party complaint, on the other hand, alleges that SBI is liable in tort to the City for UCC’s claim because SBI precipitated any breach of contract by negligently damaging the City’s pipeline. Thus, the City does not allege that SBI is directly liable to UCC. Instead, the allegations of the third-party complaint are that SBI is secondarily liable to the City because any damages that UCC may recover would be an element of the City’s own recovery for the negligent injury that was done to the City’s property by SBI. This is entirely consistent with our holding in the original appearance of this case: “ ‘[SBI is], of course, liable to the [City] for any wrong that may have been done it, and the damages recoverable on that account might well be held to include any sums which the [City] was compelled to pay in damages to its customers[, such as UCC]; but the customers themselves can not go against [SBI] to recover on their own account for the injury done the [City].’ [Cits.]” (Emphasis supplied.) Union Camp Corp. v. Southern Bulk Indus., supra at 92.

It appears that the trial court misconstrued the third-party complaint as an attempt by the City to enforce the right of contribution from a joint tortfeasor. There are no allegations by the City that SBI is a joint tortfeasor. The allegations are that SBI is a tortfeasor only as to the City and that, in that tortfeasor capacity, SBI is secondarily liable for any contractual damages that the City may ultimately be obligated to pay UCC. “ ‘It is immaterial that the liability of the third-party rests on a different theory from that underlying plaintiff’s claim.’ [Cit.]” Smith, Kline & French Labs. v. Just, 126 Ga. App. 643, 646 (1) (191 SE2d 632) (1972). See generally Gregory, Ga. Civil Practice, § 3-8, pp. 304-305. That SBI may have tort defenses to the City’s claim is no basis for denying the City the right to seek to enforce that claim through resort to the third-party procedure. “It is not necessary in order to maintain the third-party complaint that the original defendant admit liability to the original plaintiff, nor is it necessary that the allegations show that recovery by the original defendant from the third-party defendant is a certainty.” Register v. Stone’s Independent Oil Distrib., 122 Ga. App. 335 (2, 3) (177 SE2d 92) (1970) rev’d on other grounds, 227 Ga. 123 (179 SE2d 68) (1971). “The obvious intendment of the language contained in [OCGA § 9-11-14] is to allow the impleading of one ‘who is or may be liable to him (the defendant) for all or part of the plaintiff’s claim against him.’ Thus, the effect of impleader practice is to accelerate liability. [Cit.]” (Emphasis in original.) Gosser v. The Diplomat Restaurant, 125 Ga. App. 620, 622 (1) (188 SE2d 412) (1972). “If [SBI] is not retained in this action and [UCC] receives a judgment [against the City], the evidence of the transaction [whereby SBI allegedly damaged the City’s property] will have to be reduplicated in another lawsuit [between the City and SBI]. The purpose of third-party practice is to avoid this very result. [Cit.]” Burt v. Long, 125 Ga. App. 385 (187 SE2d 578) (1972).

2. SBI urges that the grant of its motion for summary judgment should be affirmed because the City has no contractual liability to UCC. “OCGA § 9-11-14 (a) provides that ‘(t)he third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff’s claim.’ ” (Emphasis supplied.) Opatut v. Guest Pond Club, 188 Ga. App. 478, 482 (10) (373 SE2d 372) (1988). However, the record discloses that SBI did not assert the City’s contractual defenses in the trial court and did not move for summary judgment as against UCC. Compare Empire Shoe Co. v. NICO Indus., 197 Ga. App. 411 (1) (398 SE2d 440) (1990). Accordingly, we cannot address the issue of the City’s contractual defenses as against UCC in the context of the instant appeal. All we hold is that, for the reasons discussed in Division 1, the trial court erred in granting summary judgment in favor of SBI as to the City’s third-party claim.

Decided February 22, 1991

Rehearing denied March 7, 1991

Wiseman, Blackburn & Futrell, James B. Blackburn, Miriam D. Lancaster, for appellants.

Chamlee, Dubus, Sipple & Walter, George H. Chamlee, Edward T. Brennan, for appellee.

Judgment reversed.

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


text:
    A90A2277, A90A2302.
    HAMIL v. THE STATE (two cases).
    (403 SE2d 828).
   Carley, Judge.

A search warrant was issued for the “premises known as Hamil Clearing and Grading, 9765 Brumbelow Road, Alpharetta, Ga. 30201 (unincorporated Fulton County) and . . . adjacent buildings and vehicles on said premises. . . .” In executing this warrant, large amounts of marijuana and currency were discovered in what was apparently a residential, rather than a commercial, building. Based upon this discovery, appellants were jointly indicted for possession of marijuana with intent to distribute. Their motion to suppress was denied and they were found guilty after a bench trial. Appellants filed separate notices of appeal, but identical enumerations of error. The two appeals are hereby consolidated for appellate disposition in this single opinion.

1. The affidavit upon which the search warrant was issued contained the statement that “[a]n independent investigation by Affiant [had] confirmed information supplied by the informant.” At the hearing on the motion to suppress, appellants attempted to show that this statement was false. However, the affiant himself testified at the suppression hearing and his testimony would authorize a finding that the statement in his affidavit was true. Compare Daniels v. State, 183 Ga. App. 651 (359 SE2d 735) (1987). The trial court, sitting as the finder of fact, obviously believed the affiant’s testimony and concluded that “the reliability of the confidential informant was satisfactory, was checked out independently. . . .” “It is well settled that, unless clearly erroneous, the ruling of the trial court on questions of fact and credibility at a hearing on a motion to suppress will not be disturbed on appellate review. [Cits.]” Phelps v. State, 195 Ga. App. 370, 371 (393 SE2d 501) (1990). Accordingly, appellant’s contention that the trial court erred in failing to grant the motion to suppress because the warrant had been issued on an affidavit which contained deliberate falsehoods is without merit. Williams v. State, 251 Ga. 749, 795-796 (8) (312 SE2d 40) (1983); Ledbetter v. State, 190 Ga. App. 843 (1) (380 SE2d 313) (1989).

Decided February 22, 1991

Rehearing denied March 7, 1991

Billy L. Spruell, Brian M. Dubuc, for appellants.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Assistant District Attorney, for appellee.

2. Appellants urge that the warrant, as issued, authorized only a search of business premises and that their motion to suppress should, therefore, have been granted as to any evidence that was discovered in the residence.

Even though the search warrant may have been issued for premises which were described in commercial terms, the express scope of the warrant nevertheless also extended to “adjacent buildings. . . .” See Gumina v. State, 166 Ga. App. 592, 595 (2) (305 SE2d 37) (1983). Moreover, the trial court apparently relied upon Maryland v. Garrison, 480 U. S. 79, 88 (II) (107 SC 1013, 94 LE2d 72) (1987), which holds that a good-faith mistaken belief on the part of the officers that the area being searched is within the scope of the warrant that is being executed does not mandate suppression. A review of the transcript of the suppression hearing demonstrates that the trial court was authorized to find that “the officers’ conduct was consistent with a reasonable effort to ascertain and identify the place intended to be searched within the meaning of the Fourth Amendment.” Maryland v. Garrison, supra at 88. Accordingly, the trial court did not err in failing to grant the motion to suppress the evidence that was discovered in the search of the residence pursuant to this warrant.

3. A rational trior of fact could reasonably have found from the evidence adduced at trial proof of appellants’ guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgments affirmed.

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


text:
    A90A2294.
    WEATHERS v. THE STATE.
    (403 SE2d 449)
   Carley, Judge.

After a jury trial, appellant was found guilty of armed robbery. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdicts.

1. The admission into evidence of certain glass fragments found at the scene of the crime and blood samples taken therefrom is enumerated as error. The contention is that the State failed to establish a chain of custody for this evidence.

“Because appellant made no objection at trial to the introduction of the [evidence] on this basis, he waived any objection. [Cits.]” Welch v. State, 257 Ga. 197, 198 (3) (357 SE2d 70) (1987). See also Usher v. State, 148 Ga. App. 719, 720 (2) (252 SE2d 677) (1979). “Nevertheless, we have reviewed the evidence concerning the chain of custody and find that it establishes with reasonable certainty both that the [glass fragments and blood samples] introduced at trial [were] the same [items] seized from the [crime scene] and that there had been no tampering or substitution. [Cit.]” Usher v. State, supra at 720 (2). See also White v. State, 230 Ga. 327, 335 (4) (196 SE2d 849) (1973); Lockleer v. State, 188 Ga. App. 271, 272 (2) (372 SE2d 663) (1988).

2. The trial court’s exclusion of the testimony of a defense witness is enumerated as error. Appellant urges that the excluded testimony was relevant impeachment evidence showing that a State’s witness had made a prior inconsistent statement.

Contrary to appellant’s contentions, the excluded testimony did not show that the State’s witness had made a prior inconsistent statement. The excluded testimony showed only that the State’s witness had made a prior statement which was less expansive than her trial testimony. That the trial testimony of the State’s witness merely included additional facts demonstrates no impeaching inconsistency with the excluded prior statement attributed to her. “As the absence of [the additional facts in] a prior statement [given by the State’s witness] fails to amount to a contradiction [of her trial testimony], there could be no impeachment under the provisions of OCGA § 24-9-83. . . . [Cit.]” Thomas v. State, 168 Ga. App. 587 (1) (309 SE2d 881) (1983).

3. Appellant’s alleged accomplice was called as a defense witness and testified that he, and not appellant, committed the robbery. During cross-examination, the witness was asked whether he had written a letter to the District Attorney offering to testify against appellant if his sentences were shortened. The witness denied that he had written such a letter. Over appellant’s objection to a lack of authentication, the State was thereafter permitted to question the witness with regard to the specific contents of the letter that he had denied writing. This evidentiary ruling is enumerated as error.

Decided February 22, 1991

Rehearing denied March 7, 1991

William J. Sussman, for appellant.

Arthur Weathers, pro se.

Michael C. Eubanks, District Attorney, G. Barksdale Boyd, Richard E. Thomas, Assistant District Attorneys, for appellee.

Authentication of a writing “ ‘may be proved by circumstantial evidence.’ [Cit.]” State v. Smith, 246 Ga. 129 (269 SE2d 21) (1980). The letter at issue in the instant case bore the witness’ correct name, prison address and criminal identification number. As would be expected in a letter written by an alleged accomplice, the contents thereof indicated that its author had first-hand detailed knowledge of how the crime had been committed. For example, the author of the letter apparently knew that, in committing the crime, appellant had cut his hand and had left blood at the crime scene. Moreover, the witness, as appellant’s alleged accomplice, had a peculiar interest in the District Attorney’s acceptance of the letter’s offer and was the only person who would have been able to fulfil the promise contained therein. Under all of these circumstances, it is very unlikely that anyone other than the witness had written the letter. Accordingly, the circumstances “were sufficient to make a prima facie showing of authenticity.” State v. Smith, supra at 131. Compare Ross v. State, 194 Ga. App. 464 (1) (390 SE2d 671) (1990). It follows that this enumeration of error has no merit.

4. “Even assuming that the evidence presented at trial warranted the finding that theft by receiving stolen property was a lesser included offense . . ., [appellant’s] failure to make a timely written request for such charge precludes his assertion that the trial court’s refusal to charge theft by receiving stolen property was reversible error. [Cits.]” Payne v. State, 154 Ga. App. 507 (269 SE2d 52) (1980). See also Dorsey v. State, 192 Ga. App. 657, 658 (2) (386 SE2d 167) (1989). Appellant’s oral request to give such a charge was not sufficient. See Aparicio v. State, 166 Ga. App. 793, 794 (3) (305 SE2d 649) (1983). Compare State v. Alvarado, 260 Ga. 563 (397 SE2d 550) (1990).

Judgment affirmed.

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


text:
    A90A2304.
    SMITH v. LAW OFFICE OF TONY CENTER, P.C.
    (403 SE2d 451)
   Carley, Judge.

Appellee-plaintiff was engaged to provide legal services for appellant-defendant. A bill for those services was submitted and, when payment was not forthcoming, suit was filed. Appellant answered and counterclaimed. Appellant’s counterclaim was predicated upon appellee’s alleged breach of certain oral “guarantees” regarding its legal representation of her. After discovery, appellee moved for summary judgment. Before the trial court had ruled on appellee’s motion for summary judgment, appellant amended her counterclaim to add a claim for legal malpractice. Thereafter, appellee neither moved pursuant to OCGA § 9-11-9.1 or § 9-11-13 (f) to dismiss the amendment to appellant’s counterclaim nor moved for summary judgment thereon. Appellee’s original motion for summary judgment came on for a hearing and was granted by the trial court. Appellant appeals from the grant of summary judgment in favor of appellee.

1. Appellant’s sole contention on appeal is that it was error to grant the motion for summary judgment because appellee’s evidence did not pierce the allegations of the amendment to her counterclaim. However, the absence of any evidence as to the amendment to appellant’s counterclaim is irrelevant to the grant of appellee’s motion for summary judgment. A ruling by the trial court as to the amendment to appellant’s counterclaim has never been invoked. Appellee’s motion went only to its main claim and appellant’s original counterclaim for breach of oral “guarantees,” and the trial court’s order does not purport to grant summary judgment in favor of appellee as to any claims but those. Appellant’s amended counterclaim for legal malpractice has not been the subject of a motion to dismiss or a motion for summary judgment and obviously remains pending in the trial court.

Appellant advances no reason why the grant of summary judgment as to appellee’s main claim and the original counterclaim for breach of oral “guarantees” is erroneous and should be reversed. Accordingly, the trial court’s grant of partial summary judgment as to those claims must be affirmed without regard to the current pendency in the trial court of appellant’s amended counterclaim for legal malpractice.

2. Appellee’s motion for an award of ten percent damages pursuant to OCGA § 5-6-6 is denied.

Judgment affirmed.

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

Decided February 22, 1991

Rehearing denied March 7, 1991.

William L. Horton, for appellant.

Tony Center, pro se.


text:
    A90A1556.
    BELL v. THE STATE.
    (403 SE2d 864)
   Sognier, Chief Judge.

Betty Bell was indicted for possession of cocaine and marijuana and convicted on the cocaine possession charge. She appeals from the denial of her motion for new trial.

1. Appellant first enumerates the general grounds. At trial, Mitchell County Deputy Sheriff Kevin Coalson testified that he was patrolling the parking lot of a Pelham nightclub on the night of March 12, 1989 when he noticed three people sitting in a parked car. Upon observing that the woman in the front passenger seat, whom he identified as appellant, “had a beer can up to her mouth, and a cigarette lighter was lit over the can, as if she was smoking something,” he approached the car. He testified that when appellant saw him, she placed the lighter on the dashboard and hid the can from his view, j After Coalson asked the group to get out of the car, he requested per- j mission from Eugene Bell, appellant’s cousin and the driver of the J car, for permission to search the vehicle, whereupon appellant re- j joined, “you may as well let him. He caught us red-handed. If we cooperate, maybe he will give us a break.” Coalson found a piece of what proved to be crack cocaine on the dashboard, a marijuana and cocaine-laced cigarette under the driver’s visor, and an empty beer can under the seat on the driver’s side. He testified that the beer can, which was introduced into evidence, was bent in the middle, had several tiny puncture holes and ashes on the top, and that at the time he found the .can smoke was coming out of the top. He also stated that such cans were often used as tools for smoking crack cocaine.

Appellant’s argument concerning the equal access doctrine mischaracterizes that rule. The general rule is that a presumption arises from proof of ownership and control of an automobile or other property that the owner or driver is in possession of contraband found therein; however, this presumption does not apply when there is evidence that the driver or owner had not been in possession of the vehicle for some period of time prior to discovery of the contraband or that others had access to the vehicle. Fears v. State, 169 Ga. App. 172, 173 (312 SE2d 174) (1983). There is no reverse presumption with regard to a passenger’s presence in an automobile in which contraband is found. Moreover, the State established more than appellant’s mere presence in a vehicle in which contraband was found, compare Denham v. State, 144 Ga. App. 373 (241 SE2d 295) (1977), as Coal-son’s testimony that he saw appellant holding the beer can and lighter constituted direct evidence that she was in actual or joint constructive possession of the contraband. See Robinson v. State, 175 Ga. App. 769, 771-772 (2) (334 SE2d 358) (1985); McLeod v. State, 170 Ga. App. 415, 417 (3) (317 SE2d 253) (1984). Accordingly, we find the evidence sufficient under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Wright v. State, 189 Ga. App. 441, 444 (2) (375 SE2d 895) (1988).

2. Appellant next contends the trial court erred by allowing the State’s expert witness to testify, over appellant’s objection, concerning his general knowledge of the use of perforated drink cans in crack cocaine smoking. The record reveals that Dr. Zakir Ali, a forensic chemist from the state crime lab who testified concerning the chemical content of the contraband found by Coalson, stated that the lab often received perforated cans similar to the one seized in this case “because the officer suspects that the beer can is used as a smoking device, . . . and it is possible to chemically identify the [residue as] cocaine.” Appellant objected to this testimony because Dr. Ali did not test the can at issue for cocaine residue, and thus his testimony regarding actions of other parties was irrelevant and inadmissible.

We do not agree with appellant that this was a situation in which evidence of criminal conduct unrelated to the defendant was offered to suggest that because such crimes were occurring in general, the defendant must be guilty of the same conduct. Compare Watson v. State, 137 Ga. App. 530, 533 (5) (224 SE2d 446) (1976), overruled in part on other grounds, Quick v. State, 139 Ga. App. 440, 441 (2) (228 SE2d 592) (1976). Nonetheless, neither do we agree with the State that Dr. Ali’s testimony was admissible to explain why Coalson sent the can to the lab, because the reason for Coalson’s action was irrelevant to the issue of appellant’s guilt or innocence of the charged crime. We find no reversible error, however, because Coalson previously testified to the same facts, and “proof of the same facts by legally admissible evidence renders harmless the admission of inadmissible evidence. [Cit.]” Riggins v. State, 179 Ga. App. 179, 180 (2) (345 SE2d 897) (1986). See also Brooks v. State, 193 Ga. App. 559, 560-561 (1) (388 SE2d 386) (1989) (admission of evidence over objection is harmless where same evidence previously has been admitted without objection).

3. We find no merit in appellant’s contention that the State did not establish a proper chain of custody for exhibit 1, which consisted of the beer can, the rock of cocaine, and the marijuana cigarette. She contends the State did not exclude the possibility of evidence tampering because Dr. Ali testified that he placed the evidence bag in a locker he shared with three other scientists. The record, however, reveals that Dr. Ali subsequently explained that when he first received the evidence from the Mitchell County Sheriff’s Department, he placed it in his personal vault to which no one else had access, and that he moved it to the shared locker only after his testing was complete. Accordingly, we conclude the State showed with reasonable certainty that the contraband offered into evidence was the same as that seized by Coalson. See Anderson v. State, 247 Ga. 397, 399 (2) (276 SE2d 603) (1981).

Decided March 7, 1991.

Michael L. Bankston, for appellant.

J. Brown Moseley, District Attorney, Donald E. Henderson, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Carley, J., concur.


text:
    A90A1597.
    THE STATE v. CHRISOPOULOS.
    (403 SE2d 460)
   Carley, Judge.

After appellee allegedly committed a single lewd act in the presence of two minors, an accusation was filed charging him with two separate counts of public indecency in violation of OCGA § 16-6-8. Each count alleged appellee’s commission of the single lewd act in the presence of one of the minors. On appellee’s motion, the trial court compelled the State to make an election as between the two counts and ordered a dismissal of the unelected count. Pursuant to OCGA § 5-7-1 (1), the State appeals from this order of the trial court.

The prosecution of appellee on the two-count indictment does not proceed on the theory that his alleged lewd act establishes the commission of more than one crime. Compare OCGA § 16-1-7; State v. McBride, 261 Ga. 60 (4) (401 SE2d 484) (1991). The State’s only contention is that appellee’s alleged lewd act establishes the commission of the single crime of public indecency which was witnessed by the two minors. Accordingly, the issue to be decided is whether the instant case comes within the rule that “ ‘[t]he court will not compel the prosecutor to elect upon an indictment charging [a defendant] with [more than one count], when it appears by the indictment that the charges relate to the same transaction, modified to meet the proof.'" (Emphasis supplied.) Sutton v. State, 124 Ga. 815, 816 (53 SE 381) (1906).

Decided March 7, 1991.

Gerald N. Blaney, Solicitor, Rosanna Musengo, Assistant Solicitor, for appellant.

Boyce, Thompson & O’Brien, William M. Coolidge III, for appellee.

The crime of public indecency as defined in OCGA § 16-6-8 consists of the performance of certain proscribed acts in a public place. The two-count accusation that was preferred against appellee alleges that he performed one of those proscribed acts in the parking lot of a specified shopping center. A shopping center parking lot is clearly a public place. Clark v. State, 169 Ga. App. 535, 536 (3) (313 SE2d 748) (1984). Thus, the accusation would have been sufficient to allege appellee’s violation of OCGA § 16-6-8 without any additional allegations of the names of the two minors who had actually observed the alleged lewd act committed in the public place. OCGA § 17-7-71 (c, d). The two minors are not the victims of appellee’s alleged crime, but are merely the witnesses through whom the State is prepared to prove appellee’s guilt of an affront to public decency. Compare Irwin v. State, 117 Ga. 722 (45 SE 59) (1903). Accordingly, the names of the two minors who merely witnessed the alleged offense are in no way necessary “to meet the proof” of appellee’s guilt, but constitute merely superfluous allegations of the State’s evidence against appellee. See generally Shorter v. State, 155 Ga. App. 609, 610 (3) (271 SE2d 741) (1980). “It is not necessary that an accusation or an indictment allege evidentiary matters. [Cit.]” Reliford v. State, 101 Ga. App. 244, 245 (2) (113 SE2d 473) (1960).

It follows that the instant case does not come within the rule enunciated in Sutton v. State, supra, and that the trial court correctly ordered that appellee’s prosecution would proceed as to one count only. At trial, the State will be entitled to prove appellee’s guilt of that one count by introducing the testimony of either or both of the minors who witnessed his commission of the alleged lewd act. Shorter v. State, supra at 610 (3).

Judgment affirmed.

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


text:
    A90A2032.
    JACKSON et al. v. GUNN.
    (403 SE2d 461)
   McMurray, Presiding Judge.

Plaintiffs, Jessie Jackson and Bessie Lee Jackson, brought suit against Mattie Pearl Gunn in the Superior Court of Muscogee County. They alleged that plaintiff Bessie Lee Jackson and defendant were owners of a certain parcel of property (consisting of approximately 175 acres) as tenants in common; that plaintiff Bessie Lee Jackson and defendant executed a $19,000 promissory note in favor of the Bank of Manchester; that the note was secured by the property; that plaintiffs repaid the entire amount of the note; and that defendant was liable to plaintiffs for one-half of the note. Plaintiffs also alleged that they paid ad valorem taxes assessed against the property and that defendant was indebted to plaintiffs for her share of the taxes. Finally, plaintiff Bessie Lee Jackson sought an equitable accounting, alleging that defendant received rents and other income from the property and that she failed to account for the rents. Defendant answered the complaint and denied she was liable to plaintiffs.

During the discovery stage of the proceeding, the parties discussed settlement. All settlement negotiations were handled by the parties’ attorneys. The attorneys communicated the offers and counteroffers to their clients during the course of the negotiations.

According to the plaintiffs’ attorney, the parties agreed that defendant would convey 40 acres of the property to plaintiff Bessie Lee Jackson to settle the case. It was agreed, the plaintiffs’ attorney testified, that the conveyance would be made off of the back portion of the property so that the road frontage would remain equally divided between plaintiff Bessie Lee Jackson and defendant. A letter from defendant’s attorney to plaintiffs’ attorney memorialized the agreement.

To effectuate the settlement, plaintiffs’ attorney instructed a surveyor to prepare a survey showing a conveyance of 40 acres from defendant to plaintiff Bessie Lee Jackson from off of the back portion of the property. While the survey was being prepared, however, plaintiff Jessie Jackson told the surveyor that the conveyance was to be made off of the front of the property and that the road frontage was to be divided accordingly. The survey was prepared pursuant to plaintiff Jessie Jackson’s instructions.

When the survey was returned to the attorneys, they realized that plaintiffs were unwilling to go along with the settlement. Accordingly, defendant made a motion to enforce the settlement agreement. Retaining new counsel, plaintiffs opposed the motion. They contended that “they never agreed to split the road frontage equally and never authorized their attorney to agree to equal division of the road frontage.”

Following a hearing, the trial court granted the motion to enforce the settlement agreement. Plaintiffs appeal. Held:

“Under Georgia law an attorney of record has apparent authority to enter into an agreement on behalf of his client and the agreement is enforceable against the client by other settling parties. [Cits.] This authority is determined by the contract between the attorney and the client and by instructions given the attorney by the client, and in the absence of express restrictions the authority may be considered plenary by the court and opposing parties. [Cits.] The authority may be considered plenary unless it is limited by the client and that limitation is communicated to opposing parties. [Cits.] Therefore, from the perspective of the opposing party, in the absence of knowledge of express restrictions on an attorney’s authority, the opposing party may deal with the attorney as if with the client, and the client will be bound by the acts of his attorney within the scope of his apparent authority. The client’s remedy, where there have been restrictions not communicated to the opposing party, is against the attorney who overstepped the bounds of this agency, not against the third party.” (Endnote omitted.) Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (308 SE2d 544).

Decided March 7, 1991.

Worthington & Flournoy, Thomas M. Flournoy, Jr., for appellants.

J. Barrington Vaught, for appellee.

Under Brumbelow, a client is bound by a settlement agreement entered into by his attorney whether or not he agreed with or authorized the terms of the settlement. See Hynko v. Hilton, 198 Ga. App. 308 (401 SE2d 324) (1991). Thus, plaintiffs are bound by the settlement agreement negotiated by their attorney and the attorney for defendant.

Relying upon Peters v. Dealer Supply Co., 150 Ga. App. 657 (258 SE2d 203), plaintiffs contend the settlement agreement should not be enforced because they misunderstood the terms of the settlement agreement. We disagree. Peters v. Dealer Supply Co., supra, cannot be deemed viable in light of Brumbelow v. Northern Propane Gas Co., 251 Ga. 674, supra.

Plaintiffs’ attorney understood the terms of the settlement agreement and he entered into the agreement on behalf of plaintiffs. Whether or not plaintiffs understood the terms of the agreement is of no consequence. Brumbelow v. Northern Propane Gas Co., 251 Ga. 674, supra. The trial court did not err in granting the motion to enforce the settlement agreement.

Judgment affirmed.

Sognier, C. J., and Carle y, J., concur.


author: Cooper, Judge.

text:
    A90A2222.
    DeLOACH v. THE STATE.
    (403 SE2d 866)
   Cooper, Judge.

This appeal arises from the trial court’s denial of appellant’s motion for substitute counsel, brought by appellant after the denial of his motion for new trial on the grounds that his court-appointed attorney, who represented appellant at trial and at the hearing on his motion for new trial, was ineffective.

Appellant, represented by a court-appointed attorney, was convicted by a jury of conspiracy to commit murder and violation of the Georgia Controlled Substances Act. His attorney filed a motion for new trial on appellant’s behalf and represented appellant at the hearing on the motion for new trial. The trial court denied appellant’s motion for new trial and extraordinary motion for new trial on May 29, 1990. In a letter dated June 4, 1990, to his attorney, appellant discharged his attorney from all further representation in matters relating to appellant’s case. In another letter, also dated June 4, 1990, appellant informed the trial judge that he was dismissing his attorney and that he was filing motions for assignment of substitute counsel and an amended motion for new trial. The trial judge responded to . appellant by letter dated June 12, 1990, and explained that if appellant discharged his court-appointed attorney, he would have to either employ his own counsel, represent himself, or request another court-appointed attorney and give the reasons for the request. On June 14, 1990, appellant, acting pro se, filed a Motion for Assignment of Substitute Counsel; Motion for Assignment of Substitute Appellate Counsel, and an Amendment to Motion for New Trial; Motion for Evidentiary Hearing. On July 10, 1990, the trial court denied appellant’s motion in an order which stated: “The indigent defendant having discharged his appointed counsel without leave of court and without invoking the court’s discretion on whether a substitute counsel should be appointed and subsequent to the denial of his Motion for New Trial and Extraordinary Motion for New Trial, it is, therefore, ordered and adjudged that his Motion for Substitute Counsel be denied.” Appellant filed a timely notice of appeal from the entry of that order.

We note at the outset that “[a]n indigent defendant is entitled to representation by counsel on appeal as well as at trial. [Cits.]” Cochran v. State, 253 Ga. 10, 11 (315 SE2d 653) (1984). The substance of appellant’s motion for substitute counsel was that his court-appointed counsel was ineffective in violation of the United States and Georgia Constitutions. “[W]here a defendant does not seek new representation on the basis of ineffectiveness of his appointed counsel, it is generally not error to deny the request, the defendant having ‘no right to pick or choose his court-appointed attorney.’ [Cit.] When, however, the issue of the effectiveness of appointed counsel is raised, it would appear that the trial court, in order to insure that the defendant’s Sixth Amendment right has been and will continue to be afforded, should conduct ‘a hearing as to the basis of the defendant’s motion for appointment of new counsel. (Cits.)’ [Cit.]” Heard v. State, 173 Ga. App. 543 (1) (327 SE2d 767) (1985). It appears from the record that the trial judge did not adequately inquire into the nature of appellant’s allegations of ineffective assistance of counsel by conducting a hearing. Furthermore, the trial court did not rule on appellant’s motion until the time for filing a notice of appeal from the denial of his motion for new trial had expired, thus effectively denying appellant an attorney who could file a notice of appeal from the denial of his motion for new trial. We conclude that the trial court’s failure to conduct a hearing on appellant’s claim of ineffective assistance of counsel was error and remand the case to the trial court for such a hearing to be conducted. Following the hearing, appellant is granted leave to file a new appeal within 30 days of any ruling by the trial court which is adverse to him. Heard v. State, supra.

Decided March 7, 1991.

Kenneth DeLoach, pro se.

Jack O. Partain III, District Attorney, Kermit N. McManus, Assistant District Attorney, for appellee.

Case remanded with direction.

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


text:
    A90A2303.
    JONES v. THE STATE.
    (403 SE2d 867)
   McMurray, Presiding Judge.

Defendant was indicted for trafficking in cocaine in that he did sell over 28 grams of a mixture containing at least ten percent pure cocaine in violation of the Georgia Controlled Substances Act. The case was tried before a jury and the evidence revealed the following:

On May 30, 1989, defendant met a confidential police informant and an undercover law enforcement officer in a shopping center parking lot and agreed to sell the undercover officer two ounces of cocaine for $1,800. Defendant used the undercover officer’s mobile telephone, called an accomplice and made arrangements to close the deal at a fast food restaurant. Defendant then rode with the informant and the undercover officer to the fast food restaurant. Defendant and the informant went into the restaurant. The undercover officer waited in the car. A few minutes later, defendant’s accomplice approached the undercover officer and stated, “[Y]ou must be the one that... I supposed to bring this to?” In response, the undercover officer showed the accomplice “a large sum of money. . . .” The accomplice then went to his car, retrieved “a blue paper towel...” and returned with defendant to the law enforcement officer’s vehicle. Defendant entered the back seat and the accomplice entered the front passenger seat. The accomplice handed the undercover officer 56.2 grams of a substance which was 73 percent pure cocaine. The undercover officer then began counting money. At that point, several law enforcement officers moved in and arrested defendant and the accomplice.

The jury found defendant guilty of trafficking in cocaine. This appeal followed the denial of his motion for new trial. Held:

1. Defendant first contends the evidence was insufficient to prove that he committed the crime as alleged in the indictment, i.e., that he sold cocaine. Defendant argues that a sale of cocaine did not occur since the undercover officer never handed defendant or the accomplice money in exchange for the cocaine. This argument is without merit.

An exchange of money was not necessary in order to prove that defendant sold cocaine. “[A] sale of drugs is complete when the seller delivers the drugs to the feigned buyer.” Robinson v. State, 164 Ga. App. 652, 653 (1), 654 (297 SE2d 751). In the case sub judice, the State presented evidence showing that defendant’s accomplice delivered 56.2 grams of a substance containing over 73 percent pure cocaine to an undercover law enforcement officer. This evidence was sufficient to authorize the jury’s finding that defendant was guilty, beyond a reasonable doubt, of trafficking in cocaine as alleged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). See OCGA § 16-2-20 and Barrett v. State, 183 Ga. App. 729, 733 (2), 735 (360 SE2d 400).

2. In his second enumeration, defendant contends the trial court erred in charging the jury that trafficking in cocaine could be committed by more than the method charged in the indictment. More specifically, defendant contends the trial court’s responses to questions asked by the jury misled the jury into believing that he could be found guilty of trafficking in cocaine by more than the method of selling cocaine as alleged in the indictment.

After the jury retired for deliberations, they returned with several questions. Pertinently, the jury asked, “Is possession then a consideration in terms of the crime of trafficking?” In response, defense counsel suggested that the trial court “read the trafficking charge again.” The trial court then recharged the jury on the pertinent provisions of OCGA § 16-13-31 (a) (1), i.e., “Any person who knowingly sells, delivers or brings into this State or who is knowingly in actual possession of twenty-eight grams or more of cocaine or of any mixture with a purity of ten percent or more of cocaine commits the offense of trafficking in cocaine.” The jury then resumed deliberations, but later returned and asked the trial court, “Reread the charge as to what constitutes trafficking. Does it include both actual and constructive possession?” The trial court responded by recharging the pertinent provisions of OCGA § 16-13-31 (a) (1). The jury then asked the trial court to “[d]o it one more .time.” The trial court complied.

Defendant argues that it was reversible error to instruct the jury on the various methods in which the offense of trafficking in cocaine could be committed without giving them remedial instructions, limiting the jury’s consideration to the particular manner in which trafficking in cocaine was alleged in the indictment. See Cauthen v. State, 177 Ga. App. 565, 567 (4) (340 SE2d 199). The State contends the defendant waived exception to the recharge by suggesting that the trial court “read the trafficking charge again.”

Defendant waived exception to the trial court’s recharge of the pertinent provisions of OCGA § 16-13-31 (a) (1) by suggesting that the trial court “read the trafficking charge . . .” in response to the jury’s question. A party cannot complain of an error that his own conduct aided in causing. Chambley v. State, 177 Ga. App. 630 (1) (340 SE2d 635). Further, we find no error as the trial court’s response was directed to answering the jury’s specific question. “It is not error to limit a recharge to the question asked. Davis v. State, 184 Ga. App. 415, 416 (3) (361 SE2d 547) (1987). In fact, ‘(r)esponding to a jury’s request to restate portions of the charge is generally required of the trial judge, (cit.), and it is within the court’s discretion to recharge only that which is specifically requested. (Cit.)’ Appling v. State, 256 Ga. 36, 38 (2) (343 SE2d 684) (1986).” Shy v. State, 190 Ga. App. 370, 372 (6) (378 SE2d 920). During the main jury charge in the case sub judice, the trial court instructed the jury on the pertinent provisions of OCGA § 16-13-31 (a) (1) and then admonished the jury that they “must consider the guilt or innocence of the defendant as to the crime alleged in the indictment and [that they] must render a verdict as to the crime of which [defendant] is accused.” The trial court further instructed the jury that they must consider “first the accusation of trafficking in cocaine [and] if after considering all the facts and circumstances as disclosed by the evidence, you believe beyond a reasonable doubt that the defendant is guilty of trafficking in cocaine as charged in the indictment, then, in that event, you would be authorized to find the defendant guilty of trafficking in cocaine as charged in the bill of indictment.” Under these circumstances, we find no abuse in the trial court’s limited responses to the jury’s questions. See Cauthen v. State, 177 Ga. App. 565, 567 (4), supra. This enumeration is without merit.

Decided March 7, 1991.

Mark V. Cloud, for appellant,

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

Judgment affirmed.

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


text:
    A90A2365.
    DEPARTMENT OF TRANSPORTATION v. SHUGART et al.
    (403 SE2d 870)
   McMurray, Presiding Judge.

This marks the third appearance of this case in this Court. Previously, this Court reversed an award of $86,000 in favor of the condemnees because the jury was mistakenly led to believe that cost to cure damages were the only consequential damages involved in the case. Shugart v. Dept, of Transp., 184 Ga. App. 692 (362 SE2d 474). Following a retrial, an award of $127,370 was entered in favor of the condemnees and judgment was entered accordingly. The trial court vacated and set aside the judgment and this Court remanded with direction to reinstate the judgment. Department of Transp. v. Shugart, 194 Ga. App. 422 (392 SE2d 576). The judgment was reinstated and the condemnor now appeals. Held:

1. In 1982, the condemnor condemned a strip of property owned by the condemnees. The condemnees owned and operated a motel on the property. The condemnation interfered with access to the motel. Accordingly, the condemnees had to design and construct new means of access to the motel.

Charles White, a building contractor, testified concerning the cost of constructing new access to the condemnees’ motel. He testified that, in his opinion, the total cost to construct new access to the motel was $233,000 (based on 1982 values). A good portion of the cost was to go toward the redesign and reconstruction of the motel lobby. On cross-examination, the witness stated that he did not consider depreciation of the motel in rendering his opinion. He simply evaluated the cost of constructing new access to the property based on 1982 prices. The condemnor moved to strike the “replacement cost” testimony of White because his opinion did not take into account depreciation of the motel. The trial court denied the motion to strike.

In its first enumeration of error, the condemnor contends the trial court erred in refusing to strike the testimony of Charles White. Relying upon Metropolitan Atlanta Rapid Transit Auth. v. Dendy, 250 Ga. 538, 542 (299 SE2d 876), the condemnor argues that a depreciation factor should have been applied by White to put a value on the condition of the condemnees’ property before the taking. See also Department of Transp. v. Dent, 142 Ga. App. 94 (2) (235 SE2d 610); State Hwy. Dept. v. Murray, 102 Ga. App. 210 (1) (115 SE2d 711). We disagree.

Decided March 7, 1991.

Weiner, Dwyer, Yancey & Mackin, Beryl H. Weiner, Thomas C. Dempsey, John D. Stone, Michael J. Bowers, Attorney General, for appellant.

Peek & Whaley, J. Corbett Peek, Jr., James G. Peek, for appellees.

White did not offer a “replacement cost” opinion concerning the market value of the property taken. Rather, White offered an opinion concerning the cost of restoring convenient access as a factor to be considered in determining consequential damages to the remaining property. “It was not the value of the [motel] as damaged that was testified to and sought to be considered, but rather the cost of rectifying its condition, as an element in the determination of the aftertaking value of the remaining land.” D’Youville Recreational Assn. v. DeKalb County, 181 Ga. App. 347, 350 (352 SE2d 181).

The testimony given by White proved a factor which the condemnees could reasonably bring to the attention of a prospective purchaser — the “cost to cure” access. D’Youville Recreational Assn. v. DeKalb County, 181 Ga. App. 347, 350, supra; Macon-Bibb County Water &c. Auth. v. Reynolds, 165 Ga. App. 348, 350, 351 (299 SE2d 594). The trial court did not err in refusing to strike the testimony of White.

2. In its second enumeration of error, the condemnor contends it should have been permitted to introduce evidence reflecting occupancy rates at the motel before and after the taking. This contention is without merit.

In a proffer, a witness for the condemnor read the motel occupancy rates (from 1978 through 1984) off of two exhibits. It is clear that the witness had no firsthand knowledge about the occupancy rates. He simply reviewed the rates by examining the exhibits the night before he testified. The exhibits themselves were not introduced in evidence.

The witness’ proffered testimony was hearsay, plain and simple. Foster v. National Ideal Co., 119 Ga. App. 773, 774 (3) (168 SE2d 872). The trial court did not err in excluding it.

Judgment affirmed.

Sognier, C. J., concurs. Carley, J., concurs in the judgment only.


text:
    A90A2374.
    COOK v. THE STATE.
    (403 SE2d 872)
   McMurray, Presiding Judge.

Defendant was charged in Count 1 of a multi-count indictment with aggravated assault in that he did assault the victim with a pistol on May 9, 1989. In Count 6, defendant was charged with having committed the offense of a terroristic threat (threatening to murder the victim) on May 9, 1989. In Count 10, defendant was charged with having committed the offense of a terroristic threat (threatening to murder the victim) on May 19, 1989. Defendant was tried before a jury and found guilty on these counts of the indictment. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the evidence was insufficient to authorize findings that he committed aggravated assault upon the victim as alleged in Count 1 of the indictment and that he committed the offense of a terroristic threat as alleged in Count 6 of the indictment. Defendant argues that the conflicting testimony was insufficient to authorize the jury’s verdicts.

“ ‘On appeal, our review is restricted to the legal sufficiency of the evidence, not the weight of the evidence.’ Carson v. State, 171 Ga. App. 527, 528 (320 SE2d 382) (1984).” McClendon v. State, 187 Ga. App. 666, 668 (371 SE2d 139).

In the case sub judice, defendant testified and admitted to going to the victim’s home on May 9, 1989, but he denied threatening the victim with death and assaulting her with a gun. The victim testified that defendant came to her home on May 9, 1989, and threatened to kill her if she did not leave the house. The victim further testified that defendant “went to [her] bedroom [and took her] gun [and] clicked [the gun] over to where there was a bullet in the first chamber and . . . took the safety off and told [the victim] either [she gets] out or he was gonna kill [her].” The victim’s 13-year-old daughter testified that she witnessed an argument between her mother and defendant on May 9, 1989; that defendant then had a gun and that defendant then threatened her mother, “I’ll kill you or you can leave. . .

The jury was authorized to reject defendant’s testimony and accept the victim’s and the victim’s daughter’s testimony. McClendon v. State, 187 Ga. App. 666, 667, supra. Further, we have reviewed the transcript and find sufficient evidence to authorize the jury’s findings that defendant was guilty, beyond a reasonable doubt, of the offense of aggravated assault as alleged in Count 1 of the indictment and of the offense of a terroristic threat as alleged in Count 6 of the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Adams v. State, 255 Ga. 356, 357 (338 SE2d 860).

Decided March 7, 1991.

Robert L. Ferguson, for appellant.

Robert E. Keller, District Attorney, Lisa A. Curia, Assistant District Attorney, for appellee.

2. Defendant contends that there was insufficient evidence to authorize a finding that he was guilty of the offense of a terroristic threat as alleged in Count 10 of the indictment.

The victim testified that she appeared at defendant’s bond hearing on May 19, 1989; that defendant gave her “looks . . . that scare you to death” while the testimony was being given and that when defendant passed her after testifying he said, “I’m gonna get you.” Defendant argues that this evidence is insufficient to authorize a finding that he threatened the victim’s life as alleged in Count 10 of the indictment. We do not agree.

While the words, “I’m gonna get you,” may not specifically threaten death, the circumstances surrounding the utterance of defendant’s threatening words to the victim were sufficient to authorize the jury’s finding that defendant threatened the victim’s life on May 19, 1989. Defendant had threatened defendant’s life before the May 19, 1989, bond hearing and he had assaulted her with a pistol before the bond hearing. This evidence and evidence that two other witnesses heard defendant’s threatening utterance to the victim at the bond hearing was sufficient to sustain the jury’s finding that defendant is guilty, beyond a reasonable doubt, of the offense of a terroristic threat as alleged in Count 10 of the indictment. Jackson v. Virginia, 443 U. S. 307, supra. See Boone v. State, 155 Ga. App. 937 (1) (274 SE2d 49).

Judgment affirmed.

Sognier, C. J., and Car ley, J., concur.


text:
    A91A0081.
    ALVARADO v. THE STATE.
    (403 SE2d 463)
   Sognier, Chief Judge.

Jorge Alvarado was convicted by a jury of DUI, reckless driving, and two counts of vehicular homicide, and he appeals from the judgment entered on those convictions.

The evidence adduced at trial showed that on a rainy evening appellant was driving a car in which there were four passengers on Highway 27 from Cedartown to Rome. On a two lane portion of the road, appellant’s vehicle left the highway, ran into a concrete culvert and flipped over, killing two passengers and injuring appellant and the two other passengers. A blood test performed on appellant more than two hours after the accident indicated a blood alcohol level of .12 percent.

Appellant contends the trial court erred by allowing Patrolman Tom Ewing and Sergeant George Lemming of the Floyd County Police Department to give their opinions that appellant was a less safe driver and that he was traveling at an excessive rate of speed. We find no merit in this enumeration.

We cannot agree with appellant that it is necessary that police officers observe drivers before accidents in order to provide a foundation for later opinions concerning whether the drivers were less safe. “Circumstantial evidence may be sufficient to authorize a finding that a defendant accused of driving a motor vehicle under the influence of intoxicants was guilty of the offense although no witness testified positively to having seen him operating the vehicle.” Lawrence v. State, 157 Ga. App. 264 (1) (277 SE2d 60) (1981). “ ‘[A] witness who satisfactorily shows that he had opportunity to observe, and did observe, the condition of another, may testify whether that person was under the influence of intoxicants and the extent thereof, stating the facts upon which the opinion is based. (Cits.)’ . . . [Cit:]” Chance v. State, 193 Ga. App. 242 (1) (387 SE2d 437) (1989). “The question of whether a witness has established sufficient opportunity for forming a correct opinion or has stated a proper basis for expressing an opinion is for the trial court. [Cit.]” Hood v. State, 193 Ga. App. 701, 703 (2) (389 SE2d 264) (1989).

In this case, Ewing, who had been a police officer for over two years and had investigated many accidents, testified that he was the first officer to arrive at the scene of the accident. He observed “an odor of alcohol about [appellant’s] breath,” and from the distance the car traveled after hitting the culvert, concluded that appellant had been driving faster than the speed limit. Based on that conclusion and the fact that the car ran four feet off the road before hitting the culvert (which in Ewing’s opinion showed that appellant was unable to control the car and get it back on the road), Ewing opined that appellant was a less safe driver. Lemming, who had 18 years of police experience and had investigated thousands of accidents, testified that he was called to the scene of the accident, and that he got close enough to appellant to detect a moderate smell of alcohol. Lemming testified that in his opinion, based on “the actual physical evidence at the scene at the time of the investigation,” “excessive speed was a factor in this wreck,” and appellant “was less safe to drive that vehicle. He should not have been [behind] the wheel.”

The opinions expressed as to appellant’s safety as a driver having been given by experienced police officers, and the bases for their opinions having been clearly stated, we find no abuse of the trial court’s apparent determination of sufficiency here. See Chance, supra; see also Doughty v. State, 175 Ga. App. 317, 319 (2) (333 SE2d 402) (1985).

Decided March 7, 1991.

Ñaman Wood, for appellant.

Stephen F. Lanier, District Attorney, Leigh E. Patterson, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A90A2315.
    EPPINGER v. THE STATE.
    (403 SE2d 829)
   McMurray, Presiding Judge.

Defendant was tried before a judge of the Probate Court of Up-son County, Georgia, and found guilty of violating OCGA § 40-6-391 (a) (4) (driving with a blood alcohol concentration of 0.12 grams or more). Defendant filed an appeal to the superior court and the superior court entered an order which provides, in pertinent part, as follows: “This Court conducted, pursuant to O.C.G.A. [§] 40-13-28, a ‘de novo proceeding’ for the limited purpose of making a new determination as to the guilt or innocence of the [defendant]. A review of the certified record from the Probate Court of Upson County indicates that [defendant] is guilty beyond a reasonable doubt of driving under the influence of alcohol.” This appeal followed. Held:

1. In his first two enumerations, defendant contends the trial court erred in denying his motion to dismiss and plea in bar.

An examination of the record transmitted from the superior court reveals no motion to dismiss and plea in bar. The only motion to dismiss and plea in bar before the superior court for review was defense counsel’s statement in the certified probate court trial transcript that, “We have a . . . motion to dismiss and plea in bar — combined plea in bar attacking the constitutionality of the DUI statutes. Would you rule on all those at this time? THE COURT: I’m going to deny your motions.” This record is insufficient for the superior court to have been able to conduct a review of defendant’s motion to dismiss and plea in bar. “ ‘A constitutional issue . . . must be clearly raised in the trial court and distinctly ruled upon there. (Cit.). . . .’ Harbin v. State, 193 Ga. App. 248-49 (1) (387 SE2d 367) (1989).” Martin v. State, 195 Ga. App. 548 (1) (394 SE2d 551).

“The appeal that is created by OCGA § 40-13-28 is a de novo proceeding. Anderson v. City of Alpharetta, 187 Ga. App. 148 (369 SE2d 521) (1988). In such a proceeding, the superior court, following its own applicable procedures, undertakes to address only those issues which the lower court was otherwise authorized to address. Peavy v. Crawford, 182 Ga. 782 (1) (187 SE 13) (1936).” Walton v. State, 197 Ga. App. 263, 264 (1) (398 SE2d 221). In the case sub judice, the superior court did not have a sufficient record to review the probate court’s denial of defendant’s motion to dismiss and plea in bar. It therefore follows that nothing remains for this court to review as “our inquiry is confined to whether [the superior court] erred in affirming the conviction.” Dossett v. State, 197 Ga. App. 139 (2) (398 SE2d 24). Defendant’s first and second enumerations present nothing for review.

2. In his third enumeration, defendant contends the trial court erred in denying his motion to suppress and motion in limine wherein defendant allegedly sought exclusion of the State-administered breath test.

An examination of the record transmitted from the superior court reveals no motion in limine or motion to suppress. However, the certified trial transcript from the probate court shows that defense counsel pressed a motion to suppress and a motion in limine before trial, but it also shows that defense counsel did not then state reasons for excluding evidence of the State-administered breath test. The only other reference in the probate court trial transcript regarding exclusion of the State-administered breath test is defense counsel’s objection to evidence of the results of the State-administered breath test. Defendant’s attorney then stated that a “proper foundation has not been laid [as asserted] under 9, 10, 11, 12, and 13 of my motion to suppress.” Under these circumstances and since defendant’s motion to suppress and motion in limine were not before the superior court for review, there was an insufficient record for the superior court to review the grounds for defendant’s motion to suppress and motion in limine. Consequently, this enumeration presents nothing for this court to review. See Dossett v. State, 197 Ga. App. 139 (2), supra.

3. In his final enumeration, defendant asserts the general grounds and argues that the State’s failure to prove the “scientific reliability to a degree of verifiable certainty . . .’’of the machine which tested defendant’s breath was fatal to the State’s case. This contention is without merit.

“ ‘The results of a breath test are admissible in a criminal proceeding for driving under the influence of alcohol if the test is performed in accordance with the specific statutory guidelines of OCGA § 40-6-392 (a) (1).’ Dotson v. State, 179 Ga. App. 233 (1) (345 SE2d 871) (1986).” Burks v. State, 195 Ga. App. 516, 517 (2 a) (394 SE2d 136). In the case sub judice, the record shows that the machine used to test defendant’s breath was an approved type; that the officer who administered the test was trained and certified to operate the machine; that the machine was operating properly when defendant’s breath was tested and that defendant was informed of his implied consent rights before being tested. This evidence established that defendant’s breath was tested in accordance with the specific guidelines of OCGA § 40-6-392 (a). See Burks v. State, 195 Ga. App. 516, 517 (2 a), supra. Consequently, the results of the State-administered breath test were properly admitted into evidence.

Decided February 22, 1991

Rehearing denied March 8, 1991

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, for appellant.

W. Fletcher Sams, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

Evidence showing that defendant’s blood alcohol concentration was .27 percent within one hour after being in actual physical control of a motor vehicle and evidence showing that a law enforcement officer observed defendant operating a motor vehicle on the wrong side of a public road within one hour of defendant’s breath test was more than sufficient to sustain the superior court’s finding that defendant was guilty, beyond a reasonable doubt, of driving under the influence of alcohol (driving with a blood alcohol concentration of 0.12 grams or more). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Burks v. State, 195 Ga. App. 516, 518 (5), supra.

Judgment affirmed.

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


text:
    A90A1674.
    In the Interest of K. G. L., a child.
    (403 SE2d 464)
   Cooper, Judge.

This appeal arises from a termination of parental rights proceeding initiated by the Georgia Department of Human Resources against the natural parents of K. G. L., a girl born on October 16, 1981. Following an evidentiary hearing, the juvenile court terminated the parental rights of both parents, and the father appeals.

1. Appellant enumerates the general grounds and argues that the reliability of the child’s testimony and all of the evidence based on that testimony is doubtful because the child was not competent to testify. We disagree. The child displayed some confusion while being examined by the trial judge as to her understanding of the difference between the truth and a lie. However, the inconsistencies did not “ ‘render [her] incompetent to testify as a matter of law, but [are matters] for consideration by the trial court in making its determination of competency and by the jury in determining the credibility of the witnesses. (Cits.)’ [Cit.]” Hutton v. State, 192 Ga. App. 239 (1), 240 (384 SE2d 446) (1989). “ ‘[T]he trial court is the arbiter of competency . . . [and its decision] will not be reversed except for a manifest abuse of discretion. [Cits.]’ [Cits.]” Thomas v. State, 168 Ga. App. 587, 588 (3) (309 SE2d 881) (1983). In our view, the trial court did not abuse its discretion in deeming the child competent to testify. Moreover, after the child was examined by counsel for the department, counsel for both parties and a guardian ad litem, the court denied motions to exclude the testimony.

There were obvious inconsistencies in the child’s testimony relative to her out-of-court statements; however, she did testify that appellant had done “bad things,” that he put his hands underneath her clothes, and that appellant put his hand on her “butt.” Appellant is presently serving a 60-year sentence, having been convicted of four counts of child molestation and one count of cruelty to children for acts committed against K. G. L. The child’s teacher and principal testified that the child masturbated in class, that she could describe appellant’s body, her own body and the contact between the two using anatomical drawings and dolls, and that the child stated that she had put her hand on appellant’s “butt,” which she demonstrated using drawings of the genital area. The school counselor testified that the child displayed tendencies which indicated abuse; she was aggressive and unable to interact with other children, would smell her food and eat with her hands and was non-verbal and unable to concentrate. There was also testimony that after the child’s removal from the home, her condition improved dramatically. After a year of therapy, the child was able to clearly state what appellant had done to her. There was evidence of pornography in the home. Appellant photographed the child’s mother and another woman in an explicit sexual act, and sexually explicit books and films were discovered along with nude pictures of the child. A trustee at the jail where appellant was held after his arrest testified that appellant referred to the child as “his woman” and admitted having sex with her. Further, appellant’s adult stepdaughters revealed that he had molested or attempted to molest them and their friends. As the record amply demonstrates, “[t]here was clear and convincing evidence to support the termination of the parents’ parental rights pursuant to OCGA § 15-11-81 (a) & (b). [Cits.]” In the Interest of C. J. S. & C. M. S., 195 Ga. App. 741, 742 (1) (395 SE2d 35) (1990).

2. Appellant next enumerates as error the admission of the testimony of the child’s teacher, principal, school counselor, social worker and caseworker regarding statements made to them by the child and their conclusions drawn from those statements. Appellant contends the testimony was hearsay and inadmissible pursuant to OCGA § 24-3-16 because the child was not competent to testify and therefore was not “available.” This enumeration is without merit. This court in In the Interest of K. T. B., 192 Ga. App. 132, 133 (384 SE2d 231) (1989), reaffirmed an earlier decision which held that with regard to OCGA § 24-3-16 the phrase “available to testify” means “competent to testify.” Since we established in Division 1 that the child was competent to testify, her testimony was admissible.

Decided March 8, 1991.

John T. Brown, for appellant.

Michael J. Bowers, Attorney General, Carol A. Cosgrove, William C. Joy, Senior Assistant Attorneys General, Margo M. Cairnes, Charles W. Smith, Jr., Jerry C. Gray, Jacquelyn H. Wilkes, for appellee.

3. Finally, appellant contends the court erred in admitting the testimony of his adult stepdaughters arguing that the acts described occurred when the women were children, 12 to 15 years prior to the instant case, and are too remote in time to be relevant. “ ‘(R)emoteness ... is relative. . . . We cannot say there was no logical connection between the [appellant’s] molesting of his (three older) [step] daughters [and their friends when they were approximately 12 years old.] The . . . testimony (was) relevant to show [appellant’s] intent, bent of mind or general plan to gratify his lust, passion and sexual desires. . . . (Cits.)’ [Cit.] The testimony was not erroneously admitted.” Cox v. State, 173’Ga. App. 422 (1), 423 (326 SE2d 796) (1985).

Judgment affirmed.

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


author: Birdsong, Presiding Judge.

text:
    A90A1781.
    944, INC. v. GEORGIA STATE BANK.
    (403 SE2d 466)
   Birdsong, Presiding Judge.

Appellant, 944, Inc., asserts that the trial court erred by granting summary judgment to the Georgia State Bank (“the bank”). This appeal concerns the authority of 944, Inc. to bring the action against the bank.

The record shows that 944, Inc., and Lawson Johnson and his corporation, Estate Liquidation Services, Inc. (“Estate Liquidation”), entered into a joint venture to rehabilitate real property. Pursuant to the joint venture, they bought property, obtained a construction loan for the property from the bank, and opened a checking account at the bank to receive the funds. The account, however, was opened only in the name of Estate Liquidation.

The record shows that the signature card for the account required two signatures on each check to authorize payment: one by Johnson and the other by a designated representative of 944, Inc. Nevertheless, the bank honored checks signed by Johnson without the signature of the representative of 944, Inc.

According to 944, Inc., payment of these checks depleted the funds available to complete the joint venture’s project, and ultimately, the bank began foreclosure on the construction loan. After two lawsuits to recover directly from the bank in its own name were unsuccessful, 944, Inc. filed the present action styled 944, Inc. a/k/a Estate Liquidation Services, Inc. and as successor in interest thereto.

The bank moved for and was granted summary judgment. The motion contended that 944, Inc. lacked standing to sue the bank because it lacked privity of contract with the bank because the Estate Liquidation, as owner of the checking account, was the proper party to assert any claims for the honoring of the check, and because Estate Liquidation had released its claims against the bank. Held:

1. “In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. [Cits.]” Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843). As a defendant moving for summary judgment, the bank had the burden of showing that there are no genuine issues of material fact and that it was entitled to judgment as a matter of law (OCGA § 9-11-56 (c)), of piercing the pleadings of 944, Inc. by affirmatively negating at least one of the essential elements of the complaint (Corbitt v. Harris, 182 Ga. App. 81 (354 SE2d 637)), and establishing, as a matter of law, that 944, Inc. cannot recover under any theory fairly drawn from the pleadings and evidence. Reed v. Adventist Health Systems &c., 181 Ga. App. 750, 752 (353 SE2d 523).

Here, the bank had the burden of establishing that 944, Inc. had no interest in the checking account and it attempted to do so through the signature card. Review of the record shows that the entire contract establishing the rights of the parties concerning the checking account is contained on the signature card. See Federal Deposit Ins. Corp. v. West, 244 Ga. 396, 399 (260 SE2d 89). Although the signature card shows that the checking account was opened in the name of Estate Liquidation, the card also shows that checks on the account were required to have two signatures, one of which the card shows was a representative of 944, Inc. Therefore, construing the evidence as we must and giving 944, Inc. the benefit of all inferences and reasonable doubts, the signature card shows that 944, Inc. had an interest in the checking account sufficient to support the theory of at least the existence of an implied trust involving the bank and 944, Inc. See OCGA § 53-12-22; American Nat. Bank v. Fidelity Co., 129 Ga. 126 (58 SE 867). Therefore, the bank failed to meet its burden, and the trial court erred by granting summary judgment.

Decided March 8, 1991.

Tobin & Hoffspiegel, Thomas W. Tobin, Leonard L. Franco, for appellant.

Richard A. Gordon, Johnson & Montgomery, Nisbet S. Kendrick III, for appellee.

As noted in Winn-Dixie &c. v. Ramey, 186 Ga. App. 257 (366 SE2d 785) however, an evidentiary posture which might authorize the grant of a motion for a directed verdict might not authorize the grant of summary judgment since at trial the movant for summary judgment will not have the burden of proof.

2. Accordingly, in view of our disposition of the first enumeration of error, we need not address the legal effects of the release obtained by the bank and the default judgment obtained by 944, Inc.

Judgment reversed.

Banke, P. J., and Cooper, J., concur.