text:
    A91A1567.
    MYERS v. WYNN.
    (412 SE2d 581)
   Birdsong, Presiding Judge.

Appellant Hazel P. Myers appeals a jury verdict awarding appellee/plaintiff Johnnie Wynn $7,500 plus interest. Wynn claimed this amount was owed her for a real estate sales commission which Myers failed to pay and converted to her own use. Wynn worked for appellant Myers’ realty company as a real estate salesperson in 1989 when this commission was earned. Myers contended she had done all the work on the sale and that Wynn’s name appeared on the sales documents only because Myers was unable to attend the closing. Wynn also claimed Myers was indebted to her for a loan of $6,000 which Wynn had made to Myers’ corporation. At trial, the purchaser of the real estate testified Wynn had been the only person involved in negotiating the sale of the property.

On appeal Myers contends the trial court erred in failing to direct a verdict in her favor, since appellee Wynn failed to prove she was a real estate licensee in Georgia when the alleged cause of action arose, as required by OCGA § 43-40-24. Held:

As to the requirement to prove a license for the purpose of suing on a contract permitted to be entered only by licensed persons, Management Search v. Kinard, 231 Ga. 26, 28 (3) (199 SE2d 899) held that under the Civil Practice Act it is not necessary for the plaintiff to plead the existence of such a license in order to state a claim (Id.; Maxwell v. Tucker, 118 Ga. App. 695, 698 (165 SE2d 459)); but, “at whatever stage of the proceedings it appears that the plaintiff is seeking to recover upon a contract permitted to be entered into only by persons holding licenses issued as a regulatory measure, it becomes imperative for the plaintiff to prove that he holds such a license and held such license at the time the contract was entered into in order to authorize a recovery.” Management Search, supra at 29; Culverhouse v. Atlanta Assn. &c. Persons, 127 Ga. App. 574, 578 (194 SE2d 299).

Appellant asserts the record contains no evidence that Wynn was duly licensed at the time this cause of action arose. However, only part of the trial was reported. Wynn contends that in the part not reported, appellant herself testified to the fact that Wynn was a licensee, but as to this assertion we are governed by the rule that briefs cannot be used in lieu of the record or transcript for adding evidence to the record. Star Mfg. v. Edenfield, 191 Ga. App. 665, 667 (382 SE2d 706). Therefore, we do not consider Wynn’s assertions in her brief that there was evidence presented which proved she was a licensee.

Nevertheless, appellant has the burden on appeal to show error by the record (Hutchinson v. Perkins, 194 Ga. App. 389 (391 SE2d 122)), and although at trial the burden of proof lay on appellee to prove she was licensed in order to recover, appellant “still had the duty to prepare a record sufficient for this court to review the judgment of the court below” (Lee v. Fuerst & Davis, 173 Ga. App. 362, 363 (326 SE2d 482)); and where the record is inadequate to determine the utter lack of any evidence that plaintiff was properly licensed, “we must assume that the judgment below . . . was correct.” Id.

The record does disclose that when appellant made her motion for directed verdict on the issue, the trial court refused, saying: “[Wynn was] hired to sell real estate by [Myers] and I’m sure that [Myers] is not claiming she violated her broker’s oath by hiring an unlicensed agent.” The trial court noted further that evidence that Wynn was licensed was in the parties’ employment agreement; “it’s in there . . . you’re going to find a reference to the license.” In fact, although we find no such clear reference to Wynn’s having a license, an addendum to the employment contract executed by appellant and by Wynn provides: “The salesperson [Wynn] shall have no authority to bind . . . the broker by any promise or representation, unless specifically authorized to do so by the broker, in writing, in a particular transaction; provided, however, that the salesperson shall be and is hereby authorized to execute contracts of sale, leases, and listing agreements for and on behalf of H. Myers Realty, Inc. as agent. . . .” This statement and other evidence show appellant “dealt with appellee in [her] capacity as a real estate [agent]. Thus, there was a tacit admission by appellant that appellee . . . was licensed to receive the [real estate] commission.” Newman v. James M. Vardaman & Co., 162 Ga. App. 878, 881 (293 SE2d 462). Just as plaintiff was not required to allege the fact of her license in her complaint and a motion to dismiss on the pleadings would not be authorized unless it affirmatively appeared that she was not duly licensed (Management Search, supra at 29), likewise, a reversal of the trial court’s refusal to grant appellant a directed verdict on the issue is not authorized following a jury verdict in appellee’s favor, unless it affirmatively appears that plaintiff was not licensed and not entitled to recover on the contract as a matter of law. Since it does not affirmatively appear that Wynn was not licensed and therefore was not entitled to recover as a matter of law, and the evidence shows appellant dealt with Wynn in Wynn’s capacity as a licensed real estate sales agent, and appellant has not provided us with a complete transcript from which to determine the trial court erred, appellant has not borne her burden on appeal to prove that the evidence did not support the jury verdict. She has not shown error by the record. Accordingly, we must assume the judgment below was correct. Lee, supra.

Decided November 5, 1991.

Daniel F. Byrne, for appellant.

Darrel L. Hopson, for appellee.

Inasmuch as we affirm the verdict as to recovery on the real estate commission, we find it unnecessary to consider appellee’s argument that the jury’s verdict arguably represented a recovery on the loan and not on the commission; we note, however, that the evidence showed the loan amount was $6,000, while the commission amount for which Wynn sued, $7,500, matched the verdict for $7,500.

Judgment affirmed.

Pope and Cooper, JJ., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A91A1847.
    ZEITMAN et al. v. McBRAYER et al.
    (412 SE2d 287)
   Birdsong, Presiding Judge.

Appellants have timely filed a notice of appeal of the order of the State Court of Fulton County, entered November 27, 1990, in favor of appellees “on their motions that the court declare no default as to settlement agreement and that the court deny entry of judgment.” Pretermitting the resolution of any issues raised by appellants’ enumerations of error is the question of the jurisdiction of this court to entertain this particular direct appeal. That is, does the order from which this appeal is taken constitute a final or otherwise appealable order within the meaning of OCGA § 5-6-34? Held:

1. Contrary to certain assertions made by appellant, the motion to deny entry of judgment and that portion of the state court’s order granting this motion do not constitute a request for and the granting of injunctive relief within the meaning of OCGA § 5-6-34 (a) (4). Rather, the function of the order was to control the conditions under and date when judgment could be entered in the legal controversy pending before it. The legal basis for the state court’s ruling as to this matter is grounded on the constitutional authority of the state court to aid its jurisdiction. Ga. Const, of 1983, Art. VI, Sec. I, Par. IV; see also OCGA § 15-1-3 (6) and (7). Neither does the order from which this appeal is taken otherwise constitute a form of judgment listed within OCGA § 5-6-34 (a) (2)-(8).

2. Except for certain exceptions not here applicable, whether the order of November 27, 1990, constitutes a final judgment, within the meaning of OCGA § 5-6-34 (a) (1) depends on whether the case is no longer pending in the court below.

(a) No document captioned as a “judgment” has ever been entered in this case. Although the trial court, prior to issuing its order of November 27, 1990, signed a judgment in favor of appellants and against appellees “in the amount of $30,000,” this order was never filed with the clerk of courts and was not entered on the docket. Nor does the record reflect that any other document “captioned” as a judgment had ever been entered in this case. Until entered in accordance with the provisions of OCGA § 9-11-58 (b), a judgment is inchoate and of no effect for any purpose. Bloodworth v. Thompson, 230 Ga. 628, 629 (198 SE2d 293). Accordingly, unless the order of November 27, 1990, qualifies as a final judgment, there exists no appeal-able judgment.

(b) Before trial, a settlement hearing was conducted by the trial court at which the parties entered into an oral settlement agreement; this hearing was transcribed. The interpretation of the settlement agreement has become, as observed by the trial court, bitterly contested. Among those matters contested is whether time was of the essence for the fulfillment of certain actions by appellees or whether substantial performance within a reasonable time would suffice, and whether the amount of $30,000, reflected in the settlement agreement and inchoate judgment, included a $12,500 penalty to secure the payment to appellants of a specified sum of money and the release of the lien on appellants’ home. At the time of the order from which this appeal is taken, all payments then due and owing had been timely made, but the lien, which by that time had been discharged, had not been satisfied within the time period contained in the settlement agreement. Appellees/defendants believing appellants/plaintiffs would soon attempt to enter the $30,000 judgment, notwithstanding appellees had conditionally consented thereto “as to execution but not entry on docket of clerk — judgment to be held but not filed by plaintiff,” filed combined motions with the state court captioned “That Court Declare No Default As To Settlement Agreement” and “That Court Deny Entry Of Judgment.” At the hearing, the trial court in effect consolidated the two motions into one; and, appellants’ counsel thereafter argued the merits of the first motion to the virtual exclusion of the latter announcing “the purpose of this motion is for Your Honor to order that we have complied with the settlement agreement. . . .”

The trial court concluded that appellant had substantially complied with the requirements of the settlement agreement; and in granting the motions it ruled: “The court finds and concludes that the defendants have not in any way defaulted with respect to the settlement agreement entered on May 25, 1990 and therefore, defendants’ motions are granted and further that the parties are ordered to comply with each and every term therein including the obligation of the plaintiffs to satisfy the security deed held by plaintiffs’ upon real property of defendant and Pete Pellegrini . . . upon the final payment to the plaintiffs by defendants (provided said is made timely) on or about the 1st business day of December 1990.” (Emphasis supplied.) Noticeably absent from this order is any language purporting to terminate the proceedings.

In Moore v. Farmers Bank &c., 182 Ga. App. 94, 95 (1) (354 SE2d 692), after a hearing on the merits, the trial court in its order granting a motion to enforce a settlement agreement entered judgment in accordance with the terms of the compromise and settlement agreement. We held that “[a]n order granting a motion to enforce a disputed settlement agreement is tantamount to a final judgment and constitutes an order finally terminating the case.” Id. Moore is distinguishable from the case at bar; in this case, unlike Moore, no judgment has ever been entered and the order contains no wording which expressly terminates the proceedings. In fact, the order on its face, while ordering compliance with the terms of the settlement agreement, expressly refers to a certain action which plaintiffs must accomplish after receiving a final payment from the defendant. It thus appears that the trial court was careful not to terminate the proceedings in the event further judicial action was necessary in order either to aid its jurisdiction or to protect and effectuate its ultimate judgment in this case. Accordingly, the order of November 27, 1990, did not constitute a final judgment, as it did not expressly provide either that the action was dismissed or that appellant receive judgment in accordance with the terms of the settlement agreement, “and thus the case was not at an end.” Ford Motor Credit Co. v. Williams, 194 Ga. App. 405, 406 (1) (390 SE2d 640).

Decided November 5, 1991.

Zachary & Segraves, Kenneth L. Levy, for appellants.

Louis Levenson & Associates, Louis Levenson, for appellees.

(c) In view of the above holding, we need not herein resolve whether the terms of settlement agreements can be satisfied by performance within a reasonable time, particularly in the absence of an express requirement that time be of the essence. See generally OCGA § 13-4-20; compare Kapiloff v. Askin Stores, 202 Ga. 292, 296 (42 SE2d 724); Boswell v. Gillen, 131 Ga. 310 (1) (62 SE 187); Peachtree-Piedmont Assoc. v. Tower Place &c., 150 Ga. App. 292, 293 (1 A) (257 SE2d 362).

We dismiss the appeal. After final disposition has been taken in this case consistent with this opinion, the parties shall be free to enter another appeal in accordance with applicable statutes and the rules of this court.

Appeal dismissed.

Pope and Cooper, JJ., concur.


text:
    A91A1890.
    WEBB v. SHEU.
    (412 SE2d 289)
   Birdsong, Presiding Judge.

A complaint was filed against appellant Kenneth D. Webb for legal malpractice. The jury returned a verdict for the plaintiff Rong Yi Sheu, giving damages in the amount of $20,000, and on March 14, 1991, the trial court rendered a judgment for that amount plus interest.

Appellant Webb filed a motion for new trial or for judgment notwithstanding the verdict, which included an allegation that an ex parte communication had taken place between the trial judge and a person who assisted the plaintiff’s counsel.

The trial court denied appellant’s motion for new trial or for judgment notwithstanding the verdict, on grounds that the transcript of the trial was not before the court and that appellant had not asked for additional time to file the transcript. The trial court also issued a separate order holding that “categorically, these contentions [as to the ex parte communication] are not true, and the court does not consider such contentions in passing upon the motion for new trial or the motion for judgment notwithstanding the verdict.”

On appeal to this court, appellant’s sole enumeration of error addresses the adverse ruling as to this alleged ex parte communication. Held:

1. Appellant has not included a transcript which reflects the alleged ex parte communications. The transcript included on appeal is of a December 4, 1989, trial, which appellee states was not the jury trial sub judice but was a previous trial before another judge without a jury, in which no judgment was rendered. Appellant’s notice of appeal requested that this old transcript be omitted, and it is not explained why this transcript was nevertheless filed on appeal.

Appellant’s notice of appeal also directed that “transcript of evidence and proceedings will not be filed for inclusion in the record on appeal.” Since appellant has not caused to be filed a transcript of the relevant proceedings, we must presume the correctness of the finding of the trial court, which was that all of appellant’s contentions are untrue. This finding means that no improper alleged ex parte communication took place .as a matter of fact. In the absence of a transcript showing error, we will presume the trial court’s findings of fact and ruling were correct (Craigmiles v. Craigmiles, 237 Ga. 498, 499 (228 SE2d 882)), and in particular we will accept at face value the judge’s statement and ruling to the effect that no ex parte communication took place. Stinchcomb v. State, 192 Ga. App. 8, 10 (383 SE2d 609). If the ruling was in error, it is appellant’s burden to prove it affirmatively by the record, and where the burden is not met, the judgment complained of is assumed to be correct and must be affirmed. Sycamore Pellet Systems v. Southeastern Steam, 196 Ga. App. 717, 718 (397 SE2d 6). Particularly, we will not accept from a brief assertions as to a fact of the proceedings which are contrary to a finding of the trial court that the assertions are not true and which are not supported by the record. See Harrell v. Louis Smith Mem. Hosp., 197 Ga. App. 189, 190 (397 SE2d 746).

2. Under the cases cited, particularly Stinchcomb v. State, supra, it does not appear that there was any valid reason for appellant to anticipate reversal of the superior court’s judgment; consequently, we must conclude the appeal to this court was taken for the purpose of delay only. Particularly as appellant did not include in the record a transcript of any proceedings by which it could be determined that the trial court’s ruling was in error, there was no reason whatever for appellant to believe this court might accept the assertions of fact in appellant’s brief. Plaintiff/appellee is awarded an additional ten percent damages pursuant to OCGA § 5-6-6. See Williamscraft Dev. v. Vulcan Materials Co., 196 Ga. App. 703, 705 (397 SE2d 122).

Decided November 5, 1991.

Kenneth D. Webb, pro se.

Benjamin P. Erlitz, for appellee.

Judgment affirmed with direction that an additional ten percent damages be awarded to appellee.

Pope and Cooper, JJ., concur.


text:
    A91A2019.
    THE STATE v. BROWN.
    (412 SE2d 583)
   Birdsong, Presiding Judge.

The State has appealed as authorized by OCGA § 5-7-1; this is the third time this case has come before this court. The sole enumeration is that the trial court erred in granting the motion of appellee/ defendant, Cordell Brown, to suppress certain evidence, because appellee lacked “standing” to contest the seizure of contraband found on the police station floor.

The pertinent facts of this case are reported in Brown v. State, 191 Ga. App. 779 (383 SE2d 170), wherein a panel of this court reversed the ruling of the trial court denying Cordell Brown’s motion to suppress certain cocaine found on his person after he had been placed in an unlawful arrest status. In so ruling, the court held, “[Cordell Brown’s] formal arrest was unlawful because it was the product of the prior unauthorized seizure of his property and his person without probable cause.” Id. at 781. No appeal was taken of this decision.

In the whole court case of State v. Brown, 198 Ga. App. 239 (401 SE2d 295), cert. denied, the State appealed the subsequent ruling of the trial court dismissing the indictment against defendant and barring prosecution on the grounds defendant was illegally seized, detained, and arrested. Id. at 239-240. The majority held that although the trial court erred when it actually barred prosecution and dismissed the indictment, it ruled correctly “when it in effect granted the motion to suppress the evidence of the cocaine discovered on the floor [of the office where appellant was being illegally detained].” Id. at 241. In the panel case of Brown v. State, supra at 781, it was observed that at the hearing on the motion to suppress “appellant stipulated that he was not contesting the admissibility of the cocaine which was found on the floor near his chair. (Emphasis supplied.) However, in the case of State v. Brown, supra, when called upon to address the issue, the majority of our court concluded that Cordell Brown did, in fact, “challenge [the] floor cocaine evidence, and the trial court was correct when it, in effect, suppressed it,” and held “[t]he trial court was correct when it in effect granted the motion to suppress the evidence of the cocaine discovered on the floor.” (Emphasis supplied.) Id. at 240-241. (We find no discrepancy exists, as implied by the State, between our court’s findings that appellee has not “contested” but has “challenged” the floor cocaine evidence; but assuming arguendo, a discrepancy had occurred, the ruling in our whole court opinion would control. OCGA § 15-3-1 (d)). Additionally, in State v. Brown, supra at 240, the majority observed that during the hearing on the original motion to suppress and in contesting the suppression motion, the State had asserted, apparently as part of its trial tactics, the following: “The State indicated it thought defendant sought to suppress evidence of the cocaine found near the chair, concerning which the State’s position was that he lacked, standing to contest its seizure because he disowned it.” (Emphasis supplied.) The State elected to petition the Supreme Court for writ of certiorari of State v. Brown, supra, but certiorari was denied.

We now proceed to review the State’s enumeration of error in view of the appellate posture above discussed. Held:

1. Judicial notice is taken of the record and all attachments thereto on file with this court in the case of State v. Brown, supra. Rogers v. State, 195 Ga. App. 446 (1) (394 SE2d 116).

2. Pretermitting the issue of whether appellee lacked standing to contest the legality of the seizure of the cocaine on the floor is the fact that a majority of our court in State u. Brown, supra at 241, held: “The trial court was correct when it in effect granted the motion to suppress the evidence of the cocaine discovered on the floor,” (hereafter all cocaine referred to in this opinion will refer to the cocaine found on the floor and will simply be referred to as cocaine) and in reaching this holding concluded, the seizure of the cocaine “from plain view resulted from the unlawful arrest and cannot be extricated from it.” Id. at 240. Moreover, in State v. Brown, supra, the majority reaffirmed and adopted, by express favorable reference, the holding in Brown v. State, supra, that, “defendant [Cordell Brown] had been unlawfully ‘seized’ and was being unlawfully detained when the cocaine was discovered.” State v. Brown, supra. Thus, it was concluded in State v. Brown, supra at 241, that the cocaine was “tainted by the unlawfulness of [defendant Cordell Brown’s] custody.” The State did not appeal Brown v. State, supra, and unsuccessfully attempted to entice the Supreme Court to overturn the ruling in State v. Brown, supra; accordingly, our holdings in both of these cases were binding on the superior court. “The decisions of the Court of Appeals insofar as not in conflict with those of the Supreme Court shall bind all courts except the Supreme Court as precedents.” Ga. Const, of 1983, Art. VI, Sec. V, Par. Ill; see also OCGA § 9-11-60 (h). In Lackey v. State, 246 Ga. 331, 333 (2) (271 SE2d 478), it was held that “the sanction for an unconstitutional search is exclusion of the evidence obtained as a result of that search. Similarly, the sanction for an unconstitutional arrest is exclusion of the evidence obtained as a result of that arrest.” (Emphasis supplied.) See DiSanti v. State, 190 Ga. App. 331, 335 (378 SE2d 729). As this court had, by virtue of its decisions above discussed, determined that an unconstitutional arrest occurred and that the cocaine resulted from and was tainted by that arrest, the superior court was required to follow the law and impose sanction; it thus could not admit the evidence of the cocaine, regardless of defendant Cordell Brown’s own standing or lack thereof to contest the legality of the seizure.

3. Further, the State’s reliance on Young v. State, 187 Ga. App. 161 (369 SE2d 772) and Bassett v. State, 181 Ga. App. 597 (353 SE2d 48) is misplaced. In Young, supra at 163-164, we concluded that the stop and investigation were not intrusive or coercive, appellant was not seized or restrained until he was arrested, and appellant’s subsequent arrest after the bag was found to contain cocaine was based on probable cause. In Bassett, supra at 599, we concluded that the facts disclosed a valid police-citizen encounter followed by appellant’s consent to search his person although not the bag in his possession. Thus, the controlling legal issue in both these cases, after appellant failed to assert a property right in the item being searched or seized, involved appellant’s lack of a legitimate expectation of privacy in the area where the property being seized was discovered, which resulted in a so-called lack of “standing” to contest the legality of the search and seizure (compare Rakas v. Illinois, 439 U. S. 128 (99 SC 421, 58 LE2d 387)). In the case at bar, however, entirely different facts and entirely different legal issues confront us. In this case, it has been previously adjudicated that prior to the seizure of the cocaine defendant had been subjected both to the unlawful seizure of certain of his property and to the unlawful seizure of his person without probable cause; the defendant had been placed in an unlawful arrest status. Moreover, it has already been judicially determined that the seizure of the cocaine resulted from and is inextricably linked to defendant’s unlawful arrest. Thus, assuming arguendo defendant had lacked “standing” to contest the legality of the seizure, he nevertheless was subjected to an unlawful arrest which resulted in and tainted the seizure of the cocaine, and the sanction in such circumstances, as above discussed, is that of evidence suppression. Lackey, supra. Moreover, the sanction imposed for an unconstitutional arrest is separate and distinct from the sanction imposed for an unconstitutional search (see Lackey, supra at 333), and mere failure to assert a property interest in the contraband or other property seized does not lessen a citizen’s reasonable expectation of privacy of his person from unlawful detention or unlawful arrest by law enforcement authorities. Moreover, assuming arguendo, a denial of a property interest in the contraband could in some manner lessen the defendant’s reasonable expectation of privacy of his person, “[d]enials of ownership may be considered as evidence of abandonment of a privacy interest only if they occur during a lawful detention. Any denials which occur during an illegal investigatory stop, or after a lawful detention becomes unlawful (for example, as is alleged here, after it develops into an arrest without probable cause) are tainted and cannot be considered.” United States v. Anderson, 663 F2d 934, 939 (6) (9th Cir.). Accordingly, we find the cases relied upon by the State distinguishable, both factually and legally, from the case at bar.

Decided November 5, 1991.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellant.

Joseph A. Maccione, for appellee.

The State’s enumeration of error is without merit.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A92A0206.
    WALKER v. THE STATE.
    (412 SE2d 291)
    Decided November 5, 1991.

      Mundy & Gammage, John S. Husser, for appellant.

      William A. Foster III, District Attorney, Donald N. Wilson, As

      sistant District Attorney, for appellee.
   Birdsong, Presiding Judge.

Lester Ray Walker appeals his judgment of conviction of trafficking in cocaine and sentence. Motion for new trial was denied and the order entered and filed on September 9, 1991. Appellant filed a late notice of appeal on Friday, October 11, 1991. The record reflects that no motion for an out-of-time appeal was filed.

Defendant’s appeal must be dismissed due to the failure to comply with OCGA § 5-6-38 (a). Austin v. State, 199 Ga. App. 54 (404 SE2d 477); Clay v. State, 194 Ga. App. 354 (391 SE2d 143).

Appeal dismissed.

Beasley and Andrews, JJ., concur.


author: Pope, Judge.

text:
    A91A1168.
    GREER v. THE STATE.
    (412 SE2d 843)
   Pope, Judge.

Defendant appeals his conviction on two counts of child molestation and one count of simple battery.

1. Defendant asserts that the trial court erred by allowing the State to present evidence of defendant’s prior conviction in Texas. “Evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact.” Oller v. State, 187 Ga. App. 818, 819-820 (371 SE2d 455) (1988). See Johnson v. State, 242 Ga. 649 (3) (250 SE2d 394) (1978). Before evidence of similar crimes “is admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged. [Cit.]” Anderson v. State, 184 Ga. App. 293, 294 (361 SE2d 270) (1987). Both of those factors are met in this case. It is undisputed that the defendant was the perpetrator of the independent crime. Also, as in the case sub judice, the defendant was convicted in Texas of molesting young girls. Accordingly, the trial court properly allowed evidence concerning the similar transaction. Tilley v. State, 197 Ga. App. 97 (2) (397 SE2d 506) (1990).

2. Defendant further argues that the Texas conviction should not have been admitted because after he had successfully completed the probationary period to which he was sentenced, the trial court entered an order which in pertinent part provided that “said conviction shall not appear on his record for any purpose except that proof of said conviction shall be known to the Court should the Defendant again be convicted of any criminal offense.” Thus, defendant contends that because the Texas conviction was in effect dismissed, the trial court did not afford full faith and credit to the order of the Texas court by allowing the conviction to be introduced. The Full Faith and Credit Clause of the United States Constitution requires that when a judgment of a court of one State is sued on, pleaded, or introduced in evidence in another state, the judgment shall be entitled to the same full faith, credit, and respect that it is accorded in the state in which it is rendered. Signet Bank/Virginia v. Tillis, 196 Ga. App. 433, 434-435 (396 SE2d 54) (1990).

Thus, a Georgia court must accord defendant’s Texas conviction the same credit that a Texas court would. A review of the Texas statute in question reveals that Texas would not have admitted the conviction during the adjudication of guilt phase of the trial but would have allowed the conviction to be considered on the issue of penalty. Accordingly, the trial court should have only allowed the prior Texas conviction to be considered on the issue of penalty.

Although the trial court should not have allowed the conviction to be introduced into evidence, “[a] conviction will be affirmed despite . . . error if the error is harmless beyond a reasonable doubt. [Cit.]” Vaughn v. State, 248 Ga. 127, 131 (2) (281 SE2d 594) (1981). When determining if error is harmless error, the test is not whether there was sufficient evidence on which the defendant could have been convicted but whether the evidence complained of may have influenced the verdict. Id. As our Supreme Court noted in Vaughn, “[o]verwhelming evidence of the defendant’s guilt can negate the possibility that the . . . error contributed to the conviction. [Cit.]” Id. at 131-132.

There was overwhelming evidence of defendant’s guilt in this case. Both girls that the defendant was accused of molesting testified against him and were able to corroborate each other’s testimony, because most of the conduct in question occurred while both girls were present in the same room. The mother of the girls corroborated their testimony by testifying as to what the girls told her on the day of the alleged molestation. This testimony was further corroborated by the detective who investigated the case and the arresting officer. Furthermore, there were three witnesses at trial who testified concerning the incident of child molestation in Texas, including the victim. Thus, even though the dismissed conviction should not have been admitted into evidence, there was sufficent distinct evidence of that incident for the jury to consider. In light of the overwhelming evidence in this case, we hold that the introduction of the Texas conviction was harmless error beyond a reasonable doubt.

3. Defendant next contends that because the entire package concerning his conviction in Texas was admitted at trial, this case must be reversed. Although trial counsel objected to the admission of the similar transaction, he told the trial judge that he had “no specific objection to what is in the package. I think the package needs to go in in its entirety if it goes in.” Thus, to the extent this was error, it was self-induced, and provides no basis for reversal. Fitzgerald v. State, 193 Ga. App. 76, 78 (7) (386 SE2d 914) (1989).

4. Defendant finally contends that the trial court erred in overruling his objections to testimony of witnesses concerning the similar transaction occurring in Texas, who related the statements of the victim, who was seven years old at the time of the event. Defendant contends that the criteria for admissibility under OCGA § 24-3-16 were not met because the victim was 15 at the time she testified at defendant’s trial. OCGA § 24-3-16 provides: “A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” It is plain from the face of that statute that the age of the child at the time the witness testifies is irrelevant as long as the child’s statement about which the witness testifies was made while the child was under 14 years of age. The witnesses testified about statements made by the victim when she was seven years old. Thus, we find no merit in this argument.

Decided October 17, 1991

Reconsideration denied November 8, 1991

Alan J. Baverman, for appellant.

Thomas J. Charron, District Attorney, Rose L. Wing, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A1188.
    A91A1189.
    WATTS v. WAYNE COUNTY BOARD OF EDUCATION et al. WESTBERRY v. WATTS.
    (412 SE2d 541)
   Pope, Judge.

Case No. A91A1188

Plaintiff filed this action against the Wayne County Board of Education and Donald Westberry, the school principal, alleging that the defendants were negligent in failing to take proper safeguards and procedures to prevent injuries he received when another student at Wayne County Junior High School picked him up and threw him down on a concrete patio during a recess period. Defendants moved for summary judgment. The trial court granted that motion on the basis that the evidence demonstrated that the defendants did not breach any legal duty owed to the plaintiff. Plaintiff appeals that decision.

The trial court correctly concluded that the defendants did not breach any legal duty owed to the plaintiff. As we noted in Cooper v. Baldwin County School Dist., 193 Ga. App. 13, 14 (386 SE2d 896) (1989), school officials have a “ ‘duty of exercising ordinary care for the safety of its pupils from defects in the premises or from dangerous activities in which other pupils are engaged under the defendant’s supervision. (Cit.)’ [Cit.]” The facts of the Cooper case are very similar to this case. In Cooper, the plaintiff was stabbed by another student in the courtyard of the school and attempted to show that the defendant had breached its duty of ordinary care by introducing evidence of prior fights at the school. This court held that because the prior fights were not in the same area as where the plaintiff was injured, she had not carried her burden of establishing defendant’s superior knowledge that the area was dangerous. Id.

In the case sub judice, plaintiff also introduced evidence of prior fights at the school, but those fights were in a grassy area, not in the patio area where the plaintiff was injured. Furthermore, plaintiff stated during his deposition that the student who injured him was a friend of his, was not known to have violent tendencies and that there was no reason for him or for school officials to suspect that the student would attack the plaintiff. In sum, as in Cooper, there was no evidence before the trial court that “ ‘would support a finding that [the defendants] knew or should have known that the [patio area] subjected the [plaintiff] to an unreasonable risk of sudden, unprovoked and unexpected criminal attack.’ [Cit.]” Nalle v. Quality Inn, 183 Ga. App. 119, 120 (358 SE2d 281) (1987). Because the plaintiff failed to carry his burden of showing superior knowledge by defendants, the trial court properly granted defendants judgment as a matter of law. Cooper, supra at 15; Nalle, supra at 120.

Case No. A91A1189

Defendant Donald Westberry cross-appeals alleging that the trial court erred in finding that he was not entitled to invoke official immunity as a defense in this case. In this case, as in Lewis v. McDowell, 194 Ga. App. 429, 431 (3) (390 SE2d 605) (1990), the plaintiff does not allege that the principal himself negligently supervised the plaintiff, but that his decision regarding how the children at the school should be supervised was negligent. As we held in Lewis, such decisions are discretionary in nature rather than ministerial, and absent a showing of wilfulness, malice or corruption, a principal is entitled to invoke the defense of official immunity to shield him from liability for such decisions. Id. In this case, plaintiff does not allege, nor is there any evidence of wilful conduct, malice or corruption by defendant Westberry. Accordingly, the trial court erred in ruling that defendant Westberry was not entitled to summary judgment on the basis of official immunity. As was discussed above, however, the trial court granted summary judgment to defendant Westberry on the basis that he did not breach any legal duty owed to plaintiff. “ ‘A correct decision of a trial court will not be reversed, regardless of the reasons given therefor. (Cit.)’ Nat. Consultants v. Burt, 186 Ga. App. 27, 33 (2) (366 SE2d 344) (1988).” Drake v. Page, 195 Ga. App. 226, 228 (3) (393 SE2d 89) (1990).

Decided October 15, 1991

Reconsideration denied November 8, 1991

Richard D. Phillips, for Watts.

Dickey, Whelchel, Brown & Readdick, John E. Bumgartner, Leaphart & Johnson, J. Alvin Leaphart, for Board of Education and Westberry.

Judgments affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A1268.
    ATHENS WHEEL, INC. v. CITIZENS & SOUTHERN TRUST COMPANY et al.
    (412 SE2d 278)
   Pope, Judge.

On June 6, 1982, appellant/plaintiff Athens Wheel, Inc., entered into a lease agreement with Elmer C. Schacht, whereby Schacht agreed to lease to plaintiff premises known as 2410 West Broad Street in Athens, Georgia. The lease was originally for a two-year term and allowed the lessee to sublease the premises upon giving the lessor 90 days written notice of its intention to sublease and obtaining Schacht’s permission.

On August 12, 1985, both parties to the original lease entered into a sublease agreement for the premises with DeKalb Tire Company (“DeKalb”). In the summer of 1987, University Tire, Inc. (“University”) purchased the business that DeKalb operated on the premises and took possession of the premises at the end of August. DeKalb did not obtain the consent of Schacht’s estate before University took possession of the premises. In early September 1987, however, the estate was notified that University was in possession of the premises.

In the spring of 1988, the estate cancelled the lease with plaintiff and executed a lease effective September 1, 1987 with University. By letter dated April 6, 1988, the estate notified plaintiff that it had decided to exercise its option to terminate the lease based on the provision of the lease which allowed it to either allow the subletting or terminate the lease upon a subletting.

Plaintiff subsequently filed this action against the estate of Schacht (“the estate”), DeKalb and University alleging breach of contract and tortious interference with plaintiff’s contract and seeking both declaratory judgment and damages, including attorney fees. All defendants filed motions for summary judgment, which were granted by the trial court. The trial court ruled that under the terms of the sublease plaintiff had not retained a right of re-entry of the premises, and for that reason the estate had the right to cancel the original lease and substitute the subtenant. Plaintiff appeals from that decision.

Decided October 17, 1991

Reconsideration denied November 8, 1991.

Henry & Pearson, J. Hue Henry, for appellant.

Gingold, Kaufman & Chaiken, Fredric Chaiken, Robert J. Kaufman, Erwin, Epting, Gibson & McLeod, Larry V. McLeod, Andrew H. Marshall, James W. Smith, for appellees.

1. Plaintiff argues that the trial court erred in finding that plaintiff relinquished its right of re-entry in paragraph one of its sublease to DeKalb. That paragraph provides that: “Lessee hereby subleases and assigns to Sublessee and Sublessee hereby accepts and takes from Lessee all of Lessee’s leasehold interest in the Premises upon the same terms and conditions as set out in the Lease and Memorandum.” Plaintiff contends that because in paragraphs six and seven of the sublease it retained the ability to cure defaults by DeKalb and agreed to remain liable to the owner in the event of default by DeKalb, it did not assign its right of re-entry to DeKalb.

Plaintiff’s contention is without merit. As this court noted in Southland &c. Corp. v. McIntosh, 137 Ga. App. 216, 221 (223 SE2d 257) (1976), the first rule that courts must apply when construing contracts, including real estate contracts, is to look to the plain meaning of the words of the contract. Paragraph one of the sublease clearly assigns all of plaintiff’s interest in the leased property, except for those interests specifically retained, to DeKalb. Both the original lease and the sublease are silent concerning the original lessee’s right to re-enter the premises. The only right expressly retained by plaintiff was a right of first refusal. If plaintiff had wished to retain a right of re-entry, that right should have been specifically retained as was plaintiff’s right of first refusal. Because it was not specifically retained, the right of re-entry is among those rights assigned to DeKalb in paragraph one of the sublease.

2. Our holding that plaintiff did not retain a right of re-entry renders plaintiff’s remaining enumerations of error moot. The trial court’s grant of the defendants’ motions for summary judgment is affirmed.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A1733.
    ALLEN v. BERGMAN et al.
    (412 SE2d 549)
   Birdsong, Presiding Judge.

Appellant Shirley Jean Allen appeals the order of the superior court granting summary judgment in favor of appellees/defendants as to appellant’s claims under 42 USC §§ 1.981 and 1983 in Count II of the complaint, which in effect dismissed her complaint. The pertinent facts of this case and appellate history appear in Allen v. Bergman, 198 Ga. App. 57 (400 SE2d 347) (docketed as Case No. A90A1320), wherein the court affirmed the grant of summary judgment in favor of appellees as to the claim of violation of the Georgia Equal Employment for the Handicapped Code (GEEHC), OCGA § 34-6A-1, and reversed on procedural grounds (that is, due to the absence of any existing requirement to exhaust administrative remedies before asserting claims under 42 USC § 1981 or § 1983) the trial court’s order dismissing the §§ 1981 and 1983 claims. The superior court thereafter granted appellees’ motion for summary judgment as to these §§ 1981 and 1983 claims. Held:

1. Appellant’s petition for certiorari to the Supreme Court of Georgia, as to our judgment in Allen v. Bergman, supra at 198 Ga. App. was denied. Accordingly, this ruling is binding as precedent on all courts except the Supreme Court. Ga. Const, of 1983, Art. VI, Sec. V, Par. III.

2. Judicial notice is taken of the record and hearing transcript filed with this court in Case No. A90A1320, Allen v. Bergman. Backus Cadillac-Pontiac v. Ernest, 195 Ga. App. 579 (394 SE2d 367).

3. Appellant is a white woman who claims on appeal that she has been discriminated against on the basis of a handicap. Appellant also asserts without citation to any supporting evidence in either the record in this case or the record and transcript in Case No. A90A1320, which pertains to Allen, supra at 198 Ga. App. that: “It is submitted that a jury question is raised in the case below as to whether the treatment of appellant was intentional, and in the final analysis, race related.”

(a) “ ‘Summary judgment law does not require the movant to show that no issue of fact remains but only that no genuine issue of material fact remains; and while there may . be some shadowy semblance of an issue, the case may nevertheless be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.’ ” Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 68 (4) (397 SE2d 576). Our examination of the records and transcript fails to reveal any genuine issue to support the bare allegation in appellant’s brief that the treatment she received was “in the final analysis race related.” Factual assertions in briefs unsupported by the record cannot be considered in the appellate process. Behar v. Aero Med Intl., 185 Ga. App. 845, 847 (366 SE2d 223). Moreover, it is not the function of this court to cull the record on behalf of one party litigant in search of instances of error. Manderson & Assoc. v. Gore, 193 Ga. App. 723, 733 (8) (389 SE2d 251), citing Armech Svc. Co. v. Rose Elec. Co., 192 Ga. App. 829, 830 (386 SE2d 709). Additionally, this court held in Allen v. Bergman, supra at 198 Ga. App. 58, that appellant “has produced no evidence to show she was treated any differently from any able-bodied employee of defendants.” This finding per force includes a determination that appellant has not produced any evidence that she has been discriminated against on the basis of race or otherwise. As appellant has not presented any additional evidence regarding this matter since this finding, the trial court also was bound thereby.

It is now well-settled that § 1981 “affords a federal remedy against discrimination in private employment on the basis of race” (emphasis supplied) (Johnson v. Ry. Express Agency, 421 U. S. 454, 459-460 (95 SC 1716, 44 LE2d 295)), and the statute applies to all persons, including white persons (McDonald v. Santa Fe Trail Transp. Co., 427 U. S. 273 (96 SC 2574, 49 LE2d 493)). Thus, § 1981 “can serve as an alternative basis for relief for plaintiffs claiming racial discrimination in the employment context.” (Emphasis supplied.) Baldwin v. Bellsouth Advertising &c. Corp., 677 FSupp. 1573, 1581 (M.D. Ga.). “Nevertheless, the fact that the prohibitions of § 1981 encompass private as well as governmental action does not suggest that the statute reaches more than purposeful discrimination, whether public or private.” General Bldg. Contractors Assoc. v. Pennsylvania, 458 U. S. 375, 387-388 (102 SC 3141, 73 LE2d 835). In view of the lack of any genuine issue of racial discrimination, the trial court did not err in granting summary judgment as to the § 1981 claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); Strickland, supra.

(b) Under § 1983 civil liability is imposed upon one “ ‘who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws. . . .’ The first inquiry in any § 1983 suit, therefore, is whether the plaintiff has been deprived of a right ‘secured by the Constitution and laws.’ ” Baker v. McCollan, 443 U. S. 137, 140 (99 SC 2689, 61 LE2d 433). Certain rights and privileges, of course, are secured to handicapped persons under the Rehabilitation Act of 1973, 29 USC 701 et seq. (Rehabilitation Act).

Examination in toto of appellant/plaintiff’s complaint, as amended prior to the issuance of summary judgment (A90A1320, at pp. 4, 44), unequivocally reflects that the § 1983 claim was not grounded upon an averment that appellant had been deprived of any right, privilege, or immunity secured by the Rehabilitation Act; neither was such a contention reasonably raised by the wording of the averments contained in these documents. Rather, the basis for the § 1983 claim, like that of the § 1981 claim, was grounded on the express averment of racial discrimination and, at best, the complaint as crafted provided reasonable notice of only this limited type of § 1983 claim.

The opinion of this court in Allen v. Bergman, supra at 198 Ga. App. 58 (2) has disposed, adversely to the contentions of appellant, of the issue pertaining to claim of discrimination under GEEHC, which are state statutes. Moreover, GEEHC being state statutes cannot provide the basis for a § 1983 claim, as “[ojnly deprivations of rights, privileges, or immunities secured by the Constitution and laws of the United States [that is, federal statutes] are actionable.” Studen v. Beebe, 588 F2d 560, 566 (6th Cir.); see generally Maine v. Thiboutot, 448 U. S. 1, 4 (100 SC 2502, 65 LE2d 555) (the § 1983 remedy broadly encompasses violations of federal statutory as well as constitutional law).

Under notice pleading procedure of the Civil Practice Act, only a short and plain statement of the claim is required; nevertheless, a complaint must give a defendant notice of the claim in terms sufficiently clear to enable him to frame a responsive pleading thereto. Bazemore v. Burnet, 117 Ga. App. 849, 852 (161 SE2d 924). Giving appellant/plaintiff the benefit of all reasonable inferences that can be drawn from the complaint (Bazemore, supra), we find that appellees were not placed on reasonable notice of any § 1983 claim grounded upon the Rehabilitation Act; and, that appellees could not reasonably frame a responsive pleading to this type of § 1983 claim. Moreover, we find that the complaint in effect was misleading as to whether the § 1983 claim was intended to be expanded so as to be grounded on any constitutional right or law other than those pertaining to racial discrimination. Thus, as would be expected, appellees’ answer makes no mention of the Rehabilitation Act or otherwise addresses any claim allegedly grounded thereon. At no time prior to summary judgment does it appear that appellant sought to amend her complaint so as to correct this particular pleading deficiency. Accordingly, at the time the motion for summary judgment was granted, there existed no viable § 1983 claim grounded upon the Rehabilitation Act. This remains true notwithstanding appellant’s argument in “Plaintiff’s Response to the Defendants’ Motion for Summary Judgment” that she also enjoyed protection of the Rehabilitation Act, and that § 1983 provided a cognizable right of action based on this federal statute. In this regard, we need not determine whether a cognizable right of action exists as described by appellant, because she has failed to provide in the averments of her complaint reasonable notice of such claim as required by our notice pleading procedures.

Decided October 28, 1991

Reconsideration denied November 8, 1991

William R. Hurst, for appellant.

Smith, Gambrell & Russell, Matthew S. Coles, David A. Handley, for appellees.

Further, appellant could not amend her complaint, so as to allege a § 1983 claim grounded on the Rehabilitation Act, after the trial court granted summary judgment in favor of appellee as to the § 1983 claim. See generally Ansley v. Atlanta Suburbia Estates, Ltd., 231 Ga. 640 (203 SE2d 861); Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 606-607 (203 SE2d 173); see Bell v. Sellers, 248 Ga. 424 (283 SE2d 877); Hennessy Cadillac v. Pippin, 197 Ga. App. 448, 449 (398 SE2d 725). Thus, the only § 1983 claim viable at the time summary judgment was granted was a claim grounded on the racial discrimination of appellant; no genuine issue exists regarding this type of claim for the reasons discussed in Division 3 (a), above. Furthermore, we must review this case in light of the posture of the record at the time of the trial court’s ruling; otherwise, we would be considering the case, contrary to applicable appellate law, on a completely different basis than it appeared to the trial court. See Bell, supra at 426. Accordingly, the trial court did not err in granting summary judgment in favor of appellees as to the § 1983 claim.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A0907.
    INTERACTIVE LEARNING SYSTEMS, INC. et al. v. AKERS.
    (412 SE2d 291)
   Birdsong, Presiding Judge.

Interactive Learning Systems, Inc., Elmer Smith, and John W. White appeal the grant of summary judgment to Lynn R. Akers on one count of their declaratory judgment action.

Appellants brought a petition for declaration of their rights under a clause in a note which provided that they were authorized to offset against amounts due under the note an amount equal to any loss or reasonable expense paid or owed by appellants arising from Akers’ breach of an indemnification paragraph in the stock purchase agreement between appellants and Akers. The paragraph in the stock purchase agreement required Akers to indemnify and hold appellants harmless against certain liabilities of the corporation, damages or deficiencies from Akers’ misrepresentation, breach of warranty, or non-fulfillment of any agreement by Akers under the stock purchase agreement, and from actions, suits, proceedings, demands, assessments, judgments, costs and expenses, including reasonable attorney fees, incident to any of the foregoing. Akers was required to reimburse appellants, on demand, for any payments made by appellants after the execution of the stock purchase agreement for any liability or claim under the indemnity clause or appellants could offset the liability or claim against payments due under the note. According to appellants, because of the set off they wished to apply, they would have no further liability to Akers on the note.

Appellants sought a declaratory judgment as to whether they were entitled to deduct from future payments under the set off clause in the note certain sums they claimed Akers was required to reimburse them under the indemnification clause of the stock purchase agreement. They claimed uncertainty because of adverse consequences they would suffer if they were to make an unauthorized set off. In addition to the petition for declaratory judgment, appellants also sought preliminary injunctions to preserve the status quo and avoid the acceleration clause of the note if the court were to find against them on the merits of their petition. The trial court, however, denied this petition, and the record shows that appellants did not make the required payments.

Additionally, although the record also shows that Akers made a motion to dismiss the action and a subsequent continuing motion to dismiss the petition when his initial motion was not ruled upon, the trial court has not ruled on these motions. Instead, the trial court found that no set off under the clause in the note was permissible because the indemnification clause did not apply to the claims appellants asserted because they had not incurred any real liability, and granted Akers’ motion for summary judgment on one count of the claim. As the parties agreed that issues of fact were present on other counts of the petition, the trial court ruled that those counts would be submitted to the jury. Appellants assert the grant of summary judgment was error because genuine issues of material fact remain for trial. Held:

Pretermitting the issues appellants wish to assert, the record shows that the trial court was not authorized to render a declaratory judgment.

Although appellants may have been uncertain whether they were indebted to Akers under the note because of the set offs they claimed, and sought to avoid the acceleration clause in the event they were not entitled to the set off, the record shows that even though their motion for a preliminary injunction was denied, they did not make the payments required under the note.. Consequently, the rights and liabilities under the note vested, and whether they remain uncertain is of no legal significance. Kiker v. Hefner, 119 Ga. App. 629 (168 SE2d 637). Accordingly, this case was not appropriate for declaratory judgment. OCGA § 9-4-1. Department of Corrections v. Brown, 198 Ga. App. 862 (403 SE2d 452); Consolidated Quarries Corp. v. Davidson, 79 Ga. App. 248 (53 SE2d 231). Therefore, as the trial court was without jurisdiction to enter a declaratory judgment, the judgment must be set aside as nugatory. Logan Paving Co. v. Peoples Bank &c., 196 Ga. App. 42, 43 (395 SE2d 287).

Decided November 8, 1991.

Tate & Mallernee, Rollin E. Mallernee II, Ford & Harrison, F. Carter Tate, for appellants.

David W. Griffeth, for appellee.

Judgment vacated.

Pope and Cooper, JJ., concur.


author: Sognier, Chief Judge.

text:
    A90A1485, A90A1486.
    CHEELEY et al. v. HENDERSON; and vice versa.
    (413 SE2d 266)
    Decided November 12, 1991.

      Goodman, McGuffey, Aust & Lindsey, William S. Goodman, Edward H. Lindsey, Jr., Saveli & Williams, Charles M. Dalziel, Jr., Carrie L. Christie, Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, for appellants.

      Jones, Brown & Brennan, Taylor W. Jones, Myles E. Eastwood,

      James McGuire, for appellee.
   Sognier, Chief Judge.

In Cheeley v. Henderson, 261 Ga. 498 (405 SE2d 865) (1991), the Supreme Court reversed the judgment of this court in Cheeley v. Henderson, 197 Ga. App. 543 (398 SE2d 787) (1990). Accordingly, our judgment in that case is vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

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


text:
    A91A0742.
    A91A0743.
    RE/MAX OF GEORGIA, INC. et al. v. REAL ESTATE GROUP ON PEACHTREE, INC. HUDSON et al. v. REAL ESTATE GROUP ON PEACHTREE, INC.
    (412 SE2d 543)
   Sognier, Chief Judge.

The Real Estate Group on Peachtree, Inc. d/b/a Re/Max on Peachtree (Peachtree), the assignee of a franchise agreement with Re/ Max of Georgia, Inc., brought suit against Re/Max of Georgia; another franchisee, Re/Max Northeast, Inc. (Northeast); Northeast’s president and licensed broker, Stacy L. Burton; and two of Northeast’s licensed real estate agents, Starke Hudson and David Liles, alleging that Hudson and Liles, with the knowledge and approval of Burton and Northeast, had established a Re/Max real estate sales office within the territory granted exclusively to Peachtree in its franchise agreement and that Re/Max of Georgia had failed to defend and protect Peachtree from the infringement as required by the franchise agreement. A jury trial resulted in a verdict in favor of Peachtree. The appeals of Re/Max of Georgia, Northeast, and Burton (Case No. A91A0742) and Hudson and Liles (Case No. A91A0743) are consolidated here for review.

At trial, Leah Jennings, appellee’s president and licensed broker, testified that she considered Hudson and Liles’ office to be an infringement of her protected territory and brought it to the attention of Howard McPherson, president of Re/Max of Georgia, requesting that he enforce the protected territory provision of the agreement. McPherson visited the two offices and consulted with the chief legal officer of its parent organization, Re/Max International. Jennings testified that at a meeting McPherson arranged among all the parties McPherson described the Hudson-Liles office as a “blatant infringement.” Jennings testified that Burton informed her at that meeting that if she forced Hudson and Liles to move their new office the loss of referral business from Hudson and Liles would cause him to lose six of his agents, and that Liles threatened to “bankrupt” her if she continued her complaints.

McPherson sought the help of the Broker/Owners Advisory Council in resolving the dispute, and after meeting with the council advised Burton by letter that it was his opinion and that of Re/Max International that the Hudson-Liles office was “an infringement upon the territorial rights [of appellee’s] franchise agreement and a violation of your franchise agreement as well.” In the letter, McPherson gave Burton a date certain by which either the infringing office must be closed or the licenses of Hudson and Liles transferred to appellee. However, when Burton, Northeast, Hudson, and Liles advised McPherson that they would not comply the deadline was not enforced. Jennings testified that because agents realized they could work with Hudson and Liles without paying a fee to Re/Max, appellee had difficulty recruiting and keeping agents, which was the mainstay of her brokerage office’s income. Eventually, appellee voluntarily ceased doing business because of financial problems.

1. The franchise agreement in issue granted to franchisees an exclusive license to use a particular system in the operation of a real estate agency within a certain exclusive territory. Re/Max of Georgia argues that because Hudson and Liles did not use that system in its entirety and did not call themselves a Re/Max office, their office within appellee’s protected territory did not constitute an infringement of the franchise agreement, and thus the trial court erred by failing to grant its motion for a directed verdict on appellee’s claim for breach of contract. We do not agree.

“In reviewing the overruling of a motion for a directed verdict, the proper standard to be utilized by the appellate court is the any evidence test.” (Citations and punctuation omitted.) Stratton Indus. v. Northwest Ga. Bank, 191 Ga. App. 683, 685-686 (1) (382 SE2d 721) (1989). Viewing the evidence in a light most favorable to appellee, as required, id. at 686 (1), we find some evidence that although Hudson and Liles did not use the name “Re/Max,” their office operated as a Re/Max office in fact, thereby infringing the franchise agreement. Appellee adduced evidence at trial that despite Hudson and Liles’ assurances to Jennings to the contrary, they participated as agents in numerous residential real estate sales in the period during which their “construction” office was open within appellee’s territory and that although their real estate licenses were held at Northeast, their real estate sales transactions were carried out at the newly established office. Testimony was adduced from other Re/Max franchisees that the right to have a “protected territory” was crucial to any franchisee; that the franchise would be virtually worthless without such a right; and that although the franchise agreement required Re/Max of Georgia to enforce the protected territory provision, McPherson was reluctant to do so because he feared liability to Burton, who had many agents and a large sales volume. This evidence sufficed to show the existence of a duty owed by Re/Max of Georgia and a breach of that duty in its failure to enforce the provision in that agreement granting appellee an exclusive territory. Accordingly, the trial court did not err by denying Re/Max of Georgia’s motion for a directed verdict on this issue. See generally id.

2. Re/Max of Georgia also contends the trial court erred by denying its motion for a directed verdict as to damages for breach of contract because the measure of damages used by the court was incorrect. Re/Max of Georgia contends the trial court’s reliance on Pacific Mut. Life Ins. Co. v. Caraker, 31 Ga. App. 707 (1) (121 SE 876) (1924) was erroneous and that appellee could not, as a matter of law, recover for expenses incurred in contemplation of its performance of the contract, but instead was only entitled to recover lost profits.

The parties cite no Georgia cases specifically setting forth the measure of damages for breach of a territorial covenant in a franchise agreement, and our research has uncovered none. Generally, “[d]amages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach.” OCGA § 13-6-2. “ ‘The measure of damages in the case of a breach of contract is the amount which will compensate the injured person for the loss which a fulfillment of the contract would have prevented or the breach of it entailed. In other words, the person injured, is, so far as it is possible to do so by a monetary award, to be placed in the position he would have been in had the contract been performed.’ [Cits.]” Bennett v. Associated Food Stores, 118 Ga. App. 711, 715 (165 SE2d 581) (1968).

The measure of damages used here, appellee’s net expenses in attempting to comply with the contract — i.e., the expenses borne by appellee in its effort to meet its obligations under the franchise agreement less the income it derived from the contract — was expressly approved in Pacific Mut. Life Ins., supra, as the measure of damages for the breach of a contract for personal services performed on a commission basis. Although the contract at issue here was not, strictly speaking, a contract for personal services, like the contract in Pacific Mut. Life Ins. it involved services which were not fungible and were compensated on a commission basis, and we find the trial court’s use of this approach was not error in view of the provision in OCGA § 13-6-9 that “[a]ny necessary expense which one of two contracting parties incurs in complying with the contract may be recovered as damages.” That is particularly true in this case because the injured party was a new business. Although lost profits may be recoverable where a business is well established and reasonable data exist for their ascertainment, the lost profits of a new business are generally too speculative for recovery, see Levy, Brother & Co. v. Allen, 53 Ga. App. 246-247 (185 SE 369) (1936), and restricting damages to lost profits in such a situation would leave appellee without a remedy. “The law always seeks to give a remedy commensurate with the injury. The injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed.” (Citations and punctuation omitted.) Georgia Power &c. Co. v. Fruit Growers Express Co., 55 Ga. App. 520, 526 (190 SE 669) (1937).

Given that evidence was adduced that breach of the exclusive territory provision would render the franchise worthless, we find no merit in Re/Max of Georgia’s argument that breach of that provision constituted only a partial breach of contract. Similarly, our holding in Division 1, supra, that sufficient evidence existed to support the jury’s verdict on the claim for breach of contract is also necessarily a finding that the breach was responsible for appellee’s failure. Accordingly, we do not agree with Re/Max of Georgia that appellee’s continued operation for some time in an effort to succeed after the breach deprives it of a remedy for its eventual failure.

Contrary to Re/Max of Georgia’s argument, the leases on which appellee remained obligated were entered into in reliance upon the breached contract and were necessary obligations of a type that arise in the usual course of events within the contemplation of the parties, OCGA § 13-6-2, rendering the lease payments recoverable as damages under OCGA § 13-6-9. Murray v. Americare-Medical Designs, 123 Ga. App. 557, 559 (181 SE2d 871) (1971). Accordingly, the trial court did not err by denying Re/Max of Georgia’s motion for a directed verdict as to damages for breach of contract.

3. Re/Max of Georgia enumerates as error the trial court’s grant of appellee’s motion in limine precluding admission of evidence regarding a prior order denying Re/Max of Georgia’s motion for a temporary restraining order to force the closing of the Hudson-Liles office. The motion for TRO was heard before a different trial judge, who denied it on the basis that insufficient evidence had been presented to show that the Hudson-Liles office was, in fact, a Re/Max office. Given that appellee had no burden of proof at the hearing on the TRO, not being the movant, and that the judge denying the TRO noted that the movant (Re/Max of Georgia) had argued against its own motion, we find no error in the trial court’s determination that introduction of the order denying the TRO because of insufficient evidence of infringement would be unnecessarily prejudicial to appellee in the trial of this case. See generally Kelly Energy Systems v. Bd. of Commrs. of Clarke County, 196 Ga. App. 519, 521 (3) (396 SE2d 498) (1990).

4. We do not agree with appellants Re/Max of Georgia, Northeast, and Burton that the evidence was too speculative to support the award of damages against them for tortious interference with business relations. Based on the number of sales associates appellee’s franchise agreement required it to maintain, Jennings’ testimony describing her efforts to recruit new agents and the negative effect the infringing office had on that recruitment, and evidence of the amounts appellee was entitled to receive from each sales associate recruited, the jury was able to calculate a definite amount of damages, and the $100,000 awarded by the jury on this claim was well within the range authorized. See generally Summerfield v. Decinque, 143 Ga. App. 351, 352-353 (2) (238 SE2d 712) (1977).

5. Appellants Northeast and Burton’s requested charges on independent contractors were not adjusted to the facts of this case because they dealt with negligence law and vicarious liability, whereas this case involved intentional torts and the liability of Northeast and Burton was based on their own independent actions and not vicarious liability for the actions of Hudson and Liles. Accordingly, the trial court did not err by failing to give the requested charges on independent contractors. See Travel Agency Group v. Henderson Mill Travel, 193 Ga. App. 882, 885 (1) (389 SE2d 511) (1989).

6. As Hudson and Liles chose to be represented by the same counsel both at trial and on appeal, we do not agree with their contention on appeal that their interests were distinct, requiring a separate allocation of peremptory strikes. Rather, we find that the trial court did not abuse its discretion in the allocation of strikes among the defendants at trial, as Hudson and Liles were joint defendants at the time of trial, no motion for severance was made, and the transcript of the colloquy between the trial court and counsel on this issue reveals that the trial court’s exercise of its discretion to allocate peremptory strikes equally among counsel for the various defendants was not made arbitrarily but in an effort to be fair to all five defendants. Compare Keller Indus. v. Summers Roofing Co., 179 Ga. App. 288, 290 (1) (346 SE2d 99) (1986).

7. Hudson and Liles contend the trial court erred by denying their motion for a mistrial made after counsel for appellee violated the trial court’s ruling on a motion in limine. The trial court’s grant of the motion in limine at issue prohibited evidence regarding the decision reached by the Broker/Owners Advisory Council that in its opinion Hudson and Liles had infringed appellee’s territory. The transcript reveals, however, that on cross-examination of a witness called by Re/Max of Georgia, counsel for Hudson and Liles opened the door to this matter, and given that the witness was not permitted to answer the offending question, we find no abuse of the trial court’s discretion in its denial of Hudson and Liles’ motion for a mistrial. See generally Georgia Communications Corp. v. Horne, 174 Ga. App. 69, 70 (4) (329 SE2d 192) (1985).

8. We have carefully reviewed the remaining enumerations of error in both appeals, and find them without merit.

Judgment affirmed.

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

Decided October 22, 1991

Reconsideration denied November 13, 1991

Palmer & Berman, Jeffrey N. Berman, William A. Wehunt, for appellants (case no. A91A0742).

Haley & Kaye, Arnold S. Kaye, for appellants (case no. A91A0743).

Branch, Pike, Ganz & O’Callaghan, Gregory J. Digel, Fletcher & McCurdy, William A. Fletcher, Jr., W. Phillip McCurdy III, for appellee.


text:
    A91A1062.
    RUFFIN v. THE STATE.
    (412 SE2d 850)
   Sognier, Chief Judge.

Ricky L. Ruffin was convicted of possession of cocaine in violation of OCGA § 16-13-30. He appeals from the trial court’s denial of his amended motion for new trial.

1. Appellant contends the trial court erred by failing to suppress contraband found in his possession on the basis that it was found as the result of a stop which was not based on a reasonable, articulable suspicion. See Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). OCGA § 17-5-30 (b) provides that a motion to suppress evidence “shall be in writing and state facts showing that the search and seizure were unlawful.” It is undisputed that appellant did not file a motion to suppress either prior to or during the trial. “[FJailure to interpose a timely motion to suppress pursuant to [OCGA § 17-5-30] constitutes a waiver of the constitutional guarantee with respect to the search and seizure in question. [Cits.]” Hawes v. State, 240 Ga. 327, 333 (7) (240 SE2d 833) (1977). Accordingly, this enumeration is without merit.

2. In his second enumeration of error, appellant maintains the trial court erred by denying his motion for new trial made on the ground of ineffective assistance of counsel. “Under the holding in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), there is a two-pronged test for determining the validity of a claim of ineffective assistance of counsel: whether (1) counsel’s performance was deficient; and whether (2) this deficiency prejudiced the defense (there is a reasonable possibility that the outcome of the proceedings would have been different, but for counsel’s deficiency). [Cit.]” Thompson v. State, 188 Ga. App. 508, 509 (373 SE2d 292) (1988).

(a) As evidence of ineffectiveness, appellant first points to counsel’s failure to file a motion to suppress. In Wong Sun v. United States, 371 U. S. 471, 487-488 (III) (83 SC 407, 9 LE2d 441) (1963), the U. S. Supreme Court held that the exclusionary rule bars the admission of evidence obtained as the result of an illegal search because it is “fruit of the poisonous tree.” However, “evidence is [not] ‘fruit of the poisonous tree’ simply because it,would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Id. at 488. Thus, even if evidence would not have been discovered but for the illegal police conduct, if the derivative evidence has only an attenuated link to the illegality, it need not be suppressed. Id. at 487.

The evidence adduced at trial showed that at approximately 10:00 p.m. on December 26, 1988, Officer Dauphinee of the Savannah Police Department was on routine patrol of an area of downtown Savannah in which frequent car break-ins had occurred and in which was located a known crack house. While patrolling, Dauphinee noticed appellant walking on the east side of the neighborhood. Before leaving the area for approximately 30 minutes on official business, Dauphinee observed appellant again closer to the crack house. Upon returning, he saw appellant standing with another man in a parking lot behind a motel. Dauphinee testified that upon seeing the patrol car appellant and the other man parted company and appellant walked briskly away. Dauphinee crossed through traffic to stop appellant, placed him against the patrol car, and patted him down for weapons. Neither weapons nor drugs were found as a result of the patdown. However, after Dauphinee’s routine computer check indicated an outstanding warrant for appellant’s arrest for probation violation, appellant was arrested pursuant to the warrant and taken to jail. After appellant’s arrival at the jail, Dauphinee searched the police car and found a ziplock plastic bag with several pieces of what was later determined to be rock cocaine behind the back seat. A search of appellant’s person at the jail revealed another ziplock bag in his jacket pocket containing brownish white residue which later tested positive for cocaine.

We agree with appellant that under the holding of Terry, supra, the initial stop in the case sub judice was unlawful. See Brown v. Texas, 443 U. S. 47 (99 SC 2637, 61 LE2d 357) (1979). When urging ineffective assistance of counsel on the basis of counsel’s failure to file a motion to suppress, appellant must “make a strong showing that if trial counsel had made a motion to suppress, the damaging evidence would have been suppressed. [Cits.]” Rubiano v. State, 147 Ga. App. 142, 144 (248 SE2d 207) (1978). Given that cocaine residue was discovered on appellant’s person during a search incident to his arrest pursuant to the outstanding warrant, see OCGA § 17-5-1 (b), we look first to the issue whether suppression of that cocaine residue would have been required. If suppression of that evidence would not have been required, we need not consider whether the cocaine recovered from the police car should have been suppressed had a proper motion been made on the ground that it was found only because appellant was present in the police car during an illegal stop. See Brown v. State, 191 Ga. App. 779 (383 SE2d 170) (1989).

We have found no Georgia case specifically addressing the issue whether a valid outstanding arrest warrant which is discovered in the course of a routine check during an unlawful Terry stop sufficiently attenuates the connection between the illegal stop and a subsequent search incident to an arrest pursuant to the warrant so as to render contraband found in that search admissible into evidence. Our review of applicable federal decisions, rather than revealing a single rule, demonstrates that the result in each case depends upon the application of the considerations behind the exclusionary rule to the facts at hand. Federal courts have found insufficient attenuation in situations where the arrestee’s response to illegal police conduct reveals evidence of a prior crime, e.g., United States v. Beck, 602 F2d 726 (5th Cir. 1979), but have admitted evidence despite its strong causal connection to illegal police conduct where, after the unlawful arrest, the arrestee commits a new crime in the presence of the arresting officer and the evidence is obtained in a search incident to the “second” arrest. E.g., United States v. Bailey, 691 F2d 1009 (11th Cir. 1982). In United States v. Nooks, 446 F2d 1283 (5th Cir. 1971), a car was stopped by a sheriff without a sufficient articulable suspicion. However, the court held that the nexus between the original unlawful arrest and the subsequent search of the car’s trunk — revealing evidence connecting the occupants to a recent bank robbery — had been attenuated by intervening events, including a police radio report indicating that the driver of the car matched the description of the robbers. Accordingly, “[b]efore the trunk of the automobile was opened it had become academic whether [the driver’s] original arrest was lawful or not. . . . Under the circumstances known at the time of the actual search of the automobile, there can be no doubt as to the validity of that search. . . . The fruits of that search cannot realistically be treated as fruits of [the driver’s] original arrest.” Id. at 1288 (I).

Similarly, we hold that under the facts sub judice, the evidence discovered in appellant’s pocket cannot realistically be treated as fruit of the original, illegal stop, and that Dauphinee’s discovery of the valid outstanding warrant attenuated the connection between the illegal stop and the search that revealed the evidence within the meaning of Wong Sun, thereby rendering that evidence admissible. To hold otherwise would effectively render the outstanding warrant invalid because of police conduct unrelated to its issuance, and would immunize appellant from arrest for past conduct already properly determined to constitute probable cause for his arrest. We decline to do so. Since the warrant was valid, appellant’s arrest pursuant thereto was lawful, and he was lawfully searched incident to that arrest. It follows that the evidence uncovered in that search need not be suppressed, and that the test set forth in Strickland, supra, was therefore not met.

Decided October 29, 1991

Reconsideration denied November 13, 1991.

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, David T. Lock, Assistant District Attorney, for appellee.

(b) “ ‘ “The decisions on which witnesses to call, whether and how to conduct cross-examinations, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.” ’ [Cits.]” Fortson v. State, 240 Ga. 5 (1) (239 SE2d 335) (1977). “[T]he appellate courts of this state are reluctant to reverse a case on the ground of ineffective assistance of counsel whenever the specific complaint urged can reasonably be construed as involving defense counsel’s trial strategy. [Cits.]” Rubiano, supra. The remainder of the instances cited by appellant of his trial counsel’s ineffectiveness either involved choices made by counsel as to trial strategy or, as in failure to subpoena a witness whose testimony was shown at the hearing on the motion for new trial to be immaterial, ultimately proved harmless. Accordingly, we conclude that the trial court did not err by finding that appellant was not denied his constitutional right to effective assistance of counsel. See generally Richardson v. State, 194 Ga. App. 358 (390 SE2d 442) (1990).

Judgment affirmed.

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


text:
    A91A1378.
    WORLEY v. THE STATE.
    (412 SE2d 845)
   Sognier, Chief Judge.

Dale Worley, Jr. was convicted of three counts of receiving stolen property, one count of transacting business as a dealer in precious metals without first registering pursuant to OCGA §§ 43-37-2 (b), 43-37-6 (b) (Count IV), and one count of failing to maintain and make permanent records as a dealer in precious metals, OCGA § 43-37-6 (a) (2) (Count V). He appeals.

1. We find no error in the trial court’s denial of the motions to dismiss or to direct a verdict on Count IV made by counsel during jury deliberations. See Bethay v. State, 235 Ga. 371, 374-375 (219 SE2d 743) (1975). The transcript reveals that appellant admitted on cross-examination that he had never registered as a dealer in precious metals. Accordingly, it can hardly be said that the evidence demanded appellant’s acquittal. OCGA § 17-9-1 (a).

2. Similarly, we find no error in the trial court’s denial of appellant’s motions on Count V given that the transcript establishes that appellant testified the only permanent record maintained in the course of his business was a checkbook, the entries to which he admitted did not comply with OCGA § 43-37-3.

3. Given appellant’s admission that he had never registered as a dealer in precious metals, it is highly probable that any error in the trial court’s failure to give appellant’s requested charge based on OCGA § 43-37-2 (a) (1), (b) setting forth with whom such a dealer residing in a county must register, did not contribute to the verdict, and thus a reversal will not result. See generally Sultenfuss v. State, 185 Ga. App. 47, 51 (363 SE2d 337) (1987).

4. We find no error in the trial court’s charges that if the jury found the allegations set forth in Counts IV and V were proven by the State beyond a reasonable doubt, it would be the jury’s duty to find appellant guilty and to convict appellant. Noggle v. State, 256 Ga. 383, 385 (2) (349 SE2d 175) (1986).

5. A review of the charge given by the trial court reveals that the jury was fully and completely instructed on the law regarding theft by receiving stolen property, and that the principles of appellant’s four requested charges were sufficiently covered thereby. Therefore, the trial court did not err by refusing to give appellant’s charges in the language requested. Sims v. State, 197 Ga. App. 214, 218 (6) (398 SE2d 244) (1990).

6. Appellant contends the trial court erred by admitting testimony by Officer Darrel Burnett regarding a conversation between appellant’s co-defendant and one of the parties selling stolen jewelry, which the officer overheard and unsuccessfully tape recorded. Appellant argues he never received a copy or transcript of the tape recorded conversation despite a continuing demand for all conversations appellant made, pursuant to OCGA § 17-7-210. However, even assuming appellant would have been entitled to a copy of a conversation in which he was not involved, the transcript reveals no objection was raised by appellant or his co-defendant to the introduction of Burnett’s testimony. Accordingly, any error was waived. Hight v. State, 195 Ga. App. 727, 730 (6) (394 SE2d 636) (1990).

Decided October 22, 1991

Reconsideration denied November 13, 1991.

Mills & Chasteen, Ben B. Mills, Jr., for appellant.

W. Glenn Thomas, Jr., District Attorney, Stephen D. Kelley, John B. Johnson III, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


author: Judge Arnold Shulman. Beasley, Judge,

text:
    A91A1230.
    LAWAL v. THE STATE.
    (412 SE2d 864)
   Judge Arnold Shulman.

The appellant was convicted of misdemeanor theft by shoplifting and was sentenced to 12 months probation, conditioned upon payment of a $300 fine and performance of 50 hours of community service. He represented himself at his trial, which was conducted without a jury, and is also acting pro se on appeal.

1. The appellant appears to contend in his brief that he was denied his right to counsel at trial. The Sixth Amendment right to counsel applies in a criminal prosecution only where the defendant is sentenced to actual imprisonment. See Scott v. Illinois, 440 U. S. 367 (99 SC 1158, 59 LE2d 383) (1979); Brawner v. State, 250 Ga. 125 (2) (296 SE2d 551) (1982). However, it has been held that “the provisions of OCGA § 17-12-4 (a) and Rule 1.1 of the Guidelines for Local Indigent Defense Programs (246 Ga. 837) as approved by the Supreme Court of Georgia require that counsel be appointed for indigent defendants, whether charged with a felony or misdemeanor, where such persons could be imprisoned under the state law of Georgia if found guilty.” Lowrance v. State, 183 Ga. App. 421 (1) (359 SE2d 196) (1987).

There is no indication that the appellant made any claim of indigency in the trial court, or, for that matter, has he sought to proceed in forma pauperis in this court. Moreover, the record contains a document, signed by him prior to trial, in which he affirmatively represented that he intended to retain his own attorney and did not want counsel appointed to represent him. (The verdict form thereafter executed by the trial court contains a handwritten notation to the effect that the appellant had “waived his right to attorney in open court.”) Under these circumstances, we find no basis for a conclusion that any state law requirement pertaining to the appointment of counsel for indigent defendants was violated in this case.

2. The appellant further contends that he was denied his right to a trial by jury. No trial transcript was prepared in the case, and there is nothing in the record which would indicate that the appellant made a knowing and intelligent waiver of this right. “ ‘A criminal defendant must personally and intelligently participate in the waiver of the constitutional right to a trial by jury. Wooten v. State, 162 Ga. App. 719 (293 SE2d 11) (1982). When the purported waiver of this right is questioned, the State bears the burden of showing the waiver was made both intelligently and knowingly, either “(1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent (or incomplete) record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.” [Cit.]’ [Cits.]” Lark v. State, 190 Ga. App. 821, 822 (380 SE2d 505) (1989). See also Brown v. State, 191 Ga. App. 875 (3) (383 SE2d 361) (1989); Sims v. State, 167 Ga. App. 479 (1) (306 SE2d 732) (1983).

Because the state has made no such showing in this case, the appellant’s conviction is hereby vacated, and the case is remanded to the trial court for an evidentiary hearing on the question of whether he made a knowing and intelligent waiver of his right to trial by jury. In the event the trial court determines from the evidence adduced at this hearing that the appellant did make such a waiver, then the conviction and sentence may be reinstituted, in which event the appellant shall be entitled to file a new appeal directed to this issue and this issue alone.

Judgment vacated and case remanded with direction.

Carley, P. J., and Beasley, J., concur specially.

Beasley, Judge,

concurring specially.

Although I concur fully in Division 2, I cannot do so with respect to Division 1. I do not find the law of Georgia to be more expansive currently than is federal constitutional law, with respect to right to counsel in misdemeanor cases.

The majority cites Lowrance v. State, 183 Ga. App. 421 (1) (359 SE2d 196) (1987), as establishing that indigents in all misdemeanor cases are entitled to counsel. However, Lowrance is physical precedent only, because two members of the panel concurred in the judgment only.

Brawner v. State, 250 Ga. 125 (2) (296 SE2d 551) (1982), was decided two years after the Supreme Court approved the Guidelines for Local Indigent Defense Programs (246 Ga. 837) (1980) and while OCGA § 17-12-4 as it presently exists was already in effect. In it the Supreme Court stated the law to be that “[a] defendant in a misdemeanor criminal prosecution is entitled to counsel only where the defendant is sentenced to actual imprisonment.” The Court cited the two leading federal constitutional cases and two Georgia cases. One of the State cases, Stillwell v. State, 161 Ga. App. 230, 231 (288 SE2d 295) (1982), approved as correct the trial court’s ruling “that a defendant in a misdemeanor criminal prosecution is entitled to counsel only where the defendant is sentenced to actual imprisonment.” In applying the principle, the court concluded that, for the reason that defendant’s previous misdemeanors drew no imprisonment, they did not appear to be constitutionally invalid because of denial of assistance of counsel. I cannot conclude that the court overlooked or ignored OCGA § 17-12-4 or the Guidelines relied on in Lowrance. Instead, I am persuaded that they are construed to apply only to felonies and to misdemeanors where imprisonment is imposed.

Decided November 13, 1991.

Jimmy Lawal, pro se.

Keith C. Martin, Solicitor, Jackie N. Stanton, Assistant Solicitor, for appellee.

Lawal was not sentenced to confinement, and thus he would not have been entitled to appointed counsel even if he had been indigent.

I am authorized to state that Presiding Judge Carley joins in this special concurrence.


text:
    A91A1482.
    GOSWICK v. THE STATE.
    (412 SE2d 293)
   Sognier, Chief Judge.

Traci Joyce Goswick was convicted by a Whitfield County jury on six counts of financial transaction card fraud (OCGA § 16-9-33 (a)). She appeals from the denial of her motion for new trial, enumerating the general grounds.

Evidence adduced at trial established that a VISA card, account number 4387-6082-35898, was issued to Dana Lewis, appellant’s sister. The card expired on November 30, 1989, but Lewis never received the replacement card that was sent to her by mail. During the relevant time period, Lewis lived for a few weeks at the Calhoun home of her mother and then moved to Dalton. Lewis testified that appellant had access to the mail box at both locations.

It was established that the replacement VISA card was used in Dalton seven times during November 1989 — once at a gas station, twice at a store, and four times at a bank automated teller machine. Lewis testified that she made none of these transactions and did not authorize appellant or anyone else to use her card. The signature “Dana Lewis” appeared on the charge slips, and Lewis testified that these signatures appeared to be in appellant’s handwriting.

Randy Evans, a Dalton police detective, testified that in response to a tip from a credit card service, he brought appellant into the police station. After being read her constitutional rights, appellant gave a statement, later reduced to writing, in which she admitted using Lewis’s VISA card on the occasions in question. Appellant also provided a handwriting sample to police, which consisted of writing the name “Dana Lewis” several times. Both the statement and the sample were admitted into evidence at trial, but appellant did not testify.

Decided November 13, 1991.

Michael A. Corbin, for appellant.

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

Appellant contends she was entitled to a directed verdict of acquittal because the State provided no corroboration of her confession as required by OCGA § 24-3-53. We do not agree. “[A] conviction may be had on a confession although corroborated only by proof of the corpus delicti. [Cit.]” Nation v. State, 180 Ga. App. 460, 461 (1) (349 SE2d 479) (1986). “The corroborating evidence or circumstances need not connect the defendant definitely with the perpetration of the offense. Corroboration in any material particular satisfies the requirements of the law.” (Citations and punctuation omitted.) Christian v. State, 190 Ga. App. 667, 669 (1) (379 SE2d 807) (1989). Here, evidence that the VISA card was used without Lewis’s authorization to obtain goods and money established the corpus delicti, and Lewis’s testimony that appellant had access to Lewis’s mail and that the signatures on the charge slips closely paralleled appellant’s handwriting provided sufficient corroboration of appellant’s statement to police. See generally id. Accordingly, we find the evidence met the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A91A1715.
    TILLMAN v. THE STATE.
    (412 SE2d 553)
   McMurray, Presiding Judge.

Defendant appeals his conviction of the offense of child molestation. Held:

1. Defendant enumerates as error the admission of evidence of similar transactions. The victim of the crime of which defendant was convicted was four years old at the time of the offense. Defendant’s cousin testified that in July 1984 she was sitting on the front porch when she noticed a light in a darkened room where another cousin, a 21-month-old female baby, was located. The witness went to investigate and found defendant in the room “standing up by the fireplace with a cigarette in his hand and the lighter. ...” The witness went to the bed where the child was lying and found that she was “hanging off the bed,” and that defendant had partially removed the child’s diaper exposing her private parts. When asked what he was doing in the room, defendant replied: “What you thought? Daddy was trying to steal her?” Although defendant lived in the house, it was unusual for him to be in the room occupied by the baby, he was not involved in the care of the baby, and he had never changed her diaper.

“Evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact. ‘However, before it is admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged.’ Anderson v. State, 184 Ga. App. 293, 294 (361 SE2d 270).” Oller v. State, 187 Ga. App. 818, 819-820 (2) (371 SE2d 455). See also Leonard v. State, 197 Ga. App. 221, 223 (2) (398 SE2d 250).

Defendant argues that the first prong of this test is not satisfied in that the evidence concerning the prior incident fails to show that a sex crime was in fact committed. However, proof that defendant was the perpetrator of a similar crime need not be beyond a reasonable doubt. Kilgore v. State, 251 Ga. 291, 297, 298 (3b) (305 SE2d 82); Wallace v. State, 246 Ga. 738, 742 (5) (273 SE2d 143); Whitley v. State, 193 Ga. App. 192 (1), 193 (387 SE2d 348); Allen v. State, 180 Ga. App. 701, 702 (350 SE2d 478). The incident at issue and another similar transaction concerning which evidence was presented tended to show a pattern of conduct sufficient to be considered by the jury. Williams v. State, 251 Ga. 749, 784 (312 SE2d 40).

Defendant also argues that there is not sufficient similarity between the past similar acts of child molestation and the crime charged. “ ‘ “The sexual molestation of young children, regardless of sex or type of act, is (of) sufficient similarity to make the evidence admissible.” Phelps v. State, 158 Ga. App. 219, 220 (2) (279 SE2d 513) ((1981)).’ Keeler v. State, 181 Ga. App. 208, 209 (2) (351 SE2d 731) (1986).” Cato v. State, 195 Ga. App. 619, 621 (4) (394 SE2d 413).

2. The remaining enumeration of error complains that the trial court erred in the charge to the jury. “The record . . . reveals that when the trial court completed its charge and asked for any objections, [defendant] failed to indicate any objection or dissatisfaction with the charge. ‘ “Clearly, it is the law of this state, even in criminal cases, that if the trial court asks if there are any objections to the charge given, counsel for the defendant must either state his objections or reserve the' right to make such objections on motion for new trial or on appeal or waive any such objections.” (Cits.)’ Henderson v. State, 182 Ga. App. 513 (3) (356 SE2d 241) (1987). Due to [defendant’s] failure to raise his objection to the charge to the trial court when asked, such objection was waived.” Seidel v. State, 197 Ga. App. 14, 15 (2) (397 SE2d 480).

Decided October 28, 1991

Reconsideration denied November 14, 1991.

E. Allen Smith, for appellant.

Richard A. Malone, District Attorney, Samuel H. Altman, Assistant District Attorney, for appellee.

Judgment affirmed.

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