text:
    A98A2184.
    ROSE v. ZUROWSKI et al.
    (511 SE2d 265)
   Beasley, Presiding Judge.

Following various disputes with other members of Moose Lodge No. 1688, Charles Rose gradually lost several benefits of the Lodge, including employment as social manager, position as an officer, and eventually membership in the Lodge. Rose blamed John Hill (a representative of Moose International — the national organization) and Walter Zurowski (a local Lodge officer) for his demise and sued them. He alleged they conspired to tortiously interfere with his at-will Lodge employment, caused slanderous accusations, orchestrated a hearing without due process protections, and helped deprive him of his office. The appeal is from summary judgment for the defendants on all claims.

1. Rose contends Zurowski and Hill conspired in Lodge committee meetings to have him fired in retaliation for his accusing Zurowski’s wife of misappropriating Lodge funds. “Where it is sought to impose civil liability for a conspiracy, the conspiracy of itself furnishes no cause of action. The gist of the action, if a cause of action exists, is not the conspiracy alleged, but the tort committed against the plaintiff and the resulting damage.” “Although interference with contractual relations may occur by means of a conspiracy, there must exist a wrongful interference before any liability may be imposed.”

The tort alleged is wrongful interference with Rose’s employment contract with the Lodge. Although it was at will, that did “not make it one at the will of others, and a malicious and wrongful interference with such employment by another is actionable. . . .” Sullivan v. Horn identifies the elements: “In an action for tortious interference with an employment relationship that is terminable at will, the plaintiff must show that a party with no authority to discharge the employee, being activated by an unlawful scheme or purpose to injure and damage him, maliciously and unlawfully persuades the employer to breach the contract with the employee.”

“Malice plus injury to business of itself does not, however, constitute the tort of wrongful interference with business. Rather, an independent wrongful act is required as well as an injury.” Singleton v. Itson illustrates this principle. For purely personal reasons a co-employee complained about Singleton violating company policy and criticized his performance, resulting in Singleton’s discharge. Holding that evidence of malice alone was insufficient to show tortious interference with Singleton’s employment, the trial court granted a directed verdict to the co-employee.

Singleton affirmed, explaining that “[d]ivulging truthful information and expressing critical personal opinions about a co-employee’s work are not wrongful or unlawful acts and those acts cannot, therefore, give rise to liability for tortious interference with contractual relations in the event that the employer makes the independent determination that the truthful information and critical opinions warrant termination of an at-will employee. There being no evidence of an act of [the co-employee] which was independently wrongful or unlawful, the grant of a directed verdict in favor of her was correct.” Since the tort was first recognized in the employment context, necessary ingredients include that the interference must be malicious and unlawful or wrongful.

Focusing on the “improper action or wrongful conduct” element common to all tortious interference claims, Disaster Svcs. v. ERC Partnership explained: “Improper actions constitute conduct wrongful in itself; thus, improper conduct means wrongful action that generally involves predatory tactics such as physical violence, fraud or misrepresentation, defamation, use of confidential information, abusive civil suits, and unwarranted criminal prosecutions.” For example, instructing a fellow employee to commit perjury and then threatening him when he refuses meets this description. On the other hand, accurately informing an employee’s superiors that he owes money to the corporation does not.

Rose did not allege or present any evidence of wrongful or improper actions by either Zurowski or Hill in connection with the events leading up to his discharge from Lodge employment. At most he only alleged that they acted for purely personal reasons. Bad motive, a subjective prompter, does not poison the legitimacy of an act, which is measured objectively. Summary judgment was warranted on this claim.

2. The next claim is that Zurowski and Hill orchestrated and participated in a hearing on restricting Rose’s rights to the Lodge’s social quarters. The hearing was conducted without Rose having the right to face or cross-examine his accusers, to have counsel present, or to disqualify members of the tribunal whose wives were witnesses at the hearing. Such rights relate to hearings before governmental tribunals, not to private hearings to discipline club members. “[D]isciplinary actions taken by a private, social club against its members are not matters of constitutional law. Appellant’s rights, if any, are governed by the by-laws, which constitute the agreement between the corporation and its members.”

Rose has not alleged or presented evidence that the Lodge bylaws were not followed in good faith. The by-laws only require that a hearing be held before the House Committee before suspending social quarters privileges of a member. Not only was such a hearing held, but Rose was notified of the hearing, attended and presented witnesses, asked questions of the committee, and received notice of the decision to restrict his privileges. Such does not reflect a lack of good faith compliance. Additional due process safeguards guaranteed by the Georgia and federal constitutions for governmental hearings are of no relevance.

Rose argues that the hearing violated OCGA § 14-3-621 (1), which provides: “No member of a corporation may be expelled or suspended, and no membership or memberships in such corporations may be terminated or suspended except pursuant to a procedure that is fair and reasonable and is carried out in good faith.” Assuming this statute applies, the argument fails for at least three reasons. First, the statute begins with the proviso: “Unless otherwise expressly provided in a corporation’s articles of incorporation or bylaws. . . .” The Lodge by-laws covered the procedure for restricting social quarters privileges. Second, the statute by its terms applies to membership expulsion or suspension, not to restrictions of social privileges. Third, the statute only requires that the procedure be fair and reasonable under the circumstances, which it was. There being no statutory violation, Rose’s citation to Smooth Ashlar Grand Lodge &c. v. Odom is inapplicable.

Summary judgment on this claim also was proper.

3. Finally, it was not error to reject Rose’s claims that Zurowski and Hill caused others to make slanderous accusations against him and helped deprive him of his Lodge office. No evidence controverted Zurowski’s and Hill’s testimony that they had nothing to do with the statements. The decision to strip Rose of his office came from the national organization, and no evidence showed that Zurowski or Hill had any involvement in the decision, let alone improper involvement. Summary judgment was appropriate.

Decided January 29, 1999.

Groover & Childs, Denmark Groover, Jr., for appellant.

Martin, Snow, Grant & Napier, Robert R. Gunn II, Thomas P. Allen III, for appellees.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       (Citations and punctuation omitted.) Cook v. Robinson, 216 Ga. 328 (1) (116 SE2d 742) (1960); see First Fed. Savings Bank v. Hart, 185 Ga. App. 304, 305 (2) (363 SE2d 832) (1987) (“[accurately speaking, there is no such thing as a civil action for conspiracy. There is an action for damages caused by acts pursuant to a formed conspiracy, but none for the conspiracy alone”) (punctuation omitted; emphasis in original).

       (Citations omitted.) Singleton v. Itson, 192 Ga. App. 78, 81 (383 SE2d 598) (1989).

        Ott v. Gandy, 66 Ga. App. 684, hn. 1 (19 SE2d 180) (1942); see Ga. Power Co. v. Busbin, 242 Ga. 612, 613 (2) (250 SE2d 442) (1978) (“even though a person’s employment contract is at will, he has a valuable contract right which may not he unlawfully interfered with by a third person”).

       221 Ga. App. 289, 290 (470 SE2d 765) (1996).

       (Citation and punctuation omitted.) Id. See Barnwell v. Barnett & Co., 222 Ga. App. 694, 695 (1) (476 SE2d 1) (1996) (“[t]ortious interference with [at-will distributorship] contract requires proof of: (1) an independent wrongful act of interference by a stranger to the contract; (2) malicious intent to cause injury; and (3) resulting damage”). See generally, as to all types of tortious interference cases, Kitfield v. Henderson, Black & Greene, 231 Ga. App. 130, 132-133 (3) (498 SE2d 537) (1998) (“[t]o establish a cause of action for tortious interference with business or contractual relations, a plaintiff must show that the defendant (1) acted improperly and without privilege, (2) purposely and with malice with the intent to injure, (3) induced a third party or parties not to continue a business relationship with the plaintiff, and (4) for which the plaintiff suffered some financial injury”).

       (Citations and punctuation omitted; emphasis in original.) Singleton, supra, 192 Ga. App. at 79; see Barnwell, supra, 222 Ga. App. at 695 (1) (“[t]ortious interference with contract requires proof of... an independent wrongful act of interference by a stranger”).

       Supra.

       192 Ga. App. at 80-81.

        Ambase Intl. Corp. v. Bank South, 196 Ga. App. 336, 339 (3) (395 SE2d 904) (1990) (wrongful or unlawful); American Standard v. Jessee, 150 Ga. App. 663, 666 (3) (258 SE2d 240) (1979) (malicious and unlawful); McElroy v. Wilson, 143 Ga. App. 893, 894 (1) (240 SE2d 155) (1977) (malicious and unlawful); Ott, supra, 66 Ga. App. at 684, hn. 1 (malicious and wrongful).

       228 Ga. App. 739, 740-742 (492 SE2d 526) (1997).

       (Citation and punctuation omitted.) Id. See American Bldgs. Co. v. Pascoe Bldg. Systems, 260 Ga. 346, 349 (2) (392 SE2d 860) (1990).

        Troy v. Interfinancial, 171 Ga. App. 763, 768 (2) (320 SE2d 872) (1984).

        Medlin v. Carpenter, 174 Ga. App. 50, 55 (8) (329 SE2d 159) (1985).

       (Citations and punctuation omitted.) Bartley v. Augusta Country Club, 254 Ga. 144 (1) (326 SE2d 442) (1985); see Atlanta Country Club v. Smith, 217 Ga. App. 515, 517 (1) (458 SE2d 136) (1995) (“disciplinary matters pertaining to members of nonprofit corporations proceed as a matter of contract to which the principles of constitutional law do not apply”).

       136 Ga. App. 812, 815 (1) (222 SE2d 614) (1975).

       See Lau's Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    A98A2360.
    MILLER v. THE STATE.
    (511 SE2d 552)
   Johnson, Chief Judge.

A jury found Edwina Miller guilty of committing theft by receiving stolen property. The property had been stolen in a burglary of an Oconee County home. Miller appeals from her conviction, claiming the trial court erred in denying her motion for mistrial after a witness for the state improperly placed her character in evidence by testifying that he found marijuana in her home and that some property from an unrelated theft had previously been found in her home. We find no grounds for reversal.

At trial, a sheriffs deputy testified that he was investigating the Oconee County burglary when he decided to question Benjamin Streetman about his possible involvement in the crime. In explaining how he came into contact with Miller, the deputy said he learned that Streetman was residing at Miller’s home and that “some Jackson County authorities had obtained some stolen property from that location where Mr. Streetman was staying with Ms. Miller” The deputy went to Miller’s residence and asked her about Streetman and the burglary. She denied knowing anything about the burglary or stolen property. The deputy testified further that he searched the residence and found marijuana.

Defense counsel moved for a mistrial, arguing that the witness improperly injected evidence of bad character by testifying that marijuana and unrelated stolen property were found in Miller’s home. After a hearing, the trial court denied the motion for mistrial, ordered the testimony stricken and stated that the prosecutor was not to ask questions which could cause the witness to mention marijuana or Jackson County stolen property. When the jurors returned, the trial court instructed them to disregard the testimony about the Jackson County property and the marijuana, adding that Miller was not on trial for those offenses. The court then asked the jurors if they would disregard that testimony and not give it any consideration whatsoever. Each of the jurors indicated that they would. Miller renewed her motion for mistrial.

Later, during cross-examination, defense counsel asked the deputy about statements Miller gave him during the investigation. Defense counsel called the deputy’s attention to the written police report and asked the deputy to tell him where on the report he could find certain information. The officer began reading the report. Miller’s attorney continued asking questions about the contents of the report, of which he had a copy. The deputy resumed reading the report, including a part stating that marijuana was found in the house. Defense counsel objected and moved for mistrial based on the reference to marijuana. When the prosecuting attorney argued that defense counsel asked the deputy to read the report, defense counsel denied having done so and said: “I saw what he was reading. I thought for goodness sakes he’s going to stop. I had no idea he was going to read it and violate your order . . . not to mention marijuana.” The trial judge stated that he thought the witness was not intentionally delving into improper matters, but was just trying to answer the questions posed by defense counsel. When the jurors returned, the trial court instructed them not to consider the comments. The jury again agreed unanimously to disregard the testimony. Defense counsel resumed cross-examination without renewing the motion for mistrial.

1. At the outset we note that the second motion for mistrial was not renewed after the giving of curative instructions and has not been preserved. See Maddox v. State, 227 Ga. App. 602 (490 SE2d 174) (1997). We point out, however, that “one cannot take chances in propounding questions which may elicit damaging answers, otherwise inadmissible, and then demand a mistrial when such answer is given.” (Citations and punctuation omitted.) Byrd v. State, 182 Ga. App. 284, 286 (3) (355 SE2d 666) (1987).

2. A trial court’s denial of a motion for mistrial based on the improper admission of bad character evidence is reviewed for abuse of discretion by examining factors and circumstances, including the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety. White v. State, 268 Ga. 28, 32 (4) (486 SE2d 338) (1997).

Viewed in a light to support the verdict, the other evidence shows the following: Streetman’s cousin, Scott Bramblett, pled guilty to the burglary. Bramblett testified that Streetman was his accomplice and that he and Streetman took the stolen property, which included electronic equipment and guns, and placed it in an old wooden shack behind his house. Later, Streetman and Miller came back to look at the items. Miller saw the items and told Bramblett she might be able to help them “get rid” of some of the items. Miller and Streetman loaded several of the items into a truck and left.

Decided January 29, 1999.

James W. Smith, for appellant.

Harry N. Gordon, District Attorney, Kirk M. Thomas, Assistant District Attorney, for appellee.

The deputy testified that when he returned to Miller’s residence a second time after getting more information, Miller handed over several items taken in the burglary. This time, Miller admitted to the deputy that she and Streetman went to a wooden shack behind Bramlett’s home and took the items.

As to the nature of the character statements, we agree with the trial court that the statements at issue appear more to refer to and reflect upon the character of Streetman than Miller. In any event, the deputy’s references to marijuana and other stolen property appear to be, as the trial court found, responsive to questions and unintentional. The judge promptly instructed the jury to disregard the testimony and made certain that they agreed to adhere to the instruction.

Considering the evidence introduced at trial, the nature of the character evidence complained of, and the remedial measures taken by the trial court, we find no basis for reversing the trial court’s denial of Miller’s motion for mistrial. See Sims v. State, 268 Ga. 381, 382 (2) (489 SE2d 809) (1997); Cook v. State, 232 Ga. App. 796, 798 (2) (503 SE2d 40) (1998).

Judgment affirmed.

Smith and Barnes, JJ, concur.


text:
    A98A2464.
    TERRELL v. THE STATE.
    (511 SE2d 555)
   Johnson, Chief Judge.

Nelson Terrell was indicted for felony shoplifting and misdemeanor theft by taking. Two co-defendants were also charged in the same indictment and pled guilty. On April 20, 1998, the case was called for trial, the defense announced it was ready, and the jury was selected. On April 21, 1998, after opening statements had been completed, the trial judge announced she had received a message that the prosecutor had a family emergency. The judge further announced that the prosecutor’s father had a heart attack, was hospitalized in Birmingham, Alabama, and that the prosecutor needed to go there. The judge then stated “s]o we need to declare a mistrial.” Terrell’s counsel asked whether a continuance could be granted. After noting that the jury had not heard any evidence and another jury could be obtained, the trial judge again announced her intent to declare a mistrial. The judge then asked the defense counsel whether he wanted the mistrial to be declared formally on the record. Terrell’s counsel replied that the judge could just go back to the jury room and inform them of the decision. The judge again inquired whether she could just go back and tell the jury and let the prosecutor go. At this point, Terrell’s counsel responded “[t] hat’s fine with me.”

On April 27, 1998, before the state commenced further prosecution, Terrell filed a motion to dismiss or acquit by reason of former jeopardy. After holding a hearing, the trial judge denied the motion. Terrell appeals.

At the hearing on the motion to dismiss or acquit, the prosecutor stated on the record that the situation causing the mistrial was an “emergency situation.” Her father had been taken to the hospital with chest pains; it was thought that he had a heart attack. Her mother has Alzheimer’s disease and could not cope with the situation by herself. The prosecutor and her brother both live in Atlanta. It subsequently was discovered that her father did not have a heart attack. He was hospitalized for four days and was found to have substantial arterial blockages. He currently is being evaluated for surgery. No other prosecutor had assisted her in the case or knew anything about it. The case was complicated in that it involved four or five witnesses, a question of whether a co-defendant would testify, and a Jackson-Denno issue.

At this same hearing, the trial judge stated that during the course of defendant’s opening argument, it became apparent that the prosecutor had heard that her father had suffered a heart attack; it was clear that the prosecutor “was no longer able to go forward with the case”; and it would have been an injustice to make the prosecutor go forward with the case at that time. The trial judge further stated that she understood the balance between the defendant’s and the state’s rights and the seriousness of declaring a mistrial. She noted that no evidence had been presented and the defense’s case still remained unknown to the state. The trial judge also stated that while she may not have mentioned it on the record, she did consider many alternatives. She recalled that in a similar case, the jury had been held on call for several weeks and was never able to finish that case. The judge reasoned that this was not a simple shoplifting case, noting the issues involved co-defendants and a suppression motion. It would have been an injustice to have another prosecutor enter the case. The trial judge said that she did not grant Terrell’s request for a continuance due to her prior experience with similar family difficulties, especially where the attorney must leave town. The trial judge further observed that based on what transpired in this situation, a continuance would not have been effective. Accordingly, the court concluded that it had no choice but to declare the mistrial.

OCGA § 16-1-8 (a) pertinently provides that: “A prosecution is barred if the accused was formerly prosecuted for the same crime based upon the same material facts, if such former prosecution: . . . (2) Was terminated improperly after the jury was impaneled and sworn or, in a trial before a court without a jury, after the first witness was sworn but before the findings were rendered by the trier of facts or after a plea of guilty was accepted by the court.” Thus, jeopardy attached in this case.

Once jeopardy has attached, if a mistrial is declared without a defendant’s consent or over his objection, the defendant may be retried only if there was a manifest necessity for the mistrial. Manifest necessity is determined by weighing a defendant’s right to have his trial completed before a particular tribunal against the interest of the public in having fair trials designed to end in just judgments. In determining whether manifest necessity exists, the court’s decision must take into consideration all the surrounding circumstances. Cooke v. State, 230 Ga. App. 326, 327 (496 SE2d 337) (1998). “Manifest necessity can exist for reasons deemed compelling by the trial court, especially where the ends of substantial justice cannot be attained without discontinuing the trial.” (Citations and punctuation omitted.) Pleas v. State, 268 Ga. 889, 890 (2) (495 SE2d 4) (1998).

We find the trial court duly weighed the respective rights of the defendant and the state before electing to declare a mistrial and that prior to announcing the mistrial, it considered other lesser alternatives, including the granting of a continuance. A trial court’s decision to reject lesser alternatives is given great deference. The availability of other alternatives, without more, does not mean that a mistrial was not necessary and that the trial court abused its discretion in declaring one. Cooke, supra at 328-329.

Terrell was afforded an opportunity to suggest alternatives and did so. We recognize that in this case reasonable judges could differ as to the type of disposition required to protect , the rights of both parties. A trial judge acts within her sound discretion in rejecting possible alternatives and in granting a mistrial if reasonable judges could differ about the proper disposition required. Cooke, supra at 329. Moreover, the failure of the trial judge to affirmatively state on the record the alternatives she considered and rejected, prior to announcing the mistrial, does not, standing alone, render her determination so unwarranted as to preclude the defendant’s retrial on grounds of former jeopardy. Id.

The prosecutor did not in any manner create the situation confronting the trial court. Neither did the prosecutor move for the mistrial. Rather, the court acted sua sponte to protect the state’s right to a fair trial when it became apparent that the prosecutor was unable to proceed effectively with the state’s case. The defendant’s right to be tried by the original impaneled jury, while a valued right, is not paramount to the state’s equal right to a fair trial. Both the defendant and the state are entitled to a fair trial designed to end in a just judgment. State v. Battaglia, 221 Ga. App. 283, 286-287 (2) (470 SE2d 755) (1996). The trial court has the duty to ensure a fair trial to all parties in a case. The trial court is vested with as much authority to grant a mistrial when an injustice occurs to the state as when it occurs to the defendant. Id. at 286 (2). Under the circumstances of this case, the trial court did not err in denying Terrell’s motion to dismiss or acquit by reason of former jeopardy.

Decided January 29, 1999

Robert H. Alexander III, for appellant.

Benjamin F. Smith, Jr., District Attorney, Ann B. Harris, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Judgment affirmed.

Smith and, Barnes, JJ, concur.


text:
    A98A1806.
    BROWN v. THE STATE.
    (511 SE2d 276)
   Johnson, Chief Judge.

Gregory F. Brown appeals his conviction of voluntary manslaughter.

1. Citing Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39) (1979), Brown contends that the trial court gave the jury an impermissible instruction on the element of intent. This enumeration of error is without merit. In Sandstrom, the Supreme Court held that a charge was unconstitutional because the jury may have interpreted a presumption referred to in the charge as either mandatory or as shifting the burden of proof of a material element of the crime to the defendant. See generally Bridges v. State, 268 Ga. 700, 706 (2) (f) (492 SE2d 877) (1997); Wilson v. Zant, 249 Ga. 373, 380-381 (3) (290 SE2d 442) (1982), rev’d on other grounds, Morgan v. State, 267 Ga. 203, 204 (2) (476 SE2d 747) (1996).

The charge at issue is as follows: “Now members of the jury, you may infer that a person of sound mind and discretion intends to accomplish the natural and probable consequences of that person’s intentional acts. And if a person of sound mind and discretion intentionally and without justification uses a deadly weapon or instrumentality in the manner in which the weapon or instrumentality is ordinarily used and thereby causes the death of a human being, you may infer the intent to kill. Whether or not you make such inference is a matter solely within the discretion of the jury.”

Except for the last sentence, the contested charge is nearly identical to a suggested charge that was expressly approved in Hosch v. State, 246 Ga. 417, 420 (3), n. 2 (271 SE2d 817) (1980). We find Hosch is controlling. Moreover, examining the language of the contested charge in light of the court’s other charges as to presumption of innocence, burden of proof, criminal intent as an essential element, and reasonable doubt, we find that the charge would not create a mandatory inference or presumption in the minds of the jury, but only a rational permissive inference. The charge was not erroneous. See Isaacs v. State, 259 Ga. 717, 734 (35) (b) (386 SE2d 316) (1989); Hosch, supra at 420 (3).

Brown’s reliance on Bridges, supra, and Trenor v. State, 252 Ga. 264, 265 (3) (313 SE2d 482) (1984), is misplaced. Neither of these cases involved charges substantially similar to the charge in this case.

2. Brown asserts that the trial court erred by omitting the “forcible felony” language, found in OCGA § 16-3-21, in its justification charge to the jury. We do not find this argument persuasive.

The trial court’s charge included the following: “A person is justified in using force which is intended or likely to cause death or great bodily harm only if that person reasonably believes that such force is necessary to prevent death or great bodily injury to himself.” The trial court omitted from the end of this charge the words, “or to prevent the commission of a forcible felony.” See OCGA § 16-3-21 (a). The trial court further instructed the jury that: “One who is not the aggressor is not required to retreat before being justified in using such force which is likely to cause death or great bodily harm if one reasonably believes such force is necessary to prevent death or great bodily harm to himself. It is not essential to justify homicide that there should be an actual assault made upon the defendant. Threats accompanied by menaces, though the menaces do not amount to an actual assault, may in some instances be sufficient to arouse a reasonable belief that one’s life is in imminent danger or that one is in imminent danger of great bodily harm.” This charge is not enumerated as error.

Brown argues that there exists some evidence that he was defending himself as a result of a forcible felony, that is, an assault and battery. Brown testified that after he told the victim that it was not a good thing to sell cocaine to children, the victim grabbed him from behind, slammed him into a wall, and put his hands around Brown’s neck. Brown backed up and the victim came at him again. Brown then fired a warning shot near the victim’s feet but the victim jumped on Brown and the two wrestled for control of the gun. During a prolonged struggle, the gun “went off again.” At the time the gun discharged, Brown had his hand on the gun, but the victim had his hand on Brown’s hand. Brown, was unaware that the victim had been shot and the struggle continued until Brown’s brother arrived and convinced the victim to let go of the pistol. Because Brown did not testify that he fired the fatal shot to prevent the commission of a forcible felony against him, this legal concept was not reasonably raised by the evidence.

Additionally, had the omitted language been charged, it reasonably could have confused the jury as to whether Brown was entitled to use deadly force without believing that his life was in imminent danger or that he was in imminent danger of great bodily harm, merely because he was initially assaulted and battered by the victim. The trial court can decline to give a charge that is misleading, confusing, or not adequately raised or authorized by the evidence. Brown v. State, 232 Ga. App. 787, 790 (1) (d) (504 SE2d 452) (1998); see also Selman v. State, 267 Ga. 198, 201 (5) (475 SE2d 892) (1996).

3. The record reveals that during their deliberation, the jury requested to be recharged as to voluntary manslaughter. The trial court gave the requested recharge but did not recharge on the defense of justification as requested by Brown. However, the trial court stated it was willing to recharge on other legal principles if the jury so requested. Following the recharge, the jury foreman confirmed that the recharge on voluntary manslaughter was what the jury had requested, and a juror twice stated that the charge on voluntary manslaughter was “what we wanted to hear.” Nevertheless, Brown contends that the trial court erred in not recharging on the legal theory of justification. This contention is without merit.

It is in the trial court’s discretion whether to give unrequested additional instructions when the jury requests a recharge on a particular point. Ross v. State, 231 Ga. App. 506, 508 (2) (499 SE2d 351) (1998); see Bowley v. State, 261 Ga. 278, 280 (3) (404 SE2d 97) (1991). Examining both the original charges and the recharge in their entirety, we conclude that the trial court did not abuse its discretion in only charging as to voluntary manslaughter, as requested by the jury. See Williams v. State, 249 Ga. 6, 9 (5) (287 SE2d 31) (1982); Null v. State, 261 Ga. 180, 181 (2) (402 SE2d 721) (1991).

4. Brown’s final contention is that there is insufficient evidence to support his conviction of voluntary manslaughter.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and the appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Bierria v. State, 232 Ga. App. 622, 624 (1) (502 SE2d 542) (1998).

Brown’s justification defense in essence was that the victim attacked him and the gun discharged during the ensuing struggle. At that time, he was not aware that the victim had been shot.

Brown further testified that although he had only known the victim for two weeks, considered him to be a rowdy person, was afraid of him, and knew the victim sold drugs, he went over to the victim’s house that morning to invite him to a cookout at Brown’s relative’s house. He had his pistol in his back pocket. He carried the pistol because it was a rough area and there were violent drug dealers in the area. The victim did not have a gun or knife; only Brown had a weapon.

Prior to trial, Brown told a special agent that the victim possibly attacked him because the victim had used cocaine the night before. Brown did not claim that he was attacked after he cautioned the victim about selling drugs. The special agent did not recall Brown claiming that he had pointed or discharged the weapon near the victim’s feet and that the victim kept coming and grabbed the gun.

The state introduced evidence that the victim’s death was caused by a bullet fired from Brown’s gun. The pistol was in working order and would not discharge accidentally. Brown’s gun was of a type that would deposit soot on a target closer than six inches and would deposit burned and unburned gunpowder on a target within three feet. It would cause “stippling” on skin if fired from a distance between 12 to 18 inches. A medical examiner found no soot on the victim or stippling of his skin. Gunshot residue could not be seen by visual examination of the victim’s shirt. The entrance wound of the bullet was in the victim’s chest and underneath his arm. There was no soot, tattooing or other firearm related injury to either of the victim’s hands.

Although Brown testified he had never shot his pistol or any other pistol before this incident, a witness for the state testified that Brown once maliciously shot the witness’ automobile with a pistol.

In this case, the jury had before it direct testimony by Brown and direct and circumstantial evidence presented by the state. The jury could infer from Brown’s testimony that he was engaged in a confrontation with the victim and that the victim was shot during the course of that confrontation by a bullet fired from Brown’s pistol. It was for the jury to determine how and why this weapon was fired and, if Brown intentionally shot the victim, whether that shooting was justified. A jury has unlimited discretion to accept a defendant’s testimony as a whole, to reject it as a whole, or to accept it in part and reject it in part. See Wilson v. State, 214 Ga. App. 378, 380 (2) (447 SE2d 709) (1994). It is clear that the jury rejected Brown’s testimony at least in part.

Decided February 1, 1999.

Salter & Shook, Mitchell M. Shook, Jason A. Craig, for appellant.

Richard A. Malone, District Attorney, William S. Askew, Assistant District Attorney, for appellee.

Even assuming without deciding that this jury based its finding of guilty solely on circumstantial evidence, we are satisfied that there exists sufficient evidence to support Brown’s conviction. To support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662) (1987). Under this rule, the state is not required to remove every possibility of innocence of the crime charged. Ross v. State, 214 Ga. App. 697, 698 (448 SE2d 769) (1994). The jury rationally could have found that the evidence excluded every reasonable hypothesis except that of the defendant’s guilt of voluntary manslaughter. Id. at 699. Moreover, our review of the transcript reveals ample evidence from which the jury could have found beyond a reasonable doubt that appellant was guilty of the offense of voluntary manslaughter. Jackson v. Virginia, supra.

Judgment affirmed.

Smith and Barnes, JJ, concur.


text:
    A98A1936.
    MADDOX et al. v. CUMBERLAND DISTRIBUTING SERVICES OF GEORGIA, INC. et al.
    (511 SE2d 270)
   Johnson, Chief Judge.

The day after an ice storm, Harold Maddox slipped and fell on a patch of ice as he got out of his tractor-trailer to accept a delivery at a warehouse. The warehouse was owned by the Weeks Corporation and leased to Reckitt & Coleman, Inc., a manufacturer. Reckitt & Coleman had contracted with Cumberland Distributing Services of Georgia, Inc. for Cumberland to provide staff, equipment and supplies necessary to operate the warehouse.

Maddox and his wife brought a premises liability action against Reckitt & Coleman in federal district court. See Maddox v. Reckitt & Coleman, Inc., ND Ga. Civ. No. 1:96-CV-0672-JEC (decided 2/4/97). The federal court granted Reckitt & Coleman’s motion for summary judgment. In the order granting summary judgment, the federal court also denied Maddox’s motion to add Cumberland as a party.

Maddox then filed this action in state court against Cumberland and its manager, Noryam Harp, based on the same facts. Cumberland and Harp (collectively “Cumberland”) moved for summary judgment, arguing it had no duty to remove the hazard because Cumberland was not the owner or occupier of the premises, but an independent contractor; Cumberland did not cause the accumulation of ice; Maddox’s knowledge was equal to Cumberland’s; and the action was barred by collateral estoppel.

In response to Cumberland’s motion, Maddox presented evidence that a Cumberland employee saw patches of ice on the ground near the site of the fall after the incident; testimony that Cumberland operated the warehouse and was responsible, under the terms of the contract, for inspecting and maintaining the premises; and evidence that drainage pipes at the warehouse might have released water onto the ground in the loading area and that this water may have frozen. Without stating its reason for doing so, the trial court granted summary judgment in favor of Cumberland. Maddox appeals. We affirm.

1. The duty imposed upon an owner or occupier of land by OCGA § 51-3-1 is inapplicable to an independent contractor. See Kelley v. Piggly Wiggly Southern, 230 Ga. App. 508, 509 (1) (496 SE2d 732) (1998); Greene v. Piedmont Janitorial Svcs., 220 Ga. App. 743, 744-745 (2) (470 SE2d 270) (1996). The agreement between Reckitt & Coleman and Cumberland expressly states that Cumberland is an independent contractor; Maddox neither disputes this fact nor presents any evidence to the contrary. Accordingly, Cumberland cannot be liable under a premises liability theory.

Maddox contends that Cumberland’s independent contractor status does not remove it from the ambit of the premises liability statute because it was an “occupier” of the premises. Maddox claims that “[n]o one other than [Cumberland] . . . occupied, worked in and maintained the facility.” Even were we to assume, arguendo, that by being present on the premises to carry out the contract a party becomes an occupier of the premises under OCGA § 51-3-1, Maddox’s argument is not supported by the record. In fact, the record shows that Reckitt & Coleman had at least five of its employees working in the warehouse each day and that, under the express terms of the contract, Reckitt & Coleman retained responsibility for maintaining certain aspects of the premises.

We recognize that an independent contractor may be liable to a third party based on negligent performance of a contract. See Kelley, supra. However, that avenue is not available to Maddox because the contract expressly provides that Reckitt & Coleman, not Cumberland, is responsible for removing snow from the premises.

Decided February 1, 1999.

Jewett & Clark, Robin F. Clark, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Mary S. Greene, David F. Root, for appellees.

Although the trial court’s order does not indicate that Cumberland’s status as an independent contractor was the basis for its ruling, a summary judgment will be affirmed if it is right for any reason. See Alexander v. Sportslife, 232 Ga. App. 538, 539 (1) (502 SE2d 280) (1998).

2. In light of the foregoing, it is unnecessary to consider Maddox’s remaining arguments.

Judgment affirmed.

Smith and Barnes, JJ, concur.


text:
    A98A2043.
    HALL et al. v. CARNEY et al.
    (511 SE2d 271)
   Johnson, Chief Judge.

Charles and Judith Hall sued William Carney and Dewitt Everett for negligent and intentional infliction of emotional distress and for wrongful interference with an easement of burial. The Halls alleged that Carney and Everett maliciously, wilfully and wantonly ordered the sheriff’s department to excavate the grave site containing the remains of their child. The Halls appeal from the order of the superior court order granting summary judgment to Carney and Everett. We affirm.

The facts construed in a light most favorable to the Halls are as follows: The Halls’ child was stillborn in 1960 and was buried at a cemetery in Austell. In 1994, the Halls obtained the necessary county permits to disinter the child and rebury him in a family plot at the Pleasant Valley Cemetery in Adairsville (“the cemetery”). Members of the Hall family went to the cemetery and dug a grave. The child’s body was laid to rest after an elder from the Halls’ church in Dahlonega conducted a dedication service. The grave was marked with a small wooden cross; no name marker was placed at the grave.

For many years, the Hall family has had a family burial plot in the cemetery. Carney and Everett were members of the Pleasant Valley Baptist Church’s cemetery committee (“the cemetery committee”). Although the record is silent whether the cemetery is privately or community owned, members of the cemetery committee have acted as caretakers of the cemetery for years. Carney, as a cemetery committee member, was responsible for certain activities regarding the cemetery, including the planning and coordination of burials. The Halls knew this and, in fact, Charles Hall previously had contacted Carney when another family attempted to claim a portion of the Hall family plot. Carney advised Hall regarding this matter and undertook to find another plot for the other family. Judith Hall has known since the 1970s that the church is “in charge of taking care” of the cemetery. Nevertheless, the Halls did not inform the cemetery committee of their plans to bury their child’s remains in the cemetery.

On the day of the reburial, a member of the Pleasant Valley Baptist Church saw several motor vehicles enter the cemetery and saw the vehicles’ occupants begin to dig a hole. The church member returned the next day and found a freshly dug site in the same location. Because she considered the situation suspicious, the church member reported it to Carney. Carney and Everett went to the cemetery and found a freshly dug area which appeared to be a grave. It was located within the Halls’ family plot. Carney and Everett notified the Bartow County Sheriff’s Department.

When a deputy arrived, Carney and Everett told her that the cemetery committee had not been asked for permission to bury anyone in the cemetery on the previous day. Carney and Everett asserted that the burial was unauthorized and demanded that the site be opened. They also speculated that a “satanic” burial might have occurred. The deputy refused to open the site and called her supervisor. An investigator was sent to the cemetery. Carney and Everett again demanded that the site be opened and its contents removed from the cemetery. The investigator called his supervisor who instructed that the suspected grave site be opened. The investigator needed a shovel and Carney and Everett said they would get him one. A church member then provided a shovel, and the investigator opened the site and unearthed a wooden box. The investigator took the box and its contents to the sheriff’s office. The Halls subsequently called the sheriff’s office and reported that their child’s body was missing. They were allowed to claim the baby’s body after they went to the sheriff’s office and showed that they had a county disinterment and burial permit.

The trial court held that the excavation and removal of the child’s remains was a legal action by law enforcement personnel and that Carney and Everett could not be held responsible for the actions of the sheriff’s department. The trial court also held that Carney and Everett, as cemetery committee members, were at least de facto caretakers of the Pleasant Valley Cemetery and did not act maliciously, wilfully or without regard for the Halls’ feelings. Thus, the trial court concluded that Carney and Everett could not be held liable for the emotional distress which the Halls suffered or for any trespass on the Halls’ family plot.

1. Summary judgment is appropriate when the admissible evidence of record shows there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). 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. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843) (1988).

2. (a) Negligent infliction of emotional distress: “In a claim concerning negligent conduct, a recovery for emotional distress is allowed only where there is some impact on the plaintiff, and that impact must be a physical injury. [Cit.]” Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826) (1992). There is no evidence that the plaintiffs suffered any physical injury in this case. Accordingly, there can be no recovery based on a claim of negligent infliction of emotional distress.

(b) Intentional infliction of emotional distress: While recovery can be had without the necessity of an impact when the conduct is malicious, wilful or wanton, such conduct “will not warrant a recovery for the infliction of emotional distress if the conduct was not directed toward the plaintiff.” Id. at 829. No evidence exists that the conduct of Carney and Everett was directed toward the Halls. Neither does a genuine issue of material fact exist that Carney’s and Everett’s conduct was malicious, wilful or wanton. Therefore, any claim based upon intentional infliction of emotional harm must fail. See id.; Wellborn v. DeKalb County &c., 227 Ga. App. 377, 379 (3) (489 SE2d 345) (1997).

A grant of summary judgment must be affirmed if it is right for any reason. Hanna v. McWilliams, 213 Ga. App. 648, 651 (3) (446 SE2d 741) (1994). The trial court did not err in granting summary judgment to Carney and Everett as to the Halls’ claims for the negligent or intentional infliction of emotional distress.

3. The trial court also did not err in granting summary judgment to Carney and Everett as to the claim of trespass. The allegations in the complaint do not give sufficient notice to allow a responsive pleading as to a claim of trespass. See generally Allen v. Bergman, 201 Ga. App. 781, 783 (3) (b) (412 SE2d 549) (1991). While the allegations do give sufficient notice as to a claim of intentional interference with an easement of burial, there exist no genuine issues of material fact regarding either a claim of intentional interference with an easement of burial or a claim of trespass.

The record contains no evidence establishing the nature and conditions of the property rights, if any, granted to the Halls regarding the family burial plot. Neither does the record contain any evidence as to the terms or conditions for the use of these plots. When deposed, Judith Hall testified that as far as she knew, neither she nor her family had any sort of deed to any property in and about the cemetery. The Halls show only by innuéndo or conjecture that they have any title to or burial easement rights in the Halls’ family plot. We cannot infer from the state of this record that such rights exist or, if they did exist, the scope of or conditions attached to such rights. An inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture as to the existence of a material fact. Derry v. Clements, 197 Ga. App. 173, 174 (397 SE2d 594) (1990).

Decided February 1, 1999.

Bodker, Ramsey & Andrews, Stephen C. Andrews, Harry J. Winograd, William A. O’Dell, for appellants.

Magruder & Sumner, J. Clinton Sumner, Jr., Clay M. White, John R. Weech, for appellees.

Furthermore, although it is contested whether Carney and Everett insisted that the sheriff’s office open the grave and remove the child’s body, the evidence is uncontroverted that the investigator opened the grave only after calling his superior officer and being instructed to do so. Carney and Everett had no control over the scope of the law enforcement investigation once it commenced. Thus, the facts in this case are distinguishable from those in Moody v. Dykes, 269 Ga. 217, 218-219 (1) (496 SE2d 907) (1998), which was a suit for continuing trespass of burial plots. In Moody, a member of the Moody family became “an integral part of the plan to intentionally defy the grant of ownership of the plots” to the Dykes family and to prevent them from exercising dominion or control over the contested grave sites “[b]y overseeing the placement of the new burial slabs” on the sites. Id. at 219 (2).

The facts of this case also are distinguishable from those in Habersham Mem. Park v. Moore, 164 Ga. App. 676, 679 (297 SE2d 315) (1982), which was a suit for wrongful interference with the right of burial. In Habersham, the defendant engaged in a confrontation and interfered with the burial as it was taking place; further, documentary evidence was introduced which included the deed to the burial plot and the cemetery’s rules.

Judgment affirmed.

Smith and Barnes, JJ., concur.


author: Barnes, Judge.

text:
    A98A2344.
    ROSE et al. v. BARBEE et al.
    (511 SE2d 268)
   Barnes, Judge.

Joseph M. Buckles purchased a lot near Lake Hartwell, subject to the following covenant: “No concrete block houses or mobile homes of any description shall be placed on said property.” Martha and Lee Rose signed a sales contract with Buckles, started clearing the land, and placed a double-wide home on the property before closing on the contract. Approximately 12 days after the dwelling was placed on the property, adjacent landowners sued Buckles and the Roses, seeking an injunction prohibiting the Roses from improving the dwelling and an order compelling them to remove it. The landowners alleged that the dwelling was a mobile home that violated the restrictive covenant. The Roses answered, denying that the dwelling violated the covenant. After a hearing, the trial court concluded that the dwelling was a “mobile home” as defined in the restrictive covenant, ordered the Roses to remove the dwelling, and permanently enjoined them from bringing on to the property “a structure defined as a mobile home.” The Roses appeal the trial court’s ruling. For the reasons that follow, we affirm.

1. The Roses first argue that the trial court erred in holding that the residence was a mobile home. A trial court’s determination that a dwelling is a mobile home “involve [s] both questions of law and fact and can only be overturned in the event of manifest abuse of discretion.” White v. Legodais, 249 Ga. 849, 850 (295 SE2d 99) (1982).

We find no abuse of discretion here. While the Roses assert that their modular home was “mobile” only in the sense that it was delivered to the site, a receipt for the structure describes it as a mobile home. An order for electrical service notes that a “new mobile home will be set up in future at this location.” And the Roses admit in their brief that they purchased “what is now commonly referred to as a double-wide mobile home.” This evidence authorized the trial court to find that the Roses’ dwelling fell within the definition of prohibited structures contained in the covenant. See Garland v. Carnes, 259 Ga. 263 (379 SE2d 782) (1989); White, 249 Ga. at 850-851.

2. The Roses failed to support by citation of authority or argument their assertion that the restrictive covenant is unconstitutionally vague. We therefore deem this enumeration abandoned pursuant to Court of Appeals Rule 27 (c) (2). See Jett v. State of Ga., 230 Ga. App. 655, 656 (498 SE2d 274) (1998).

3. Finally, the Roses failed to object to the developer’s testimony regarding the restrictive covenant at issue. Objections not raised at trial cannot be raised for the first time on appeal. See Jones v. State, 232 Ga. App. 505 (502 SE2d 345) (1998).

Judgment affirmed.

Johnson, C. J., and Smith, J., concur.

Decided February 1, 1999.

Andrew J. Hill, Jr., for appellants.

Walter J. Gordon, Kimberly A. Wilkerson, for appellees.


text:
    A99A0035.
    HOLY FELLOWSHIP CHURCH OF GOD IN CHRIST v. GREATER TRAVELERS REST BAPTIST CHURCH.
    (511 SE2d 280)
   Barnes, Judge.

After foreclosing on a security deed executed in its favor, Greater Travelers Rest Baptist Church (“Greater Travelers”) filed a dispossessory action against Holy Fellowship Church of God in Christ (“Holy Fellowship”). Holy Fellowship appeals from the trial court’s order granting a writ of possession, contending that the trial court erred when it found that OCGA § 44-7-9 precluded Holy Fellowship from disputing Greater Travelers’ ownership of the subject property. We agree and reverse the judgment of the trial court.

The record shows that Holy Fellowship’s defense to the dispossessory action was based upon its claim that Greater Travelers no longer owned the property at the time it filed the dispossessory action. According to Holy Fellowship, Greater Travelers held a second mortgage on the property which was subordinate to a first mortgage jointly held by J. Mark Britain, Trustee, and Church Loans and Investment Trust (“Britain”). Thus, Holy Fellowship argues, Britain’s foreclosure on the subject property three months after Greater Travelers’ foreclosure divested Greater Travelers of any ownership interest in the subject property.

During a hearing held on February 25, 1998, Greater Travelers asserted that Holy Fellowship’s “title” defense was not a valid defense based upon OCGA § 44-7-9, which provides: “The tenant may not dispute his landlord’s title or attorn to another claimant while he is in actual physical occupation, while he is performing any active or passive act or taking any position whereby he expressly or impliedly recognizes his landlord’s title, or while he is taking any position that is inconsistent with the position that the landlord’s title is defective.” Based upon a suit Holy Fellowship filed against Britain in another jurisdiction that contested Britain’s right to foreclose on the property, the trial court found that Holy Fellowship had taken an inconsistent position and was therefore barred from contesting Greater Travelers’ title to the property. The trial court apparently granted a writ of possession to Greater Travelers based on this conclusion.

1. In this appeal, Holy Fellowship contends the trial court erred when it found OCGA § 44-7-9 barred its defense that Greater Travelers no longer owned the property at the time it filed the dispossessory action. We agree. “The defense of lack of landlord-tenant relationship is a proper defense to a dispossessory action; if the defendant so answers, a trial of the issues shall be had in a civil court of record.” (Citations omitted.) Bread of Life Baptist Church v. Price, 194 Ga. App. 693-694 (392 SE2d 15) (1990). See also Womack v. Columbus Rentals, 223 Ga. App. 501, 503 (2) (a) (478 SE2d 611) (1996).

In Raines v. Hindman, 136 Ga. 450, 452-453 (71 SE 738) (1911), the Supreme Court of Georgia explained the difference between an improper defense based upon a defect in the original grant of title to the landlord and a legitimate defense based upon a later transfer of ownership or title by the landlord. “[0]ne who holds land rented from another will be estopped from claiming that at the time the property was rented the landlord did not have title thereto. This doctrine, however, can not be so extended as to prevent the tenant from showing that during the term of the tenancy the landlord’s title expired by limitation, or that the same has been divested by judicial sale, or that the landlord has voluntarily parted with title during the tenancy. Showing that the landlord has . . . parted with title during the tenancy does not involve a dispute of the landlord’s title at the time the contract for rent was made, but is an implied admission that the landlord had such title.” Id.

In this case, Holy Fellowship does not dispute that Greater Travelers properly obtained title to the property when it purchased the property at a September 2, 1997 foreclosure sale. See Womack v. Columbus Rentals, supra at 503 (3); Partin v. Southern Discount Co., 167 Ga. App. 798 (307 SE2d 697) (1983). Instead, it asserts that Greater Travelers lost title to the property when Britain subsequently purchased the property in a foreclosure sale held on December 2,1997. See Oakvale Road Assoc. v. Mortgage Recovery Fund &c., 231 Ga. App. 414, 417 (499 SE2d 404) (1998) (“ 'It is the general rule that a sale under a regularly exercised power in a security deed or mortgage is equivalent to a foreclosure proceeding, and not only extinguishes the right of redemption, but divests all junior mortgages and other junior incumbrances on the property.’ ”); Devin Lamplighter v. American Gen. Finance, 206 Ga. App. 747 (426 SE2d 645) (1992). Thus, according to Holy Fellowship, the landlord-tenant relationship between itself and Greater Travelers no longer existed when Greater Travelers filed this dispossessory action on February 10, 1998.

Decided February 1, 1999.

Newton H. Purvis, John A. Pickens, for appellant.

Giddens, Davidson & Mitchell, Bobby L. Giddens, for appellee.

This is a proper defense to a dispossessory action and Holy Fellowship is therefore entitled to a trial on the issue of whether a landlord-tenant relationship exists between the parties. See Thomas v. Wells Fargo Credit Corp., 200 Ga. App. 592, 593 (2) (409 SE2d 71) (1991). As a result, we reverse the trial court’s grant of a writ of possession to Greater Travelers.

2. We cannot consider the portion of Holy Fellowship’s enumeration that relates to the trial court’s April 15, 1998 order because this order was entered after Holy Fellowship filed a notice of appeal from the trial court’s February 25, 1998 order. Costanzo v. Jones, 200 Ga. App. 806, 811 (3) (409 SE2d 686) (1991).

Judgment reversed.

Beasley, P. J, and Blackburn, J., concur.

       Greater Travelers disputes this claim and asserts that it held a first mortgage on the property because its security deed was filed before Britain’s security deed.


author: Eldridge, Judge.

text:
    A99A0126.
    BONEY v. THE STATE.
    (510 SE2d 892)
   Eldridge, Judge.

On June 21, 1993, a Pulaski County jury found Allen Boney, Jr., guilty of possession of cocaine with the intent to distribute. As a recidivist, Boney was sentenced to life imprisonment. An attorney was appointed to appeal the conviction. Following a September 13, 1993 hearing on Boney’s motion for new trial and an order denying such, appellate counsel filed a direct appeal, and this Court affirmed Boney’s conviction in an unpublished opinion, Boney v. State, 212 Ga. App. XXVII (1994).

Four years later, on June 10, 1998, Boney filed a pro se “motion for out-of-time appeal.” Therein, Boney raised a claim of ineffective assistance of appellate counsel, not because appellate counsel failed to perfect Boney’s appeal, but because appellate counsel allegedly “failed to raise clearly meritorious issues on appeal.” According to Boney, .these allegedly meritorious issues include: an allegation of ineffective assistance of trial counsel, although Boney conducted his own defense; a challenge to the use of hearsay to explain the conduct of the investigating officer; and a challenge to the trial court’s charge to the jury to consider all the evidence. Boney’s “motion for out-of-time appeal” was dismissed by the trial court on June 15, 1998.

Boney then filed a pro se “notice” of discretionary appeal with the Superior Court of Pulaski County, challenging the trial court’s order dismissing the “motion for out-of-time appeal.” An application for discretionary appeal was not filed with this Court.

On July 20, 1998, 35 days following the entry of the challenged order, Boney withdrew his earlier “notice” of discretionary appeal, and he filed a pro se notice of direct appeal with the Superior Court of Pulaski County. Held:

While the instant motion is styled as one for “out-of-time appeal,” Boney had a timely appeal of his conviction following the denial of his motion for new trial. “An out-of-time appeal is appropriate when a direct appeal was not taken” (Emphasis supplied.) Grantham v. State, 267 Ga. 635 (481 SE2d 219) (1997); Crowder v. State, 265 Ga. 719 (461 SE2d 865) (1995); Clayton v. State, 228 Ga. App. 874, 875 (492 SE2d 894) (1997).

Clearly, a defendant cannot secure a timely direct appeal, wait for years, file a motion raising a new issue separate from the original appeal, and bootstrap such into another direct appeal by styling the motion as one for an “out-of-time appeal.” When the issue is one that could not have been raised in the prior, perfected direct appeal, i.e., ineffective assistance of appellate counsel, a petition for Writ of Habeas Corpus is the proper vehicle to utilize for the development of a record and subsequent review of the substantive claim. See, e.g., Zant v. Akins, 250 Ga. 5 (295 SE2d 313) (1982).

“The ‘title’ applied to pleadings is not binding on the court; we judge a pleading by its contents, not by its name. [Cit.]” Bank of Cumming v. Moseley, 243 Ga. 858, 859 (257 SE2d 278) (1979). However, we need not consider further the true character and function of Boney’s self-styled “motion for out-of time appeal.” Regardless of the motion’s capacity, an appeal of the trial court’s order thereon will not lie, because the rules were not followed in order to secure appellate review. Boney failed to file an application for discretionary review with this Court. OCGA § 5-6-35 (d). Further, Boney’s subsequent notice of direct appeal was filed untimely. OCGA § 5-6-38 (a); Rowland v. State, 264 Ga.' 872 (1) (452 SE2d 756) (1995) (“[t]he proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court. [Cits.]”). Accordingly, having failed to follow the proper procedures for appeal to this Court, the instant appeal is hereby dismissed.

Decided January 14, 1999

Reconsideration denied February 2, 1999

Allen Boney, Jr., pro se.

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

Appeal dismissed.

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

       Correspondence to Boney from appellate counsel shows that counsel was aware of and specifically rejected Boney’s claims of error as potential issues for appeal: “Other than the admission of similar transactions, none of your grounds listed in your letter are valid. You can not fire your lawyer and then later complain about his representation.” And, “I am in receipt of your letter of November 29, 1993. My prior position remains unchanged: the introduction of the prior crimes is the only appealable issue. The other matters you noted are meritless.” To that end, we note that “[i]t is the attorney’s decision as to what issues should be raised on appeal, and that decision, like other strategic decisions of the attorney, is presumptively correct absent a showing to the contrary by the defendant. [Cit.]” Gaither v. Cannida, 258 Ga. 557, 561 (3) (372 SE2d 429) (1988).

       “The previous notice that I sent to this Court [Pulaski County Superior Court] disregard and file this one.”

       That Boney is aware of this fact is reflected in what appears to be at least one State petition for habeas corpus relief filed in the Superior Court of Ware County following Boney’s unsuccessful direct appeal. Boney v. Gaither, 94V-1134.


author: Judge Harold R. Banke.

text:
    A98A1766.
    HEDQUIST et al. v. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC. et al.
    (511 SE2d 558)
   Judge Harold R. Banke.

John H. Hedquist III, individually and as trustee of the John H. Hedquist III & Associates Profit Sharing Plan & Trust, and John H. Hedquist, Jr. (collectively “Hedquist”) sued Merrill Lynch, Pierce, Fenner & Smith, Inc. (“Merrill Lynch”), Jack Camarda, Paul Brostrom, Suzanne D. Cook, and five members of the board of directors of Barton Industries, Inc. (“Barton”), an oil services company headquartered in Shawnee, Oklahoma. Merrill Lynch was sued for fraud, negligent misrepresentation, and for criminal violations of the Georgia and Florida Racketeer Influenced & Corrupt Organizations (“RICO”) statutes. Hedquist premised Merrill Lynch’s liability on acts of fraud and negligent misrepresentation allegedly committed by Suzanne D. Cook, a former Merrill Lynch vice president and securities analyst. Hedquist claimed that Cook made false statements to John H. Hedquist III (“JHHIII”) and also authorized the dissemination of false and misleading press releases on December 14 and 15, 1990, about Barton’s financial health. These press statements were designed to minimize the seriousness of Barton’s financial difficulties. Hedquist asserted that by relying upon the misleading press releases, it suffered losses by not selling its Barton stock before Barton filed bankruptcy.

The trial court granted Merrill Lynch’s motion to dismiss finding that “the claims against Defendant Merrill Lynch are predicated on the purported acts of Suzanne Cook, a former Merrill Lynch employee [whom] Plaintiffs voluntarily dismissed with prejudice. . . .”

Hedquist sued Camarda and Brostrom, the owners of Financial Marketing Services and the former employer of JHHIII, a broker registered with the Securities & Exchange Commission (“SEC”). The record shows that in late 1989, Camarda and Brostrom loaned $750,000 to JHHIII to purchase Barton stock. From October 1990 through the end of December 1990, Camarda and Brostrom also invested heavily in Barton on the advice of JHHIII. In the fall of 1990, JHHIII informed them that he had inside information about possible “padding” of Barton’s inventory. JHHIII claimed that they assured him “they would investigate the matter.” During November and December, JHHIII, Camarda and Brostrom discussed their mutual misgivings about Barton.

In early December, Coopers & Lybrand, independent auditors, documented and disclosed Barton’s serious financial problems. JHHIII knew about the negative findings of this audit which were set forth in an early December press release not at issue here. In the meantime, JHHIII had been pursuing his own investigation and articulated his concerns in highly critical, detailed letters to C. W. Earl Johnson, Barton’s president.

Notwithstanding JHHIII’s knowledge of Barton’s problems, Hedquist sued Camarda and Brostrom for fraud and negligent misrepresentation for making false statements to JHHIII about Barton’s financial situation. But Camarda and Brostrom were not members of Barton’s board of directors, and they testified that they “had no part in drafting, determining the content of, approving or deciding to issue” the press releases. No evidence showed otherwise. Determining that Hedquist failed to prove the existence of any genuine disputed issue of material fact, the trial court found Camarda and Brostrom were entitled to judgment as a matter of law. Hedquist appeals both judgments. Held:

1. Hedquist contends that the trial court erred in dismissing its complaint against Merrill Lynch due to its voluntary dismissal of Cook. The threshold inquiry is whether Merrill Lynch’s liability was based solely on the doctrine of respondeat superior for the actions of its servant, Cook, or premised on the theory of joint and several liability as joint tortfeasors. Where the liability of the master “is purely derivative and dependent entirely upon the doctrine of respondeat superior, a judgment on the merits in favor of the servant and against the third person is res judicata in favor of the master in a suit by such third person. [Cits.]” Hosp. Auth. of Calhoun County v. Walker, 224 Ga. App. 163, 165 (2) (480 SE2d 849) (1996). A dismissal with prejudice operates as an adjudication on the merits. Marchman & Sons, Inc. v. Nelson, 251 Ga. 475, 477 (306 SE2d 290) (1983).

Notwithstanding Hedquist’s use of the phrases “jointly and severally liable” and “vicarious liability,” all of the alleged acts of misconduct asserted against Merrill Lynch were rooted in the doctrine of respondeat superior stemming from the alleged misconduct and actions of Cook. Having dismissed Cook with prejudice, Hedquist could not maintain its tort claims against Merrill Lynch which derive solely from Cook’s purported misconduct. Harris v. Hanna Creative Enterprises, 208 Ga. App. 549, 550 (1) (430 SE2d 846) (1993). Compare Rowland v. Vickers, 233 Ga. 67, 68 (209 SE2d 592) (1974).

RICO liability arises solely from the commission of certain predicate acts which must constitute independent criminal violations of one of the statutes specified in the RICO act. OCGA § 16-14-4 (b); Fla. Stat. § 895.03 (3); Larson v. Smith, 194 Ga. App. 698, 699 (391 SE2d 686) (1990). RICO requires a “pattern of racketeering activity,” not isolated incidents. OCGA § 16-14-3 (8) and (9) (A) (xxi); Fla. Stat. § 895.02 (4) (“Pattern” means “at least two incidents of racketeering conduct . . . not isolated incidents.”). See Emrich v. Winsor, 198 Ga. App. 333 (401 SE2d 76) (1991).

Hedquist’s Georgia and Florida RICO claims against Merrill Lynch were predicated on the misleading December press releases. But these releases were public statements approved by Barton’s board of directors and disseminated by Barton, not Merrill Lynch. See Guthrie v. Gen. Motors Acceptance Corp., 172 Ga. App. 260, 262 (2) (322 SE2d 752) (1984) (absent evidence of master-servant relationship, master cannot be held vicariously liable for another’s alleged fraud under the doctrine of respondeat superior). No evidence showed that Barton was acting on behalf of Merrill Lynch when Barton released the information. Moreover, Hedquist’s allegations, if proven, would show, at most, isolated misconduct, not a pattern of proscribed criminal activity by Merrill Lynch. Larson, 194 Ga. App. at 699 (interrelated pattern of criminal activity required); see Cobb v. Kennon Realty Svcs., 191 Ga. App. 740, 741 (2) (382 SE2d 697) (1989). Thus, assuming the truth of the allegations in the complaint as we must in this procedural context, Hedquist failed to allege two separate and distinct, criminal “predicate acts” committed by Merrill Lynch. OCGA § 16-14-3 (9) (A) (xxi); Fla. Stat. § 895.02 (4). Compare State of Ga. v. Shearson Lehman Bros., 188 Ga. App. 120, 121 (2) (372 SE2d 276) (1988) (allegations of multiple state securities crimes, mail fraud, wire fraud, and federal RICO crimes satisfied “pattern” requirement). See also Stricker v. Epstein, 213 Ga. App. 226, 229 (2) (444 SE2d 91) (1994) (claims alleging violations of securities laws governed by a two-year statute of limitation). For these reasons, even assuming that the court’s consideration of the dismissal order converted the motion into one for summary judgment, we find no error. Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991).

Decided February 2, 1999

Sumner & Anderson, William E. Sumner, Rosemary S. Armstrong, for appellants.

Rogers & Hardin, Brett A. Rogers, Richard H. Sinkfield, for appellees.

2. Hedquist contends that genuine issues of material fact precluded the summary judgment granted to Camarda and Brostrom. Misrepresentations are actionable only where the complaining party, in the exercise of prudence and due diligence, is justified in relying thereon. Tri-Eastern Petroleum Corp. v. Glenn’s Super Gas, 178 Ga. App. 144, 145-146 (1) (342 SE2d 346) (1986). Reliance upon another’s representations is not actionable where the recipient, as here, has equal means of ascertaining the truth. Scott v. Fulton Nat. Bank, 92 Ga. App. 741, 743-744 (2) (89 SE2d 892) (1955).

JHHIII was an experienced, licensed broker who had first-hand knowledge of Barton’s problems. JHHIII’s letters to Johnson confirm that before the alleged misrepresentations, JHHIII already harbored grave suspicions of internal wrongdoing and mismanagement by Johnson and others in control of Barton. Garcia v. Unique Realty &c., 205 Ga. App. 876, 877 (424 SE2d 14) (1992) (fraud claim requires reasonable reliance upon representation and damages proximately caused by false representation). Thus, even assuming arguendo that Camarda and Brostrom told JHHIII that he should “make peace” with Johnson, and that Barton “was not in trouble” or was in “sound financial condition,” Hedquist cannot establish its reasonable reliance thereon and that its losses were caused thereby. Id. at 877 (1); accord Williams v. Fallaize Ins. Agency, 220 Ga. App. 411, 413 (1) (469 SE2d 752) (1996); Wilkinson a Walker, 143 Ga. App. 838, 839 (240 SE2d 210) (1977).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.

       In early 1991, the Federal Bureau of Investigation and the SEC investigated the circumstances surrounding the demise of Barton. Both Johnson and Victor L. Joyce, its chief financial officer, were indicted on federal charges of conspiracy, bank fraud, falsifying company books and records, stock manipulation, and false statements to the auditors, the SEC, and others. Joyce pleaded guilty to several criminal charges; Johnson died before the conclusion of his case.

       The complaint mentions two additional employees of Merrill Lynch by name but does not allege any illegal conduct or acts of fraud or negligent misrepresentation involving them.


author: Ruffin, Judge.

text:
    A98A1786.
    ELLISON v. DeKALB COUNTY.
    (511 SE2d 284)
   Ruffin, Judge.

Sergeant Robert K. Ellison of the DeKalb County Police Department sued DeKalb County, claiming that the county improperly denied him the opportunity to be considered for promotion to lieutenant. The trial court granted summary judgment in favor of the county, and Ellison appeals. For reasons discussed below, we affirm.

In 1987, DeKalb County entered into a court-approved settlement agreement in two separate lawsuits filed by associations of law enforcement officers. The settlement agreement set specific rules governing the promotional process within the DeKalb County Police Department. In July 1996, the settlement agreement was modified to require that, in order to be eligible for testing and promotion to the position of lieutenant, an applicant must have served at least three years in the rank of sergeant. Prior to this time, only two years experience at the sergeant level had been required. However, when the settlement agreement was modified, the county did not amend the Department of Public Safety Employee Manual to reflect the change in the promotion process. The employee manual continued to state as follows: “To be eligible to take the promotional exam for Police Lieutenant, the candidate must have attained the rank of Police Sergeant and served in that capacity for at least two years (24 months). The position of Police Lieutenant requires the candidate to complete a series of testing procedures, and these procedures along with the selection process will be located in the Settlement Agreement.”

Ellison was promoted to sergeant on April 30, 1994. In March 1997, the county solicited applications for promotion to the position of lieutenant. The notice of the promotion process, dated March 3, 1997, stated that the qualifications for the position included three years of experience at the level of police sergeant and that applicants must meet the minimum requirements as of March 14, 1997. On March 3, 1997, Ellison submitted an application for promotion to lieutenant, although he testified that he did not recall whether he had seen the posted notice. On March 24, 1997, the county recruiting manager sent Ellison a letter indicating that he met the minimum requirements for the position of lieutenant. Ellison subsequently participated in the evaluation process, which included a written test, an oral interview, and a role playing exercise. Ellison contends that he ranked eleventh out of seventy applicants based on these tests.

On May 29, 1997, the county merit system coordinator sent Ellison a letter informing him that, upon further review, it had been determined that he did not satisfy the minimum eligibility criteria for the position of lieutenant. Specifically, Ellison did not have the required three years of experience at the level of police sergeant as of the March 14, 1997 cut-off date.

Ellison testified that he knew the promotional process was governed by the settlement agreement, and that he had heard that the agreement had been modified, but that he was not sure if he knew about the modification before he submitted his application for promotion. He testified that it was common knowledge in the police department that promotions were governed by the settlement agreement.

1. Ellison contends that the employee manual amounted to a binding contract and gave him the right to be considered for promotion after only two years experience as a sergeant. This contention is without merit.

An employee manual “setting forth certain policies and information concerning employment [is not] necessarily [viewed] as a contract.” (Punctuation omitted.) Burgess v. Decatur Fed. Sav. &c. Assn., 178 Ga. App. 787, 788 (345 SE2d 45) (1986). However, we have held that provisions in an employee manual relating to additional compensation plans, of which an employee is aware, may amount to a binding contract between the parties. See Fulton-DeKalb Hosp. Auth. v. Metzger, 203 Ga. App. 595, 596-597 (2) (417 SE2d 163) (1992) (disability benefits); Shannon v. Huntley’s Jiffy Stores, 174 Ga. App. 125, 126 (2) (329 SE2d 208) (1985) (vacation pay); Fletcher v. Amax, Inc., 160 Ga. App. 692, 695 (288 SE2d 49) (1981) (severance pay). The reasoning in these cases is that the additional compensation plan set forth in the manual represents an offer by the employer which the employee implicitly accepts by remaining in employment. Id. However, not all provisions in employee manuals are to be considered binding agreements. For example, we have held that “personnel manuals stating that employees can be terminated only for cause and setting forth termination procedures are not contracts of employment; failure to follow the termination procedures contained in them is not actionable.” Jones v. Chatham County, 223 Ga. App. 455, 459 (5) (477 SE2d 889) (1996). Moreover, Jones expressed agreement with the broad proposition that “a violation of procedures in a personnel manual is not actionable as a breach of contract.” Id.

It appears that the statements in the employee manual regarding the promotion process are more analogous to the procedures discussed in Jones than to the compensation plans described in the other cases above and thus are not to be regarded as a binding contract but merely as a statement of “certain policies and information concerning employment.” (Punctuation omitted.) Burgess, supra at 788.

Moreover, the employee manual itself suggests that it does not impose binding contractual obligations regarding the promotion process. Ellison has introduced only two pages of the employee manual into the record in this case, and neither of these pages indicates that the manual is to be considered a binding contract with respect to the promotion process. Indeed, immediately after stating that a candidate must have at least two years experience as a sergeant to be eligible to take the promotional exam for lieutenant, the manual states that “[t]he position of Police Lieutenant requires the candidate to complete a series of testing procedures, and these procedures along with the selection process will be located in the Settlement Agreement.” Thus, the employee manual expressly indicates that the selection process will be governed by the settlement agreement. “This language, even if standing alone, would put the ordinarily prudent person on notice that the complete details [regarding the promotional process] were absent from [the employee manual], and that at least one other source should be consulted for full details.” (Punctuation omitted.) Adams v. Hercules, Inc., 245 Ga. 464, 465 (265 SE2d 781) (1980).

Ellison admits that he knew the promotion process was governed by the settlement agreement, and that this fact was common knowledge within the police department, although he was not aware of the 1996 modification to the settlement agreement. The employee manual itself expressly states that the selection process is found in the settlement agreement. Accordingly, unlike those cases dealing with additional compensation plans, the reference to two years experience in the employee manual cannot be considered an “offer” that is “accepted” by the employee by remaining in employment. See Metzger, supra; Shannon, supra; Fletcher, supra. To the extent that any document gave Ellison a contractual right to be considered for promotion, it was the settlement agreement, and not the employee manual. It is thus apparent that the employee manual, while “setting forth certain policies and information concerning employment [, is not to be viewed] as a contract.” (Punctuation omitted.) Burgess, supra. Because Ellison’s contract claim is predicated solely upon the employee manual, the trial court did not err in granting summary judgment to the county on this claim.

2. Ellison contends that he had a property interest in being considered for promotion, and that he was therefore entitled to a hearing before being removed from consideration for promotion. This contention is without merit. As discussed above, Ellison had no contractual right to be considered for promotion. Moreover, “[a] prospective promotion is not a property or liberty interest protected by the fourteenth amendment [or the Georgia constitution].” (Punctuation omitted.) Cohilas v. Clayton County Bd. of Commrs., 206 Ga. App. 134, 136 (3) (424 SE2d 651) (1992). Accordingly, Ellison’s claims for violation of due process are without merit. See Atkinson v. City of Roswell, 203 Ga. App. 192, 196 (4) (416 SE2d 550) (1992) (no entitlement to procedural due process where interest impaired does not involve protectible interest in life, liberty, or property).

Decided February 2, 1999

Ralph S. Goldberg, for appellant.

Jonathan A. Weintraub, Joan F. Roach, Howard W. Indermark, for appellee.

Judgment affirmed.

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


author: Andrews, Judge.

text:
    A98A1805.
    SMITH v. PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY.
    (511 SE2d 282)
   Andrews, Judge.

Christopher Smith was involved in a motor vehicle collision with David Howard in Liberty County, Georgia, on November 17, 1996, and sued Howard for injuries he allegedly suffered in the accident. Because Howard was either underinsured or uninsured, Smith served Prudential Property & Casualty Insurance Company pursuant to OCGA § 33-7-11 (d) as the insurance carrier responsible for providing him with uninsured motorist coverage. The trial court granted Prudential’s motion for summary judgment asserting that Smith was not entitled to coverage, and Smith appeals.

Smith claimed that Prudential was obligated to provide uninsured motorist coverage under a policy issued in New York by Prudential to Michael and Barbara Sankevicus, Smith’s stepfather and mother, who reside in New York. The policy, which included a supplementary uninsured motorist endorsement, listed a 1990 Plymouth Acclaim, a 1990 Pontiac Grand Prix, and a 1986 Jeep Comanche as the insured vehicles. At the time of the accident, Smith was operating a motorcycle owned by him and registered in Liberty County, Georgia, but not listed as an insured vehicle under the policy.

Smith contended that, under the terms of the policy, he was an insured for purposes of uninsured motorist coverage because he resided at the household of his mother and stepfather in New York, even though he was stationed in Georgia as a member of the United States Army at the time of the accident. We need not decide this issue because, even assuming Smith was an insured under the policy, the policy contained an exclusion which otherwise prevented Smith from claiming uninsured motorist coverage. The policy provided that uninsured motorist coverage did not apply “to bodily injury to an insured incurred while occupying a motor vehicle owned by that insured, if such motor vehicle is not insured for [uninsured motorist] coverage by the policy under which a claim is made. . . Since the motorcycle Smith owned and operated at the time of the accident was not an insured vehicle under the policy, the plain terms of the policy provided that Smith had no uninsured motorist coverage.

Smith argues that, even if the exclusion was valid in New York, the exclusion is invalid in Georgia because it is inconsistent with the provisions of OCGA § 33-7-11 (b) (1) (B) defining an insured for purposes of uninsured motorist coverage and therefore violates Georgia public policy. Assuming arguendo an inconsistency between the exclusion and the provisions of OCGA § 33-7-11, the policy on which Smith makes his claim was issued in New York to New York residents and provided coverage for vehicles owned and operated by those residents in New York. In Arnica Mut. Ins. Co. v. Bourgault, 263 Ga. 157 (429 SE2d 908) (1993), the Supreme Court addressed the question of whether a similar exclusion for uninsured motorist coverage in a policy issued in New York violated uninsured motorist coverage provisions set forth in OCGA § 33-7-11. Like the present policy, the policy in Bourgault contained an exclusion which excluded uninsured motorist coverage where the insured was occupying a vehicle not insured for such coverage under the policy. Id. at 158. After being issued in New York to cover three vehicles registered and principally garaged and operated in New York, the policy was delivered in Georgia to the Bourgaults, who were residents of Georgia. Id. at 157-158. Like Smith, the Bourgaults claimed uninsured motorist coverage under the policy even though the vehicle they were occupying at the time of the collision with the uninsured motorist was not an insured vehicle under the New York policy. Id. The Court found that, because the vehicles insured by the policy were principally garaged and used in New York, the law of New York applied to determine the validity of the policy exclusion rather than Georgia law. Id. at 160. The Court further found that applying OCGA § 33-7-11 to the policy issued in New York pursuant to New York law and New York insurance rates would unfairly deprive the insurance company of the degree of certainty necessary for determining the cost and extent of coverage. Id. at 161. Accordingly, the Court declined to apply OCGA § 33-7-11 to invalidate the exclusion at issue. Id. at 157-161.

In considering the similar exclusion in this case, we conclude that New York law applies to the policy and OCGA § 33-7-11 does not invalidate the exclusion. Bourgault, supra at 160-161. The trial court correctly granted summary judgment in favor of Prudential.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

Decided February 2, 1999.

Pirkle & Pirkle, Robert F. Pirkle, for appellant.

Karsman, Brooks & Callaway, Stanley Karsman, Timothy J. Haeussler, for appellee.

       See New York Ins. Law §§ 3420 (f) (2); 5102; 5103.


text:
    A98A1940.
    WILLIAMS v. THE STATE.
    (511 SE2d 561)
   Ruffin, Judge.

Carl Lewis Williams was convicted of possession of cocaine, driving under the influence of alcohol, and possession of an open container of alcohol while driving. He appeals, contending that the trial court erred in rejecting his challenge under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), to the State’s use of its peremptory strikes. Because the trial court was authorized to conclude that the State exercised its strikes for race-neutral reasons, we affirm.

“The United States Supreme Court has established a three-step test for evaluating challenges to peremptory strikes. ‘(O)nce the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination.’ Purkett v. Elem, 514 U. S. 765[, 767] (115 SC 1769, [1770-1771,] 131 LE2d 834, 839) (1995).” McKenzie v. State, 227 Ga. App. 778 (1) (490 SE2d 522) (1997). “The trial court’s decision on a Batson motion rests largely upon assessment of the prosecutor’s state of mind and credibility; it therefore lies peculiarly within a trial judge’s province. The trial court’s factual findings must be given great deference and may be disregarded only if clearly erroneous.” (Punctuation omitted.) Ruffin v. State, 232 Ga. App. 614, 615 (502 SE2d 551) (1998).

1. In this case, Williams raised a Batson challenge after the State used five peremptory strikes to remove black potential jurors. “The preliminary issue of whether defendant established a prima facie case of discrimination is moot because the prosecutor offered purportedly race-neutral explanations for the peremptory challenges and the trial court ruled in favor of the prosecution on the ultimate question of intentional discrimination. We therefore need only address the sufficiency of the prosecutor’s explanations.” (Citation and punctuation omitted.) Green v. State, 219 Ga. App. 24, 25 (2) (464 SE2d 21) (1995).

The prosecutor stated that he struck four of the jurors because, in reviewing the jury list with local law enforcement officials, the State learned that these jurors had children with felony convictions. Specifically, juror no. 46 had a son who had been convicted of forgery, theft by taking, and possession of cocaine. Juror no. 54 had a son who had been convicted of possession of cocaine. Juror no. 66 had two children who were convicted felons. Juror no. 75 had a son who had been convicted on a habitual violator charge, and the deputy who was involved in prosecution of that charge was also a witness in the present case. This juror also had another son with a felony theft conviction.

Our Supreme Court has held that “[p]rior convictions or arrest histories of a family member are a sufficiently race neutral reason to exercise a peremptory strike. Davis v. State, 263 Ga. 5 (426 SE2d 844) (1993), cert. denied, 510 U. S. [950] (114 SC 396, 126 LE2d 344) (1993).” Henry v. State, 265 Ga. 732, 734 (2) (462 SE2d 737) (1995). Nevertheless, Williams claims that the strikes were’ improper because the State failed to question each potential juror to determine whether he or she was in fact related to the convicted felons. We recently rejected this same contention in a similar case. In Griffeth v. State, 230 Ga. App. 298 (496 SE2d 309) (1998), the prosecutor struck certain jurors because he had learned that they were related to individuals who had been in trouble with the law. In upholding the strikes, we stated that the prosecutor “was not required to corroborate the truth of this information through questioning of the prospective jurors or, due to its nature, to explore whether it would affect their consideration of [the defendant’s] case.” Id. at 300.

Where the State has specific information that a juror’s relative has been convicted of a crime, there is no purpose in requiring the State to question the juror about the relation, since the State would be entitled to strike the juror regardless of his or her response to the question. If the juror denied any relationship, the prosecutor could disbelieve the juror and elect to use a peremptory strike on the basis of his independent investigation. See Henry, supra at 734 (affirming exclusion of juror who failed to disclose relationship with accused murderer); Davis, supra at 8 (upholding strike even though juror denied knowing defendant). Even if the prosecutor is mistaken about the existence of a relationship, a strike may be “based upon mistake or ignorance ... so long as it is not whimsical or fanciful but is neutral, related to the case to be tried, and a clear and reasonably specific explanation of the legitimate reasons for exercising the challenges.” (Punctuation omitted.) Smith v. State, 264 Ga. 449, 453 (4) (448 SE2d 179) (1994); see also Griffeth, supra. “In this case, there is no contention that anything in the record would show that the proffered reasons did not apply to each prospective juror. Accordingly, it cannot be said that the explanations, even if based upon mistake or ignorance, were whimsical or fanciful.” (Punctuation and emphasis omitted.) Smith, supra.

Decided February 2, 1999.

Billy M. Grantham, for appellant.

J. Brown Moseley, District Attorney, Robert R. Auman, Assistant District Attorney, for appellee.

This situation is far different from that in Ridley v. State 235 Ga. App. 591 (510 SE2d 113) (1998), where the prosecutor struck two jurors simply because their last names were the same as defendants who had previously been prosecuted, without any information that there was a relationship between the jurors and such defendants. In this case, by contrast, the prosecutor had specific information regarding criminal convictions of specific individuals related to the potential jurors. Under these circumstances, the trial court did not err in upholding the strikes of these four jurors. See Henry, supra; Griffeth, supra.

2. With respect to the fifth juror, juror no. 55, the prosecutor explained that this juror had twice been stopped and issued traffic tickets by Officer Ryan Wimberly, who was a witness in the present case. The prosecutor stated that the juror had threatened Wimberly with a “voodoo curse,” and said that he did not want the juror to participate in a case involving Wimberly. This explanation was clearly race-neutral and tied to the case at hand. See Henderson v. State, 257 Ga. 434, 436 (3) (360 SE2d 263) (1987) (affirming strikes of jurors who knew key witnesses). The fact that the juror did not acknowledge knowing Wimberly during panel questioning does not matter, since the prosecutor was entitled to base the strike upon his own investigation and suspicions as to the juror’s bias. See Davis, supra. Accordingly, the trial court did not err in upholding this strike.

Judgment affirmed.

Pope, P. J., and Beasley, P. J., concur.