text:
    A89A2284.
    WILLIAMS v. LEMON.
    (390 SE2d 89)
   Sognier, Judge.

Rodman Lemon, M.D., filed suit against Susan Williams for malicious prosecution after he was tried and acquitted on a criminal charge of simple battery Williams had brought against him. Williams answered and counterclaimed for the civil torts of battery and intentional infliction of emotional distress. The case was tried before a jury, and at the close of the evidence the trial court granted Lemon’s motion for directed verdict as to Williams’ counterclaim. The trial court denied Lemon’s motion for a directed verdict as to his own claim, whereupon Lemon voluntarily dismissed his petition without prejudice. Williams appeals pro se.

1. The motion to dismiss the appeal is denied. Although the notice of appeal was filed prior to the entry of final judgment in this case, “[t]he rule now is that if the notice is sufficient to advise the opposing party that an appeal is being taken from a specific judgment, and if no prejudice will result to the appellee in allowing the appeal, then the appeal should not be dismissed merely because the notice was premature. In this case, there can be no mistake as to what judgment was being appealed, and it is inconceivable that any prejudice was caused the appellee when the notice was filed [one week after trial of the issue although nearly three months before the judgment was filed.]” Kenerly v. Yancey, 144 Ga. App. 295, 296 (1) (241 SE2d 28) (1977).

2. Appellant contends the trial court erred by granting appellee’s motion for directed verdict on her counterclaim for battery. Appellant contends that during the course of a gynecological examination by appellee, his touching exceeded the contact to which appellant had consented. Appellant testified that appellee had been her gynecologist for five years when the incident occurred. She stated that after the nurse departed from the examination room, appellee talked to her about her retroverted uterus, telling her she needed to do exercises to strengthen it. Appellant testified that when she asked appellee what type of exercises she needed to do, appellee examined her breasts “not the way he normally [did] it,” patted her several places while telling her she needed to tone up those areas, then had appellant bend over, at which time appellant stated appellee inserted his fingers into her vagina and asked her to move back and forth. When appellant inquired what he was trying to do, appellee told her he was “trying to get your uterus to flip back . . . forward where it should be.” Appellant testified that appellee did not wear gloves when he conducted part of the examination, although she did not specify which part. Appellant also testified that after she got up, appellee looked her in the face and approached her “as if ... to kiss me, as I felt.” No contact occurred and appellant left.

The only other testimony presented at trial was by appellee, who stated that he was an obstetrician-gynecologist, that he conducted a routine follow-up examination of appellant after the birth of her first child, that nothing unusual occurred during the exam, and on cross-examination stated that he did not remember any of the details outlined above.

“The relation of physician and patient is a consensual one . . . . However, all of the cases of this and other jurisdictions . . . lead inescapably to the conclusion that any unauthorized and unprivileged contact by a doctor with his patient in examination, treatment or surgery would amount to a battery. In the interest of one’s general right of inviolability of his person, any unlawful touching of that type is a physical injury to the person and is actionable.” Mims v. Boland, 110 Ga. App. 477, 481, 482 (1a) (138 SE2d 902) (1964). However, the court in Mims goes on to note that in relationships of doctor and patient, “as in other situations involving a touching of another’s person, consent to the act by the person affected negates the contact as an actionable tort.” Id. at 482. Mims then sets forth the standard to regulate conduct in this scope of activity where the patient, once treatment or examination has begun, thereafter withdraws the previously given consent. “To constitute an effective withdrawal of consent as a matter of law after treatment or examination is in progress commensurate to subject medical practitioners to liability for assault and battery if treatment or examination is continued, two distinct things are required: (1) The patient must act or use language which can be subject to no other inference and which must be unquestioned responses from a clear and rational mind. These actions and utterances of the patient must be such as to leave no room for doubt in the minds of reasonable men that in view of all the circumstances consent was actually withdrawn. (2) When medical treatments or examinations occurring with the patient’s consent are proceeding in a manner requiring bodily contact by the physician with the patient and consent to the contact is revoked, it must be medically feasible for the doctor to desist in the treatment or examination at that point without the cessation being detrimental to the patient’s health or life from a medical viewpoint. The burden of proving each of these essential conditions is upon the plaintiff . . . .” Id. at 483-484.

Appellant is not alleging that appellee committed medical malpractice: she presented no expert evidence to rebut appellee’s testimony, as a physician specializing in obstetrics and gynecology, that his examination of her was routine gynecological procedure, and adduced no proof that appellee varied from the requisite standard of care. See generally Savannah Valley &c. Assn. v. Cheek, 248 Ga. 745, 747 (285 SE2d 689) (1982). Although appellee testified it was proper for a physician to wear gloves when touching a patient’s orifices, there was no evidence that appellee’s non-use of gloves, as testified to by appellant, occurred during his contact with her vagina. Similarly, appellant presented no evidence of standard medical practice regarding the presence of a nurse or other personnel during gynecological examinations. Thus, no question is raised here whether any of appellee’s alleged acts in touching appellant’s body during the incident in question were outside the scope of a medically proper gynecological examination so as to constitute unauthorized and unprivileged contact exceeding the touching to which appellant had consented. Rather, appellant’s counterclaim is based on her assertion that appellee, in tbe guise of conducting a proper examination, abandoned his physician’s role and used the examination as an excuse to touch intimate areas of appellant’s body in a manner medically correct but for nonprofessional reasons and in a manner to which she had not consented.

As noted in Mims, supra, unauthorized touching constitutes actionable battery. See also Stover v. Atchley, 189 Ga. App. 56, 57 (2) (374 SE2d 775) (1988). Appellant, however, authorized appellee to touch her body for purposes of a gynecological examination and presented no evidence that the touching exceeded accepted medical techniques. No evidence of statements or overt actions taken by appellee indicating abandonment of the physician’s professional status was introduced at trial: appellant herself testified that appellee’s statements to her were strictly medical in nature; she presented no evidence that the “different” manner with which appellee touched her breasts was not an acceptable and customary method employed by gynecologists generally; and although appellant believed appellee intended to kiss her after the touching was over, no question exists that he did not actually do so. In view of the evidence in this case, we need not here determine whether in a battery suit a question for jury determination arises where there is evidence by statement or overt act that a physician during a routine examination has deliberately and intentionally sought to arouse or satisfy the sexual desires of either the physician or the patient by touching the patient in an otherwise proper medical manner. Nor need we decide whether the patient’s consent to proper medical contact must be revoked pursuant to Mims guidelines under such circumstances.

The evidence at trial thus discloses that appellant consented to be touched; that in the course of a properly conducted medical examination, with no overt actions or statements by appellee to the contrary, appellant came to believe the touching was not for medical purposes but for appellee’s own gratification; and that appellant did not revoke her consent to the touching. Since the evidence introduced demanded a finding that the touching was within the scope of contact to which appellant had consented and no evidence of statements or overt acts was adduced at trial from which a trier of fact could find that the touching was undertaken not for proper medical purposes but for the improper purpose of gratifying appellee’s sexual desires, we find that under Mims appellant was required to withdraw the consent she had given to the touching to maintain a cause of action for battery. “To permit a lesser standard would be to subject the medical profession to an endless possibility of harassment .... The possibility of irresponsible harassment is something the medical profession should not be called upon to bear, dealing as it does with human life and human frailty.” Mims, supra at 484.

The evidence at trial falls far short of meeting the first criterion in Mims. Although appellant explained to the jury her feelings of confusion and distress over the alleged unauthorized contact, it is uncontroverted that at no time did she communicate these feelings to appellee or take any action to revoke in an effective manner her consent to the touching. “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, such verdict shall be directed.” OCGA § 9-11-50 (a). There being no evidence of an effective revocation of consent by appellant to appellee’s touching, the direction of the verdict in favor of appellee on appellant’s counterclaim is affirmed. Mims, supra at 485. See generally Dependable Equip. &c. Co. v. Nursecare of Atlanta, 184 Ga. App. 136, 137 (1) (361 SE2d 23) (1987).

3. Appellant enumerates as error the trial court’s exclusion of what was purported at trial to be a certified copy of appellee’s prior convictions for battery. However, the transcript reveals that after the trial court refused to admit the document, appellant failed to tender it into evidence in order to perfect the record on appeal. “Since this is a court for correction of errors of law, our decision must be made upon the record and not upon briefs of counsel. [Cits.]” Doster v. Central of Ga. R. Co., 177 Ga. App. 393, 400 (8) (339 SE2d 619) (1985). Where there is nothing in the record to support the contention of error, there is nothing presented to this court for review. Brookhaven Assoc. v. DeKalb County, 187 Ga. App. 749, 750-751 (371 SE2d 231) (1988).

4. Appellant contends the trial court erred by refusing to allow her to recall appellee to the stand after appellant had rested her case. “It is within the discretion of the trial court to allow a case to be v. Traditional Bldrs., 183 Ga. App. 709, 711 (4) (359 SE2d 719) (1987). We find no abuse of discretion here.

Decided January 4, 1990

Rehearing denied January 17, 1990.

Susan Williams, pro se.

Herbert E. Kernaghan, Jr., Barry H. Bolgla, for appellee.

5. Appellant’s final enumeration is that the trial court prejudiced her case to the jury by commenting on appellant’s pro se status in remarks appellant stated were primarily “off the record.” Appellant’s brief cannot be used in lieu of the record or transcript to add evidence to the record. Howell Mill &c. v. Gonzales, 186 Ga. App. 909, 911 (368 SE2d 831) (1988). Further, to warrant reversal, the alleged error must be harmful. Whitehead v. Cogar, 180 Ga. App. 812, 813 (1) (350 SE2d 821) (1986). Since appellant’s counterclaim did not go to the jury, she has failed to show how the trial court’s remarks overheard by the jury could have harmed her. We find no merit in this enumeration.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Birdsong, Judge.

license: Public Domain

text:
    A89A1770, A89A1771.
    SOUTHERN BUSINESS MACHINES OF SAVANNAH, INC. v. NORWEST FINANCIAL LEASING, INC.; and vice versa.
    (390 SE2d 402)
   Birdsong, Judge.

This is an appeal by appellant Southern Business Machines of Savannah (Southern Business) of a motion granting summary judgment in favor of appellee Norwest Financial Leasing, Inc. (Norwest), and a cross-appeal by Norwest.

Appellant Southern Business assigned the rights to receive rent under certain equipment leasing agreements to appellee Norwest. The assignment agreement provided, inter alia, that Southern Business would indemnify Norwest for any claims involving Southern Business’ obligations or liabilities under the leasing agreements; it also provided that Southern Business would reimburse Norwest for any and all damages and costs, including reasonable attorney fees, which Norwest might sustain as a result of Southern Business’ breach of any warranty in the assignment agreement. A duly executed addendum to the assignment agreement further provided that Southern Business would have to pay an amount equal to the original purchase price paid by, less any rental payments received by, Norwest in the event a lessee defaulted under the terms of an assigned leasing agreement. Subsequently certain lessees either defaulted or cancelled their leáses without paying the rental provided for in the assigned lease agreements. Norwest made demand upon Southern Business for payment and the latter declined to pay.

Norwest commenced suit against Southern Business for breach of the assignment agreement and sought to recover the unpaid balance due under the leases, together with certain late charges, costs, post-judgment interest, and attorney fees. Subsequently, Norwest amended its complaint to aver a second count of fraud and a third count averring a breach by Southern Business of the terms of an unconditional guarantee allegedly contained in one of the assigned lease agreements. Southern Business filed a counterclaim against Norwest averring tortious interference with contractual relationships, libel, and the intentional and negligent breach of the duty of good faith.

Appellee Norwest filed a motion for partial summary judgment against appellant Southern Business on Counts I and III of its complaint and on appellant’s counterclaims. The trial court granted Norwest’s motion for partial summary judgment on Counts I and III of the complaint in the amount of $16,689.73 plus late charges of $834.39, but declined to award attorney fees. The trial court further granted summary judgment to Norwest on Southern Business’ counterclaims. Appellant Southern Business appeals this grant of partial summary judgment, and appellee Norwest cross-appeals the trial court’s failure to award attorney fees.

I. Case No. A89A1770

1. Appellant Southern Business asserts that the trial court erred in ruling that appellee Norwest was not barred from recovery by its actions causing the lessees to breach their leases.

Appellant specifically asserts that the conduct of appellee Norwest in harassing certain lessees for collection of rent caused those lessees to breach or terminate their equipment rental leases, and that appellant’s own performance under the assignment agreement was thereby excused under OCGA § 13-4-23.

OCGA § 13-4-23 provides that “[i]f the nonperformance of a party to a contract is caused by the conduct of the opposite party, such conduct shall excuse the other party from performance.” Accordingly, “ ‘[w]here a contract provides that there must be a tender of money or a performance of some obligation, the party bound to make the tender or perform the obligation may be relieved, and the tender and obligation held to have been waived, where the other party to the contract repudiates it, by act or word, or takes a position which would render tender or performance of the obligation imposed useless or impossible.’ ” Stokes v. Walker, 131 Ga. App. 550, 552 (1) (206 SE2d 564); accord Rives E. Worrell Co. v. Key Systems, 147 Ga. App. 383, 386 (4) (248 SE2d 686).

The record does not contain any admissible evidence giving rise to a genuine issue that conduct of appellee Norwest rendered appellant’s performance of the contested provisions of the contract either useless or impossible. We fail to see how appellee’s conduct in contacting lessees, even assuming it was accomplished in bad faith, prevented appellant from performing under the contract. See Thompson v. Crouch Contracting Co., 164 Ga. App. 532, 534 (3) (297 SE2d 524). At most the record merely contains appellant’s conclusions that he was prevented from performing under the contract, but does not include sufficient specific facts to support such a conclusion. Compare Harrell v. Huntington Assoc., 190 Ga. App. 421 (1) (379 SE2d 194). Nor do we find that the admissible evidence regarding the manner in which appellee Norwest made collection contacts with lessees created any genuine issue of material fact as to whether such acts or conduct by Norwest constituted a repudiation of the assignment agreement. Accordingly, we are satisfied that the appellant has failed to establish the existence of any genuine material issue of fact regarding the affirmative defense which he has attempted to assert under OCGA § 13-4-23.

Moreover, we note that except for evidence pertaining to JohnsManville Sales Corporation (see Division 2, below), the only evidence in the record regarding appellee’s alleged harassment of other lessees by means of collection calls was hearsay in nature.

Further, the trial court expressly found, and we agree, that “[t]here is no question but that [appellant] has not performed under the hold harmless terms of the master [lease] assignment.” Thus, we have a situation where no genuine material issue of fact exists either as to appellant’s breach of the lease or as to the nonexistence of the affirmative defense claimed by appellant. “ ‘If the movant carries his initial burden, as was done in this case, and the respondent does not present refuting evidence that is adequate to raise an issue of fact, a summary judgment for the movant must be granted.’ [Cit.] ‘(W)hile there may be some “shadowy semblance of an issue” (cit.), the case may nevertheless be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.’ ” (Emphasis supplied.) Southern Trust Ins. Co. v. Braner, 169 Ga. App. 567, 569 (1) (314 SE2d 241).

The case of Kent v. Hunt & Assoc., 165 Ga. App. 169 (299 SE2d 123) cited by appellant Southern Business is factually distinguishable from the case sub judice. Accordingly, we find this enumeration of error without merit; the trial court did not err in granting summary judgment to appellee Norwest on its claim.

2. Appellant asserts that the trial court erred in ruling that appellant had not breached its obligation of acting in good faith in regard to its obligation and privileges under the lease assignment agreement.

With the exception of certain evidence pertaining to lessee Johns-Manville Sales Corporation, all evidence in the record pertaining to reasons why the various lessees either defaulted in or cancelled their equipment leases constituted inadmissible hearsay evidence. Hearsay evidence has no probative value, unless part of the res gestae, in a summary judgment proceeding. Skinner v. Humble Oil &c. Co., 145 Ga. App. 372, 374 (243 SE2d 732); compare Love v. Love, 259 Ga. 423, 424 (1) (383 SE2d 329).

“In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. [Cits.] Moreover, opinion evidence can be sufficient to preclude the grant of summary judgment. [Cit.] The movant has the burden ‘to show that no material issue remains, and the pleadings will be construed and inferences from the evidence interpreted favorably toward making and retaining a genuine issue of fact.’ ” Mitchell v. Rainey, 187 Ga. App. 510, 512-513 (370 SE2d 673).

Appellant Southern Business in essence asserts in its amended counterclaim, Count III, that appellee breached its good faith obligation toward appellant. This claim is sounded both in tort and in contract in the pleadings.

It is a well-recognized principle of contract law “that both parties áre under an implied duty of good faith in carrying out the mutual promises of their contract.” Jackson Elec. &c. Corp. v. Ga. Power Co., 257 Ga. 772, 774 (1) (364 SE2d 556); accord Stern’s Gallery v. Corporate Property &c., 176 Ga. App. 586, 596 (337 SE2d 29). A duty of good faith and fair dealing is implied in all contracts in this state. See West v. Koufman, 259 Ga. 505 (384 SE2d 664). Thus, “whenever the co-operation of the promisee is necessary for the performance of the promise, there is a condition implied that the co-operation will be given.” 17 AmJur2d, Contracts, § 256. However, it is equally settled that “there ‘can be no breach of an implied covenant of good faith where a party to a contract has done what the provisions of the contract expressly give him the right to do.’ ” Marathon U. S. Realties v. Kalb, 244 Ga. 390, 392 (260 SE2d 85). Thus, a pleading averring a cause of action sounding in contract for breach of an implied covenant could be asserted in this case.

However, we find that under the attendant facts there exists no fiduciary relationship between appellant and appellee, flowing merely from the lease assignment agreement. In this instance, “the parties were engaged in a transaction with each other in an effort to further their own separate business objectives.” Kienel v. Lanier, 190 Ga. App. 201, 204 (378 SE2d 359). Thus, a cause of action for breach of bad faith arising from this transaction cannot be grounded in tort based on a breach of a fiduciary duty. Accordingly, to the extent that the order of the trial court granted summary judgment for appellee Norwest on the issue of a breach of bad faith claim grounded in tort, it was not in error.

Regarding the contract claim, the assignment agreement in this case expressly provided that “[sjeller [Southern Business] authorizes Norwest to confirm directly with such [l]essees the assignment of their [1]eases and to collect payments under the [1]eases.” The trial court in its ratio decidendi construed the gravamen of appellant’s allegations as being that appellee Norwest caused the lessees to cancel their contracts by making calls to collect monies owing under the leases, but observed that the contract gave the appellee authority to collect payments under the leases, and held that the appellant’s president admitted in judicio appellee “was privileged to contact the lessees.” The trial court then concluded appellant failed to respond with rebuttal evidence after appellee Norwest pierced their pleadings. The trial court also found that “the acts alleged to have caused the lessees nonperformance were admitted [by appellant’s president] to be a legitimate exercise of the plaintiff’s right to contact the lessees.” (Emphasis supplied.) We disagree.

The provisions in the assignment contract, purporting to authorize appellee to contact lessees directly and to collect payment from them, did not expressly or impliedly authorize appellee to exercise this power in a manner constituting a lack of good faith. Moreover, appellant’s president, contrary to the conclusion of the trial court, did not admit in judicio that appellee had legitimately exercised its contact and collection authority under the assignment agreements. Rather, the record reflects that appellant’s president when asked about whether any agreement with appellee Norwest prohibited the contacting of customers responded, “Yeah, they can contact customers.” (Emphasis supplied.) This response when examined in context is not an admission of fact but rather is a mere conclusion regarding the legal interpretation to be given to the provisions of the assignment agreement authorizing appellee Norwest to confirm directly with lessees the assignment of their leases and to collect payments due thereunder. “An admission in judicio applies only to the admission of fact and does not apply where the admission is merely the opinion or conclusion of the pleader as to law or fact. Thus, allegations which are conclusory, or which assert mere opinions of the pleader are not admissions in judicio.” Green, Ga. Law of Evidence (2d ed.), § 238, p. 394. Accordingly, the rules pertaining to admissions made in pleadings or other admissions made in judicio have application to admissions of fact, “and [are] not applicable where the admission is merely the opinion on the part of the party making it as to the legal effect of the instrument sued on. . . .” Clift & Goodrich v. Mincey Mfg. Co., 41 Ga. App. 38 (1) (152 SE 136). Accordingly, the trial court erred in concluding that appellant’s president had made an admission in judicio that appellee Norwest had legitimately contacted lessees and had a privilege to so contact them.

The record reflects that a representative of Norwest did make an admission of fact to appellant’s president that over 50 telephone calls for collection were made to Johns-Manville within a short period of time. Moreover, the plant controller of Manville Sales Corporation testified by deposition that the calls were harassing because of their number and also because of “[t]he tone of voice, the insistence, [and] the implication that we were not paying the invoices, were not making the proper payments.”

We are satisfied that a genuine issue exists as to appellee Norwest’s good faith regarding its collection practices with JohnsManville Sales Corporation. Where the evidence on the issue of good faith is contested, the contest must be resolved by the trier of fact, as good faith is always a question for the jury. Builders Transport v. Hall, 183 Ga. App. 812, 816 (360 SE2d 60).

Accordingly, we find that the trial court erred in granting summary judgment on that portion of Count III of appellant’s counterclaim, as sounded in contract for breach of covenant of bad faith, as pertained to appellee Norwest’s contacts with Johns-Manville. Regarding the grant of summary judgment as to breach of covenant claims grounded upon contacts with other lessees and as to claims grounded in tort we find the trial court did not err in granting summary judgment as to Count III.

3. Appellant asserts that the trial court erred in ruling that appellee did not tortiously interfere with the business contracts or relationship of appellant.

“The intentional and non-privileged interference by a third party with existing contractual rights and relations constitutes a tort for which an action shall lie. [Cits.] Furthermore, the courts of this state have recognized that such interference with a contractual right or relationship need not result in a breach of the contract to be actionable. It is sufficient if the invasion retards the performance of the duties under the contract or makes the performance more difficult or expensive.” (Emphasis supplied.) McDaniel v. Green, 156 Ga. App. 549, 550 (1) (275 SE2d 124). Thus, “ ‘ “[i]t is actionable maliciously and without [justification] to induce one to break his contract with another to the damage of the latter.” ’ ” Steele v. Cincinnati Ins. Co., 171 Ga. App. 499, 500 (2) (320 SE2d 203); accord Gilbert v. Jones, 187 Ga. App. 303, 304 (1) (370 SE2d 155) (physical precedent only). In this regard, “ ‘ “[t]he term ‘maliciously’ means any unauthorized interference . . . without legal justification or excuse. . . .” ’ ” (Emphasis supplied.) Steele, supra at 500 (2); accord Combs v. Edenfield, 184 Ga. App. 75, 77 (360 SE2d 743); Gilbert, supra at 304 (1). “The terms are ‘ “to be construed liberally: The act is malicious when it is done with knowledge of the [party’s] rights and with the intent to interfere with them.” ’ ” Singleton v. Itson, 192 Ga. App. 78 (383 SE2d 598). Intent may be proved by circumstantial evidence. In this case, a genuine material issue of intent to interfere can be inferred from the evidence of record regarding the number, frequency and nature of the contacts with Johns-Manville and regarding the continuance of the calls after Johns-Manville supplied certain payment information to Norwest.

In view of the admissible evidence of record and the reasonable inferences that can be drawn therefrom, we find that in regard to the claim of intentional interference as it relates to Johns-Manville a genuine issue of material fact exists. However, as discussed in Division 2, above, in regard to other lessees the relevant evidence offered as to intentional interference is hearsay and therefore is not probative for purposes of summary judgment.

Appellee Norwest asserts that to prove tortious interference with contractual relations, appellant must show interference with an existing, enforceable contract. Suffice it to say “ ‘[i]t is a question of fact, and thus for the jury, whether the [appellant] has played a material and substantial part in causing [appellee’s] loss of any benefits of the contract.’ ” Perry & Co. v. New South Ins. Brokers, 182 Ga. App. 84, 89 (4) (354 SE2d 852).

Accordingly, we find that the trial court erred in granting summary judgment on the intentional interference claim to the extent that such claim was predicated on contacts with Johns-Manville.

4. Appellant asserts that the trial court erred in ruling that the actions of the appellee in sending defamatory letters to the customers of appellant were privileged and that appellant had suffered no damages.

“As a general rule, the question whether a particular publication is libelous, that is, whether the published statement was defamatory, is a question for the jury. [Cit.] However, if the statement is not ambiguous and can reasonably have but one interpretation, the question is one of law for the judge.” Thomason v. Times-Journal, 190 Ga. App. 601 (1) (379 SE2d 551). “[A]s a defamatory statement may be made in indirect terms or by insinuation, the publication thereof must be construed as a whole. [Cit.] In doing so, the courts ‘will not hunt for a strained construction in order to hold the words used as being defamatory.’ [Cit.] In considering whether a writing is defamatory as a matter of law, any relevant extrinsic circumstances will be considered, because ‘(a) statement may . . . carry a defamatory meaning only by reason of extrinsic fact or circumstances by use of innuendo, inducement and colloquium.’ [Cit.] Moreover, ‘we will not look at the evidence of what the extrinsic circumstances were at the time indicated in the writing, but at what construction would be placed upon it by the average reader.’ ” Id. at 602 (1).

Applying this test we find that the letters were not libelous as a matter of law, and that only by hunting for and applying a strained construction could the letters be otherwise construed. Accordingly, the trial court’s grant of summary judgment as to a cause of action grounded in defamation was correct.

Moreover, the trial court found that “the publication of these letters was made in good faith to protect the plaintiff’s interests in the equipment and thus the publication was privileged.” See generally OCGA § 51-5-7 (3). Generally the question of whether a communication was privileged is a jury question. Cohen v. Hartlage, 179 Ga. App. 847, 849 (348 SE2d 331). “ ‘(T)o make the defense of privilege complete . . . good faith, an interest to be upheld, a statement properly limited in its scope, a proper occasion, and publication to proper persons must all appear.’ ” Id. “ ‘On summary judgment the issue is simply whether defendant established as a matter of law that he made privileged statements.’ ” Thomas v. Hillson, 184 Ga. App. 302, 303 (361 SE2d 278); Cohen, supra at 849. Examination of the record in toto reveals that the trial court did not err in concluding that as a matter of law publication of the letters was privileged.

For each of the above reasons, we find that the trial court did not err in granting summary judgment to appellee Norwest on appellant’s counterclaim for libel by innuendo.

Appellant’s other assertions of error are without merit.

II. Case No. A89A1771

Cross-appellant Norwest’s sole enumeration is that the trial court erred in failing to include an award of attorney fees in its grant of summary judgment to Norwest on Norwest’s contract claim.

In view of the disposition taken in Section I, above, we find that the issue raised in this cross-appeal is not ripe for adjudication. Accordingly, this cross-appeal will be dismissed without prejudice to cross-appellant. See Brown v. Tomlinson, 246 Ga. 513, 515 (272 SE2d 258).

In view of our holdings, Case No. A89A1770 shall be remanded with direction that the trial court enter judgment consistent with the opinion in Section I, above. As observed in Winn-Dixie &c. v. Ramey, 186 Ga. App. 257 (1) (366 SE2d 785), an evidentiary posture which might subsequently authorize the grant of a directed verdict “may not authorize the grant of summary judgment in a case, such as this, where ‘the party making the motion for summary judgment is not required to carry the burden on the trial of the case.’ ”

Decided January 4, 1990

Rehearing denied January 18, 1990

Duffy & Feemster, Dwight T. Feemster, for appellant.

McCorkle, Pedigo, Hunter & Johnson, David H. Johnson, for appellee.

For reasons stated in Section II, above, Case No. A89A1771 shall be dismissed without prejudice to cross-appellant.

Judgment in Case No. A89A1770 affirmed in part and reversed in part and case remanded with direction. Case No. A89A1771 is dismissed.

Deen, P. J., and Pope, J., concur.


author: Carley, Chief Judge.

text:
    A89A1727.
    WILSON v. THE STATE.
    (390 SE2d 609)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of the sale of cocaine. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. Over appellant’s hearsay objection, the trial court permitted a police officer to testify as to what he had been told by another officer. Appellant enumerates the trial court’s admission of this testimony as error.

The record shows that the trial court instructed the jury that the testimony was being “admitted for the sole purpose of explaining the subsequent conduct of this witness, if it in fact does explain the conduct of the witness, based upon that information. And the [j]ury will take it for that purpose and that purpose alone. It is not. . . given to you or admitted for the purpose of proving the truthfulness of the content of the statement made to this witness, but solely for the purpose of it explaining what this witness did based upon that information and that alone.” The record also reflects that, “[following the trial court’s curative instruction, appellant made no objection to [the officer’s] testimony upon the ground that its substance was inadmissible hearsay; ‘instead, it appears appellant was satisfied that the court had cured what was objectionable.’ [Cit.] Although appellant complains now for the first time that the admission of [the officer’s] testimony pursuant to the provisions of OCGA § 24-3-2 was improper under Momon v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982) and Teague v. State, 252 Ga. 534, 536 (314 SE2d 910) (1984), the trial court was not asked to rule on that ground and thus there is nothing to review. [Cits.]” Howell v. State, 188 Ga. App. 425, 427 (2) (373 SE2d 216) (1988).

2. The trial court allowed the State to introduce evidence of appellant’s commission of three other drug offenses. Appellant enumerates this evidentiary ruling as error.

To be admissible, separate crimes must be “similar or logically connected to the crime for which defendant is being tried. ... If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.” (Emphasis in original.) State v. Johnson, 246 Ga. 654, 655 (1) (272 SE2d 321) (1980). Like the drug charge for which appellant was being tried in the instant case, all of the three separate offenses were shown to have involved cocaine and to have occurred in the City of Moultrie. Two of the offenses were sales by appellant of cocaine in the year prior to the instant charge. The third was possession by appellant of cocaine several months after the instant charge. Although a possession offense may not be identical to a sale offense, this does not preclude the admission of evidence of the former in a trial for the latter, particularly where, as here, identity is in issue. See Whitley v. State, 193 Ga. App. 192 (387 SE2d 348) (1989). The trial court did not err in admitting the evidence of appellant’s commission of any of the three similar offenses.

3. Testimony revealed not only that appellant was in possession of cocaine several months after the instant charge, but also that the cocaine had been discovered pursuant to his arrest for drunk and disorderly conduct. Appellant enumerates as error the admission of this evidence of his drunk and disorderly conduct.

As discussed in Division 2, appellant’s subsequent possession of cocaine was admissible as a relevant separate crime and, arguably, his arrest for drunk and disorderly conduct would, therefore, be admissible as part of the res gestae of that separate crime. See Yarbrough v. State, 186 Ga. App. 845, 847 (368 SE2d 802) (1988). However, even assuming that only the evidence of his commission of the separate crime of possession of cocaine was admissible, the error in admitting evidence of his arrest for drunk and disorderly conduct would clearly be harmless. See generally Hodge v. State, 239 Ga. 612, 613 (2) (238 SE2d 404) (1977).

4. Appellant enumerates the general grounds. After a review of the entire record, we find that a rational trior of fact could reasonably have found from the evidence adduced at trial proof of appellant’s guilt of the sale of cocaine beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided January 18, 1990.

James M. Bivins, for appellant.

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    A89A2096.
    COLLINS v. SHELLER-GLOBE CORPORATION.
    (390 SE2d 294)
   Carley, Chief Judge.

Appellant-plaintiff suffered an on-the-job injury. Alleging that appellee-defendant had negligently designed and maintained the machinery which caused his injury, appellant brought this action for damages. Appellee answered and subsequently moved for summary judgment based upon the defense that it was appellant’s employer. Appellant appeals from the order of the trial court granting summary judgment in favor of appellee.

1. Appellant urges that a genuine issue of material fact remains as to appellee’s status as his statutory employer.

At the time of his injury, appellant worked at Southern Fibre Products Company (Southern Fibre). In support of its motion for summary judgment, appellee produced evidence that, at the time of appellant’s injury, Southern Fibre was a division of Northern Fibre Products, Inc. (Northern Fibre) and that Northern Fibre was, in turn, appellee’s wholly-owned subsidiary. In opposition, appellant attested only to his lack of personal knowledge of this corporate structure. The lack of such personal knowledge on the part of appellant creates no genuine issue of material fact as to appellee’s status as his employer or as to the viability of appellee’s immunity defense to this tort action. It follows that the trial court correctly granted summary judgment in favor of appellee. Harvey v. Fine Prods. Co., 156 Ga. App. 649 (275 SE2d 732) (1980). The fact that, subsequent to appellant’s injury, Northern Fibre may have lost its status as a wholly-owned subsidiary by being merged directly into appellee is of no material significance whatsoever.

2. Appellant’s remaining enumerations of error have been considered and found to be without merit.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

Decided January 18, 1990.

Watkins & Watkins, John D. Watkins, for appellant.

The Fulcher Firm, David H. Hanks, Jeanne M. Hyder, for appellee.


text:
    A89A2121.
    BOGGS v. THE STATE.
    (390 SE2d 423)
   Carley, Chief Judge.

After appellant was indicted for trafficking in cocaine, he filed a pre-trial motion to suppress the contraband. When the motion to suppress was denied, a bench trial was held and appellant was found guilty. He appeals from the judgment of conviction and sentence entered by the trial court on its finding of his guilt.

Appellant’s sole enumeration of error addresses the denial of his motion to suppress. The trial court was authorized to find the following: A routine traffic stop was made by an officer who observed that appellant was following another vehicle too closely. After giving appellant a safety warning, the officer requested permission to search the vehicle. Appellant gave his consent. This search resulted only in the officer’s discovery of a locked strongbox, the key to which appellant denied having. The officer then asked if appellant would permit his automobile to be checked by a drug dog. Although he was told that he was not obligated to consent, appellant agreed to the procedure. The drug dog alerted to the presence of contraband in appellant’s automobile. The strongbox was then removed and opened by a locksmith. When cocaine was discovered inside, appellant was arrested.

The officer had no probable cause to believe that appellant’s vehicle contained contraband before the drug dog alerted. However, the officer’s actions prior to that time were undertaken only with appellant’s consent. “Once a voluntary consent is legally obtained, it continues until it either is revoked or withdrawn. [Cits.]” Mallarino v. State, 190 Ga. App. 398, 403 (2) (379 SE2d 210) (1989). “ ‘A valid consent eliminates the need for either probable cause or a search warrant. (Cit.)’ ” Wright v. State, 189 Ga. App. 441, 444 (1) (375 SE2d 895) (1988). When the drug dog did alert to the presence of contraband in the vehicle, the officer then had probable cause to believe that contraband was contained somewhere therein. “A sniffing dog may provide probable cause for the issuance of a search warrant, [cits.] or when exigent circumstances are present, justify a search without a warrant. [Cits.]” State v. Morrow, 625 P2d 898, 901 (1) (Ariz. 1981). Once the officer had probable cause to believe that contraband was contained somewhere in appellant’s automobile, he was authorized to conduct a search of its contents, including the locked strongbox. Love v. State, 254 Ga. 697 (334 SE2d 173) (1985). The trial court did not err in denying the motion to suppress.

Decided January 18, 1990.

Bates, Kelehear & Starr, Harlan M. Starr, for appellant.

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

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    A89A2148.
    HAN v. TREND MANAGEMENT GROUP et al.
    (391 SE2d 142)
    Decided January 18, 1990.

      John G. Hunter, for appellant.

      Hunter, Maclean, Exley & Dunn, Arnold C. Young, M. Carol Branham, for appellees.
   Carley, Chief Judge.

Appellee-defendants initiated dispossessory proceedings against appellant-plaintiff. When appellant did not answer or open the default, a writ of possession was issued and his possessions were removed from the premises. Subsequently, appellant filed this action against appellees, alleging claims for the “wrongful” removal of his possessions, trespass, slander, and misuse of legal process. The trial court granted summary judgment in favor of appellees and appellant appeals.

A review of the record clearly shows that this action constitutes no more than appellant’s unauthorized collateral attack upon the validity of the judgment in the underlying dispossessory proceedings. See Matthews Group & Assoc. v. Wages, 180 Ga. App. 151, 152 (2) (348 SE2d 695) (1986). The trial court correctly granted summary judgment in favor of appellees.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    A89A2167.
    SINGLETARY v. THE STATE.
    (390 SE2d 611)
    Decided January 18, 1990.

      Michael L. Bankston, for appellant.
   Carley, Chief Judge.

After a jury trial, appellant was found guilty of sale of cocaine. Appellant appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. Cross-examination of the undercover agent who made the purchase from appellant established that, on two other occasions, he had attempted to buy cocaine at the same location where he made contact with appellant. The agent was then asked whether the same confidential informant had been used on those occasions. The trial court sustained the State’s objection to the question on the ground that the agent’s answer might tend to disclose the informant’s identity. This ruling is enumerated as an erroneous denial of appellant’s right to a thorough and sifting cross-examination.

“We find no error in the trial court’s refusal to allow defense, counsel to cross-examine [the undercover agent] as to [whether] . . . the [same] informant assisted the [agent in two other cases,] in order to protect the informant’s identity. [Cits.]” Butler v. State, 185 Ga. App. 478, 480 (1) (364 SE2d 612) (1988). See also Deuser v. State, 138 Ga. App. 211 (1) (225 SE2d 758) (1976).

2. At one point during appellant’s cross-examination, his counsel objected to the State’s “line of questioning” on the ground that , he did not “see any relevance to this case.” The trial court’s failure to sustain this objection is enumerated as error.

. Appellant’s objection presents nothing for appellate review. “It has been repeatedly held by the Supreme Court and this court that an objection that evidence is irrelevant and immaterial is insufficient to show reversible error. [Cits.]” Brown v. State, 122 Ga. App. 59 (176 SE2d 240) (1970).

3. Appellant enumerates the general grounds, urging that he did not sell the cocaine, but merely obtained it and turned it over to the agent at no profit to himself. “The theory that one may act as a conduit or procuring agent of the purchaser and thus escape culpability as a seller has been considered and rejected by this court. [Cits.] From our review of the evidence, we find that a rational trier of fact could reasonably have found proof of [appellant’s] guilt beyond a reasonable doubt.” Diana v. State, 164 Ga. App. 779, 780 (1) (298 SE2d 281) (1982). See also Royal v. State, 158 Ga. App. 405, 406 (3) (280 SE2d 427) (1981).

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

J. Brown Moseley, District Attorney, Robert G. Dunn, Assistant District Attorney, for appellee.


author: Deen, Presiding Judge.

text:
    A89A1893.
    ATLANTIC ZAYRE, INC. v. MEEKS.
    (390 SE2d 398)
   Deen, Presiding Judge.

Appellee Steve Meeks, a juvenile, and his slightly older brother were shopping for fishing lures. Having purchased approximately $5 worth at a K-mart, they proceeded to a nearby Zayre’s store to compare the merchandise. Parking their old truck in the store’s parking lot, they took the K-mart lures from the paper bags in which K-mart check-out personnel had placed them, put the lures into their pockets, and entered Zayre’s. While examining Zayre’s fishing lures appellee took a K-mart lure from his pocket and, after holding it up for comparison with the Zayre’s item, returned the former to his pocket. Shortly thereafter the boys left the store.

A Zayre’s security guard, who was not wearing a uniform, observed the boys’ activities and, thinking that it was Zayre’s merchandise that was being pocketed, pursued the boys out the front door and ordered Steve to stop. Not immediately recognizing that the man was a guard, and not aware of having done anything improper or illegal, Steve at first would not cooperate with the guard. Testimony was presented regarding an exchange of blows and imprecations, during which, inter alia, Steve came to realize that he was suspected of shoplifting; at which time, by the guard’s own admission, Steve told him that his K-mart receipts were in his nearby truck.

The guard continued to berate the boy and took him to a room at the rear of the store, where Steve again told him of the receipts and asked him to send someone for them. Although the receipts were subsequently obtained, Steve was nevertheless arrested for shoplifting and battery; he was acquitted by the juvenile court. Meeks’ father filed a tort action against Zayre’s; ultimately, only the claim for malicious prosecution was pursued. A jury awarded $75,000 in actual damages and $175,000 in punitive damages. After denial of motions for j.n.o.v. and new trial, Zayre’s appealed from this verdict and judgment.

Appellant Zayre enumerates as error (1) the trial court’s charging the jury on malicious prosecution; (2), (6) the court’s admitting evidence of Zayre’s “worldly circumstances,” including its annual reports; (3) the court’s permitting questions on voir dire regarding the prospective jurors’ willingness to award “specific amounts of damages”; (5) the court’s admitting evidence that Zayre did not promulgate rules for employees’ conduct; and (4) the verdict was excessive as a matter of law. Held:

1. Zayre alleges that a suit for malicious prosecution will not lie unless certain elements are present: (1) a prosecution instituted maliciously and (2) without probable cause which (3) has terminated favorably to the plaintiff. J. C. Penney Co. v. Miller, 182 Ga. App. 64, 66 (354 SE2d 682) (1987). This is a correct statement of the law. See OCGA § 51-7-40; Smith v. Embry, 103 Ga. App. 375 (119 SE2d 45) (1961). Appellant further contends that Meeks’ malicious prosecution action was improper because in the underlying criminal action there was a binding determination of probable cause. In so contending appellant relies on Monroe v. Sigler, 256 Ga. 759 (353 SE2d 23) (1987). In Sigler an adult was arrested on certain charges and, after a preliminary hearing in which the presiding magistrate found probable cause for his arrest, he was bound over to the grand jury. At trial defense counsel moved for a directed verdict of acquittal at the close of the State’s evidence; the court denied the motion, and defendant was subsequently acquitted. In the appeal from the judgment in the malicious prosecution action which ensued, the Supreme Court held that the denial of a motion for directed verdict of acquittal, made at the close of the State’s evidence, constitutes a binding determination that there was probable cause for the prosecution of the criminal charges, and that the malicious prosecution action was therefore unjustified.

In J. C. Penney v. Miller, supra, the Sigler holding was applied to the case of a juvenile who was arrested for shoplifting and found by the juvenile court referee to be “guilty of the offense of shoplifting beyond a reasonable doubt.” Id. at 66. On appellate review of the malicious prosecution action, this court found that, even though the petition had ultimately been dismissed for reasons not germane to the issues in the instant case, “ [t]he juvenile court proceedings . . . cannot reasonably be viewed as having terminated favorably” to the juvenile, as contemplated under the third prong of the requisites for a viable malicious prosecution claim, cited supra. Id.

In the instant case, unlike Miller, there was no adjudication of “delinquent” in the juvenile court. Moreover, because the juvenile proceeding is totally other than and distinct from a criminal proceeding, T. L. T. v. State, 133 Ga. App. 895 (212 SE2d 650) (1975), there is a real question as to whether the denial of a directed verdict for acquittal in a juvenile case, as distinguished from a criminal case, can be held to fall under the rubric of Sigler, especially where, as in the case sub judice, the juvenile was not adjudicated delinquent by the juvenile court. Bearing in mind this crucial distinction between the posture of the accused juvenile in Miller and in the instant case, we find neither Sigler nor Miller to be controlling in — or even significantly in conflict with — our determination in the instant case.

In Atlantic Zayre v. Williams, 172 Ga. App. 43 (322 SE2d 83) (1984), plaintiff/appellee was stopped as he left a Zayre’s store because a security guard had seen in his rear pocket an item which he had brought in to exchange. After learning the price of the replacement item from the cashier, he decided not to make the exchange, laid the replacement on a shelf beside the cash register, paid for some unrelated items, and left the store with the original item in his pocket. He had not brought his original receipt with him, and store personnel refused to accept his explanation, despite the fact that it “checked out” in all other respects. Plaintiff/appellee dropped the charge in court a week later.

In Williams this court, citing Melton v. LaCalamito, 158 Ga. App. 820, 823-824 (282 SE2d 393) (1981), held: “ ‘In actions for malicious prosecution, the question is, not whether the plaintiff was guilty, but whether the defendant had reasonable cause to so believe — whether the circumstances were such as to create in the mind of the defendant a reasonable belief that there was probable cause for the prosecution [cit.] . . . The evidence in this case raised a jury question as to whether a reasonably prudent person would have made further inquiry before prosecuting [cit.].’ ” In Melton, supra, in which the person who brought the malicious prosecution action had been unable to prove that certain disputed items belonged to him rather than to the firm with which he was dealing, the court cited Prosser, Law of Torts, § 119 at 842 (4th ed. 1971): as to the reasonableness of the defendant’s deciding to proceed with the criminal prosecution, “[a] 11 such factors as . . . the availability of further information and the difficulty of obtaining it,. . . [the] opportunity [of the accused] to offer an explanation, and the apparent necessity of prompt action, are to be considered in determining whether it was reasonable to act without verification . . . ,” cited in Melton, at 824. See also Colonial Stores v. Fishel, 160 Ga. App. 739 (288 SE2d 21) (1981). In the instant case further information was available (i.e., whether there actually were K-mart receipts in the truck); the boy attempted over and over to give an explanation and to fetch the receipts, but was not permitted to do either; and there was no evidence of the need for prompt action when the culprit was an unarmed 14-year-old.

Moreover, in determining the existence vel non of malice and of probable cause, Georgia law makes a distinction between a prosecution in which the one who has summoned law enforcement officers “merely states what he believes, leaving the decision to prosecute entirely to the uncontrolled discretion of the officer, . . . [and one in which the accuser’s] persuasion was the determining factor in inducing the officer’s decision” to prosecute. Prosser, supra at 837; cited in Melton, supra at 822. The record in the instant case shows that the security guard — persisting in turning a deaf ear to appellee Meeks, his brother, and others — consulted by telephone with a company official and then authorized the police officer who had responded to his call to proceed with the prosecution. It is clear from the record that in the instant case it was appellant Zayre, not law enforcement officials, who decided to prosecute.

Appellant’s first enumeration is without merit.

2. In his second and sixth enumerations appellant avers that the trial court erred in admitting evidence of Zayre’s “worldly circumstances,” including its annual reports. In his fourth enumeration, he alleges that the verdict ($75,000 in actual damages and $175,000 in punitives) was excessive as a matter of law. We shall address these related enumerations together.

OCGA § 51-7-47 provides: “Recovery in actions for malicious prosecution shall not be confined to the actual damage sustained by the accused but shall be regulated by the circumstances of each case.” Melton u. LaCalamito, supra at 825. The measure of damages in such cases is the enlightened conscience of impartial jurors. Coleman v. Allen, 79 Ga. 637 (5 SE 204) (1887). See OCGA §§ 51-12-5; 51-12-6. Punitive damages are allowed where the defendant’s act was influenced by malicious motives and was without probable cause. Dixie Broadcasting Corp. v. Rivers, 209 Ga. 98 (70 SE2d 734) (1952). It is the general rule that evidence of the parties’ worldly circumstances is inadmissible. Northwestern Univ. v. Crisp, 211 Ga. 636 (88 SE2d 26) (1955); Weathers v. Cowan, 176 Ga. App. 19 (335 SE2d 392) (1985). The reverse is true, however, in malicious prosecution cases, and the jury is constrained, in determining damages, to weigh worldly circumstances along with other relevant considerations. Coleman v. Allen, supra; Medoc Corp. v. Keel, 166 Ga. App. 615 (305 SE2d 134) (1983). Applying these criteria to the instant case, we find that the trial court did not err in admitting the challenged evidence, in charging the jury that worldly circumstances should be considered, or in permitting the verdict to stand. OCGA § 51-12-12.

3. Appellant assigns error to the trial court’s permitting appellee’s counsel, over objection, to question prospective jurors as to whether they would hesitate to award a sum as large as $600,000 should it be warranted by the evidence. In a similar situation in Atlanta Joint Terminals v. Knight, 98 Ga. App. 482 (106 SE2d 417) (1958), the court held at 489 that such questions were proper because they “sought to probe the jurors’ minds for prejudice in an abstract sense.” In Waters v. State, 248 Ga. 355 (283 SE2d 238) (1981), the Supreme Court, relying on Knight, held at 363 that “hypothetical voir dire questions are not per se improper,” in that voir dire “should allow both parties an opportunity to ascertain the ability of the prospective jurors to decide the case on its merits, with objectivity and freedom from bias and prior inclination. [Cits.] . . . [S]ince the distinction between questions which ask jurors how they would decide issues . . . and questions which merely inquire whether jurors can start the case without bias or prior inclination is not always crystal clear, the ‘control of the voir dire examination is vested in the sound legal discretion of the trial judge and will not be interfered with by this court unless the record clearly shows an abuse of that discretion.’ [Cit.].” We find no abuse of discretion in the instant case. The third enumeration is therefore without merit.

Decided January 3, 1990

Rehearing denied January 19, 1990

Greene, Buckley, Derieux & Jones, John D. Jones, Margaret L. Milroy, Steven J. Misner, for appellant.

Long & Vincenzi, John A. Vincenzi, Nick Long, for appellee.

4. Appellant’s remaining enumeration assigns error to the court’s admitting evidence regarding the training of Zayre’s employees. Our examination of the trial transcript reveals that, although defense counsel objected to certain specific questions asked regarding this matter, he made no objection to the line of questioning as a whole. He therefore waived his right to raise this issue on appeal. Hinkley v. Bldg. Material Merchants &c., 187 Ga. App. 345 (370 SE2d 201) (1988). Even if, arguendo, there was some reason that this evidence should have been excluded, appellant has not affirmatively alleged, much less shown, that any prejudice accrued to him as a result of the admission of this evidence. If error at all, it would be at worst harmless error, and therefore no ground for reversal of the judgment below.

Judgment affirmed.

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


author: Pope, Judge.

text:
    A89A2027.
    CRUM v. THE STATE.
    (390 SE2d 295)
   Pope, Judge.

The defendant appeals the trial court’s denial of his motion to suppress and motion in limine regarding field sobriety tests conducted by the trooper who stopped defendant for speeding. Prior to trial, defendant entered guilty pleas to charges of speeding and failure to show proof of insurance. After a jury trial, defendant was convicted of DUI.

Trooper Land testified that he stopped defendant for speeding. Upon request, defendant produced his driver’s license, but could not produce, even after searching for it, proof of insurance. The officer asked defendant to step to the rear of his car and noted that he appeared to be somewhat intoxicated. At that point, the officer asked defendant to submit to some field sobriety tests: the nystagmus test, the eye convergence test, holding his head back and closing his eyes and reciting the alphabet. From these, the officer determined that defendant was under the influence and placed him under arrest. He then advised defendant of his Miranda rights and his implied consent rights. From the time of the initial stop to the time of the arrest, approximately ten minutes elapsed.

Defendant argues that his motions to suppress and in limine to exclude the evidence of the field sobriety tests should have been granted because he was effectively in custody when he could not produce proof of insurance, and the failure of the officer to advise him at that point of his rights pursuant to Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), rendered the tests unconstitutional. Held:

“When a violator is placed in custody or under arrest at a traffic stop the protection of Miranda arises; however, roadside questioning at a routine stop does not constitute such a custodial situation. [Cit.]” LeBrun v. State, 255 Ga. 406, 407 (339 SE2d 227) (1986).

“The test for determining whether a person is ‘in custody’ at a traffic stop is if a reasonable person in the suspect’s position would have thought the detention would not be temporary. Berkemer v. McCarty, 468 U. S. 420, 442 (104 SC 3138, 82 LE2d 317) (1984).” Hughes v. State, 259 Ga. 227, 228 (378 SE2d 853) (1989).

The trial court found that the trooper had no intention of taking the defendant into custody for the speeding or insurance violations. It was only when the trooper smelled alcohol that he began his inquiry that led to the field sobriety tests and to the arrest. An examination of the record supports this conclusion as well as the conclusion that a reasonable person would not have perceived that the detention would be other than temporary until defendant was arrested for DUI. Defendant argues that he was not free to leave once he failed to produce proof of insurance. However, the record shows that the officer testified that at that point he had not concluded his questioning, but had not determined whether defendant should be placed in custody.

The record also supports the trial court’s finding that defendant voluntarily agreed during routine questioning to perform the field sobriety tests and that OCGA § 24-9-20 was not applicable here. This ruling was correct. Montgomery v. State, 174 Ga. App. 95 (1) (329 SE2d 166) (1985).

“On appeal of the denial of a motion to suppress, the evidence is to be construed most favorably to the upholding of the findings and judgment made. The trial court’s findings must be adopted unless determined to be clearly erroneous.” (Punctuation and citations omitted.) Watson v. State, 190 Ga. App. 696 (379 SE2d 817) (1989). The record in the present case supports the trial court’s denial of the motions.

Decided January 19, 1990.

Scott & Quarterman, Bradley S. Wolff, Howard T. Scott, for appellant.

Ken Stula, Solicitor, for appellee.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A2133.
    STEVERSON v. EASON.
    (390 SE2d 424)
   Pope, Judge.

Appellant Evelyn Steverson, individually and as executrix of the estate of her late husband, G. W. Steverson, brought this wrongful death action against appellee Jessee T. Eason. G. W. Steverson died after his car was struck by a car driven by Eason while G. W. Steverson was making a left turn. The jury returned a verdict in favor of appellee Eason.

1. Steverson argues that the trial court committed reversible error by allowing retroactive application of OCGA § 51-12-1 (b), enabling Eason to introduce evidence of collateral source benefits. The accident involved here occurred in 1983, well before the July 1, 1987 effective date of the new collateral source rule embodied in OCGA § 51-12-1 (b). The admission of this evidence was error because OCGA § 51-12-1 (b) was a substantive change in the law and cannot be applied retroactively. Polito v. Holland, 258 Ga. 54 (365 SE2d .273) (1988). However, in light of the defendant’s verdict returned by the jury, the error was harmless. Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (1) (378 SE2d 510) (1989).

2. Eason was represented at trial by an attorney provided by his insurance carrier, and because his exposure exceeded his policy limits, he hired a personal attorney to represent him as well. Steverson argues that the trial court erred in allowing both defense attorneys to speak in closing argument and that this violates OCGA § 9-10-182 (formerly Code Ann. § 81-1004) and Uniform Superior Court Rule 13.3. As is usual, plaintiff’s counsel had the concluding argument. There was no error in the court’s handling of this matter. Taylor v. Powell, 158 Ga. App. 339 (280 SE2d 386) (1981); Duke v. Steed, 127 Ga. App. 541 (194 SE2d 257) (1972).

3. The trial court did not err in failing to give Steverson’s request to charge on admissions. Evidence was admitted at trial that Eason went to Steverson’s house the day after the accident and told her that he felt responsible for her husband’s death and that he would do whatever he could for her. “Our review of the transcript demonstrates that appellee’s post-incident statements clearly fall within the category of expressions of benevolence or sympathy and not into that of admissions of liability for the injury. [Cits.]” Utz v. Powell, 160 Ga. App. 888, 890 (2) (288 SE2d 601) (1982).

Decided January 19, 1990.

J. Robert Morgan, Clyde M. Urquhart, for appellant.

Dickey, Whelchel, Brown & Readdick, Terry L. Readdick, Hutto, Palmatary, Magda & Krider, Jack S. Hutto, for appellee.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


author: McMurray, Presiding Judge.

text:
    A89A1641.
    ANDREW et al. v. DeKALB COUNTY BOARD OF TAX ASSESSORS.
    (390 SE2d 115)
   McMurray, Presiding Judge.

Norman R. Andrew and Barbara B. Andrew (“taxpayers”) filed an appeal, pro se, to the superior court from a property tax assessment of the DeKalb County Board of Equalization. The superior court dismissed the appeal, finding that the taxpayers’ notice of appeal was deficient because “[a] challenge to methodology is not a proper ground of appeal in accordance with O.C.G.A. § 48-5-311.” This appeal followed. Held:

1. “It is clear that any taxpayer may appeal under the provisions of OCGA § 48-5-311 (e) and (f) ‘as to matters of taxability, uniformity of assessment, and value.’ ” (Emphasis omitted.) Vann v. DeKalb County Bd. of Tax Assessors, 186 Ga. App. 208, 212 (2) (367 SE2d 43). In the case sub judice, the taxpayers’ notice of appeal to the superior court provides, in pertinent part, as follows: “Pursuant to [OCGA §] 48-5-311 I am this date appealing the decision of the DeKalb County Board of Equalization ... of the fair market value of my property located at .... 1st error — Oasis computer (SHP) — not in use factor — reads (SHP 55) = 35% — Should be SHP 70 = or 50%. 2nd error — Oasis computer (PHY) Typographical factor reads 65 = 45% — Should be 70 — or 50%.”

“Tax assessments and appeals should be decided on the merits of the case without procedural technicalities. . . .” Ledbetter Trucks v. Floyd County Bd. of Tax Assessors, 240 Ga. 791 (2) (242 SE2d 596). In the case sub judice, the taxpayers’ enumerated errors to the superior court were not clearly defined. However, a liberal reading of the notice of appeal indicates that the taxpayers are challenging the assessed value of their property based on an alleged error in computation. This complaint is directed to value, an appropriate ground for review. See Williams v. DeKalb County Bd. of Tax Assessors, 249 Ga. 164, 166 (289 SE2d 235). Consequently, the trial court erred in dismissing the taxpayers’ appeal.

Decided January 10, 1990

Rehearing denied January 22, 1990.

Norman R. Andrew, pro se.

Barbara B. Andrew, pro se.

Albert Sidney Johnson, Lisa Foster, for appellee.

2. The DeKalb County Board of Tax Assessors’ motion to dismiss this appeal and motion for damages for frivolous appeal are hereby denied.

Judgment reversed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A1685.
    HOLMBERG et al. v. PAJOT et al.
    (390 SE2d 414)
    Decided January 8, 1990
    Rehearing denied January 22, 1990

      Lefkoff, Duncan, Grimes & Dermer, Joseph Lefkoff, Kimberly A.

      Richardson, for appellants.
   Carley, Chief Judge.

In May of 1987, appellee-defendants conveyed real property in Georgia by warranty deed to appellant-plaintiffs. In April of 1988, appellants filed suit, alleging that appellees had failed to disclose a latent defect in the property. Appellees, who are nonresidents, answered and subsequently moved to dismiss for lack of personal jurisdiction. The trial court granted appellees’ motion to dismiss. This court granted appellants’ application for an interlocutory appeal from that order.

Appellants have alleged a viable tort claim based upon the breach by appellees of the duty that is owed by a seller of realty in this state to disclose latent defects in the property that are known to him, but which are undiscoverable by a prospective buyer. See Wilhite v. Mays, 239 Ga. 31 (235 SE2d 532) (1977). It follows that the trial court erred in granting appellees’ motion to dismiss for lack of personal jurisdiction. See Edelschick v. Blanchard, 177 Ga. App. 410, 411 (2) (339 SE2d 628) (1985).

Judgment reversed.

McMurray, P. J., and Beasley, J., concur.

Long, Aldridge & Norman, Phillip A. Bradley, Vincent, Chorey, Taylor & Fell, Kenneth I. Sokolov, R. Chris Irwin & Associates, R. Chris Irwin, for appellees.


text:
    A89A2310.
    SENTRY INSURANCE v. MAJEED et al.
    (390 SE2d 269)
   Birdsong, Judge.

Appellant, Sentry Insurance Company (Sentry), appeals the final order and judgment of the superior court dismissing its declaratory judgment action for failure to state a claim upon which declaratory judgment can be granted.

Appellee, Bahiyyah Abdul Majeed, claims that certain losses arising out of an automobile collision were covered by a policy of automobile insurance issued by appellant. Appellant asserts that the vehicle in question, a Plymouth, is not covered as it was an uninsured vehicle owned by appellee and being driven by her husband at the time of collision. Appellant further asserts that the Plymouth was added to the policy replacing a Volvo that was taken out of service; but, upon determining the Plymouth could not pass inspection and needed repairs, appellee requested the Plymouth be removed from the policy and that the Volvo be re-listed as an insured vehicle thereon. No request subsequently was made by appellee to re-list the Plymouth on the insurance policy. Appellee asserts that she was assured by an agent for the company that the vehicle would be covered when it was returned to service, and that appellant is obligated to appellee for PIP benefits under appellee’s policy of insurance with appellant. Appellee has not filed any court action against appellant or others for damages arising from the collision.

The superior court dismissed the declaratory judgment action brought by appellant Sentry on grounds, inter alia, that declaratory judgment actions are not appropriate for determination as to no-fault coverage, in part because declaratory judgment is not available to a party merely to test the viability of its defenses. Allstate Ins. Co. v. Shuman, 163 Ga. App. 313 (293 SE2d 868); Baron v. State Farm &c. Ins. Co., 157 Ga. App. 16 (1) (276 SE2d 78).

Appellant’s sole enumeration of error is that the trial court erred in dismissing, sua sponte, appellant’s complaint as a genuine controversy does exist, and that this is a proper matter for declaratory judgment. Held:

1. In its brief, appellant Sentry asserts that the trial court erroneously found appellee’s answer to paragraph 14 of the complaint constituted a defense of failure to state a claim upon which relief may be granted.

This assertion of error, although contained in appellant’s brief, was not included within the parameters of its sole enumeration of error. OCGA § 5-6-40 provides that enumeration of errors “shall set out separately each error relied upon.” (Emphasis supplied.) Appellant, in its sole enumeration of error, has separately stated that the trial court erred in dismissing its declaratory judgment action because it presented a proper matter for declaratory judgment as a genuine controversy exists. “Matters not enumerated as error will not be considered on appeal.” Rider v. State, 226 Ga. 14 (2) (172 SE2d 318). “ ‘An enumeration of error cannot be enlarged at the appellate level by statements in the briefs, of counsel to include issues not made in the enumeration.’ [Cits.] One cannot expand the scope of review or supply additional issues ‘through a process of switching, shifting, and “mending your hold.” ’ ” City of College Park v. Ga. Power Co., 188 Ga. App. 223-224 (372 SE2d 493); accord Thomason v. Times-Journal, 190 Ga. App. 601 (3) (379 SE2d 551). Therefore, we cannot pass upon this issue as it is not properly before this court on review. Roberts v. Cotton States Mut. Ins. Co., 186 Ga. App. 371, 373 (367 SE2d 272).

2. Appellant, citing Board of Trustees &c. of Ga. v. Kenworthy, 253 Ga. 554 (322 SE2d 720), asserts that in a controversy in which there is a pending adverse claim, the matter would be proper for decision by declaratory judgment. We are not convinced that Board of Trustees supports the broad position asserted by appellant. Initially we note that the Supreme Court reaffirmed the long-standing rule that “ [t] his court has in the past generally refused to issue advisory opinions. [Cits.] We normally limit our rulings to the specific case or controversy decided by the trial court, [cit.], and do not venture an opinion as to the legality of future actions which may or may not occur.” (Emphasis supplied.) Id. at 557.

Moreover, we find the facts in Board of Trustees to be distinguishable from the facts in this case. The case before us involves an administrative claim between a private citizen and an insurance company; the rights of the public are not directly involved. The claims referred to in Board of Trustees would involve claims against a state agency allegedly adverse to plaintiff as a citizen and taxpayer of Georgia. Likewise, the facts of the case sub judice are distinguishable from the facts in Allstate Ins. Co. v. Shuman, supra, also cited by appellant, where the appellant as well as other insurance companies in the state were “being inundated with claims for retroactive benefits” assertedly prescribed to a genuine question of what law was to apply. Id. at 317.

In the seminal case of Athens v. Gerdine, 202 Ga. 197 (1) (42 SE2d 567), the Supreme Court held: “While our declaratory-judgment statute . . . should be liberally construed, it manifestly was never intended to be applicable to every occasion or question arising from any justiciable controversy, since the statute does not take the place of existing remedies. It therefore follows that where there exists a remedy, either in law or in equity, a petition for declaratory judgment will lie only when there be some fact or circumstances which necessitate a determination of disputes, not merely for the purpose of enforcing accrued rights, but in order to guide and protect the petitioner from uncertainty and insecurity with respect to the propriety of some future act or conduct which is properly incident to his alleged rights, and which future action without such direction might reasonably jeopardize his interest.” (Emphasis supplied.) Compare Peeples Indus, v. Parker Hannifin Corp., 189 Ga. App. 857 (377 SE2d 691). As in Chastain v. U. S. Fid. &c. Co., 190 Ga. App. 215, 217 (1) (378 SE2d 397), “there is no question that a dispute exists between [the insurance company] and defendant with regard to the parties’ rights and duties under an automobile . . . insurance policy. However, all possible rights under the policy have accrued and all obligations have attached. Further, the record discloses that there is no pending action which could possibly expose [the insurance company] to uncertainty with regard to its duty to defend. ... It is therefore apparent that [the insurance company] was merely seeking an advisory opinion from the trial court should past events result in an action at law or in equity. Georgia’s Declaratory Judgments Act makes no provision for such an opinion.” (Emphasis supplied.)

In this case, no other suits are pending, and the record reveals that appellant Sentry has taken a firm position that it did not insure the Plymouth automobile at the time of the collision and has no obligation to appellee, acting in any capacity, for any claims or damages resulting therefrom. In Jahncke Svc. v. Dept. of Transp., 134 Ga. App. 106 (213 SE2d 150), although holding under the facts there presented that the parties’ rights had not accrued and that the right to declaratory judgment was therefore still alive, we stated, “where the courts have found that rights have accrued, the plaintiffs seeking the declaration of their rights had already denied the claim or had otherwise taken a firm position as to their rights or liabilities. Those plaintiffs were not ‘walking in the dark’ [cit.] but had affirmatively acted.” (Emphasis supplied.) Id. at 108. We find appellant has taken such a firm position.

In view of the above, the precedent of Chastain is controlling. Chastain, supra; compare Oxford Fin. Cos. v. Dennis, 185 Ga. App. 177 (363 SE2d 614).

Judgment affirmed.

Deen, P. J., and McMurray, P. J., concur.

Decided January 8, 1990

Rehearing denied January 22, 1990

Eason, Kennedy & Associates, Richard B. Eason, Jr., for appellant.

Prince A. Brumfield, Jr., for appellees.


author: Beasley, Judge.

text:
    A89A1603.
    GEORGIA DEPARTMENT OF HUMAN RESOURCES v. PATILLO.
    (390 SE2d 431)
    Decided January 22, 1990.

      Michael J. Bowers, Attorney General, H. Perry Michael, Execu-

   Beasley, Judge.

Georgia Department of Human Resources appeals from the order of the trial court dismissing its appeal for failure to obtain the timely filing of a trial transcript.

“The provision authorizing the trial court to dismiss an appeal [OCGA § 5-6-48 (c)] specifies that two elements must be present: One is that the delay was unreasonable and the other is that the unreasonable delay was inexcusable. In passing upon these issues, the trial court has discretion; however, it is a legal discretion which is subject to review in the appellate courts.” Young v. Climatrol &c. Corp., 237 Ga. 53, 55 (226 SE2d 737) (1976); Glen Restaurants v. Bldg. 5 Assoc., 189 Ga. App. 327 (2) (375 SE2d 492) (1988).

Both sides have supplied numerous record and legal citations regarding what facts constitute an unreasonable and inexcusable delay, but the crucial point is that the trial court must make such findings before we may determine whether it abused its discretion. See Baker v. Southern R. Co., 192 Ga. App. 444, 445 (385 SE2d 125) (1989); City of College Park v. Ga. Power Co., 188 Ga. App. 223, 224 (372 SE2d 493) (1988). The final order merely granted the motion to dismiss, and the court did not orally state any findings at the conclusion of the hearing. The failure to ascertain the reasonableness and excusableness of the delay mandates a reversal of the order and a remand with instruction that findings be made on these issues. Speir v. Nicholson, 193 Ga. App. 444 (388 SE2d 42) (1989). See White v. Olderman Realty &c. Co., 163 Ga. App. 57, 58 (293 SE2d 726) (1982).

Judgment reversed and case remanded with instruction.

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

tive Assistant Attorney General, Stephanie B. Manis, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, for appellant.

Daniel J. Craig, for appellee.


text:
    A89A1808.
    CLARK v. THE STATE.
    (390 SE2d 425)
   Beasley, Judge.

Clark appeals his conviction of possession of a firearm by a convicted felon, OCGA § 16-11-131. He claims that the conviction is precluded by collateral estoppel because he was acquitted of two other charges, aggravated assault (OCGA § 16-5-21 (a) (2)) and possession of a firearm during commission of a crime against a person (OCGA § 16-11-106 (b) (1)).

On June 2, 1988, a cab driver picked up Clark near Grady Hospital. He asked Clark to sit in the front seat with him and said Clark pulled a gun on him and attempted to rob him. The two men struggled and fell out of the passenger side of the cab. A Grady security guard saw Clark with the gun, pointing it at the cab driver. Clark ran, dropped the gun, and was caught by a second security officer.

Clark contended that the cab driver pulled the gun on him and then the struggle ensued.

Defendant’s trial on the offenses was bifurcated, Head v. State, 253 Ga. 429 (322 SE2d 228) (1984), and the evidence was presented on the possession count after the acquittals. Defendant argued, without specifically citing either State or Federal Constitutional provisions or state statutory authority, that the acquittals factually precluded consideration of the remaining count. The court disagreed and allowed the jury to consider the evidence. A mistrial occurred because the twelfth juror failed to return the next day.

The possession-by-a-felon count was retried the next month. After the close of the evidence, closing arguments, and the charge to the jury, defendant sought a directed verdict and mistrial based on double jeopardy/collateral estoppel referring to the double jeopardy provisions of the Federal and State Constitutions but not OCGA § 16-1-8.

1. Defendant enumerates as error the denial of his objection to the court’s submission of Count 4 to the first jury after acquittal on the other two counts, but a mistrial was declared and the appeal is from the second jury’s verdict on that count. To the extent that the enumeration raises issue preclusion as presented in the motions for directed verdict and mistrial in the second trial, they will be considered.

Decided January 22, 1990.

Lawrence E. Diamond, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Henry M. Newkirk, Assistant District Attorneys, for appellee.

“ ‘ “Collateral estoppel” is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.’ Ashe v. Swenson, 397 U. S. 436, 443 (90 SC 1189, 25 LE2d 469). The Supreme Court held in Ashe that the Fifth Amendment guarantee against double jeopardy embodies collateral estoppel as a constitutional requirement. And the protections afforded by the double jeopardy clause are binding upon the states through the Fourteenth Amendment. Benton v. Maryland, 395 U. S. 784 (89 SC 2056, 23 LE2d 707). Our Georgia courts applied the doctrine of collateral estoppel so as to bar a criminal prosecution long before the principle] was deemed binding upon the states as a constitutional requirement. See Harris v. State, 193 Ga. 109 (17 SE2d 573). Additionally, the 1968 Georgia Criminal Code has embodied this concept within the provisions of [OCGA § 16-1-8]. . . .” (Indention omitted.) State v. Tate, 136 Ga. App. 181, 185 (IV) (220 SE2d 741) (1975); 1983 Ga. Const., Art. I, Sec. I, Par. XVIII.

Here, Clark did not contend that he was not the individual who was involved in the altercation, so the issue of participation was not precluded by the acquittals. He contends that those verdicts could only have been premised on it having been found as fact that he never had possession of the gun. That does not necessarily follow. As explained by the court in denying the motions, the jury could have concluded that Clark had the gun but did not assault or attempt to rob the cab driver with it. We agree, as the elements differ. Tate, supra. Intentional possession itself was sufficient; no other crime need be involved. State v. Fowler, 182 Ga. App. 897, 898 (357 SE2d 329) (1987).

2. There was no error in the denial of the motion for new trial on the ground of insufficiency of the evidence, contrary to what is also enumerated.

Judgment affirmed.

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


text:
    A89A1817.
    In the Interest of B. J. H., a child.
    (390 SE2d 427)
   Beasley, Judge.

H. D. H., age 24, appeals from an order terminating her parental rights to her minor son, B. J. H., two years old in January 1990. She contends that the juvenile court committed reversible error by: 1) granting the termination when the State (actually the Department of Human Resources) failed to prove by clear and convincing evidence that the cause of the child’s deprivation was likely to continue; 2) abusing its discretion in ordering the termination of parental rights; 3) overruling a motion to continue the hearing and to examine the psychologist who prepared reports previously stipulated into the record.

I. The statutory criteria for the termination of parental rights is the two-step procedure of OCGA § 15-11-81 (a). First the court determines whether there is clear and convincing evidence of parental misconduct or inability. Second the court considers whether termination is in the best interest of the child. In the Interest of G. K. J., 187 Ga. App. 443, 444 (3) (370 SE2d 490) (1988). Parental misconduct is determined by finding: 1) the child is deprived; 2) lack of proper parental care or control is the cause of the deprivation; 3) such deprivation is likely to continue or will not be remedied; 4) continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). Among the factors which may be considered with regard to a child lacking proper parental care or control are: medically verifiable deficiency of the parent’s mental or emotional health of such duration or nature as to render the parent unable to provide adequately for the child’s needs; conviction of a felony and imprisonment which has a demonstrable negative effect on the quality of the parent-child relation; physical, mental or emotional neglect of the child. OCGA § 15-11-81 (b) (4) (B). Another consideration is whether the parent without justifiable cause failed significantly for a period of one year or longer to comply with a court ordered plan designed to reunite the child with the parent. OCGA § 15-11-81 (b) (4) (C) (iii).

The standard of appellate review where a parent’s rights to his child have been severed is “ ‘whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.’ ” Blackburn v. Blackburn, 249 Ga. 689, 694 (292 SE2d 821) (1982).

The trial court made very detailed and comprehensive findings regarding the criteria. It specifically found that the causes of deprivation were likely to continue based on the mother’s mental and emotional deficiencies, which rendered her incapable to provide for the child’s needs. H. D. H. was unmarried and the putative father’s whereabouts were unknown. She was mentally retarded and functionally illiterate, having a full scale I. Q. of 60 and a reading level of a third grader. There was testimony demonstrating that she was incapable of caring for her young child and the trial court so found. She was unable to perform parenting skills such as recognizing a medical emergency, measuring formula, or giving medical dosages over a particular time span. She failed to attend parenting classes or follow recommended plans for improving her ability to care for her child.

H. D. H. had revealed an incapacity to curb her volatile temper which manifested itself in violent ways. She had threatened to kill her child and to commit suicide. She had attempted suicide and had been hospitalized at Georgia Mental Health Institute. H. D. H. was convicted and is presently serving sentences for cruelty to her son during the first month of his life and for aggravated assault of another minor child, her nephew. Because her mental condition was irreversible and because of the negative prognosis of improvement in her ability to curb her temper or to carry out parental functions, the trial court’s finding that the deprivation would continue and would cause harm to the child was authorized by the evidence. See In the Interest of R. L. H., 188 Ga. App. 596 (373 SE2d 666) (1988); In the Interest of R. E. C., 187 Ga. App. 35, 38 (369 SE2d 323) (1988); In the Interest of J. L. Y., 184 Ga. App. 254, 256 (361 SE2d 246) (1987); In the Interest of D. S., 176 Ga. App. 482, 483 (1) (336 SE2d 358) (1985). The standards of Blackburn, supra, were met.

2. The primary argument advanced in support of the mother’s contention that the trial court abused its discretion in severing her parental rights was that the trial court manifested a prejudice towards the mother because of her mental retardation. This was predicated on certain remarks by the trial court regarding the capacity of a mentally retarded mother to care for her child and to carry out parental responsibilities as the child developed. In context, we interpret these to be expressions of concern as to the mother’s abilities rather than a biased approach towards her. A mental disability that renders a parent incapable of caring for the child is a valid legal basis for termination. In the Interest of J. C., 242 Ga. 737, 738 (1) (251 SE2d 299) (1978); In re S. R. J., 176 Ga. App. 685, 686 (337 SE2d 444) (1985); In the Interest of T. R. G., 162 Ga. App. 177 (290 SE2d 523) (1982). H. D. H.’s lack of capacity resulting from her mental condition was properly considered by the trial court and its comments did not demonstrate an abuse of discretion.

3. Error is asserted on the failure to grant a continuance in order to subpoena a clinical psychologist who examined H. D. H. and the admissibility of whose report the parties, by stipulation, had agreed. Insofar as the record reveals, H. D. H. had ample opportunity to depose the psychologist or to insure that she was called as a witness at the hearing. Waiting until the proceedings were underway constituted dilatory action. It was not an abuse of discretion to deny the request for continuance. OCGA §§ 9-10-166 and 167; Stanley v. Amos, 79 Ga. App. 297, 300 (53 SE2d 568) (1949).

Decided January 22, 1990.

Ronald C. Conner, for appellant.

Barksdale, Barksdale & Irwin, David B. Irwin, Strauss & Walker, C. Michael Walker, Rebecca P. Dally, Michael J. Bowers, Attorney General, Carol A. Cosgrove, William C. Joy, Senior Assistant Attorneys General, for appellee.

Judgment affirmed.

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


text:
    A90A0069.
    WAITS v. THE STATE.
    (390 SE2d 296)
   Deen, Presiding Judge.

The appellant, Charles Waits, was convicted of driving a car on August 17, 1988, after having been declared a habitual violator. The only issue on appeal concerns the validity of the notice and service of the notice of declaration of habitual violator and revocation.

The Department of Public Safety had issued official notices of revocation on February 7, 1986, and on August 9, 1985, but was unsuccessful in its attempted service by certified mail. On May 15, 1987, Waits was arrested in Gwinnett County and charged with DUI. A Gwinnett County police officer, after discovering that Waits had previously been declared a habitual violator but had not been served, completed a Department of Public Safety official notice of revocation, purporting to provide the same notice as that attempted on February 7, 1986. (The officer apparently erred in indicating a revocation date of February 4, 1986.) The officer read the notice to Waits, who in turn refused to sign it, and this service and refusal was witnessed by another Gwinnett County police officer. There was no evidence that Waits did not understand this notice. The form was then returned to the Department of Public Safety. Waits denied this occurrence.

We find this personal service sufficient to satisfy the intent and notice requirements‘of OCGA § 40-5-58 (b). Cf. Cooper v. State, 156 Ga. App. 108 (274 SE2d 112) (1980); Wellons v. State, 152 Ga. App. 523 (263 SE2d 212) (1979); see also Stowe v. State, 176 Ga. App. 169, 171 (335 SE2d 431) (1985). Waits’ testimony that the Gwinnett officers never read or otherwise gave him the habitual violator notice merely presented a factual question for jury resolution.

Decided January 22, 1990.

John D. McCord III, for appellant.

Robert E. Wilson, District Attorney, Robert E. Statham III, Desiree L. Sutton, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A0298.
    ROSS v. THE STATE.
    (390 SE2d 429)
   Deen, Presiding Judge.

Appellant Ross was convicted on charges of sale and distribution of cocaine. On appeal he enumerates as error (1) the trial court’s allegedly impermissibly limiting voir dire by sustaining the State’s objection to a certain question; (2) the trial court’s denial of his motion for directed verdict of acquittal based on an alleged insufficiency of evidence; and (3) the denial of his motion for new trial on the asserted ground of recently discovered evidence. Held:

1. Appellant’s first enumeration is controlled adversely to his contention by Chastain v. State, 255 Ga. 723 (342 SE2d 678) (1986). In the instant case, according to the trial transcript, defense counsel asked the prospective jurors, “Would any of you have any reluctance in returning a not guilty verdict if there is just a suspicion of guilt?” The trial court sustained the State’s objection. In Chastain the trial court likewise sustained the State’s objection to defense counsel’s question as to whether any of the prospective jurors would be reluctant to return a “not guilty” verdict if they had a reasonable doubt as to defendant’s guilt. Id. at 724. This court held, “While the language of [OCGA § 15-12-133] is broad, the trial judge retains the discretion to limit the examination to questions dealing directly with the specific case. . . .” Id. See also Southern R. Co. v. Lawson, 256 Ga. 798 (353 SE2d 491) (1987). Finding no abuse of the trial court’s discretion, we will not disturb this ruling. This enumeration is without merit.

2. The direction of a verdict of acquittal is proper only where “there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal [emphasis supplied].” OCGA § 17-9-1; Hamm v. State, 187 Ga. App. 318 (370 SE2d 158) (1988). If there is any evidence of guilt, it is for the jury, rather than the court, to decide whether the evidence is sufficient to sustain a conviction. Castillo u. State, 166 Ga. App. 817 (305 SE2d 629) (1983). In the instant case there was ample competent evidence, consisting of two law enforcement officers’ testimony as well as other competent evidence, to warrant a conviction on the offense charged. Appellant’s second enumeration has no merit.

Decided January 22, 1990.

Perry, Walters & Lippitt, Nancy G. Grigg, for appellant.

Britt R. Priddy, District Attorney, L. Earl Jones, Assistant District Attorney, for appellee.

3. Appellant contends that the trial court improperly denied his motion for new trial on the basis of allegedly recently discovered evidence, citing in support of his position Shoffeitt v. State, 106 Ga. App. 543 (127 SE2d 495) (1962). In Shoffeitt, as in the instant case, the appellant’s brother made a statement to the effect that it was he, not the appellant, who had committed the crime. This court affirmed the trial court’s denial of the motion for new trial, holding, at 544, that appellant and his counsel should have filed “affidavits ... affirmatively stat[ing] that they did not know of the evidence during the trial; failing in this, they have no cause for a new trial on the ground of the alleged newly discovered evidence.” The same factual situation obtaining in the instant case as in Shoffeitt, we find no merit in appellant’s third enumeration.

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    A90A0320.
    SABEN APPLIANCES v. WALLER.
    (390 SE2d 431)
    Decided January 22, 1990.

      Hobart M. Hind, for appellant.
   Deen, Presiding Judge.

The plaintiff appellee commenced this action in a magistrate’s court, suffered an adverse judgment there, and appealed to the state court, where he won a judgment of $331.32. This appeal is subject to the discretionary appeal procedures under both OCGA § 5-6-35 (a) (6) and § 5-6-35 (a) (11). The direct appeal filed by the appellant therefore must be dismissed. Covrig u. Campbell, 187 Ga. App. 39 (369 SE2d 293) (1988). The appellee’s motion for damages for frivolous appeal, pursuant to OCGA § 5-6-6, is denied.

Appeal dismissed.

Pope and Beasley, JJ., concur.

Baxter C. Howell, Jr., for appellee.