text:
    A92A0004.
    O’REGAN v. BRENNAN.
    (418 SE2d 389)
    Decided April 10, 1992
    Reconsideration denied April 24, 1992

      Hunter, Maclean, Exley & Dunn, Wade W. Herring II, R. Jason D’Cruz, for appellant.

      Bouhan, Williams & Levy, Melanie L. Marks, John M. Brennan, Oldfield & Wilson, Carmel W. Sanders, for appellee.
   Carley, Presiding Judge.

Miss Mary Sheehan died intestate and appellee qualified as the permanent administrator of her estate. Pursuant to OCGA § 53-4-30 et seq., appellee initiated proceedings in the Probate Court of Chat-ham County to determine that Miss Sheehan had ten second cousins who were her heirs at law. Appellant, claiming to be Miss Sheehan’s first cousin, once removed, was allowed to intervene pursuant to OCGA § 53-4-36. After conducting an evidentiary hearing, the probate court found that the ten individuals who had been named in appellee’s petition were Miss Sheehan’s only heirs at law. Pursuant to OCGA § 15-9-123 (a), appellant appeals directly to this court and raises only the general grounds.

“ ‘Persons claiming the right to take an estate as heirs or distributees, or through others as such, have the burden of proving facts necessary to sustain their rights, including the death of the alleged intestate, the relationship to him of the alleged heirs or distributees, and that there are no other relatives entitled to take before them.’ ” Williams v. Cave, 53 Ga. App. 582, 585-586 (186 SE 694) (1936). The probate court, sitting as the trior of fact, found that the burden of proving who were the heirs at law of Miss Sheehan had been met by appellee rather than appellant. A review of the evidence shows that it authorized the probate court’s finding in favor of appellee and did not demand a finding in favor of appellant. Accordingly, the probate court’s order must be affirmed. See Singley v. Clower, 257 Ga. 528 (362 SE2d 767) (1987).

Judgment affirmed.

Pope and Johnson, JJ., concur.


source: Caselaw Access Project

author: Carley, Presiding Judge.

license: Public Domain

text:
    A92A0011.
    THE STATE v. DOPSON.
    (418 SE2d 623)
   Carley, Presiding Judge.

Appellee’s vehicle was stopped and searched without a warrant. As the result of contraband found in that warrantless search, appellee was indicted for multiple drug violations. She filed a pretrial motion to suppress, urging that the search was illegal because it had been conducted “without a search warrant and without probable cause.” After holding a hearing, the trial court granted appellee’s motion to suppress. Pursuant to OCGA § 5-7-1 (4), the State appeals directly from the trial court’s order.

The trial court found “that probable cause existed for the stop of [appellee] and her vehicle.” “ ‘On motion to suppress evidence, the trial judge sits as the trior of facts, hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. [Cit.]’ [Cit.]” Ivey v. State, 140 Ga. App. 713, 714 (1) (231 SE2d 384) (1976). In the instant case, the trial court’s finding that the officers were authorized to stop appellee’s vehicle based upon their having probable cause to believe that drugs were being transported therein was not merely authorized. Such a finding was demanded by the uncontroverted testimony of the officers. See Shaner v. State, 153 Ga. App. 694 (1) (266 SE2d 338) (1980). “When coupled with corroboration by the personal observation of a police officer, a reliable informant’s tip is sufficient to establish probable cause for a warrantless search. [Cit.]” McKinney v. State, 184 Ga. App. 607, 609 (1) (362 SE2d 65) (1987).

However, the trial court granted the motion based upon its further determination “that no consent to search was given and no search warrant was obtained for [appellee’s] vehicle, and that, absent consent, a search warrant was required before the law enforcement officers could search [appellee’s] vehicle.” This is a clearly erroneous conclusion of law. Since the officers had probable cause to believe that drugs were being transported in appellee’s vehicle, they were not limited merely to stopping it and then obtaining a search warrant. The officers were authorized to conduct an immediate non-consensual warrantless search of appellee’s vehicle. “One of the exigent circumstances justifying a warrantless search is where there is a seizure and search of a moving vehicle. [Cit.] The word ‘automobile’ is not a talisman however and unless the vehicle is moving or is readily movable there are no exigent circumstances and a warrant is required. [Cit.] When the vehicle is moving however, there is only a requirement that the search and seizure be based upon sufficient probable cause.” State v. Bradley, 138 Ga. App. 800, 802-803 (2) (227 SE2d 776) (1976).

Decided April 7, 1992

Reconsideration denied April 24, 1992

W. Glenn Thomas, Jr., District Attorney, John B. Johnson III, Assistant District Attorney, for appellant.

Solomon & Edgar, M. Theodore Solomon II, for appellee.

“[W]hen dealing with the ‘reasonableness’ of a search and seizure of vehicles the question is not whether a warrant was obtained or could have been obtained but whether a warrant was required in the first place. ... [I]f the vehicle is moving ... , as it was here, probable cause can be determined by a police officer, [and] the vehicle seized and searched without a warrant either immediately or later even though a search warrant might have been obtained between the seizure and the search. [Cit.]” State v. Bradley, supra at 804 (2). “ ‘For constitutional purposes, [there is] no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.’ [Cit.]” McKinney v. State, supra at 609 (2). It follows that the trial court erred in granting appellee’s motion to suppress the drugs discovered in the authorized non-consensual warrantless search of her automobile.

Judgment reversed.

Pope and Johnson, JJ., concur.


author: Johnson, Judge.

text:
    A92A0012.
    BATTERSON v. GROVES.
    (418 SE2d 373)
   Johnson, Judge.

This is an appeal from section three of the trial court’s final order as to custody and visitation entered on June 28, 1991, which sets the level of child support to be paid to appellant-mother (Batterson) by appellee-father (Groves).

The action began as a paternity action prior to the birth of a child born out of wedlock. Groves originally denied paternity, but in the alternative, asserted a counterclaim seeking custody. Following the birth of the child, the issue of paternity was resolved by an order dated April 29, 1991. The parties agreed as to the issues regarding visitation, medical insurance and expenses, and custody. A final hearing was held on June 21, 1991, for presentation of evidence regarding child support, life insurance, and the name to be given the child.

After hearing evidence in the case, the court set the level of payments to be made by Groves to Batterson at $400 per month. Section three of the June 28, 1991, order provides in part: “This amount is predicated on the Court’s determination of defendant-father’s current income level being forty-two thousand ($42,000.00) dollars per year.” A transcript containing only the trial judge’s reasoning regarding the level of support has been included in the record on appeal. The court explained that 25 percent of Groves’ annual income, $10,500, would be allocated between his two children. Rounding the monthly payment downward, the court set the final amount to be paid to Batter-son at $400 per month. Batterson asserts that this finding is inconsistent with the guidelines for setting the level of child support as set forth at OCGA § 19-6-15 (b) (5), and should be vacated. We disagree.

All three of Batterson’s enumerations of error focus on the issue of the trial court’s calculation of the level of support which considered the existence of a second child in calculating the level of support payment. Batterson contends that the guidelines for one child should have applied and that applying the child support guidelines for two children and dividing by two in determining support was error. Batterson bases this argument on the language of OCGA § 19-6-15 (b) (5) which reads: “The amount of the obligor’s child support obligation shall be determined by multiplying the obligor’s gross income per pay period by a percentage based on the number of children for whom child support is being determined.” (Emphasis supplied.) Batterson reasons that since the level of support for only one child was being determined by the court in this action, that the judge erred in considering the existence of other children of the obligor.

OCGA § 19-6-15 (b) (5) also provides that the child support guidelines “shall not abrogate its (the trial court’s) responsibility in making the final determination of child support based on the evidence presented to it at the time of trial.” In fact, OCGA § 19-6-15 (c) (6) contemplates that the obligations of supporting another household are a factor which may be included in determining level of support. It is clear from these sections of the statute that the legislature intended that the trial courts would consider the totality of the circumstances in setting the level of support, and not be bound by the recommended guidelines.

Since the transcript of the entire hearing was not submitted for review, we cannot consider the presence or absence of any other evidence which may have been considered by the trial judge. McClaskey v. Jiffy Lube, 197 Ga. App. 537 (398 SE2d 825) (1990). Absent such a transcript we must assume that the evidence supported the court’s finding, and the judgment will not be disturbed. Gillespie v. Gillespie, 259 Ga. 838 (388 SE2d 688) (1990), cited in McClaskey, supra.

Judgment affirmed.

Pope, J., concurs. Carley, P. J., concurs in judgment only.

Decided April 7, 1992

Reconsideration denied April 24, 1992

Robert H. Putnam, Jr., for appellant.

Rubin, Winter & Rapoport, Joseph M. Winter, Garvis L. Sams, Jr., for appellee.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, amicus curiae.


text:
    A92A0047.
    SWINT v. SMITH.
    (418 SE2d 375)
   Johnson, Judge.

On January 20, 1989, A. J. Swint and his son, Allen, were completing construction of the roof on a farm equipment shelter they had built on their farm. Swint’s neighbor Smith, an experienced carpenter/painter, stopped by the construction site for a visit. Smith agreed to assist the Swints in placing tin sheets on the uncompleted side of the shelter roof.

After the sixth sheet of tin had been secured to the roof, Smith turned and began walking back down toward the edge of the roof to get another piece of tin. As he approached the eaves, he stepped on an unsecured two-by-four, lost his footing, and fell to the ground. He suffered a broken hip in the fall.

Swint claims that prior to Smith’s fall, Allen warned Smith that there were unnailed two-by-fours on the roof. Smith contends that he was informed by Allen of the presence of the unnailed boards, but that he was told that these boards were on the opposite end of the roof from where they were working.

Smith sued Swint and a verdict was returned in favor of Smith, awarding him $25,000 in damages. We affirm.

1. Swint contends that the trial court erred in denying his motion for directed verdict. Swint argues that his mere ownership of the property on which the shelter is located is insufficient to establish his liability and that even if he was negligent, Smith, as a matter of law, should have avoided the consequences of that negligence.

It is clear that mere ownership of land does not provide a basis for liability for injuries sustained thereon absent negligence on the part of the owner. See Jones v. Interstate North Assocs., 145 Ga. App. 366, 368 (243 SE2d 737) (1978). The basis of liability an owner to an invitee is his superior knowledge of a condition that may subject the invitee to an unreasonable risk of harm. See Sutton v. Sutton, 145 Ga. App. 22, 25 (243 SE2d 310) (1978). An owner of land is liable for failure to warn his invitees of dangers or defects on the premises which are known to him or of which it was his duty to know in the exercise of ordinary care. Sutton, supra. In the instant case, it is uncontroverted that Smith held the status of an invitee on Swint’s property. However, there is a dispute between the parties with regard to the adequacy of a warning which would have enabled Smith to exercise the ordinary care for his own safety necessary to avoid injury.

“A motion for directed verdict is properly granted if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.” Mayor &c. of Savannah v. Palmerio, 242 Ga. 419, 421 (249 SE2d 224) (1978). See also OCGA § 9-11-50 (a). Where there exist disputed issues of material fact, as in the case sub judice and there is any evidence in the record from which the jury could find in favor of the party opposing the motion, it would be improper for the trial court to direct a verdict. Accordingly, the trial court properly denied Swint’s motion for a directed verdict.

2. Swint enumerates as error the trial court’s refusal to instruct the jury that Smith had the burden of proving fault on the part of Swint and ignorance on the part of Smith.

“It is axiomatic that a jury charge need not be given in the exact language requested if the charge as given clearly covers the circumstances of the case. [Cit.] All that is necessary, provided the requested charge accurately states the relevant principles of law, is that these principles be ‘fairly given to the jury in the general charge.’ [Cit.] When it can be determined that the charge actually given ‘conveys correctly the intent of the law and is so framed as to be applied with understanding to the fact situation,’ denial of a request for a specific charge is not reversible error. [Cit.]” Hitchcock v. Key, 163 Ga. App. 901, 903-904 (296 SE2d 625) (1982). In the instant case, though Swint asserts that the court’s refusal to give his charge as requested constitutes reversible error, we find the court’s charge, as given, adequately covers the principle of law requested. Accordingly, the trial court did not err in refusing to give defendant’s charge number eight as requested.

3. Swint further contends that the trial court committed error by instructing the jury that actual knowledge of the risk on the part of the injured party must be shown for the defense of assumption of the risk to prevent the injured party from recovering. He asserts that the court erred in failing to instruct the jury that objective knowledge, rather than actual knowledge of the risk is sufficient to prevent Smith’s recovery.

“ ‘One who knowingly and voluntarily takes risk of physical injury, the danger of which is so obvious that the act of taking such risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for his own safety, cannot hold another liable for damages resulting from a hurt thus occasioned, although the same may be in part attributable to the latter’s negligence.’ ” (Emphasis supplied.) Shuman v. Mashburn, 137 Ga. App. 231, 236 (233 SE2d 268) (1976); Doctors Hosp. of Augusta v. Poole, 144 Ga. App. 184, 185 (241 SE2d 2) (1977); Johnson v. Jackson, 140 Ga. App. 252, 258 (5) (230 SE2d 756) (1976); Southland Butane Ga. Co. v. Blackwell, 211 Ga. 665 (88 SE2d 6) (1955).

Decided April 8, 1992

Reconsideration denied April 24, 1992

Doremus, Jones & Smith, Julian B. Smith, Jr., for appellant.

Roach & Bradley, Hal Roach, Jr., for appellee.

The trial court instructed the jury that “(a)ctual knowledge of the risk on the part of the injured party must be shown for assumption of the risk to prevent the injured party from recovering.” While it would have been preferable for the trial court to have given the pattern jury instruction on assumption of the risk, nevertheless, the charge as given, adequately covered the correct principle of law. Therefore, Swint’s enumeration is without merit.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


text:
    A92A0070.
    BENSCHOTER v. SHAPIRO.
    (418 SE2d 381)
   Johnson, Judge.

Donald Benschoter (Benschoter) served Theodore A. Shapiro d/b/a Any Time Service with a complaint seeking damages for injuries sustained when a forklift he was driving fell off a trailer. Theodore Shapiro (Shapiro) filed an answer asserting as an affirmative defense that he was an improper party defendant. Shapiro does not do business as Any Time Service and does not own the trailer involved in the incident. A corporation, TASS, Inc. (TASS), owns the trailer. TASS operates under the name “Any Time Service Co., a division of TASS, Inc.” Shapiro is the president and sole shareholder of TASS. Benschoter filed a motion to add TASS as a party defendant. The trial court denied the motion and, on interlocutory appeal, we affirmed the trial court’s decision. Benschoter v. Shapiro, 197 Ga. App. 357 (398 SE2d 399) (1990). The Supreme Court denied Benschoter’s petition for a writ of certiorari.

Shapiro then filed a motion for summary judgment on the ground that he was an improper party defendant. Benschoter responded by filing his own motion for partial summary judgment on the ground that Shapiro was estopped from asserting the improper party defense. Benschoter also filed a motion to amend his complaint after the parties had filed a consolidated pretrial order. The trial court entered an order granting Shapiro’s motion for summary judgment and denying both Benschoter’s motion for partial summary judgment and his motion to amend his complaint. Benschoter appeals from that order.

1. Benschoter’s first enumeration of error is that the trial court incorrectly granted Shapiro’s motion for summary judgement on the ground that he is an improper party. Benschoter argues that Shapiro is personally liable for the acts of the corporation, TASS. This enumeration is without merit.

“[I]n order to disregard the corporate entity because a corporation is a mere alter ego or business conduit of a person, it should have been used as a subterfuge so that to observe it would work an injustice. To prevail based upon this theory it is necessary to show that the shareholders disregarded the corporate entity and “made it a mere instrumentality for the transaction of their own affairs; that there is such unity of interest and ownership that the separate personalities of the corporation and the owners no longer exist.’ [Cit.] . . . Because the cardinal rule of corporate law is that a corporation possesses a legal existence separate and apart from that of its officers and shareholders, [Cit.], the mere operation of a corporate business does not render one personally liable for corporate acts. [Cit.] Sole ownership of a corporation ... is not a factor, [Cit.] . . .” Amason v. Whitehead, 186 Ga. App. 320, 321-322 (367 SE2d 107) (1988).

In the instant case, Shapiro is the president and sole shareholder of TASS. It is undisputed that TASS owns the trailer which is the subject of Benschoter’s complaint. Benschoter, however, has failed to show that the corporate entity should be disregarded; he has pointed to no evidence in the record which shows that Shapiro and TASS are not separate and distinct entities. In fact, the record before us indicates otherwise. Accordingly, Shapiro may not be held personally responsible for the acts of the corporation. The trial court’s grant of summary judgment to Shapiro was therefore proper and will not be disturbed.

2. Benschoter’s second enumeration is that the trial court erred in denying his motion for partial summary judgment. Benschoter argues that Shapiro is estopped from asserting the improper party defense, despite having raised it in his timely filed answer, because he did not comply with OCGA §§ 9-11-9 and 9-11-19. This enumeration is wholly without merit. .

Benschoter’s reliance on OCGA §§ 9-11-9 and 9-11-19 is misplaced. OCGA § 9-11-9 applies when a party raises the issue of legal capacity and § 9-11-19 governs joinder of parties. No issues of joinder or capacity exist in the instant appeal; the Code sections cited by Benschoter have no bearing on this matter. Accordingly, the trial court’s denial of Benschoter’s motion for partial summary judgment is affirmed.

Decided April 9, 1992

Reconsideration denied April 24, 1992

Charles E. Moore, Jr., for appellant.

Goldner, Sommers, Scrudder & Bass, Glenn S. Bass, Linda J. Pollock, for appellee.

3. Benschoter’s final argument is that the trial court erred in denying his motion to amend his complaint to add new allegations against Shapiro. The parties submitted a consolidated pretrial order which was signed and filed by the trial court. The pretrial order states that it supersedes the pleadings and may not be amended except by order of the court. This complies with Uniform Superior Court Rule 7.2 by setting the parameters for the trial. “Here no reason was advanced nor given for exceeding these boundaries and contravening the purpose of the Rules, which is to ‘provide for the speedy, efficient, and inexpensive resolution of disputes and prosecutions.’ [Cit.]” Malley Motors v. Davis, 183 Ga. App. 599, 600 (359 SE2d 394) (1987). Accordingly, we find no error in the court’s denial of the motion to amend the complaint.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


author: Sognier, Chief Judge.

text:
    A92A0306.
    THE STATE v. GODFREY et al.
    (418 SE2d 383)
   Sognier, Chief Judge.

Leonard Godfrey and Walter Davis, Jr. were arrested pursuant to warrants and charged with trafficking in cocaine. Bond and preliminary hearings were set for both. Prior to the dates designated for their preliminary hearings, Godfrey and Davis were indicted by a grand jury and neither preliminary hearing took place. The trial court granted the motions to dismiss their indictments filed by Godfrey and Davis prior to trial, and the State appeals. See OCGA § 5-7-1 (1).

The trial court based its ruling on its finding that appellees had not been “accorded a probable cause hearing before a magistrate within seventy[-]two hours as required by OCGA § 17-4-26,” and that the Clarke County District Attorney’s practice of canceling preliminary hearings when indictment either had occurred or was imminent violated appellees’ constitutional right to due process of law guaranteed by the Fifth and Fourteenth Amendments to the U. S. Constitution. We agree with the State that this ruling was in error, and we reverse.

Although the commitment hearing is a “critical stage” of criminal procedure entitling a defendant to counsel, Coleman v. Alabama, 399 U. S. 1, 9-10 (90 SC 1999, 26 LE2d 387) (1970), failure to hold such a hearing does not constitute a deprivation of a defendant’s constitutional rights. A criminal defendant has no constitutional right to a commitment hearing. Hunt v. Hopper, 232 Ga. 53, 54 (205 SE2d 303) (1974). Rather, the right to such a hearing is statutory, governed in Georgia by OCGA § 17-4-26. That statute provides that “[e]very law enforcement officer arresting under a warrant shall exercise reasonable diligence in bringing the person arrested before the judicial officer authorized to examine, commit, or receive bail and in any event to present the person arrested before a committing judicial officer within 72 hours after arrest. The arresting officer shall notify the accused as to when and where the commitment hearing is to be held. An arrested person who is not notified before the hearing of the time and place of the commitment hearing shall be released.” The 72-hour limit in the statute has been interpreted as applying only to the time within which a defendant must be brought before a magistrate, and not to the time within which a probable cause hearing must be held. Dodson v. Grimes, 220 Ga. 269, 270 (1) (138 SE2d 311) (1964). Thus, a magistrate need not hold a commitment hearing at the time an accused is brought before him within 72 hours of arrest. Id.

Moreover, it is well established in this state that a commitment hearing is not a required step in a criminal proceeding and failure to hold one is not reversible error. State v. Middlebrooks, 236 Ga. 52, 55 (222 SE2d 343) (1976). Accord Albert v. State, 152 Ga. App. 708, 709 (1) (263 SE2d 685) (1979); Sims v. State, 148 Ga. App. 733 (252 SE2d 910) (1979). The purpose of a preliminary commitment hearing is to determine whether there is probable cause to believe the accused guilty. “Its function is to authorize the keeping in custody of one accused with probable cause of committing a crime, pending determination by the grand jury from evidence presented to it that he should stand trial for the offense.” Blake v. State, 109 Ga. App. 636, 640 (137 SE2d 49) (1964). If a defendant wishes to assert the right to a commitment hearing, he must do so promptly and before indictment by filing a habeas corpus petition, McClure v. Hopper, 234 Ga. 45, 48 (2) (214 SE2d 503) (1975), because once indictment takes place probable cause has been established and a preliminary hearing serves no purpose. Spears v. Johnson, 256 Ga. 518 (350 SE2d 468) (1986).

Thus, pretermitting the question whether dismissal of the indictment may ever be a proper remedy for failure to hold a preliminary hearing, given the circumstances present here, we hold that the trial court erred by dismissing these indictments.

Judgment reversed.

McMurray, P. J., and Cooper, J., concur.

Decided April 9, 1992

Reconsideration denied April 24, 1992

Harry N. Gordon, District Attorney, Jimmie E. Baggett, Jr., Assistant District Attorney, for appellant.

Cook, Noell, Tolley & Aldridge, Edward D. Tolley, Bruce S. Harvey, Jeffrey R. Davis, for appellees.


text:
    A92A0524.
    STEVENS v. GREEN.
    (418 SE2d 377)
   Johnson, Judge.

Mary Jane Stevens (Stevens) filed a petition in the Probate Court of Camden County seeking to succeed Howard T. Myers, deceased, as administrator of the estate of Andrew Myers. Bernard Green (Green), also seeking to be named administrator of the subject estate, filed a caveat in response to Stevens’ petition.

On October 5, 1989, the probate court appointed Green administrator de bonis non of the estate of Andrew Myers. Thereafter, Stevens filed a notice of appeal de novo from the probate court’s decision to the Superior Court of Camden County, and demanded a jury trial. Prior to the commencement of the trial in superior court, the trial judge discussed with the parties that this court’s decision in Allmond v. Johnson, 153 Ga. App. 59 (264 SE2d 544) (1980), precluded any mention to the jury of any matter related to the probate court proceedings or of the probate judge’s decision to appoint Green as administrator. The parties were instructed to make no mention of any prior proceedings.

The jury trial resulted in a special verdict finding that Green was better qualified to serve as administrator of Myers’ estate. The jury’s verdict was made the judgment of the court on March 20, 1991. Stevens filed a motion for new trial which was denied by the trial court in its order of October 2, 1991. It is from this order that Stevens appeals. We affirm.

1. In her first and second enumerations of error, Stevens contends that the trial court failed to exclude evidence concerning the prior probate court proceedings as required* by the Allmond case, supra. She alleges that this failure to control the proceeding resulted in the admission of evidence harmful to her case. The record shows that no such evidence was even offered, much less admitted. Apparently Stevens bases her claims on her belief that Green’s counsel effectively disclosed that Green had been appointed administrator by the probate court when he included the following in his closing argument: “But he’s accepted that responsibility and I’m proud of him for it, and wish that you support him for it.” It is clear from the transcript that this statement, when taken in context, does not refer in any way to the proceedings which took place in the probate court. It merely refers to Green’s willingness to bear the burden of administrator of the estate. The argument was not improper, and the court did not err in failing to exclude it.

Decided April 8, 1992

Reconsideration denied April 24, 1992

Mary Jane Stevens, pro se.

Thomas, Kennedy, Sampson & Patterson, Donald P. Edwards, for appellee.

Furthermore, the transcript reveals that Stevens did not object to counsel’s statement until the closing argument was over and after the jury had been permitted to begin its deliberations. The court noted her objection to what she perceived to be a prejudicial reference to the decision of the probate court. Since the objection was not timely, the court did not rule upon it. Stevens did not move for a mistrial, nor did she offer any other motion which would require a decision from the trial court. This court has the authority to review rulings of the trial court. Jefferson v. State, 157 Ga. App. 324, 326 (277 SE2d 317) (1981). It appearing from the transcript that Stevens failed to make a timely objection or to secure a ruling from the trial court, we have no adverse ruling to review.

2. Stevens contends in her third enumeration of error that Green’s counsel perpetrated a fraud upon the court and the jury. However, she fails to point to any facts in the record in support of her assertion. “ ‘ “[T]he burden is upon the party asserting error on appeal to show such error by the record.” ’ [Cits.]” Hendricks v. Emerson, 199 Ga. App. 208, 209 (404 SE2d 279) (1991). After exhaustive examination of the record, we cannot find one scintilla of evidence which would support the contention that Green’s counsel perpetrated a fraud upon the court, the jury, or anyone else. Stevens’ claim is without merit, and the trial court properly denied her motion for new trial.

Judgment affirmed.

Pope, J., concurs. Carley, P. J., concurs in Division 2 and in judgment.


text:
    A92A0060.
    GOODEN v. THE STATE.
    (418 SE2d 632)
   Johnson, Judge.

Danny Gooden (Gooden) was convicted of possession of cocaine with intent to distribute and giving a false name. A motion for a new trial was denied, and Gooden appeals.

The state presented the testimony of two agents, one a member of the Macon Police Department, the other employed by the Bibb County Sheriff’s Department, who were participating in an undercover operation in Macon on the night of February 12, 1991. According to their testimony, they were driving an unmarked car slowly through an area of the City of Macon, which they described as a “known drug area.” Gooden approached the passenger side of the vehicle and asked what they needed. Lieutenant McMullen (McMullen) responded that they wanted “five dimes.” During his testimony, Lieutenant Hall explained that “dimes” are rocks of cocaine which sell for $10. Gooden responded that he only had “twenties” and instructed McMullen to pull the car to the side of some apartments. Shortly thereafter, Gooden returned and opened his right hand, showing McMullen two pieces of rock cocaine. McMullen testified that he grabbed Gooden’s hand, closing it into a fist holding the cocaine. A scuffle ensued after which Gooden was placed under arrest. After being asked several times, Gooden stated that his name was Cory Mitchell.

Shirley Ann Howard (Howard) testified for the defendant that she and Gooden were walking to the store when the two officers jumped out of their car and, without provocation, threw Gooden to the ground. The State attempted to impeach her testimony by introducing a certified copy of an indictment for possession of cocaine with intent to distribute upon which appeared a signed guilty plea entered by Howard on May 29, 1991. Gooden testified in his own defense. His testimony was consistent with Howard’s account of the events. He further testified that he never tried to sell cocaine to the officers, and that he never had any cocaine in his possession.

1. In his first enumeration of error, Gooden claims that the court erred in allowing the State to systematically exclude black people from the jury based solely on race thus denying him equal protection as required by Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). In this case, there were eight black jurors on the panel presented for voir dire. The State struck four blacks and four served on the jury which ultimately convicted Gooden. As pointed out in the State’s brief, blacks comprised approximately 19 percent of the panel and 33.3 percent of the actual jury. These percentages are similar to those in Willis v. State, 201 Ga. App. 727 (411 SE2d 714) (1991). As this court held in that case: “With these figures before us, the question becomes whether this statistical data raises the inference necessary to dictate a prima facie case of discrimination. Since the record here indicates that after the jury selection had ended, the percentage of blacks on the jury had increased from the number of blacks on the panel, Willis failed to make a prima facie showing of discrimination.” Willis at 728. See Williams v. State, 258 Ga. 80, 81 (3) (365 SE2d 408) (1988); Aldridge v. State, 258 Ga. 75 (365 SE2d 111) (1988). This issue continues to trouble the courts. Two recent cases have been decided by the Georgia Supreme Court and a third Georgia case remains pending in the U. S. Supreme Court. See Weems v. State, 262 Ga. 101 (416 SE2d 84) (1992); Tharpe v. State, 262 Ga. 110 (416 SE2d 78) (1992), and State v. McCollum, 261 Ga. 473 (405 SE2d 688) (1991). The consideration of percentages is relevant but not determinative. Additionally, the trial court requested that the State proffer explanations for each of the four strikes of black members of the panel. Although the court did not specifically state it on the record, it is clear from a review of the discussion that the explanations given were accepted by the court as being race-neutral. Gooden’s reliance on Hernandez v. New York, 500 U. S. _ (111 SC 1859, 114 LE2d 395) (1991) is inapplicable to this case. Accordingly, we find this enumeration of error to be without merit.

2. Gooden contends that the court erred in failing to grant a motion for mistrial after the State had improperly placed Gooden’s character in issue. Gooden’s brief does not direct us to the point in the transcript about which he is referring in this claim. A careful review of the record, however, indicates that there are two possible points at which it could be alleged that Gooden’s character was placed in evidence. Early in the trial, Lieutenant Hall (Hall) testified that the officers considered driving off because Hall recognized Gooden. No motion for mistrial was made at that point. Failure to make a timely motion for mistrial constitutes waiver. See Williams v. State, 117 Ga. App. 79 (2) (159 SE2d 454) (1968); Evans v. State, 190 Ga. App. 302 (378 SE2d 903) (1989). In connection with the charge of giving a false name, the prosecution was pursuing a line of questioning concerning the name Cory Mitchell, given by Gooden at the time of his arrest. McMullen was asked if he knew at the time of the incident that the name given was not correct. He replied: “I did not at the time, but Lieutenant Hall, he asked what name had he given me because he heard a name, and I stated Cory Mitchell, and he said, ‘No, that’s not his name. His name is Danny.’ And said that we had — I did a vocation on file of him and that we would get it and process it.” We believe that this is the testimony which forms the basis of Gooden’s enumeration of error regarding introduction of character evidence. At this point in the trial, Gooden’s counsel made a motion for mistrial. The court asked defense counsel if he wanted a curative instruction given to the jury and he declined, fearing it would only serve to draw more attention to the comment.

We find that the remark that there was a vocation (of Gooden) on file, standing alone, is not sufficient to place his character in evidence. Substantially similar testimony has been held not to have placed the defendant’s character in issue. For example, the mere reference to the presence of a picture of the defendant in a mug book was held to be insufficient to place character in issue in McKenzie v. State, 187 Ga. App. 840, 845-846 (371 SE2d 869) (1988). Similarly, a statement regarding the existence of a set of fingerprints on file did not improperly put the defendant’s character in evidence or rise to the level of reversible error. Weldon v. State, 175 Ga. App. 172, 173 (333 SE2d 23) (1985). There was no testimony in this case which would link Gooden to any prior criminal cases and/or convictions. The statement that there was a vocation on file does not lead to the inference that Gooden had a criminal record. Finally, there is no suggestion by Gooden, that, if in fact there was an improper introduction of character evidence, that it was prejudicial to Gooden, or that the result of the trial would have differed in any way. Therefore we do not find that the trial court abused its discretion in refusing to grant a mistrial. See Tyler v. State, 198 Ga. App. 685 (402 SE2d 780) (1991).

3. Gooden cites a virtual plethora of cases in attempting to support his third enumeration of error, that the trial court erred in admitting a certified copy of a conviction of defense witness, Howard. A witness in a criminal case may be impeached by the introduction of proof that the witness has been convicted of a crime involving moral turpitude. State v. Byrd, 255 Ga. 665 (341 SE2d 455) (1986). It is clear that the State was attempting to impeach the testimony of Howard when it produced a certified copy of her conviction on a charge of possession of cocaine with intent to distribute, a felony. The jury received instructions concerning impeachment of witnesses and the effect thereof. Therefore, it was not error for the court to admit into evidence a certified copy of a conviction and allow the jury under proper instructions to give whatever weight and credit to that evidence that it deemed appropriate. Hall v. State, 196 Ga. App. 523 (6) (396 SE2d 271) (1990). O’Toole v. State, 258 Ga. 614 (4) (373 SE2d 12) (1988).

4. Gooden’s final enumeration of error, that the evidence presented at trial was insufficient to warrant a conviction, is without merit. Reviewing the decidedly conflicting evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided April 24, 1992.

Robert M. Bearden, Jr., for appellant.

Willis B. Sparks III, District Attorney, Elizabeth K. Bobbit, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


author: Cooper, Judge.

text:
    A92A0209.
    CHASTAIN v. SPECTRUM STORES, INC.
    (418 SE2d 420)
   Cooper, Judge.

Appellant appeals from the trial court’s grant of summary judgment to appellee and denial of summary judgment to appellant.

On April 13, 1989, appellee entered into a lease agreement to lease a parcel of land owned by appellant. The lease was for a term of five years beginning on July 1, 1989. Paragraph 24 of the lease provided: “CONDITIONS PRECEDENT. This lease is subject to the following conditions precedént, the failure of any one of which shall, at the option of the Lessee, render this Lease null and void and of no force and effect whatsoever.

“A% Lessor shall proceed promptly to build an asphalt road sixty feet (60 ) wide with curb and gutters adjacent to and along the entire southerly boundary of the Leased Premises extending past the rear (easterly) property line. The road shall be completed in accordance with standards set by the Consolidated Government of Columbus and shall be deeded to and accepted by said entity as a public street. Lessor shall exert his reasonable best efforts to complete said road by September 1, 1989.

“D. Lessee shall be granted by the appropriate governmental authorities at least two (2) curb cuts permitting ingress and egress to and from the Leased Premises on Milgen Road and at least two (2) curb cuts permitting ingress and egress to and from the Leased Premises on the road to be constructed by Lessor.”

On June 15, 1989, appellee was notified by letter from the City of Columbus that two curb cuts would not be allowed on Milgen Road. In a letter dated June 28, 1989, appellee informed appellant as follows: “We are currently considering our options specifically whether or not to declare the Lease null and void. Since the first rental payment is due soon, our current intention is to go ahead and pay the first payment in order to protect our rights under the Lease. However, this or any subsequent payment of rental shall not be taken as a waiver of our right to declare the Lease null and void for the reasons outline above.”

By letter dated June 30, 1989, appellant offered to release appellee from the lease agreement, but indicated that he needed an answer immediately because other persons were interested in the property. Appellant further stated that he would consider the agreement null and void unless he received the first month’s rent by July 5, 1989. On July 6, 1989, appellee forwarded a check for the first month’s rent to appellant with a letter which stated: “The payment of this rent should not be construed as a waiver of our right to declare this lease null and void for one or more of the reasons outlined in my letter of June 28, 1989. We are still reviewing this matter and will advise you as soon as we are able to make a decision.” On July 27, 1989, appellee forwarded the second month’s rent to appellant again with a letter stating that the payment should not be construed as a waiver of its right to declare the lease null and void. On August 25, 1989, appellee notified appellant by letter that pursuant to Section 24 of the lease, appellee was declaring the lease to be null and void due to the failure of the condition precedent regarding the two curb cuts. When appellant threatened to sue appellee for amounts due under the lease, appellee filed a declaratory judgment action seeking an order declaring the lease to be void, the return of the rental payments made to appellant and attorney fees. Appellant counterclaimed seeking to have the lease enforced and to recover all sums due under the lease. The trial court granted partial summary judgment to appellant on that portion of appellee’s complaint seeking a declaratory judgment. Both parties filed cross-motions for summary judgment on the remaining allegations, and the trial court granted appellee’s motion and denied appellant’s motion.

‘A condition precedent must be performed before the contract becomes absolute and obligatory upon the other party. . . .’ OCGA § 13-3-4.” Fulton County v. Collum Properties, 193 Ga. App. 774 (1) (388 SE2d 916) (1989). “Forfeiture of a lease by acts of a party to a lease because of a breach of a covenant or condition are not favored, but where there is an express provision in the contract, termination or forfeiture of the lease will be permitted. [Cit.] ” C & A Land Co. v. Rudolf Investment Corp., 163 Ga. App. 832, 833 (296 SE2d 149) (1982). The lease agreement clearly states that the condition regarding the granting of two curb cuts on Milgen Road is a condition precedent, the failure of which will render the lease null and void. We are convinced that it was the intention of the parties at the time this lease was executed that if appellee were unable to secure permission for two curb cuts on Milgen Road, the lease would be null and void. However, the thrust of appellant’s argument is that appellee waived the performance of the condition precedent by making the first two months’ rental payments to appellant. We do not agree. “ ‘ “While a distinct stipulation in a contract may be waived by the conduct of the parties, it must appear that it was the intention of the parties to treat such stipulations as no longer binding. The mere fact that one party so intended would not bring about this result. It must appear that it was the mutual intention; that is, the circumstances must be such as, in law, to make practically a new agreement as to the stipulations in the original contract.” ’ [Cit.]” Prudential Ins. Co. of America v. Nessmith, 174 Ga. App. 39-40 (329 SE2d 249) (1985). In both letters accompanying the rental payments, appellee explicitly stated that the payment of the rent should not be construed as a waiver of its right to declare the lease null and void. Regardless of how appellant interpreted the payment of rent after the failure of the condition, it is clear that appellee did not intend to waive its right to declare the lease null and void. Accordingly, we find no error with the trial court’s grant of summary judgment to appellee and denial of summary judgment to appellant.

Decided April 24, 1992.

Kenneth M. Henson, Jr., for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, Joseph L. Waldrep, James E. Humes II, for appellee.

Judgment affirmed.

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


text:
    A92A0251.
    SPICER v. OLD REPUBLIC INSURANCE COMPANY.
    (418 SE2d 422)
   Cooper, Judge.

This case arises out of an action brought by appellant against appellee to recover Georgia no-fault insurance benefits, bad faith penalties, attorney fees and punitive damages. The trial court granted summary judgment to appellee, and this appeal followed.

On December 25, 1988, appellant, a Georgia resident, was injured in North Carolina while driving a truck insured under a policy issued by appellee in Florida. The truck was owned by a Florida company and registered in Florida, and at the time of the accident, the truck was rented to a company based in Georgia. In May 1989, appellant made a claim for benefits under Georgia no-fault law, but appellee denied the claim on the ground that Georgia no-fault law was not applicable since the truck was insured under a policy issued in Florida and involved in an accident which occurred outside Georgia, In March 1990, appellant filed a complaint against appellee based on Georgia no-fault law and in May 1990, raised the issue of no-fault coverage under Florida law. Appellee investigated this claim, and in June 1990, paid appellant no-fault benefits of $4,620 pursuant to Florida no-fault law. However, appellant maintains that he is entitled to recover additional benefits under Georgia no-fault law as well as bad faith penalties, attorney fees and punitive damages.

1. We first address the question of whether appellant was entitled to no-fault benefits under Georgia law. OCGA § 33-34-3 (a) (2) requires that all insurers transacting business in Georgia include in all policies issued outside the State of Georgia a provision which includes the minimum no-fault coverage required under OCGA § 33-34-4 with respect to motorists involved in accidents in Georgia. OCGA § 33-34-3 (a) (2) further provides that “notwithstanding any provisions of the policies ... to the contrary, all such policies . . . shall be deemed to satisfy the minimum requirements of this chapter if a motorist insured under the policies ... is involved in a motor vehicle accident in this state.” Thus, OCGA § 33-34-3 (a) (2) extends the minimum no-fault coverage to policies issued outside the State of Georgia with respect to insured persons later involved in accidents in Georgia. However, the language of that Code section does not extend the no-fault coverage to policies issued outside the State of Georgia when the insured is involved in an accident outside the State of Georgia. See Doran v. Travelers Indem. Co., 254 Ga. 63 (2) (326 SE2d 221) (1985). Appellant’s argument that the car had been used in Georgia for more than 30 days and therefore was required to have the minimum no-fault coverage required under Georgia law is unpersuasive. In Doran, the court was faced with the question of whether the optional no-fault coverage applied to an out-of-state policy insuring a vehicle licensed in another state but garaged in Georgia. The Supreme Court of Georgia noted that “[i]t is where the policy was issued, and not where the vehicle was licensed or garaged, which is a factor used to determine whether all provisions of the no-fault act apply or only limited portions of the act apply.” Doran, supra at 68-69. The clear language of OCGA § 33-34-3 (a) (2) extends coverage only where the insured is involved in an accident in Georgia, and we will not expand it to include accidents occurring out of state in vehicles which may have been in Georgia for more than 30 days. Accordingly, we conclude that appellant was not entitled to recover benefits under Georgia no-fault law.

2. We next consider whether any genuine issue of material fact existed as to appellee’s bad faith in denying coverage under Georgia no-fault law or in not promptly paying benefits under Florida law. Because of our holding in Division 1 that appellant was not entitled to recover benefits under Georgia no-fault law, appellant’s claim for statutory penalties, attorney fees and punitive damages due to the denial of Georgia no-fault benefits must fail. The record reflects that appellant’s initial claim was made for no-fault benefits under Georgia law; that subsequent to the denial of those benefits and the commencement of a lawsuit against appellee, appellant raised an issue as to the recovery of benefits under Florida no-fault law via correspondence between the attorneys; and that upon investigation, appellee paid appellant no-fault benefits pursuant to Florida law. It also appears that appellee made payment of no-fault benefits under Florida law within 30 days after appellant raised the issue of coverage, within the statutory time set forth in Florida Statutes Annotated §' 627.736 (4) (b).

Decided April 24, 1992.

W. Douglas Adams, for appellant.

Hurt, Richardson, Garner, Todd & Cadenhead, James H. Cox, Edward H. Nicholson, Jr., for appellee.

For the foregoing reasons, we find no error with the trial court’s grant of summary judgment to appellee.

Judgment affirmed.

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

       This case arose before the effective date of the repeal of Chapter 34 of Title 33 of the Official Code of Georgia. All references to that statute are to the former OCGA Title 33, Chapter 34.


text:
    A92A0336.
    GASSES v. PROFESSIONAL PLUMBING COMPANY et al.
    (418 SE2d 424)
   Sognier, Chief Judge.

Joseph Gasses, Jr. injured his back in June 1989 during the course of his employment with Professional Plumbing Company (PPC). PPC suspended his benefits in August 1990 on the basis that Gasses allegedly had returned to work for a different employer without any physical restrictions placed on the duties he could perform. After a hearing on whether there was change in Gasses’ condition, the administrative law judge rejected the contention of PPC and its insurer that Gasses was not entitled to any benefits because he was able to perform unrestricted work and held, based on his finding that Gasses was able to perform only restricted, light-duty work not involving heavy lifting, that the only change in Gasses’ condition was from total disability to partial disability. The State Board of Workers’ Compensation made the ALJ’s award its own. The Superior Court of Fulton County reversed the Board on the basis that there was no competent evidence to support an award of any amount of benefits for Gasses. We granted Gasses’ application for discretionary appeal.

At the hearing before the ALJ, appellant testified that prior to his work-related back injury, he had worked as a plumber’s helper and was required to carry items weighing 80 pounds. Appellant stated that after an initial period during which he was totally incapacitated, his condition had improved to the point where he could pick up painlessly items weighing not more than 20 pounds, and that he could not use painkillers or muscle relaxants while working on construction sites. Appellant testified that “I’m not crippled, I’m not disabled, but I cannot do heavy lifting without pain.” He testified he had obtained through his own efforts a job in which he worked as a light-duty plumber’s helper. Appellant’s physical therapist testified that in July 1990 appellant was able to lift only 25 pounds without experiencing pain. Appellant’s current employer also testified that he hired appellant with the understanding that appellant could not lift heavy items, that appellant did not do heavy lifting on the job, and that at times appellant would either have to sit and rest or go home when the pain in his back bothered him. Appellees introduced documentary evidence that three doctors had determined appellant was capable of returning to work without any restrictions on his work activities.

We reverse the superior court’s judgment. The superior court found that there was no competent evidence to support the Board’s award in favor of appellant because three doctors had released appellant to unrestricted work and appellant himself had testified that he was “not. disabled.” We do no agree with the superior court that appellant’s statement regarding his lack of disability could reasonably be interpreted as an admission that he was capable of performing unrestricted work given his testimony clearly explaining that his work-related injury still limited him to light-duty work. Although appellees argue that the only evidence that appellant is not able to perform unrestricted work is appellant’s “self-serving statements” to the contrary, it is well established that “[a] party to an action is a competent witness. OCGA § 24-9-1 (a). The fact that a witness is a party goes to the weight and credibility of [his] testimony. OCGA § 24-4-4. Where the claimant swears to [his] injury and disability, this testimony’s weight and credibility is to be determined solely by the ALJ and the board, and [his] testimony alone is sufficient to establish those facts. [Cits.] ‘(T)he findings (of the board) are conclusive and binding (OCGA § 34-9-105 (c)) and neither the superior court nor this court has any authority to substitute itself as a fact finding body in lieu of the Board.’ [Cits.] The superior court, when sitting as an appellate body, is bound by the ‘any evidence’ standard of review and is not authorized to substitute its judgment as to weight and credibility of the witnesses. [Cit.] The ALJ and board may choose to believe the testimony of the claimant as opposed to the testimony of an expert witness. [Cits.] The testimony of the claimant provided the ‘any evidence’ in support of the ALJ and board’s findings, and the superior court erred in substituting its judgment for that of the board in weighing the credibility of the claimant’s testimony, and finding no competent evidence in support of the board’s award.” Maddox v. Elbert County Chamber of Commerce, 191 Ga. App. 478, 481-482 (1) (b), (c) (382 SE2d 150) (1989).

Decided April 24, 1992.

Allan R. Smith, for appellant.

Saveli & Williams, Jennifer H. Chapin, for appellees.

Judgment reversed.

McMurray, P. J., and Cooper, J., concur.


text:
    A92A0542.
    DORSEY v. THE STATE.
    (418 SE2d 426)
   Johnson, Judge.

Laron Dorsey (Dorsey) was indicted for the offenses of armed robbery, aggravated assault and theft by shoplifting arising from an incident which occurred on June 6, 1989, at the Bargain Town, USA in Cedartown. Following a jury trial, Dorsey was convicted of aggravated assault and theft by shoplifting. A motion for a new trial was denied. He appeals his conviction.

Dorsey’s sole enumeration of error is that the trial court erred in denying his motion for a mistrial when a state’s witness improperly placed his character in issue by testifying: “[W]e knew them as known shoplifters.” The remark was part of a response to a general question posed by the assistant district attorney to describe the incident. The evidence was offered to explain why the employees of the store, in conjunction with the fact that Dorsey was wearing a denim jacket over a shirt on a hot summer morning, were watching Dorsey while he was in the store. Dorsey’s counsel made a timely motion for mistrial. A proper curative instruction was given to the jury. “In Sabel v. State, 250 Ga. 640, 644 (5) (300 SE2d 663) (1983) ... the Supreme Court held that. . . the decision whether to grant a mistrial in such circumstances remained in the discretion of the trial court. The Sabel court set out some factors to be reviewed in making such a determination, which include ‘the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.’ Id. at 644 (5).” Mobley v. State, 198 Ga. App. 497, 499 (5) (402 SE2d 100) (1991).

Decided April 24, 1992.

T. Peter O’Callaghan, Jr., for appellant.

W. A. Foster III, District Attorney, Jeffrey L. Ballew, Assistant District Attorney, for appellee.

Dorsey testified in his own defense. In explaining why he had left the scene after being told by- a store employee that the police were going to be called, he stated: “I was on intensive probation at the time and I had violated it and they was looking for me with a warrant and I knew if they came they wás going to take me to jail. . . .” In light of this testimony which clearly informed the jury of prior criminal acts, as well as the rest of the evidence presented at trial, it is “highly probable” that the remark made by the witness did not play a role in the jury’s conviction. See Rigenstrup v. State, 197 Ga. App. 176, 178 (1) (398 SE2d 25) (1990).

We find that a proper curative instruction was given following the unsolicited remark of the witness, and in the absence of a showing that the remark had any prejudicial effect on the outcome of the trial, we find that the trial court did not abuse its discretion in refusing to grant a mistrial.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


author: McMurray, Presiding Judge.

text:
    A92A0905.
    SUGGS v. SUGGS.
    (418 SE2d 427)
   McMurray, Presiding Judge.

On September 26, 1989, the Cobb County Superior Court granted a final decree of divorce between the parties. Pursuant to the decree, custody of the parties’ minor child was awarded to the wife and the husband was ordered to pay the wife a monthly sum for child support. Thereafter, on June 21, 1991, the husband filed a “Motion to Set Aside and Vacate Judgment and Petition for Determination of Paternity.” A “Brief in Support of Motion to Set Aside and Vacate Judgment” accompanied the motion/petition. The motion/petition and brief were served on the wife at her residence in College Park.

In the motion/petition, the husband claimed the final decree should be set aside pursuant to OCGA § 9-11-60 (d) (2) on the ground that it was procured by fraud. In this regard, he asserted that (1) the wife knew and admitted he was not the father of the minor child; (2) the wife represented that she would not proceed with the child custody aspects of the divorce action since the husband was not the father of the child; and (3) relying on the wife’s representation, the husband did not contest the divorce action. The husband also sought a determination of paternity pursuant to OCGA § 19-7-40 et seq.

Decided April 24, 1992.

Fred L. Cavalli, for appellant.

Susann Suggs Aaron, pro se.

The superior court dismissed the motion/petition “for want of jurisdiction in this court” and we granted a discretionary appeal. Held:

A motion to set aside must be brought in the court which rendered the judgment under attack. OCGA § 9-11-60 (b). Thus, the Cobb County Superior Court did have jurisdiction to entertain the motion to set aside and it erred in ruling otherwise.

True, a petition for determination of paternity must be brought where the child resides when the father lives out of this State (OCGA § 19-7-42) so the Cobb County Superior Court might not have been able to hear the “paternity portion” of the motion/petition. However, the superior court should not have dismissed the entire motion/petition for want of jurisdiction simply because one aspect of the case should be heard elsewhere. This is especially so because the husband’s petition for determination of paternity cannot even be maintained unless and until the final decree is set aside. See Macuch v. Pettey, 170 Ga. App. 467 (317 SE2d 262) (1984). Even if the “paternity portion” of this case should be heard in another county, the superior court should have transferred that portion of the case, not dismissed it. Mitchell v. Southern Gen. Ins. Co., 185 Ga. App. 870 (366 SE2d 179) (1988).

Judgment reversed.

Sognier, C. J., and Cooper, J., concur.


author: Beasley, Judge.

text:
    A91A2124.
    BENNING CONSTRUCTION COMPANY et al. v. DYKES PAVING & CONSTRUCTION COMPANY, INC.
    (418 SE2d 620)
   Beasley, Judge.

Defendants Benning Construction Company and St. Paul Fire & Marine Insurance Company appeal a judgment entered in favor of plaintiff Dykes Paving & Construction Company, Inc., in an action on a bond which discharged a materialman’s lien pursuant to OCGA § 44-14-364. St. Paul is the surety on the bond posted by Benning. The jury awarded plaintiff $10,747.72 in damages, $1,784 in prejudgment interest and attorney fees of $6,000.

General contractor Benning entered into an agreement with owner Shaheen & Company for the construction of an office/warehouse facility. Benning subcontracted with Scarboro Paving to furnish materials and labor necessary to install “asphalt paving and concrete curb and gutter work” according to certain specifications. Although the subcontract prohibited assignment or transfer without written consent of the contractor, Scarboro contracted with Lanier Paving Company to install the asphalt, without Benning’s knowledge. Lanier ordered the asphalt material for the project from plaintiff pursuant to a joint payment agreement involving plaintiff, Scarboro and Lanier. Plaintiff delivered the asphalt and Lanier installed it. Scarboro’s representative was on site as was Benning’s superintendent, who knew that Lanier had supplied labor and equipment on the project and observed its employees’ participation in the paving work.

The owner rejected the installation of the parking lot and demanded that it either be replaced or resurfaced. When Scarboro refused, Benning paid another subcontractor $8,200 to resurface the area. That contractor used the identical type of asphalt material, which plaintiff also supplied:

Plaintiff never received payment from Lanier for the material it had delivered to the project and thereafter sought payment from Benning. Benning refused for the stated reasons that the asphalt had not been supplied by plaintiff and in addition did not comport with contract specifications. Plaintiff provided Benning with documentation that it had supplied the material, along with engineering test results of the asphalt demonstrating substantial compliance with the grade specified in the general contract. When Benning continued to refuse payment, plaintiff notified the owner and then filed a materialman’s lien for $10,747.72, the cost of the asphalt. Lanier subsequently declared bankruptcy, and in a separate action Benning obtained a default judgment against Scarboro for $31,695.70.

It was the opinion of the engineer who tested the material that although a “slight variation” existed between the grade specified in the contract and the material provided by plaintiff, “it came within industry standards to meeting the specified tolerances,” and any variation would not affect the strength, longevity or appearance of the paved surface. Lanier’s owner was “very familiar” with the type of asphalt specified in the contract. His opinion was that the grade of material supplied by plaintiff was as specified in the order.

1. Defendants contend that the trial court erred in denying their motion for a directed verdict made at the conclusion of the plaintiff’s case and renewed at the close of the evidence. Their ground is that plaintiff was merely a supplier of materials to a supplier and was not entitled to a claim of lien as a matter of law because it neither supplied to a contractually authorized subcontractor nor had a contractual relationship with the owner.

OCGA § 44-14-361 (a) (2) provides that all materialmen furnishing material to subcontractors shall have a special lien on the real estate for which they furnish labor, services or materials. Subsection (b) specifies that “[e]ach special lien . . . may attach to the real estate for which the labor, services, or materials were furnished if they are furnished at instance of the owner, contractor, or some person acting for the owner or contractor.”

By statutory definition, “ ‘Subcontractor’ means, but is not limited to, subcontractors having privity of contract with the contractor.” OCGA § 44-14-360 (9). In Tonn & Blank v. D. M. Asphalt, 187 Ga. App. 272 (370 SE2d 30) (1988), “we construe[d] the word ‘subcontractor’ to mean one who, pursuant to a contract with the prime contractor or in a direct chain of contracts leading to the prime contractor, performed services or procured another to perform services in furtherance of the goals of the prime contractor.”

Although Lanier was a second tier subcontractor having no privity of contract with Benning, it nevertheless was a “subcontractor” within the definition of the lien statute. As the supplier of material “used in making improvements to the real estate” for the benefit of the owner or a subcontractor, plaintiff was authorized by law to attach a lien on the property to the extent of the “reasonable value” of that material. OCGA § 44-14-360 (3); Tonn & Blank, supra; Taverrite v. Lowe’s of Franklin, 166 Ga. App. 346 (1) (304 SE2d 78) (1983). Compare Associated Dist. v. De La Torre, 138 Ga. App. 71 (1) (225 SE2d 462) (1976), overruled on other grounds in Adair Mtg. Co. v. Allied Concrete &c., 144 Ga. App. 354, 359 (241 SE2d 267) (1977), and Porter Coatings v. Stein Steel &c. Co., 157 Ga. App. 260 (277 SE2d 272) (1981) (a supplier to a supplier of materials is not entitled to claim of lien under the statute). Even if Scarboro breached its contract with Benning by subcontracting with Lanier without Benning’s consent, this would not destroy the privity of contract or prevent or defeat the statutory lien.

2. Defendants contend that the trial court erred in denying their motion for directed verdict with respect to plaintiff’s demand for attorney fees. Plaintiff sought to recover expenses of litigation and established that $6,000 in attorney fees had been expended in pursuit of the claim against defendants. Because the jury did award attorney fees, the issue is not moot.

Defendants assert that attorney fees are not recoverable because not specifically provided for under the materialman’s lien statute, OCGA § 44-14-360 et seq. “ ‘The purpose of the (materialman’s) lien statutes ... is, to give the furnisher of labor and material a claim upon the owner, to compel him at his peril to withhold final payment until he has received assurance from the contractor that he has paid all material and labor claims, which are or which may be perfected into liens.’ [Cit.]” Gignilliat v. West Lumber Co., 80 Ga. App. 652, 653 (1) (56 SE2d 841) (1949). “The lien statute is given a strict construction. . . .” Ingalls Iron Works Co. v. Standard Acc. Ins. Co., 107 Ga. App. 454, 458 (130 SE2d 606) (1963). “The lien release bond provided for by OCGA § 44-14-364 serves as a replacement for the lien to which it refers, and does not authorize a new and different procedure limited to the bond or result in additional rights.” North v. Waffle House, 177 Ga. App. 162, 163 (1) (338 SE2d 750) (1985).

Decided April 3, 1992

Reconsideration denied April 28, 1992

Kilpatrick & Cody, H. Quigg Fletcher III, Douglas F. Kaleita, for appellants.

“ ‘Attorney fees are recoverable only where authorized by some statutory provision or by contract. (Cit.)’ [Cit.]” Glynn County Fed. &c. Credit Union v. Peagler, 256 Ga. 342, 344 (3) (348 SE2d 628) (1986). Conceding that the materialman’s lien statute does not specifically provide for the recovery of attorney fees, plaintiff contends they are nevertheless entitled to an award of attorney fees under OCGA § 13-6-11. Plaintiff had no contractual relationship with defendant contractor. Compare Linco Constr. Co. v. Tri-City Concrete, 161 Ga. App. 174 (1) (288 SE2d 125) (1982). Nor did the posting of the bond confer any additional rights on plaintiff. North, supra at 163. Plaintiff having failed to establish a statutory or contractual basis for his claim of attorney fees, the trial court erred in denying defendants’ motion for directed verdict in this regard.

3. Defendants assert as error the failure to give a requested charge that the jury “may consider the expense incurred by Benning Construction in resurfacing the parking lot in determining the value of the material supplied by [plaintiff] Dykes Paving.” Adams v. W. P. Stephens Lumber Co., 158 Ga. App. 761 (282 SE2d 217) (1981), was cited as authority for the requested charge. The court instead charged a set-off provision in the exact language quoted in Adams from Young v. Harley-Mitchell Hardware Co., 173 Ga. 35 (1) (159 SE 567) (1931). Neither the requested charge nor the charge as given was adjusted to the evidence. Although erroneous, the charge was beneficial to defendants and therefore must be deemed harmless. Abernethy v. Cates, 182 Ga. App. 456 (3) (356 SE2d 62) (1987).

4. Appellee’s motion for damages for frivolous appeal pursuant to OCGA § 5-6-6 is denied. As the $6,000 award of attorney fees cannot stand, the judgment is affirmed only on condition that the award of attorney fees be written off, otherwise reversed.

Judgment affirmed on condition.

Carley, P. J., and Johnson, J., concur.

Thompson & Slagle, DeWitte Thompson, Jr., Jefferson B. Slagle, Richard E. Witterman, Jr., for appellee.


author: Pope, Judge.

text:
    A92A0088.
    CARTER v. GEORGIA POWER COMPANY et al.
    (418 SE2d 379)
   Pope, Judge.

Plaintiff Comer Charles Carter was seriously injured when a limb fell from an oak tree and struck him in the head as he was walking along a Macon city street. Plaintiff brought a claim alleging negligence against defendants City of Macon, Georgia Power Company and two other parties. Plaintiff eventually dismissed his complaint against the two other parties and the trial court granted summary judgment to the City of Macon and Georgia Power Company. Plaintiff appeals.

1. First, plaintiff argues the trial court erred in granting summary judgment to defendant City of Macon. Plaintiff argues the evidence shows the limb which fell on him had been dead for so long that it had detached from the tree and was resting on other limbs in the tree. Plaintiff argues that pursuant to the duty of a municipality to maintain the public roads free from defects, the City, in the exercise of reasonable care, should have known of the defect and danger posed by the limb which struck the plaintiff.

The only witness who testified to the existence of the hanging dead limb, however, did not witness the incident which caused plaintiff’s injury. His testimony indicates that he merely assumed the limb which struck the plaintiff was the one he described as hanging in the tree. In fact, two eyewitnesses to the incident testified they were in their yards, near where the plaintiff was standing in the street when he was struck. One witness testified by affidavit he saw the limb fall from the tree some 20 to 30 feet above the level where the power lines ran through the branches. The other witness testified by deposition he heard the sound of a limb breaking off a tree and looked up to see the limb falling. He examined the limb and noticed decay on the butt end, yet said the limb showed no visible signs of decay along the length of the limb and described it as looking “normal.” Moreover, the owner of the lot on which the tree was located testified he lived nearby and walked past the tree several times a week and the tree appeared healthy and not hazardous. The city presented evidence that it had no record of any complaint or report regarding the tree.

The issue presented by a case such as the one at hand, which alleges a municipality is liable for injury from a defect in the public roads, is whether the municipality had actual notice of the defect or, alternatively, whether the defective condition had existed for a sufficient length of time for notice to be inferred. See Andrews v. Macon, 191 Ga. App. 745 (2) (382 SE2d 739) (1989). The evidence in this case establishes that the city had no actual notice of the danger of falling limbs from the tree in question and the evidence creates no issue for the jury in regard to constructive knowledge. The undisputed testimony of the eyewitnesses establishes that the limb which fell, though it was in fact decayed, appeared normal. Just as the owner of a tree has no duty to check it constantly for non-visible rot (see Willis v. Maloof, 184 Ga. App. 349 (2) (361 SE2d 512) (1987); Cornett v. Agee, 143 Ga. App. 55 (1) (237 SE2d 522) (1977)), a city has no duty to check limbs overhanging a public road for non-visible rot. The trial court did not err in granting summary judgment to the City of Macon.

Decided April 8, 1992

Reconsideration denied April 29, 1992

McKenney, Jordan & Carey, G. McGregor Jordan, Jr., John D. Carey, for appellant.

Jones, Cork & Miller, H. Jerome Strickland, W. Kerry Howell, Chambless, Higdon & Carson, Thomas F. Richardson, Joan E. West, for appellees.

2. Neither did the trial court err in granting summary judgment to Georgia Power Company. The evidence shows power lines ran through the limbs and branches of the tree. The City of Macon had granted Georgia Power Company a franchise to supply electrical power to the city, including an easement to use the city streets and public places to cut and trim trees as necessary for the maintenance of its power lines. The franchise in no way, however, was an assignment of the city’s duty to maintain the safety of the public roads. “The duty imposed by the franchise is to render safe electrical service, not to maintain safe streets.” Richards v. Mayor &c. of Americus, 158 Ga. App. 693, 695 (282 SE2d 122) (1981). The eyewitness testimony establishes that the limb which fell originated above the level of the power line. Thus, the evidence shows the limb was not one which Georgia Power Company had a duty to trim.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


text:
    A92A0098.
    COLEMAN v. SUPERIOR INSURANCE COMPANY.
    (418 SE2d 390)
   Pope, Judge.

Appellee/plaintiff Superior Insurance Company filed a complaint seeking declaratory relief concerning an insurance coverage dispute arising from an automobile collision involving a vehicle insured by plaintiff. At the time of the collision, the insured vehicle was being driven by the adult unlicensed daughter of the named insureds, who was neither a named insured nor did she have permission from the named insureds to drive the vehicle. The appellant/defendant Betty Coleman was a front seat passenger in the vehicle at the time of the collision.

Coleman was served with the complaint on November 15, 1990. On February 15, 1991, Coleman filed an answer and motion to open default. On February 25, 1991, plaintiff moved for entry of default judgment. After conducting a hearing on the pending motions, the trial court denied Coleman’s motion to open default and granted the plaintiff’s motion for entry of default judgment. Coleman appeals from the entry of default judgment against her.

OCGA § 9-11-55 (b) provides that “[a]t any time before final judgment, the court, in its discretion, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of required pleadings or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court. In order to allow the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and shall announce ready to proceed with the trial.” Coleman contends because she has shown excusable neglect and otherwise complied with the dictates of the statute, the trial court’s failure to allow her to open the default was an abuse of discretion.

As this court has recognized on several occasions, “ ‘[i]n cases such as this, no two are alike and each must stand on its own merits. The facts in each case are different and you must look at each in the light of the facts peculiar to that particular case.’ ” Howell Enterprises v. Ray, 163 Ga. App. 68, 69 (293 SE2d 24) (1982); Cobb County Fair Assn. v. Boyle, 143 Ga. App. 754, 756 (240 SE2d 136) (1977). Generally, in cases concerning default judgments this court will not substitute its judgment for the trial judge’s, who had the opportunity to observe the witnesses and determine their credibility. Howell Enterprises, supra at 70.

In this case, Coleman’s counsel had notice before Coleman was served with the complaint that plaintiff had filed this action seeking declaratory relief. In fact, Coleman’s counsel engaged in certain negotiations with plaintiff’s counsel in which they discussed that service might be acknowledged on behalf of Coleman. To show excusable neglect, Coleman states that she suffered memory loss as a result of the accident, which allegedly made her unable to remember when she was served. Coleman’s counsel stated that he checked with the clerk’s office on December 10, 1990, to see if Coleman had been served and was informed that she had not been served. The affidavit of service of Coleman was filed on December 19, 1990. There is no evidence in the record that counsel for Coleman attempted to verify service with the clerk’s office thereafter, even though he stated he did not learn Coleman had been served until February 15, 1991. Coleman’s counsel also suggested during the hearing on these motions that there may have been some miscommunication between Coleman and his office. We hold that these facts and circumstances do not demand a finding of excusable neglect, and the trial court did not abuse its discretion by refusing to open the default. See Weldon v. Williams, 170 Ga. App. 589 (1) (317 SE2d 570) (1984).

Decided April 10, 1992

Reconsideration denied April 29, 1992.

Kaufman & Feingold, Walter C. Herin, Jr., for appellant.

Jenkins & Eells, Frank E. Jenkins III, Sharon C. Barnes, for appellee.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


text:
    A91A0404.
    MAYS v. THE STATE.
    (418 SE2d 167)
    Decided April 29, 1992.

      Henry G. Smith, Jr., for appellant.

      Willis B. Sparks III, District Attorney, Vernon R. Beinke, Thomas J. Matthews, Assistant District Attorneys, for appellee.
   Sognier, Chief Judge.

The Supreme Court in Mays v. State, 262 Ga. 90 (414 SE2d 481) (1992) reversed the judgment of this court in Mays v. State, 200 Ga. App. 457 (408 SE2d 714) (1991). Therefore, our judgment in this case is vacated, the judgment of the Supreme Court is made the judgment of this court, and the judgment of the trial court entering a life sentence for appellant’s June 1989 offense is vacated with direction that the trial court resentence appellant for that offense in accordance with Division (2) of the Supreme Court’s opinion.

Judgment vacated with direction.

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


author: Birdsong, Presiding Judge.

text:
    A92A0080.
    HORNE v. THE STATE.
    (418 SE2d 441)
   Birdsong, Presiding Judge.

David E. Horne appeals his judgment of conviction of armed robbery and his life sentence.

The victim testified he saw appellant approaching and climbed into his pickup truck. Appellant pulled the truck door open, displayed a knife, and demanded money. The victim gave him money and appellant fled. The victim pursued appellant in his truck. Subsequently, the police joined in the pursuit and appellant was apprehended. A police officer testified appellant was observed fleeing from the pursuing victim; and as appellant was being apprehended, he dropped a knife. Both the knife and the victim’s money were recovered.

Appellant denied committing any crime. He claimed he merely asked the victim for money, pulled the truck door open when his hand almost got caught as it was being closed, and that the victim then gave him some money (which apparently due to a mistake was more money than intended). As appellant was leaving, the victim began pursuing, yelling he had been robbed. Appellant panicked and ran. Held:

1. Appellant asserts the trial court erred in failing to allow him to testify as to a prior inconsistent statement made by the victim during a preliminary inquiry hearing.

OCGA § 24-9-83 pertinently provides: “A witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case. Before contradictory statements may be proved against him, unless they are written statements made under oath in connection with some judicial proceedings, the time, place, person, and circumstances attending the former statements shall be called to his mind with as much certainty as possible.” (Emphasis supplied.) In this regard, “ ‘[t]he cross-examiner will ask the witness whether he made the alleged statement, giving its substance, and naming the time, the place, and the person to whom made ... If the witness denies the making of the statement, or fails to admit it, . . . then the requirement of “laying the foundation” is satisfied and the cross-examiner, at his next stage of giving evidence, may prove the making of the alleged statement.’ ” (Emphasis supplied.) Carter v. State, 244 Ga. 803, 806 (262 SE2d 109). The purpose of the statutory requirement for laying such a foundation “is to give the witness the opportunity to explain or deny the prior contradictory statement”; however, substantial compliance with the foundation requirement should suffice. Meschino v. State, 259 Ga. 611, 614 (2 b and c) (385 SE2d 281). In this case, the foundation requirement of the statute was not met; neither was there substantial compliance with the statute as in Meschino, supra. The victim was not questioned about his prior inconsistent statement, and thus was afforded no opportunity to explain or deny the statement before it was offered at trial to impeach him. “ ‘(A) proper foundation must be laid before previous contradictory statements may be proved against a witness.’ ” Sosebee v. State, 169 Ga. App. 370, 371 (3) (312 SE2d 853). The trial court did not err in sustaining the State’s timely and specific objection to the introduction of the alleged inconsistent statement. Smith v. State, 171 Ga. App. 758, 763 (7) (321 SE2d 213); Sosebee, supra; accord Barrett v. State, 192 Ga. App. 705, 707 (5) (385 SE2d 785).

Gibbons v. State, 248 Ga. 858, 862-865 (286 SE2d 717), cited by appellant, and Sprouse v. State, 250 Ga. 174 (296 SE2d 584) are factually distinguishable and are not controlling.

2. Appellant asserts on the general grounds that the trial court erred in denying his motion for new trial.

Any errors of law encompassed within appellant’s enumeration of error based on the general grounds that have not been supported in appellant’s brief by citation of authority or argument are deemed to have been abandoned. Court of Appeals Rule 15 (c) (2). (See Division 1 above, finding that the trial court did not err refusing to permit appellant to testify as to a certain prior inconsistent statement of the victim.) Further, the record on its face reflects the existence of no reversible error of law whatsoever.

Appellant asserts the verdict was without evidence to support it, as there exists in this case “a great insufficiency of evidence to overcome the presumption of innocence.” On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). “And, the test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) ‘is the proper test for (an appellate court to employ) when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.’ ” Daras v. State, 201 Ga. App. 512 (1) (411 SE2d 367). Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses charged. Jackson v. Virginia, supra. Although flight instructions are no longer authorized, the Supreme Court of Georgia nevertheless recognizes “[t]he fact that a suspect flees the scene of a crime points to the question of guilt in a circumstantial manner.” Renner v. State, 260 Ga. 515, 517 (3 b) (397 SE2d 683). Moreover, the basic facts to which the victim and police officer testified are recounted above, and the victim’s eyewitness testimony provided direct evidence of appellant’s guilt. Appellant’s contention is without merit.

Decided April 29, 1992.

J. Robert Joiner, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Charles W. Smegal, Rebecca A. Keel, Assistant District Attorneys, for appellee.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A92A0116.
    DOBBS v. THE STATE.
    (418 SE2d 443)
   Johnson, Judge.

Henry Lewis Dobbs (Dobbs) was charged with armed robbery, two counts of aggravated assault, possession of a firearm by a convicted felon and possession of a firearm during commission of a crime. Dobbs, armed with a weapon, robbed a convenience store on the evening of January 12, 1990. While fleeing, he threatened two witnesses with the weapon. The charge of possession of a firearm by a convicted felon was severed from the trial of this case. The charge of possession of a firearm during the commission of a crime was merged by the trial court into the remaining counts of the indictment. After a jury trial, Dobbs was found guilty of the remaining charges, armed robbery and two counts of aggravated assault. The trial court denied Dobbs’ motion for a new trial.

1. Dobbs alleges that the trial court erred in refusing to grant his motion for severance of the charges. He argues that because the charges of aggravated assault and armed robbery involved two different locations and two different victims they should be tried separately. It is clear from the facts of this case that the crimes were committed in order to accomplish a single criminal purpose and were part of a single scheme or plan. See Bailey v. State, 157 Ga. App. 222 (276 SE2d 843) (1981). “ ‘It is not an abuse of discretion in the interest of justice for the judge to refuse a motion for severance of the trial of multiple charges where the crimes alleged were part of a continuous transaction conducted over a relatively short time, and “ . . . from the nature of the entire transaction, it would be almost impossible to present to a jury evidence of one of the crimes without also permitting evidence of another . . .” [Cits.]’ ” Smith v. State, 186 Ga. App. 303, 307 (2) (367 SE2d 573) (1988). The fact that the aggravated assaults were not committed contemporaneously with the robbery, but while leaving the scene, does not preclude those crimes from being properly considered part of the incident. Carter v. State, 155 Ga. App. 840 (273 SE2d 417) (1980). The test for the court to consider is “[WJhether, in light of the number of offenses charged and the complexity of the evidence, the fact-trier will be able to distinguish the evidence and apply the law intelligently to each offense.” [Cit.] Smith, supra at 307. We find that the trial court did not abuse its discretion in denying the motion for severance. See Coats v. State, 234 Ga. 659 (217 SE2d 260) (1975).

2. Dobbs further alleges that the trial court erred in failing to direct a verdict on all three counts. As to the armed robbery count, he asserts that a fatal variance existed between the wording of the indictment and the proof offered at trial rendering a verdict that was contrary to law. Count One of the indictment was drawn, in part, as follows: “with intent to commit theft, take property of another from the person and immediate presence . . . .” (Emphasis supplied.) The corresponding portion of OCGA § 16-8-41 (a) reads: “with intent to commit theft, he takes property of another from the person or the immediate presence of another. ...” (Emphasis supplied.) Evidence presented at trial established that Dobbs reached over and took money directly out of the cash register, and not from (the person of) the clerk. Since no money was taken from the clerk and the immediate presence of the clerk, Dobbs contends that the verdict did not conform to the evidence presented with regard to that charge.

An indictment must adequately inform a defendant of the charges against him, so that the can effectively prepare a defense. “ ‘ “Variance between the allegata and probata is not fatal unless it misinforms the defendant as to the charges against him or leaves him open to subsequent prosecutions for the same offense. (Cit.)” (Cit.) Since it does not appear that appellant was misled or prejudiced, it was not error for the trial court to deny appellant’s motion for directed verdict.’ [Cit.]” Stacy v. State, 201 Ga. App. 256, 258 (3) (410 SE2d 812) (1991). Similarly, we find that the use of an inappropriate conjunction in the indictment was not fatal and we affirm the trial court’s denial of Dobbs’ motion for a directed verdict on Count One.

Dobbs also contends that the trial court erred in failing to grant his motion for a directed verdict as to Counts Two and Three, which he claims were not proven beyond a reasonable doubt. Neither of the victims of the aggravated assaults, who had pursued Dobbs in the dark outside the store, was able to positively identify Dobbs. However, circumstantial evidence was presented with regard to these offenses which linked Dobbs to the scene. “The circumstantial evidence need not remove every possibility of innocence but depends upon reasonableness generally decided by the jury.” Strickland v. State, 156 Ga. App. 475, 477 (3) (274 SE2d 823) (1980). See Wheeler v. State, 228 Ga. 402, 405 (185 SE2d 900) (1971). “A directed verdict of acquittal will lie only where there is no evidence to support a contrary verdict. [Cit.]” Hamm v. State, 187 Ga. App. 318, 319 (370 SE2d 158) (1988). In light of the evidence presented, we find that the trial court correctly denied the motion for directed verdict as to Counts Two and Three.

Decided April 29, 1992.

Michael S. Katz, for appellant.

3. Dobbs’ third enumeration asserts that the trial court erred in denying his motion in limine seeking to exclude evidence of other robberies allegedly committed by him. The other robberies all involved convenience stores, and the witnesses testifying as to the similar transactions both identified Dobbs as the perpetrator of those crimes. “ ‘ “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.” (Cit.) [Cits.]’ ” Pinson v. State, 201 Ga. App. 555, 556 (1) (411 SE2d 564) (1991). Despite the different types of guns and disguises, we find that the crimes were similar enough to be admissible. All of the other incidents involved rural convenience stores, the use of weapons and disguises, and were committed within a month of the incident in this case. “ ‘ “(T)here is no requirement that a previous offense be absolutely identical to the one being prosecuted so as to make it admissible.” [Cit.]’ ” Woolfolk v. State, 202 Ga. App. 59, 61 (4) (413 SE2d 242) (1991). Consequently, the trial court did not err in denying Dobbs’ motion in limine regarding similar transactions.

4. Finally, Dobbs contends that the trial court erred in its denial of his general demurrer and motion in arrest of judgment as to Counts Two and Three. He maintains that the indictment specified the charge of “Aggravated Assault” but was described as: “make an assault upon the person of (victim) with a handgun, a deadly weapon, by pointing said weapon at him.” He claims that this created an ambiguity which rendered the charges indistinguishable from the misdemeanor charge of pointing or aiming a gun or pistol at another (OCGA § 16-11-102) forcing him to defend two crimes rather than one. As set forth in Division 2 above, the indictment serves to put the defendant on notice of the charges against him. It cannot be argued that the general language of the indictment would control over the specific charge contained therein so as to give rise to any confusion as to the nature of the offense. Preparing a defense to the lesser included offense of pointing a pistol at another would be intrinsic to any preparation of a defense to the aggravated assault charge. This enumeration is without merit.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.

William A. Foster III, District Attorney, Donald N. Wilson, Assistant District Attorney, for appellee.


author: Andrews, Judge. Beasley, Judge,

text:
    A92A0184.
    WARRINGER v. WARRINGER.
    (418 SE2d 446)
   Andrews, Judge.

A final decree divorcing appellant and appellee was entered on February 25, 1991. Subsequently, on May 21, 1991, the trial court entered an order finding appellant in willful contempt. Prior to the hearing on the contempt motion, appellant filed a motion to recuse the judge who was scheduled to hold the hearing. A written order denying appellant’s motion to recuse was entered on June 19, 1991. On July 17, 1991, appellant filed a notice of appeal based solely on the trial court’s denial of his motion to recuse.

The denial of the motion to recuse was not a final order, see e.g., Stevens v. Myers, 190 Ga. App. 61 (378 SE2d 334) (1989), and the application procedures of OCGA § 5-6-34 (b) were necessary. Appellant’s failure to comply with these provisions mandates the dismissal of this appeal. See generally Bedford, Kirschner & Venker v. Goodman, 197 Ga. App. 858 (399 SE2d 723) (1990). Appellee’s motion for penalties for a frivolous appeal is denied.

Appeal dismissed.

Birdsong, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in the dismissal, but not for the reason advanced. An application under OCGA § 5-6-34 (b) would not be appropriate in this case because the order was not entered during the pendency of the action but instead almost a month after it was concluded on the merits. The procedure provided for in OCGA § 5-6-34 (b) requires the applicant to show “the need” for appellate review of an interlocutory ruling which the trial court has certified “is of such importance to the case that immediate review should be had.” That cannot be done in this case because the court did not enter the order prior to conducting the hearing which it affected.

Appellant’s remedy, in the absence of a written order denying recusal, was to file a timely direct appeal from the judgment on the merits and in that appeal to enumerate as error the implicit or de facto denial of the motion or the court’s refusal to rule on it prior to the hearing, if the latter was the case. The appeal within 30 days of the order entered on the question of recusal is simply too late to appeal from the refusal of the trial judge to recuse herself.

Decided April 29, 1992.

David R. Rogers, for appellant.

Bivens & Hoffman, L. Brown Bivens, for appellee.


text:
    A92A0196.
    BENEFIELD v. THE STATE.
    (418 SE2d 447)
    Decided April 29, 1992.

      Sam J. Gardner, Jr., for appellant.

      H. Lamar Cole, District Attorney, Charles M. Stines, Mark E.

      Mitchell, Assistant District Attorneys, for appellee.
   Pope, Judge.

Appellant/defendant John B. Benefield appeals his conviction for aggravated assault and possession of a knife during the commission of a crime and the denial of his motion for new trial. Defendant contends the trial court erred by failing to charge the jury as to defendant’s sole defense, self-defense. It is undisputed that defendant did not submit a written request to charge on the issue of self-defense. “This court has held that where there has been no written request to charge, failure to give the charge is not error. [Cits.]” Arnold v. State, 163 Ga. App. 94, 96 (4) (292 SE2d 891) (1982); Lamb v. State, 196 Ga. App. 665 (3) (396 SE2d 497) (1990).

Defendant contends, however, he made an oral request to charge on self-defense, which defendant contends is a sufficient request to charge to comply with Uniform Superior Court Rule 10.3. In Bullock v. State, 202 Ga. App. 65 (413 SE2d 219) (1991), we held that all requests to charge must be submitted in writing, even those covering unanticipated points arising during the trial. Furthermore, our review of the record does not reveal that defendant made a request to charge on self-defense but only that he objected to the trial court’s failure to charge on self-defense.

Failure to give a charge on a defendant’s sole defense is error regardless of whether the defendant requested a charge on the defense. Henderson v. State, 141 Ga. App. 430 (4) (233 SE2d 505) (1977). The record reveals, however, that self-defense was not defendant’s sole defense. Defendant denied he stabbed the victim during his testimony. Thus, the trial court did not err by failing to charge on self-defense on this basis. See Campbell v. State, 160 Ga. App. 561 (3) (287 SE2d 591) (1981).

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.