author: Eldridge, Judge.

text:
    A00A1462.
    JACK v. THE STATE.
    (536 SE2d 235)
   Eldridge, Judge.

A Chatham County jury found Brian T. Jack guilty of three counts of aggravated assault, two counts of possession of a firearm during the commission of a crime, aggravated battery, fighting words, reckless conduct, and discharging a gun on or near a street. The charges arose from an incident on Halloween night, 1997, wherein Jack became enraged at another man who told Jack to drive slower through a subdivision because children were “trick or treating” therein. Following a physical encounter with the man, Jack pulled a gun, shot the man in the stomach, and pointed his gun at a bystander. Jack appeals his conviction. Upon review, we affirm.

1. Under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient to sustain the verdict. The incident was witnessed by numerous people who were out “trick or treating” in the subdivision. Accordingly, the State put forth eyewitness testimony that Jack became enraged at being told by the victim to slow down in his own subdivision; that Jack was cursing the victim loudly; that a crowd of two or three “Dads” gathered around and told Jack “you need to watch your language, you need to slow down, you need to leave”; that Jack provoked the victim to approach his vehicle to fight by cursing the victim repeatedly and screaming “you son of a bitch, you come back here and I’ll show you whose worth it”; that the victim hit Jack in the face and, almost simultaneously, Jack shot the victim in the stomach; that the victim was unarmed; that Jack exited his vehicle with the weapon and pointed it at an off-duty police officer who had tried to intervene; and that, after arrest, Jack stated to the transporting police officer that “I should have shot all four of them.” This evidence was sufficient for a rational trier of fact to have found Jack guilty beyond a reasonable doubt of the offenses for which he was convicted. Metts v. State, 210 Ga. App. 197 (1) (435 SE2d 525) (1993).

2. We find no violation of the Rule of Sequestration in permitting Chatham County Police Detective M. Izzo to remain in the courtroom during trial. Detective Izzo was the off-duty policeman who was on the scene at the time of the incident; he arrested Jack; and he also wrote the original police report about the incident. The prosecutor asked that Izzo “be allowed to stay in the Courtroom with me to assist me.” “This court previously has held that in similar circumstances, the exception of a witness from the rule of sequestration does not constitute an abuse of the trial court’s discretion.” Sweat v. State, 203 Ga. App. 290 (1) (416 SE2d 845) (1992). We find no legal basis for Jack’s contention that the above exception to the Rule applies only to the police department’s officially designated “lead investigator” of the incident. The exception has been applied to expert witnesses, material witnesses, and others needed to assist the prosecution (or defense) at trial. See, e.g., Ridley v. State, 235 Ga. App. 591, 596 (2) (510 SE2d 113) (1998); Allen v. State, 208 Ga. App. 854 (2) (432 SE2d 600) (1993); Greenway v. State, 207 Ga. App. 511, 514 (4) (428 SE2d 415) (1993).

Further, a violation of the sequestration rule affects only the weight and credibility of the witness’ testimony, not its admissibility. Staley v. State, 224 Ga. App. 806, 809 (3) (482 SE2d 459) (1997). Although Jack “could have sought to impeach the witness’ testimony based on h[is] presence in the courtroom throughout trial, he did not do so. Therefore, he cannot now claim that he is entitled to a new trial.” Ridley v. State, supra at 596. See also Tiller v. State, 267 Ga. 888, 891 (5) (485 SE2d 720) (1997), overruled on other grounds, Dunagan v. State, 269 Ga. 590, 593 (2) (a), n. 3 (502 SE2d 726) (1998).

3. We find no error in the trial court’s charge to the jury on justification. The court charged the language of the justification statute, defense of self, and defense of habitation. Jack requested the charge as given by the trial court, including that the circumstances must be such as would excite the fears of a reasonable man and that “[f]or the use of force to be justified under the law, the accused must have really acted under the influence of these fears and not in a spirit of revenge.” As a matter of law, it is an essential element that, for justification to apply, the act must be committed under the fears of a reasonable man and not committed in a spirit of revenge. Lackey v. State, 217 Ga. 345, 347 (122 SE2d 115) (1961).

By way of contrast, Jack also submitted Request to Charge No. 14 as follows:

When one contends that he acted under the fears of a reasonable man, that is, under apparent rather than absolute necessity, it must appear that he did act under such fears and not in a spirit of revenge. However, if he must take his adversary’s life in order to save his own or to prevent commission of felony upon his person, property, or habitation, then it matters not what feelings of malice or revenge he may also entertain.

This language, culled from the case of Crolger v. State, 88 Ga. App. 566, 568 (77 SE2d 98) (1953), is not a jury charge but was offered in Crolger v. State, supra, as an explanation for why it is error to charge a jury that “no matter what the circumstances might be, a killing which is committed in a spirit of revenge is never justifiable.” See also Surles v. State, 148 Ga. 537, 538 (5) (97 SE 538) (1918). However, the trial court in this case did not charge the jury that an act that is committed in a spirit of revenge is never justifiable. The motive for an act is for the jury to determine, as is the issue of whether a defendant acted under the fears of a reasonable man. Laney v. State, 184 Ga. App. 463, 466 (361 SE2d 841) (1987). And thus, the requested language from Crolger v. State, supra at 568, was not relevant under the circumstances and would serve only to confuse. “A request to charge must embody a correct, applicable and complete statement of law, . . . and it must not be so phrased as to have [a] tendency to confuse and mislead the jury or to becloud the issues in the case.” (Citation and punctuation omitted.) Dill v. State, 235 Ga. App. 265, 267 (508 SE2d 739) (1998). We find no error in the trial court’s refusal to give Jack’s Request to Charge No. 14.

4. There was no error in the admission into evidence of a liquor bottle found in Jack’s jacket pocket at the time of his arrest. There was an initial objection to the bottle, and the trial court reserved ruling on its admission. However, the State later tendered the bottle; the trial court asked if there was any objection; and defense counsel answered “None, Your Honor.” “The failure to object to the admission of evidence at trial constitutes a waiver of the right to raise the issue on appeal. [Cit]” Rhodes v. State, 271 Ga. 481, 482 (2) (521 SE2d 579) (1999).

5. Jack contends the trial court erred in allowing his statement to the police to come into evidence, since he had not received Miranda warnings prior to giving the statement. However, the trial court held a hearing on this issue and received testimony from Officer M. Allen to whom Jack spoke. Allen testified that he had not given Jack Miranda warnings but that Jack spontaneously made the statement “I should have shot all four of them”; that Allen was not questioning Jack at the time he made the statement; and that Jack’s statement “come out of nowhere — he just said that. I don’t know why he said it, but we was [sic] not talking about the incident.” Jack did not testify at the hearing as to this issue. The trial court found that, while Jack was in custody at the time of the statement,

no interrogation had been initiated by the officer or any agent of the State. That there were no words or actions on the part of the police that would reasonably or likely elicit any incriminating response from the Accused or the Arrestee. Therefore, the Court is going to rule that Miranda doesn’t even apply and the statement is admissible.

A trial court’s findings of fact and credibility following a Jackson-Denno hearing must be accepted by an appellate court unless clearly erroneous. Yorker v. State, 266 Ga. 615, 617 (4) (469 SE2d 158) (1996). Here, the trial court found that Jack’s pre-Miranda inculpatory statement to Officer Allen was not subject to suppression because it was not the product of an interrogation or its functional equivalent. See Metts v. State, 270 Ga. 481, 483-484 (3) (511 SE2d 508) (1999). Since the trial court’s finding is supported by the evidence and is not clearly erroneous, the trial court did not err in ruling Jack’s statement admissible. Blackwell v. State, 270 Ga. 509, 511 (512 SE2d 233) (1999).

6. Jack claims he received ineffective assistance of counsel at trial because his trial attorney failed to (a) introduce medical record evidence that the victim was intoxicated at the time of the incident, and (b) introduce a booking photograph showing Jack’s facial injuries caused by the victim’s assault.

To establish a claim of ineffective assistance of counsel, Jack must show both that his trial counsel’s performance was deficient and that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). Trial strategy and tactics do not equate with ineffective assistance of counsel. Brantley v. State, 230 Ga. App. 651, 653 (497 SE2d 399) (1998). “A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. [Cit.]” Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990).

Decided June 22, 2000

Reconsideration denied July 17, 2000

Zipperer & Lorberbaum, Alex L. Zipperer, Eric R. Gotwalt, for appellant.

Spencer Lawton, Jr., District Attorney, Margaret E. Heap, Assistant District Attorney, for appellee.

At the hearing on the motion for new trial, Jack’s trial attorney testified that he was able to put before the jury evidence of the victim’s intoxication and evidence of Jack’s facial bruises in such a manner as would permit him to retain first and last closing argument. The attorney would have lost final close if he had sought admission of the medical record evidence and the booking photograph. “The decision involved in determining whether the benefit of presenting evidence on defense during a criminal trial outweighs the loss of first and last closing argument is one of trial strategy.” Brantley v. State, supra at 652-653. See Brown v. State, 268 Ga. 354, 357 (4) (a) (490 SE2d 75) (1997). That Jack’s current appellate attorney would have opted to lose final closing argument by presenting additional evidence of the victim’s intoxication and of Jack’s facial injuries does not render trial counsel’s contrary decision ineffective. Nor does it show that such additional evidence would have altered the outcome of the trial.

[T]he fact that trial counsel made decisions during trial with which appellant and his current counsel now disagree does not require a finding that the original representation of appellant was so inadequate as to amount to a denial of effective assistance of counsel. On neither of the two prongs of Strickland, supra, do we find a basis to declare a violation of defendant’s rights.

(Citation and punctuation omitted.) Brinson v. State, 191 Ga. App. 151, 155 (381 SE2d 292) (1989). Accordingly, the trial court’s determination that Jack received effective assistance of counsel was not clearly erroneous and must be affirmed.

Judgment affirmed.

Blackburn, P. J, and Barnes, J., concur.

       Jack makes an additional claim that the trial court should have required Detective Izzo to testify first. However, “[w]e will not address this argument made for the first time on appeal.” Roberson v. State, 241 Ga. App. 226, 231 (526 SE2d 428) (1999).

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A00A1221.
    DAVIS v. BUSHNELL.
    (537 SE2d 477)
   Mikell, Judge.

The trial court dismissed Rufus Davis, Jr.’s personal injury action due to his failure to serve the defendant, Angela Marie Bushnell. Davis appeals, and we affirm.

Davis first sued Bushnell on April 16, 1997, little more than a year after their April 6, 1996 automobile collision. Bushnell was served the day after suit was filed. The two-year statute of limitation expired on April 5, 1998. On February 19, 1999, the complaint was dismissed without prejudice, and, on April 19, 1999, it was refiled pursuant to the renewal provisions of OCGA § 9-2-61 (a).

On April 20, 1999, a sheriff’s deputy made a non est return of service, stating “subject has moved, no longer lives in Houston County.” Davis contacted the United States Postal Service on June 7, 1999, to obtain a new address for Bushnell but was notified that she still resided at the same address. However, a second attempt at service there failed on June 29. On that occasion, the return of service noted that Bushnell had moved from the state. No further effort to locate Bushnell was made until July 28, when Davis again contacted the Postal Service. This effort too proved fruitless.

The six-month period for “recommencing” the action under the renewal statute expired on August 18. Service of process in the renewed action clearly would have been proper any time on or before that date. On August 31, Bushnell filed a special plea, appearance and answer raising as defenses insufficiency of service of process and expiration of the statute of limitation, among others. A few days later, Bushnell filed a motion to dismiss, alleging that Davis’s claims were barred by the statute of limitation and laches. On September 13, Davis hired a private investigator, who was appointed as a special process server. In an affidavit submitted on September 22, the investigator detailed his ongoing, albeit unsuccessful, attempts to locate Bushnell. She has never been served. The trial court dismissed the complaint on November 2, 1999.

Davis contends the trial court erred in finding that he did not exercise “the greatest possible diligence” in serving Bushnell. However, the trial court’s order fails to reflect such a finding. Rather, the order recites that the complaint is dismissed “due to plaintiff’s unjustified delay in failing to serve defendant with service and process, as over five (5) months have passed since plaintiff filed suit and defendant has yet to be served. . . .”

A renewed lawsuit under OCGA § 9-2-61 (a) is an action de novo; therefore, the procedural requirements of filing a new complaint and perfecting service must be met anew. Diligence in perfecting service of process in an action properly refiled under OCGA § 9-2-61 (a) must be measured from the time of filing the renewed suit. Since service of the renewal action in this case was not perfected within the six-month renewal period, [Davis] would have the burden of showing that [he] acted in a reasonable and diligent manner in attempting to ensure that proper service was made as quickly as possible.

Bushnell argues that upon receipt of the first non est return of service on April 20, Davis became “obligated to exercise, not due diligence, but the greatest possible diligence to ensure proper and timely service.”

[I]n Wade, Presiding Judge Pope, in a special concurrence, discussed the origin and inconsistent use of the “greatest possible diligence” standard regarding service attempts. We agree with Judge Pope that the standard of “greatest possible diligence” in the context of assessing a plaintiff’s attempts at service should apply only in cases in which the statute of limitation has expired and the defendant has made an appearance in court raising a service defense.

However, in the case sub judice, we need not decide whether the standard of “greatest possible diligence” became applicable upon the filing of responsive pleadings which raised the defense or upon expiration of the six months allowed for renewing the action, because Davis’s delays in attempting to locate Bushnell failed to satisfy any standard of diligence. As noted earlier, service has never been perfected. Davis delayed 48 days after April 20 before attempting to secure information from the Postal Service. Another three weeks elapsed before Davis directed the sheriff’s office to make a second attempt to serve Bushnell. Then nearly a month elapsed until Davis simply contacted the Postal Service again. Davis delayed yet another 46 days before hiring a private investigator. Davis has offered no explanation for the delays in attempting to locate and serve Bushnell. Whether these delays show that Davis was guilty of laches in failing to exercise diligence in perfecting service was a matter within the trial court’s discretion.

Decided July 17, 2000.

Diane M. Zimmerman, for appellant.

Martin, Snow, Grant & Napier, Lisa M. Edwards, Jay C. Traynham, for appellee.

Considering the factual posture of the record, we cannot say the trial court would abuse its discretion by holding appellant failed to exercise due diligence in attempting to perfect timely personal service on appellee. . . . Granted, the trial court did not explicitly base its decision upon the failure of plaintiff to act in a reasonable and diligent manner, but. . . the court did not expressly show that it was not considering those essential factors. Accordingly, . . . this case need not be remanded. It is affirmed on the principle that in the absence of a contrary showing, the trial court will be presumed to have followed the law.

Although the trial court did not specify that its dismissal of the complaint was based on Davis’s failure to exercise due diligence, its finding of “unjustified delay” amounts to the same thing. A judgment right for any reason must be affirmed.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       See OCGA § 9-3-33; Peterson v. Ga. R. & Banking Co., 97 Ga. 798 (25 SE 370) (1896).

       See generally Collier v. Marsh, 203 Ga. App. 322, 323 (2) (416 SE2d 849) (1992), overruled by Hobbs v. Arthur, 209 Ga. App. 855 (434 SE2d 748) (1993), reaff’d by Hobbs v. Arthur, 264 Ga. 359, 361 (444 SE2d 322) (1994); see also Jones v. Cropps, 197 Ga. App. 313 (398 SE2d 295) (1990).

       (Citations and punctuation omitted.) McClendon v. 1152 Spring St. Assoc.-Ga., Ltd. III, 225 Ga. App. 333, 336 (484 SE2d 40) (1997).

        Mitchell v. Hamilton, 228 Ga. App. 850, 851 (1) (493 SE2d 41) (1997); Wade v. Whalen, 232 Ga. App. 765, 766 (1) (504 SE2d 456) (1998) (physical precedent only).

       Id. at 770-773.

        Parker v. Shreve, 244 Ga. App. 350, 352 (535 SE2d 332) (2000) (physical precedent only).

       See Mitchell v. Hamilton, supra, 228 Ga. App. at 851 (1) (plaintiff failed to explain the month-long gaps between her attempts at service).

        Jackson v. Nguyen, 225 Ga. App. 599, 600 (484 SE2d 337) (1997).

       (Citations and punctuation omitted.) Bailey v. Hall, 199 Ga. App. 602, 605-606 (2) (405 SE2d 579) (1991).

       Id.


author: Smith, Presiding Judge.

text:
    A00A0905.
    MANN et al. v. D. L. LEE & SONS, INC.
    (537 SE2d 683)
   Smith, Presiding Judge.

Ralph Mann, Jr. and his wife, Hermelinda Mann, brought this product liability action in Bacon County against D. L. Lee & Sons, Inc., the packers of a ham purchased by the Manns that they alleged was defective. The trial court granted D. L. Lee’s motion for summary judgment, and the Manns appeal. Finding no error, we affirm.

The record shows that Mrs. Mann purchased the ham on November 22, 1995, stored it in her refrigerator, and cooked it the following day for Thanksgiving dinner. No ham was consumed by either of the Manns on Thanksgiving day, and the ham was wrapped in foil and stored in the refrigerator. On November 24, 1995, the day after Thanksgiving, Mrs. Mann warmed portions of the ham, and Mr. Mann ate it for breakfast, along with eggs and grits. The ham did not appear to be bad; it did not look, taste, or smell bad. Several hours later, both Manns became ill with nausea, vomiting, abdominal cramping, and diarrhea. When the symptoms did not improve, they sought medical treatment at the emergency room of the local hospital.

The emergency doctor who treated them, Dr. James Elsey, diagnosed the illness as probable food poisoning. In an affidavit presented in support of D. L. Lee’s motion for summary judgment, Dr. Elsey stated that his “impression” of “gastroenteritis and food poisoning secondary to ham intoxication” was based upon his examination of the Manns, as well as upon what they told him. And both Mr. and Mrs. Mann “complained of nausea, vomiting and diarrhea after eating ham for breakfast.”

A stool culture performed on Mr. Mann to discover the responsible organism revealed no pathogens. The ham was kept in the Manns’ freezer. Mr. Mann testified on his deposition that he discarded it several years later, after the freezer was turned off accidentally, spoiling its contents. No tests were performed on the ham.

The Manns contend the trial court erred in granting summary judgment to the defendant because genuine issues of material fact remained for jury resolution. We do not agree. A person claiming injury from consuming allegedly unwholesome food must show a causal link between that food and the resulting illness.

Illness alone cannot establish proximate cause; a mere showing that a person became sick subsequent to eating food is insufficient. In the absence of direct evidence of the unwholesomeness or adulteration of the food, recovery could be supported by circumstantial evidence if every other reasonable hypothesis as to the cause of the plaintiffs illness could be excluded.

Decided July 18, 2000.

Michael B. King, for appellants.

Carr, Tabb, Pope & Freeman, Eric N. Van De Water, for appellee.

(Citations and punctuation omitted.) Meyer v. Super Discount Markets, 231 Ga. App. 763, 765 (1) (501 SE2d 2) (1998).

In this case, no direct evidence was presented that the ham was tainted. Any recovery, therefore, would have to be supported by circumstantial evidence that excluded every other reasonable hypothesis. No such circumstantial evidence was produced. Although Dr. Elsey had the “impression” that the Manns were sickened by the ham, this “impression” was partly formed by information provided by the Manns that they believed their illness was caused by bad ham.

Given that no laboratory test performed on the Manns revealed any pathogen responsible for their symptoms, that the Manns consumed other foods at the same time they ate the ham, and that the ham itself was not available for testing but had not looked, smelled, or tasted bad, the Manns could not carry their burden of excluding every other reasonable hypothesis as to the cause of their illness. See Edwards v. Campbell Taggart Baking Cos., 219 Ga. App. 806, 807-808 (1) (466 SE2d 911) (1996) (plaintiff ate a variety of foods prior to becoming ill, any one of which could have caused symptoms). The trial court therefore properly granted summary judgment to D. L. Lee.

Judgment affirmed.

Johnson, C. J, and Phipps, J., concur.

       Hermelinda Mann died during the pendency of this action, and her daughter, Connie Mann-Evans, was substituted for her mother as a party plaintiff.


author: Blackburn, Presiding Judge.

text:
    A00A1009.
    ROMAN v. THE STATE.
    (537 SE2d 684)
   Blackburn, Presiding Judge.

Timothy Bernard Roman appeals his conviction for four counts of armed robbery, contending that the trial court erred by: (1) denying his motion to sever trial; (2) admitting certain evidence regarding his identification by robbery victims during a pretrial lineup; and (3) allowing the State to introduce evidence of his character in violation of OCGA § 24-9-20 (b). For the reasons set forth below, we affirm.

Viewing the evidence in the light most favorable to the verdict, the record shows that Roman was indicted for six armed robberies occurring in Troup County within a one-month period. On May 4, 1994, Carrie Scott, an employee of Holmes Pharmacy, was robbed at gunpoint by a man wearing a hat and sunglasses. Prior to trial, Scott identified Roman from a photo array as the person who looked most like the robber, and she later definitively identified Roman as the perpetrator in a physical lineup. On May 9, 1994, Shelby Hanson, an employee of Corley Drugs was robbed at gunpoint by a man wearing a baseball cap and sunglasses. Prior to trial, Hanson identified Roman as the perpetrator in a lineup. On May 16, 1994, Teresa Hendricks and Gloria East, employees of SOS Cleaners, were robbed at gunpoint by a man wearing a baseball cap, a bandanna, and sunglasses. Prior to trial, both Hendricks and East identified Roman from a photo array as the person who looked most like the robber, and they later definitively identified Roman as the perpetrator in a physical lineup.

On May 18, 1994, Kathy Jones and Holley Hartley, employees of Shoe World, were robbed at gunpoint by a man wearing a baseball cap, a hood, a bandanna, and sunglasses. Prior to trial, both Jones and Hartley identified Roman as the perpetrator in a lineup. On June 2, 1994, Terri Johnston, an employee of The Gallery, was robbed at gunpoint by a man wearing a baseball cap, a bandanna, and sunglasses. Prior to trial, Johnston identified Roman as the perpetrator in a lineup. Finally, on June 4, 1994, Sheila Rogers, an employee of Stephen’s Grocery, was robbed at gunpoint by a man wearing a baseball cap, a scarf, and sunglasses. In addition, Rogers provided the police with the tag number of the car driven by the robber, and it was determined that this vehicle was registered to Roman’s girlfriend. Prior to trial, Rogers identified Roman as the perpetrator in a lineup. In addition, all of the witnesses positively identified Roman as the perpetrator during trial, and they indicated that this in-court identification was independent of any pretrial identifications including photo arrays and lineups.

After a jury trial, Roman was convicted for the robberies of SOS Cleaners, Shoe World, The Gallery, and Stephen’s Grocery. He was acquitted of the robberies of Holmes Pharmacy and Corley Drugs.

1. The evidence of record, as discussed above, was sufficient to support Roman’s convictions. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Roman contends that the trial court erred by denying his motion to sever the trial, arguing that he was unfairly prejudiced because he had to defend against six counts of armed robbery at one time. We disagree.

The determination whether to grant or deny a motion to sever the trial of separate criminal offenses is within the discretion of the trial court. Williams v. State, 178 Ga. App. 581, 584 (1) (344 SE2d 247) (1986). After reviewing the interests of the State and the accused, a trial court may properly deny a motion to sever when

the crimes alleged were part of a continuous transaction or series of similar transactions conducted over a relatively short time, and from the nature of the entire transaction, it would be difficult to present to a jury evidence of one of the crimes without also referring to or permitting evidence of the others.

(Punctuation omitted.) Rocha v. State, 234 Ga. App. 48, 53 (5) (506 SE2d 192) (1998).

In this case, the separate acts of armed robbery are strikingly similar. As the trial court found, the separate acts of robbery appear to be a spree of criminal activity involving a common modus operandi. In each robbery, the perpetrator, as described by the victims, had similar physical characteristics, wore the same type of clothing, and used the same means of pretending to make a purchase to get the victim to open the cash register. Furthermore, due to the similarity of the robberies, even if they were tried separately, each act would have been admissible in the trial of each other act as evidence of a similar transaction, Weaver v. State, 206 Ga. App. 560, 561 (1) (426 SE2d 41) (1992). Accordingly, the trial court did not abuse its discretion in denying Roman’s motion to sever. Redding v. State, 219 Ga. App. 182, 184 (3) (464 SE2d 824) (1995); see Cooper v. State, 253 Ga. 736, 737-738 (3) (325 SE2d 137) (1985); Anderson v. State, 238 Ga. App. 866 (519 SE2d 463) (1999).

3. Roman contends that the trial court erred by failing to suppress evidence of his identification during a pretrial lineup and during his trial. Specifically, Roman argues that his identification during the lineup and at trial by Scott, Hendricks, East, and Jones was tainted by the prior photo array shown to these witnesses. Roman theorizes that these witnesses definitively identified him in the lineup only because they had previously identified his picture as “the one most like the robber.”

In determining whether a due process violation occurred in the conduct of the pretrial confrontation between the eyewitness and the appellant, the test is whether the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. In this determination, the following factors will be considered: (a) opportunity to view the defendant at the time of the offense . . . ; (b) the witness’ degree of attention . . . ; (c) the accuracy of the witness’ prior description . . . ; (d) the level of certainty demonstrated . . . ; and, (e) the length of time between the crime and the identification.

(Citations omitted.) McCoy v. State, 190 Ga. App. 258, 260-261 (3) (378 SE2d 888) (1989).

Roman’s arguments are belied by the record in this case. Scott, Hendricks, East, and Jones all testified that they got a good look at Roman while the robberies were being committed and that their identification of him was based on the robbery itself. These witnesses further testified that their ultimate identification of Roman at trial was completely independent of any pretrial identification process. Accordingly, we find that Roman’s pretrial lineup was not impermissibly suggestive. Moreover, it did not affect the witnesses’ identification of Roman during trial.

Roman further argues, however, that he was deprived of his due process rights because his attorney was not present during the lineup. Here, Roman’s lineup occurred prior to his indictment, and

[t]he right to counsel attaches only to corporeal identifications taking place at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. Kirby v. Illinois, 406 U. S. 682, 689 (92 SC 1877, 32 LE2d 411) (1972).

(Punctuation omitted.) Brown v. State, 243 Ga. App. 430 (533 SE2d 453) (2000). As such, Roman’s argument is misplaced.

4. Finally, Roman contends that the trial court improperly allowed the State to cross-examine him regarding his prior criminal record, thereby putting his character in issue in violation of OCGA § 24-9-20 (b).

At the end of his direct examination, Roman’s counsel asked Roman if there was anything he would like to convey to the jury about his case. With regard to his identification by the victims, Roman responded, “I don’t know why they picked me because, I guess because I been in trouble before; and which I have. I don’t deny that. But I’m not the person.” Then, on cross-examination, the State asked Roman to explain this statement and asked him about his past criminal record.

There are numerous instances where the state may properly offer evidence that the defendant has committed prior crimes for a purpose other than to show the defendant is a person of bad character. The fact that such evidence may reflect adversely on the defendant does not place his character “in issue” within the meaning of OCGA § 24-9-20 (b).

Decided July 18, 2000.

Duncan, Thomasson, Leonard & Shattuck, Wesley T. Leonard, for appellant.

Peter J. Skandalakis, District Attorney, Julianne W. Holliday, Assistant District Attorney, for appellee.

(Citations omitted.) Jones v. State, 257 Ga. 753, 759 (1) (c) (363 SE2d 529) (1988).

Assuming [Roman] did not, merely by volunteering that he had been [in trouble before], put his character “in issue” within the meaning of OCGA § 24-9-20 (b) so as to permit rebuttal by the State, he nevertheless raised an issue which may be fully explored by the State on cross-examination. . . . The State, like any other party, has the right to conduct a thorough and sifting cross-examination of a witness as to any material issue. The State had the right to pursue the specifics of [the] topic [of Roman’s past trouble which Roman] had introduced. . . . [Roman] introduced this material issue and the State was entitled to explore it on cross-examination.

Wilkey v. State, 215 Ga. App. 354, 355 (450 SE2d 846) (1994).

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


author: Ruffin, Judge.

text:
    A00A0529.
    HUNT v. CITY OF ATLANTA et al.
    (537 SE2d 110)
   Ruffin, Judge.

Melame Hunt’s son, James, died while walking to school when he was struck by a car that ran a red light at an intersection near Wood-son Elementary School in Atlanta. The collision occurred at approximately 7:10 a.m., as James was on his way to participate in the school’s breakfast program. At that time, the school zone speed limit sign was not yet flashing, and the school crossing guard had not yet reported for duty. Hunt sued the Atlanta Board of Education and the City of Atlanta for wrongful death, alleging that the defendants were negligent and had maintained a hazardous condition or nuisance. The trial court granted summary judgment to the Board of Education on the ground that it was immune from suit. Hunt appeals, arguing that the Board’s immunity does not apply to nuisance actions. We disagree and affirm.

This case is controlled by our decision in Davis v. Dublin City Bd. of Ed. In Davis, the plaintiff’s son allegedly tripped over a rug placed at the entrance to the school and fell through a cracked glass door. The plaintiff sued the Dublin City Board of Education under theories of negligence and nuisance. We held that

[s]chool districts are political subdivisions of this State. The 1991 constitutional amendment extending sovereign immunity to the state and all of its departments and agencies includes school boards, such as the City of Dublin Board of Education in the case sub judice.

We noted that the essence of the plaintiff’s complaint was that the school “failed to exercise sound judgment in allowing what plaintiff alleges to be a hazardous condition to exist.” As the provision and maintenance of school facilities involve discretionary acts, the board of education was entitled to immunity.

Here, as in Davis, Hunt seeks to hold the Board liable for negligence and nuisance arising out of the Board’s performance of discretionary acts. These claims are barred by sovereign immunity.

Hunt contends, however, that actions against municipalities for nuisance are not barred by sovereign immunity. Although that is correct, the trial court granted summary judgment in favor of the Atlanta Board of Education only, so the liability of the City of Atlanta for any nuisance is not at issue here. Because a school board is not a municipality, the municipal nuisance exception to sovereign immunity does not apply. It follows that Hunt may not sue the Board for nuisance or for negligence. Accordingly, the trial court properly granted summary judgment in favor of the Board.

Judgment affirmed.

Andrews, P. J, and Ellington, J., concur.

Decided July 7, 2000

Reconsideration denied July 19, 2000

Biggins & Associates, Franklin N. Biggins, Bedelía C. Hargrove, for appellant.

Belinda E. Edwards, Yeun Soo Jo, for appellees.

       219 Ga. App. 121, 122 (1) (464 SE2d 251) (1995).

       (Citations and punctuation omitted.) Id.

       Id.

       Id.; see also Sheley v. Bd. of Pub. Ed. for the City of Savannah &c., 132 Ga. App. 314, 316-317 (2) (208 SE2d 126) (1974) (city school board had immunity from nuisance claim by mother whose son drowned in septic tank on school property which was left uncovered).

       See Hibbs v. City of Riverdale, 267 Ga. 337 (478 SE2d 121) (1996) (“While a municipality enjoys sovereign immunity from liability for negligent acts done in the exercise of a governmental function, it may be hable for damages it causes to a third party from the creation or maintenance of a nuisance.”).

       See Sheley, supra at 317 (3) (“Conceding, but not deciding, that the matters alleged and proved were enough to raise a factual issue as to whether a nuisance existed ... , it would not affix any liability to the defendant school board, for its status is greatly different from that of a municipality.”); see also Dollar v. Dalton Pub. Schools, 233 Ga. App. 827, 828 (1) (d) (505 SE2d 789) (1998) (“The school district... is not a municipality. The immunity which protects school districts and their officials applies equally to claims in negligence and nuisance”).


author: Pope, Presiding Judge.

text:
    A00A0775.
    TWIGGS COUNTY v. OCONEE ELECTRIC MEMBERSHIP CORPORATION.
    (536 SE2d 553)
   Pope, Presiding Judge.

This appeal arose from Twiggs County’s lawsuit to recover payments it made to the Oconee Electric Membership Corporation (“EMC”) between 1993 and 1994. The superior court granted summary judgment to the EMC, and we affirm.

The facts relevant to this appeal are undisputed. In 1984 Twiggs County initiated plans to make various road improvements in the county. To facilitate the work, the county contacted the EMC to request the movement of utility lines affected by the improvement projects. Over several years, at the county’s request, the EMC moved utility lines on several roads. After each utility line movement was complete, the EMC invoiced the county for the expense.

In 1993 Twiggs County, acting through its Board of Commissioners, voted to pay the entire expense incurred by the EMC moving the utility lines. This action was recorded in the county’s minutes. Nevertheless, there was never a contract between the county and the EMC regarding the utility pole removal.

For one year the county paid the EMC monthly in the amount of $6,007.50; the county stopped paying when it had paid the entire sum in August 1994. In May 1997, the county decided its payments to the EMC had been improper, and it filed suit to recover the money it had paid the EMC.

In the complaint, the county alleged from September 1993 until August 1994 it paid the EMC $6,007.50 each month. The county claimed the EMC was not entitled to be paid public funds and that the alleged contracts on which the invoices were based violated state law. Specifically, it claimed the contracts were unenforceable and void because they were not in writing; they were not entered on the minutes of the county; they were more than four years old and barred by the statute of limitation; and they were for the moving of poles within the right-of-way for which no payment was due. Accordingly, the county requested a refund of the $72,089.95 it had paid.

The EMC answered, claiming it was entitled to keep the money. The EMC then filed a motion for summary judgment, arguing the county’s claim was barred by the voluntary payment doctrine. See generally OCGA § 13-1-13. The EMC argued that because the county made a voluntary payment on the invoices, the invalidity or unenforceability of the initial contracts was not relevant. The county filed a cross-motion for summary judgment.

The superior court granted the EMC’s motion, finding that the proper time for the county to have asserted its defenses was when the EMC submitted the invoices and the county’s defenses to the underlying contract were moot after payment. For the same reasons, the court denied the county’s cross-motion.

Here, the county appeals, arguing the court erred in granting summary judgment. Specifically, the county argues there was never any written contract between the parties as required by OCGA § 36-10-1; there was no written contract entered on the Board of Commissioners’ minutes at the time the payments were made; that when the payments were made, the applicable statute of limitation had expired which extinguished any legal obligation of the county to pay; and that the payments therefore constituted an illegal gratuity prohibited by the State’s Constitution.

1. The county argues the Board of Commissioners made payments without a written contract and that it may now recover the payments because this agreement was illegal, ultra vires, void and unenforceable. We disagree and find the county’s argument lacks merit. The county approved and made the payments to the EMC; it could not after more than two years claim that its own actions were illegal because there was no written contract. Compare Ferguson v. Randolph County, 211 Ga. 103 (84 SE2d 70) (1954) (petition by taxpayers against county alleging contracts were not in writing and were for various reasons illegal was sufficient).

OCGA § 36-10-1 provides: “[a]ll contracts entered into by the county governing authority with other persons on behalf of the county shall be in writing and entered on its minutes.” See also OCGA § 32-4-61. And, the law is clearly established that in order to be enforceable, a contract with a county must be in writing. Hatcher v. Hancock County Commrs &c., 239 Ga. 229 (236 SE2d 577) (1977); PMS Constr. Co. v. DeKalb County, 243 Ga. 870 (257 SE2d 285) (1979). Nevertheless, in certain narrowly defined circumstances in which judgment in a case has already been entered, our courts have found the provisions of OCGA § 36-10-1 could not be raised because they were not timely asserted. See Hall County v. Smith, 178 Ga. 212 (4) (172 SE 645) (1934); Early County v. Fielder & Allen Co., 4 Ga. App. 268 (1) (63 SE 353) (1908) (after judgment county was not allowed to raise argument that contract with it was not written). In Malcom v. Fulton County, 209 Ga. 392 (8) (73 SE2d 173) (1952), the Supreme Court stated: “[i]t seems very clear to us that county commissioners cannot make a contract [o]n behalf of the county, fail to record it in discharge of their official duty, and then rescind it because it is not recorded, as the commissioners in this case undertook to do.” Id. at 400.

Similarly, in this case, the county may not now raise the argument that the provisions of OCGA § 36-10-1 were not followed when it paid the amounts and then waited more than two years to file suit to recover the monies paid. Compare Burke v. Wheeler County, 54 Ga. App. 81 (187 SE 246) (1936) (where public funds were illegally paid because the board of education exceeded its legal authority, it was proper for the county to bring a suit for recovery of money). Our decision comports with the doctrine of voluntary payments under OCGA § 13-1-13. In this regard, see Gulf Life Ins. Co. v. Folsom, 256 Ga. 400 (349 SE2d 368) (1986).

We emphasize this is not a case in which the EMC or another party seeks to enforce a contract for payment against the county based on an alleged contract with the county. In that context, these essential requirements of a valid contract with the county cannot be waived. See, e.g., Graham v. Beacham, 189 Ga. 304 (5 SE2d 775) (1939). In the context of such an action, the rule that an agreement must be in writing is absolute and applicable to every contract made with the county. See Cherokee County v. Hause, 229 Ga. App. 578 (494 SE2d 234) (1997).

We also note there is no allegation here that if the contract had been written, the county lacked authority to enter into this type of written contract. In other words, there is no claim the county exceeded its authority by entering into this contract, had it been written. Compare Gwinnett County v. Archer, 102 Ga. App. 813 (118 SE2d 97) (1960) (involving county’s suit against former commissioners predicated on breach of trust). See OCGA § 32-4-63; see generally Faulk v. Twiggs County, 269 Ga. 809 (504 SE2d 668) (1998). Furthermore, there is no argument there was any fraud on the county’s part or there were any facts which the county learned after paying the amounts which would impact its decision to pay. Accordingly, the superior court did not err in determining the summary judgment on the county’s complaint was appropriate.

2. Similarly, the county may not now argue that the statute of limitation had expired on the EMC’s claim to payment. Finally, there is no merit to the county’s arguments the payments here constituted a gratuity. Smith v. Bd. of Commrs. &c. of Hall County, 244 Ga. 133, 138 (2) (259 SE2d 74) (1979).

Decided June 27, 2000

Reconsideration denied July 19, 2000

Almand & Wiggins, O. Hale Almand, Jr., Samuel G. Alderman III, for appellant.

Nelson, Gillis & Smith, James F. Nelson, Jr., Tisinger, Tisinger, Vance & Greer, Charles D. Mecklin, Jr., for appellee.

Judgment affirmed.

Smith, P. J., and Miller, J., concur.

       The county also argued that it was entitled to compensation for the taking of its private property rights.

       We make no determination as to what the result would be had another party brought suit.


text:
    A00A0820.
    LEWIS v. THE STATE.
    (537 SE2d 111)
   Ruffin, Judge.

A jury found Rickie Lee Lewis and his co-defendant, Edwin Hall, Jr., guilty of conspiracy to defraud the State, Medicaid fraud, and theft by taking. On appeal, Lewis contends that his prosecution was barred by the statute of limitation. He also asserts that the trial court erred in admitting certain evidence and in instructing the jury. As Lewis’ contentions are without merit, we affirm.

The essential facts in this case were thoroughly set forth in this Court’s opinion in Hall v. State. Succinctly stated, the record shows that Lewis incorporated We Care Family Services, a nonprofit corporation that purportedly provided counseling services to Medicaid recipients. Dr. Hall, a psychologist, became affiliated with We Care, and he obtained a Medicaid provider number. Hall allowed Lewis to use his provider number, and Hall gave We Care a power of attorney to handle billing. Using Hall’s number, Lewis back-billed Medicaid for services rendered prior to Hall’s affiliation with We Care. Lewis continued to use Hall’s number to bill Medicaid for services that were never provided, or that were not provided by a licensed professional, or that were not medically necessary. Lewis and Hall divided the money they received. From 1994 through 1995, We Care was paid over half a million dollars.

1. In his first enumeration of error, Lewis contends that the trial court erred in failing to dismiss the charges, which Lewis asserts were barred by the statute of limitation. This claim of error was raised by Lewis’ co-defendant, Hall, and it lacks merit for the reasons set forth in Hall v. State.

2. In his second enumeration of error, Lewis argues that the trial court erred in admitting into evidence certain charts, graphs, and summaries. According to Lewis, the trial court should have excluded the evidence because it violated the “voluminous record rule.”

Although Lewis claims the trial court erred in admitting charts and graphs, he does not identify these items or provide citations to the record to show either that such evidence was tendered or that he objected. Thus, we do not consider any alleged error with respect to the introduction of charts or graphs as it is not this Court’s function to cull the record in search of error.

Lewis also contends that the trial court erred in admitting one document that summarized “patient records, including diagnoses, hours billed for services, billing codes and other billing and payment records and documents.” Lewis argues that the trial court should have excluded the summary because the auditor who created it did not review all of the “records.” Lewis apparently believes that the auditor had to review all of the medical records supporting the bills in order to introduce the summary. We disagree.

Contrary to Lewis’ contention, the document does not summarize medical records; it merely shows payment dates, reference numbers, and payment amounts. We fail to see why an auditor would review medical records in order to provide such financial information.

Assuming that an auditor is required to review such records, we still find no reversible error. In order to warrant reversal, Lewis must show harm as well as error. Although he asserts that he was prejudiced by the introduction of the summary, Lewis makes no attempt to demonstrate how he was prejudiced. The record is teeming with evidence of payments made to We Care. Given the abundant unobjectionable evidence of such payments, it is highly unlikely that this one summary influenced the jury’s decision to convict. Accordingly, this claim of error provides no basis for reversal.

3. In his final enumeration of error, Lewis contends that the trial court erred in instructing the jury. Specifically, Lewis asserts that the trial court erred in (a) refusing to charge the jury on a lesser included offense of false writings; (b) failing to charge the jury on the defense of good faith; and (c) failing to give a requested charge on duplicity. We address each assertion in turn.

(a) Without citing any authority, Lewis suggests that the offense of false writings is a lesser included offense of conspiracy to defraud the State. Lewis requested a charge on this lesser offense, and he argues that the trial court should have given it. Without providing any factual support or any argument of any kind, Lewis simply asserts that “[t]he charge was authorized by the evidence and should have been given.” As this claim of error is unsupported, it is deemed abandoned.

(b) Lewis argues that the trial court erred in failing to instruct the jury that “good faith is a complete defense to the charges in the indictment since good faith on the part of the defendant is inconsistent with specific intent to violate the law, or willfulness, which is an essential part of the charges.” Initially, we question whether “good faith” constitutes a proper legal defense. Even if it is a valid defense, we find no error. By asserting that he has acted in good faith, a defendant essentially asserts that he lacked criminal intent. Thus, if the jury is properly instructed on criminal intent, the trial court does not err in failing to charge the jury on “good faith.” Here, the trial court properly instructed the jury on criminal intent. Accordingly, the trial court did not err.

(c) Lewis contends that the trial court erred in failing to charge jurors on duplicity. Although Lewis did not request such a charge, his co-defendant, Hall, did. For the reasons set forth in Hall v. State, the trial court did not err in failing to give the instruction. Moreover, because Lewis did not submit a written request for a charge on duplicity, he has no grounds for complaint.

Judgment affirmed.

Andrews, P. J, and Ellington, J., concur.

Decided July 7, 2000

Reconsideration denied July 19, 2000

Herbert Adams, Jr., for appellant.

Thurbert E. Baker, Attorney General, Charles M. Richards, Senior Assistant Attorney General, Doris Williams-McNeely, Assistant Attorney General, for appellee.

       241 Ga. App. 454 (525 SE2d 759) (1999).

       Hall received approximately 50 percent, and Lewis received 20 percent. The remaining money was used for expenses.

       In his brief, Lewis asserts that he preserved this claim of error by filing a plea in bar in which he raised the statute of limitation. We note, however, that the record contradicts this assertion. Although Lewis’ co-defendant, Hall, raised the statute of limitation, Lewis did not.

       Supra at 461-462 (2).

        London v. State, 235 Ga. App. 30, 35 (5) (508 SE2d 247) (1998).

        Kollman v. State, 231 Ga. App. 630, 631 (3) (498 SE2d 745) (1998).

       Id.

       See Johnson v. State, 232 Ga. App. 717, 722 (2) (503 SE2d 603) (1998) (citing Court of Appeals Rule 27 (c) (2)).

       See Doughty v. State, 175 Ga. App. 317, 322 (7) (333 SE2d 402) (1985).

       See id. See also Haygood v. State, 225 Ga. App. 81, 82 (1) (483 SE2d 302) (1997) (defendant “urge[d] that no criminal intent was shown because she was acting [in] good faith”).

       See Doughty, supra.

       Supra at 459-461 (1).

        Baker v. State, 238 Ga. App. 285, 288 (3) (518 SE2d 455) (1999) (where there is no written request, the trial court does not err in failing to give the charge).


text:
    A00A0900, A00A0901.
    A00A0902.
    STEVENS v. THE STATE (two cases). HILL v. THE STATE.
    (537 SE2d 688)
   Mikell, Judge.

Samantha Stevens, Willie James Stevens, and Shawn Hill were jointly tried and convicted of a single count of trafficking in cocaine. The trial court denied their motions for new trial, and the defendants filed separate appeals. As the cases involve the same set of facts, we will consolidate them for disposition.

Viewed in the light most favorable to the verdict, the evidence reveals that Richmond County narcotics investigator Stacey Williams conducted three weeks of surveillance outside a residence in Hephzibah after neighbors complained of suspected drug activity there. Investigator Williams observed numerous suspicious transactions and ultimately retained a confidential informant (“CI”), who purchased cocaine at the home from an unknown, 40-year-old male. Investigator Williams then secured a search warrant and arranged for the Cl to make a second drug purchase on the premises.

The search warrant was immediately executed. Samantha Stevens was found sleeping with an infant on a bare bedroom floor. No drugs or drug paraphernalia were found in that bedroom or on Ms. Stevens’s person.

Ms. Stevens’s brother, Willie James Stevens, was found sitting on a couch in the living room. The search team found 40 grams of cocaine, $1,408 in cash, a .45 caliber pistol, a set of scales, Mr. Stevens’s driver’s license, an accident report bearing his name, a cellular phone, and men’s clothing in a nearby bedroom.

Hill was found in a bathroom flushing an empty plastic baggie down the toilet. The following items were found in the adjoining bedroom: 2.1 grams of rock cocaine, a .38 caliber pistol, and, in Hill’s pants, $40 in marked funds that the Cl had used to purchase cocaine immediately preceding the search. Investigator Williams testified that when Hill heard the search team discovering contraband in the bedroom containing Mr. Stevens’s personal items, Hill turned toward his dresser and exclaimed: “that’s all the crack cocaine I have right there on the dresser. . . . That’s not trafficking, so that’s a lesser charge.”

Case No. A00A0900

1. Ms. Stevens enumerates as error the denial of her motion for a directed verdict of acquittal, arguing that the state failed to produce any evidence showing that she possessed the cocaine. We agree and reverse her conviction.

The relevant element of trafficking in cocaine is knowing possession of 28 grams or more of cocaine. Possession may be joint or exclusive and actual or constructive. Spatial proximity alone is insufficient to prove joint constructive possession of contraband. Mere presence, without proof of participation, is insufficient to support a conviction. Rather, the state must show that the defendant had the power and intent to exercise control over the cocaine.

[MJerely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime. For the equal access rule to rebut the inference of defendant’s possession of contraband, affirmative evidence must be presented that a person other than the defendant had equal access to the premises where the contraband was found.

Investigator Williams admitted at trial, and the state concedes in its appellate brief, that no evidence was found connecting Ms. Stevens to the cocaine. The room where Ms. Stevens was found asleep contained nothing more than a “couple of baby items.” No drugs were found on her person or in the room. The residence was not leased in her name.

Other than her presence, the only evidence suggesting that Ms. Stevens occupied the premises was the fact that the power bill was addressed to her. However, this evidence was rebutted by testimony indicating that Ms. Stevens permitted the account to be opened in her name because her co-defendants had poor credit ratings and were unable to establish their own account. Moreover, the evidence shows that personal items belonging to the co-defendants were found along with the cocaine. Hill’s incriminating statement was introduced into evidence. Thus, evidence was presented to show that Ms. Stevens’s co-defendants had equal access to the bedrooms where the contraband was found and an equal opportunity to commit the crime. It follows that the trial court erred in denying Ms. Stevens’s motion for a directed verdict of acquittal.

Case No. A00A0901

2. We reject Mr. Stevens’s argument that the evidence was insufficient to support his conviction.

Viewed in the light most favorable to Mr. Stevens’s conviction, the evidence shows that his driver’s license, an accident report bearing his name, men’s clothing, a .45 caliber pistol, a cellular telephone, and scales were found in the bedroom in which the 40 grams of cocaine and $1,408 in cash were discovered. This evidence authorized the jury to find beyond a reasonable doubt that Mr. Stevens had joint constructive possession of the cocaine and was guilty as a party to the crime of trafficking in cocaine.

3. Mr. Stevens next asserts that the state committed racial discrimination during jury selection by exercising four of its six peremptory strikes against African-Americans. We find no error in the denial of Mr. Stevens’s Batson motion.

The prosecutor explained that he struck three of the prospective jurors because he believed that they were mentally challenged, based on their unresponsiveness to voir dire questions. The prosecutor stated that he struck the fourth juror because she was a teacher and might have come into contact with the defendants’ children at the school where she taught. “Unless a discriminatory intent is inherent in the . . . proponent’s explanation [for a strike], the reason offered will be deemed race neutral.” “A trial court’s determination of a Bat son challenge rests largely upon assessment of the attorney’s state of mind and credibility; it therefore lies peculiarly within a trial judge’s province.”

The trial court’s ruling must be affirmed unless it is clearly erroneous. We cannot conclude that the trial court erred in determining that the state offered nondiscriminatory reasons for striking the jurors in question.

4. Mr. Stevens also argues that the trial court erred in denying his motion to suppress the evidence seized pursuant to the search warrant, contending that the supporting affidavit failed to establish probable cause that cocaine was present in the residence where the search was executed.

In determining whether an affidavit sufficiently establishes probable cause, the totality of the circumstances analysis is to be employed. Under this test, the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.

In the case at bar, the magistrate had a substantial basis for finding probable cause. The affiant, Investigator Williams, had observed the residence at various times of the day and night during the three-week period immediately preceding the issuance of the warrant. During that time, Investigator Williams had seen several known drug dealers enter the residence, as well as a great deal of vehicular traffic between 1:00 a.m. and 5:00 a.m. Moreover, within 24 hours of the issuance of the warrant, Investigator Williams observed the Cl making a controlled drug buy at the residence. Additionally, Investigator Williams vouched for the Cl’s reliability, testifying that he had given information leading to an arrest for possession of cocaine within two months of his application for the instant search warrant.

Under the totality of the circumstances, the magistrate had a substantial basis for concluding that probable cause existed. Accordingly, the trial court did not err in denying Mr. Stevens’s motion to suppress.

5. Mr. Stevens next asserts that the trial court erred in permitting Investigator Williams to testify that the cocaine was found in the bedroom “belonging to Willie James Stevens.” Citing Fordham v. State, he contends that the testimony at issue was impermissible opinion evidence which invaded the jury’s province. Even assuming arguendo that the evidence was erroneously admitted, it is highly improbable that the error contributed to the verdict.

6. Next, we reject Mr. Stevens’s contention that the trial court erred in denying his motion for mistrial, made after the prosecutor allegedly called him a killer during opening statements.

The prosecutor denied making the accusation, and the opening statements were not transcribed. In any event, the trial court instructed the jury to disregard the comment and pointed out that “this is not a murder case.” Mr. Stevens then failed to renew his motion for mistrial, thereby waiving any error.

Case No. A00A0902

7. The evidence was sufficient to support Hill’s conviction as a joint constructive possessor of more than 28 grams of cocaine.

Viewed in the light most favorable to the verdict, the evidence shows that marked money the Cl used to purchase cocaine was found in Hill’s pants. Cocaine found in a lock box on the premises was packaged in plastic baggies, and Hill was caught just after flushing the contents of a baggie down the toilet. Finally, Hill’s exclamation denying possession of a sufficient amount of cocaine to sustain a trafficking charge demonstrated his criminal intent.

Under OCGA § 16-2-20 (a) every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. One is concerned in the commission of a crime where the person either directly commits, intentionally causes another to commit, intentionally aids or abets the commission of, or intentionally advises or otherwise encourages another to commit the crime. . . . Criminal intent may be found by the jury upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.

The evidence was sufficient under the standard of Jackson v. Virginia to find Hill constructively possessed the cocaine and was guilty as a party to the crime of trafficking in cocaine.

8. Finally, Hill contends that he was denied effective assistance of counsel. Hill’s appellate counsel was appointed after the notice of appeal was filed. Where, as here, the appeal presents the earliest practicable opportunity to raise an ineffectiveness claim, this Court generally grants the defendant’s motion to remand the case to the trial court for an evidentiary hearing. However, remand is not required when it appears as a matter of law that the defendant cannot establish that his trial counsel’s performance was deficient.

The first alleged deficiency is trial counsel’s failure to raise a hearsay objection to Investigator Williams’s testimony relaying statements the CI made to Williams about Hill. As the testimony was offered to explain Investigator Williams’s actions in pursuing the investigation, it was not hearsay. Thus, trial counsel’s performance was not deficient in this regard.

Hill further claims his trial counsel was deficient by failing to object to the introduction of Hill’s incriminating statement on the ground that the state failed to provide it to the defense prior to trial, as required by OCGA § 17-16-4 (a) (1). However, the statute applies to custodial statements, and Hill’s incriminating statement was a spontaneous, unsolicited utterance, involving no police interrogation. Thus, trial counsel’s performance was not deficient in this regard, and remand is not required. The motion to remand is denied.

Judgments affirmed in Case Nos. A00A0901 and A00A0902. Judgment reversed in Case No. A00A0900.

Pope, P. J., and Miller, J., concur.

Decided July 19, 2000.

Paul W. David, for appellant (case no. A00A0900).

Ellis R. Garnett, for appellant (case no. A00A0901).

Donald E. Evans, for appellant (case no. A00A0902).

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

       OCGA § 16-13-31 (a) (1) (A).

       Id.

        Lawrence v. State, 238 Ga. App. 102, 103 (1) (517 SE2d 822) (1999).

        Paden v. State, 216 Ga. App. 188, 189 (1) (453 SE2d 788) (1995).

        Cooper v. State, 237 Ga. App. 837, 838 (2) (517 SE2d 85) (1999).

       (Citation and punctuation omitted.) Mathis v. State, 204 Ga. App. 896, 898 (1) (420 SE2d 788) (1992); see also Childers v. State, 218 Ga. App. 457 (462 SE2d 412) (1995).

       Compare Sing v. State, 217 Ga. App. 591 (458 SE2d 493) (1995), where defendant told police he leased the apartment and knew drugs were being sold there.

        Shreve v. State, 172 Ga. App. 190, 191 (322 SE2d 362) (1984).

       See Morrison v. State, 220 Ga. App. 151, 152-154 (1) (a) (469 SE2d 686) (1996); Nations v. State, 177 Ga. App. 801-802 (1) (341 SE2d 482) (1986).

        Cooper v. State, supra, 237 Ga. App. at 838 (2); see generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       See Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

       (Citation and punctuation omitted.) Jenkins v. State, 269 Ga. 282, 290 (11) (498 SE2d 502) (1998).

       (Citation and punctuation omitted.) Scott v. State, 240 Ga. App. 50, 52-53 (5) (522 SE2d 535) (1999).

       Id. at 52 (5), citing Turner v. State, 267 Ga. 149, 151 (2) (476 SE2d 252) (1996); see also Weaver v. State, 200 Ga. App. 82 (2) (406 SE2d 574) (1991).

       (Citations and punctuation omitted.) Williams v. State, 239 Ga. App. 671 (522 SE2d 43) (1999); see also Burgess v. State, 232 Ga. App. 441, 443-444 (1) (502 SE2d 303) (1998).

       Id.

       254 Ga. 59 (4) (325 SE2d 755) (1985).

        Vincent v. State, 264 Ga. 234, 235 (442 SE2d 748) (1994).

        Baker v. State, 230 Ga. App. 813, 816 (4) (498 SE2d 290) (1998).

       (Citations and punctuation omitted.) McGhee v. State, 229 Ga. App. 10, 11 (492 SE2d 904) (1997).

       See Smith v. State, 235 Ga. App. 223 (510 SE2d 295) (1998).

        Setser v. State, 233 Ga. App. 822, 824 (505 SE2d 798) (1998); Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996).

        Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984); see Johnson v. State, 214 Ga. App. 404 (1) (447 SE2d 711) (1994).

        Copeland v. State, 228 Ga. App. 734, 737 (2) (492 SE2d 723) (1997) (police conduct in pursuing investigation within well-established exception to rule against hearsay).

        Kerrethers v. State, 169 Ga. App. 832, 834 (1) (315 SE2d 46) (1984); Holbrook v. State, 162 Ga. App. 400, 401-402 (1) (291 SE2d 729) (1982).


text:
    A00A1196.
    DAGEL v. LEMCKE.
    (537 SE2d 694)
   Mikell, Judge.

Mark R. Dagel filed a complaint for slander, defamation, and trespass against Emily Lemcke arising out of events that occurred during Lemcke’s successful 1998 campaign for Chair of the Cherokee County Board of Commissioners. The trial court granted summary judgment to Lemcke on all three counts. Dagel appeals the grant of summary judgment on the first two counts. We affirm.

The record reveals that on the night of August 10,1998, a Cherokee County deputy sheriff was dispatched to investigate a suspicious vehicle occupied by three men. When the deputy checked inside the car, he noticed campaign signs belonging to Lemcke and her opponents, Hollis Lathem and Jimmy Long. The driver of the vehicle, Willy,” stated that he had been hired by Dagel, a Cherokee County developer, to put up Lathem’s signs and to take down the other signs. The three men were arrested for theft by receiving.

Dagel deposed that Lemcke’s signs had been placed on his property and that he had removed them and placed them in Willy’s” vehicle. Later that day, Lathem asked Dagel for assistance in putting up campaign signs, and Dagel enlisted the services of Willy” and two of his friends. Dagel further deposed that the charges against the three men were “thrown out.”

The sheriff’s office notified Lemcke of the incident, but she declined to prosecute. However, the next day, Lemcke discussed the event with various members of the media, including a reporter from Channel 11 News (WXIA). WXIA broadcast the story that evening. As scenes related to the story appeared on screen, a reporter stated: “[Ajccording to the report, one of the accused said he did it for money . . . [seven] dollars an hour that he claimed was coming from local developer Mark Dagel [, a] man who is an admitted supporter of Lemcke’s opponent, current commission chair Hollis Lathem.” The segment then shifted to Lemcke, who uttered the words at the heart of this dispute: “I’m surprised they took this action. . . . [I]t’s so blatant, and smacks of illegality.”

1. Dagel contends genuine issues of material fact remain on his slander and defamation claims. We disagree.

(a) Dagel first argues that Lemcke’s televised remarks imputed to him a crime and thus constituted slander per se under OCGA § 51-5-4 (a) (1).

To constitute slander per se, . . . the words at issue must charge the commission of a specific crime punishable by law. Where the plain import of the words spoken impute no criminal offense, they cannot have their meaning enlarged by innuendo. Even though [Lemcke] may have used the term “illegal[ity],” [her] words did not accuse [Dagel] of committing any crime punishable by law.

The statement that the action reported by WXIA “smacks of illegality” does not, standing alone, impute the commission of any specific crime to Dagel. The trial court did not err in granting summary judgment to Lemcke on this ground.

(b) Next, Dagel contends that even if a crime was not imputed, Lemcke’s remarks are actionable under OCGA § 51-5-4 (a) (4) as disparaging words which caused him to suffer special damages.

This claim is likewise without merit, because Dagel failed to show that any damages he allegedly suffered flowed from the statement. Dagel testified that he lost a contract and was labeled “Public Enemy No. 1” by the local newspaper because he sued Lemcke. Thus, any alleged damages arose out of Dagel’s lawsuit rather than from Lemcke’s comments. Accordingly, the trial court did not err in granting summary judgment to Lemcke on this claim.

2. Finally, Dagel contends the trial court abused its discretion in failing to consider his amended motion to compel answers upon deposition prior to ruling on Lemcke’s motion for summary judgment. Upon the trial court’s inquiry, Dagel’s counsel stated that the additional discovery concerned possible slander committed by Lemcke “on other occasions.” Consequently, the trial judge held that such discovery was immaterial to the disposition of Lemcke’s motion for summary judgment. “The trial courts have broad discretion to determine what is and what is not discoverable, and this court will not interfere with those decisions absent a clear abuse.” Accordingly, the trial court did not err in hearing Lemcke’s motion for summary judgment without authorizing further discovery.

Decided July 19, 2000.

Douglas J. Davis, for appellant.

Robert M. Dyer, for appellee.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       (Citations and punctuation omitted.) Parks v. Multimedia Technologies, 239 Ga. App. 282, 293 (4) (520 SE2d 517) (1999).

       See OCGA § 51-5-4 (b) (evidence of special damage essential to action for disparaging words under OCGA § 51-5-4 (a) (4)).

       (Citation and punctuation omitted.) Smith v. U-Haul Co. Ga., 225 Ga. App. 356, 357 (1) (484 SE2d 49) (1997).

       Id.; see also Miles v. Great Southern Life Ins. Co., 197 Ga. App. 540, 543 (2) (398 SE2d 772) (1990).


author: Phipps, Judge.

text:
    A00A1319.
    NORTHSIDE HOSPITAL, INC. v. McCORD et al.
    (537 SE2d 697)
   Phipps, Judge.

Dr. Dale McCord and Atlanta Oncology Associates, P.C. (AOA) brought this action against the Hospital Authority of Fulton County, Northside Hospital, Inc., and Ridge Medical Center, Inc. Dr. McCord and AOA seek a judgment declaring a restrictive covenant in a sublease agreement between the parties unenforceable. Finding that plaintiffs have a substantial likelihood of success on the merits, and taking into consideration certain equitable factors, the superior court granted plaintiffs interlocutory injunctive relief. Defendants appeal. We conclude that the trial court did not abuse its discretion in granting the interlocutory injunction and, therefore, affirm.

Dr. McCord is a physician specializing in radiation oncology. He is a member of a group practice conducted by AOA. In addition to providing physician services, AOA owns and operates several radiation oncology service centers. The Hospital Authority of Fulton County owns and operates Northside Hospital.

In 1976, the Hospital Authority and Dr. McCord entered into an agreement styled “Northside Hospital Oncologist Contract.” Under the agreement, Dr. McCord (and eventually AOA) became the exclusive provider of oncology services to the Northside Hospital Department of Radiation Therapy. Dr. McCord was made the medical director of the radiation department but was classified under the exclusive provider agreement as an independent contractor rather than as a hospital employee. He retained the right to engage in the private practice of medicine, so long as such practice was not conducted within a six-mile radius of the hospital and did not conflict with his contractual responsibilities to the hospital. The term of the agreement was initially a 20-year period, beginning in 1976 and ending in 1996, and was to continue from year to year thereafter until terminated by the mutual consent of the parties or for various specified reasons related to Dr. McCord’s nonperformance or inability to perform his duties.

From the record, it appears that in 1990, AOA was developing a radiation oncology center in Alpharetta on land it owned; that AOA approached Northside in order to develop the facility on an adjacent tract owned by the hospital; and that, as negotiations between AOA and the hospital progressed, impending changes in the certificate of need law made it a practical necessity for AOA and Northside to develop the facility jointly.

In 1991, Dr. McCord, AOA, and the Hospital Authority entered into a “sublease agreement” for construction and operation of the radiation oncology center on Northside’s Alpharetta tract, which is approximately 15 miles from the hospital. The sublease agreement is between Ridge Medical Center as primary landlord, the Hospital Authority as sublandlord, AOA as subtenant, and McCord as guarantor. Under the sublease, the Hospital Authority leased improvements to be constructed by Ridge Medical on real estate owned by the Hospital Authority and then subleased the premises to AOA for operation of the radiation oncology center. The term of the sublease is 20 years. The sublease agreement contains a restrictive covenant under which AOA agreed

that, during the term of this Sublease, and for a period of two (2) years following the expiration or termination of the term hereof, neither Subtenant, nor any shareholder, officer or director, or an affiliate of any of them, shall own any ownership interest in, manage, operate, control, participate in, be an employee of, or be involved, either directly or indirectly, with a radiation therapy/oncology center performing the services performed by Subtenant in the Premises, within a 25-mile radius of the Premises, other than the current facilities operated by Subtenant. . . .

The sublease agreement also gives the Hospital Authority the right to terminate the sublease upon the termination of its exclusive provider agreement with Dr. McCord. If the sublease is terminated, the Hospital Authority is given an option to purchase Ridge Medical Center’s and AOA’s interest in the premises.

After the Alpharetta oncology center became operational, McCord and AOA continued as the exclusive provider of oncology services at Northside, treating some of Northside’s patients at the Alpharetta facility. But when the initial term of the exclusive provider agreement ended in 1996, Northside terminated the contract after the superior court in a declaratory judgment action ruled that it had a right to do so. Northside then instituted an open staffing policy in radiation oncology services, and Dr. McCord and AOA brought this suit.

1. Traditionally Georgia courts divide restrictive covenants into covenants ancillary to an employment contract, which receive strict scrutiny and are not blue-penciled, and covenants ancillary to a sale of business, which receive much less scrutiny and may be blue-penciled. There is also a middle level of scrutiny applicable to covenants found in professional partnership agreements.

A restrictive covenant contained in an employment contract will be upheld if the restraint imposed is not unreasonable, is founded on a valuable consideration, is reasonably necessary to protect the interest of the party in whose favor it is imposed, and does not unduly prejudice the interests of the public.

Whether the restraint imposed by the employment contract is reasonable is a question of law for determination by the court, which considers the nature and extent of the trade or business, the situation of the parties, and all the other circumstances. A three-element test of duration, territorial coverage, and scope of activity has evolved as a helpful tool in examining the reasonableness of the particular factual setting to which it is applied.

In this case, the trial court determined that the covenant not to compete should receive the same strict scrutiny as a restrictive covenant ancillary to an employment contract. The court concluded that the covenant is overly broad and unreasonable in both its territorial limitation and the scope of the activity prohibited.

2. Northside first contends that invalidation of the covenant violates Georgia’s public policy favoring freedom of contract.

A noncompetition covenant which imposes an unreasonable restraint on trade is void as against public policy. “[A]ll people who are capable of contracting shall be extended the full freedom of doing so if they do not in some manner violate the public policy of this state” The question, therefore, is whether the covenant at issue violates public policy. Resolution of this question turns upon considerations of reasonableness.

Pittman v. Harbin Clinic Professional Assn. involved territorial limitations in noncompetition covenants found in a medical partnership agreement and physicians’ employment contracts. The covenant in the medical partnership agreement was reasonable because the medical clinic in whose favor the. covenant was drawn drew its patients from the proscribed territory. The covenant in the employment contracts was unreasonable because that covenant applied to a geographic area more expansive than the territory in which the clinic’s patients were located. Because Northside has not shown that the clinic draws patients from a 25-mile radius, the geographic limitation in the covenant appears unreasonable.

Moreover, the covenant does not merely bar AOA from operating a competing clinic. It prohibits any shareholder, officer, director, or affiliate of AOA from being involved in any capacity with a competing clinic. “Ordinarily, proscription of such a broad scope of competing activity renders a noncompetition clause void. [Cit.]”

3. Northside argues that the covenant in the sublease should not receive the same strict scrutiny as those found in employment agreements because the bargaining power of the parties in this case was relatively equal.

In Herndon v. Waller, this court recently addressed the question of how to classify a covenant in a commercial lease prohibiting the lessee from competing with the lessor. Although there was no issue of unequal bargaining power in Herndon, we distinguished sale of business cases because the seller who covenants not to compete generally receives a part of the purchase price in compensation for his promise not to compete. Noting an absence of evidence that the lessee in Herndon had received any consideration for the covenant not to compete, this court held that

[s]ince the covenant not to compete was not made by the seller in conjunction with the sale of a business but was made by (a lessee) in conjunction with (the lease of premises . . . ancillary to the operation of) a business, the covenant receives the severe scrutiny given restrictive covenants ancillary to an employment [agreement].

Northside argues that Herndon is distinguishable because AO A received consideration for the noncompetition covenant by being relieved of the obligation to finance construction of the radiation oncology center. But lessees normally receive this type of consideration in exchange for assumption of their leasehold obligation to pay rent. Morever, construction financing would have been Ridge Medical’s obligation. Whether AOA received consideration from the Hospital Authority for the covenant not to compete was an issue of fact which the trial court was authorized to resolve in AOA’s favor.

Moreover, it has been held that the validity of restrictive covenants in commercial leases

is subject to the overriding requirements that, as to territoriality and/or duration, they be reasonably necessary to protect the interests of the covenantee, that they not impose greater restrictions upon the covenantor than are necessary for the covenantee’s protection, and that they not unduly prejudice the interests of the public. [Cits.]

Application of this test authorized the trial court’s interlocutory determination that the covenant at issue is unreasonable.

4. Northside charges the trial court with error in applying post-termination legal principles to a restrictive covenant in force during the term of the underlying agreement.

Northside relies on out-of-state cases such as Nelson v. Agro Globe Engineering. Nelson holds that “[t]he mischief sought to be prevented by examining the reasonableness of a post-employment covenant not to compete looms less threateningly where the restrictive covenant merely limits an employee from competing with the employer during the term of the contract. [Cit.]” We do not disagree with this general proposition. But it does not answer the question in this case, which is whether the restraints on competition imposed by the covenant during the term of the sublease and for a period of two years thereafter are reasonable.

Decided July 19, 2000.

Powell, Goldstein, Frazer & Murphy, James C. Rawls, Sara K. Wheeler, Holly A. Pierson, for appellant.

Gambrell & Stolz, Irwin W. Stolz, Jr., Robert G. Brazier, Seaton D. Purdom, Oliver & Winkle, David P. Winkle, for appellees.

Northside also argues that the covenant should be held enforceable under OCGA § 13-8-2.1 (d). Northside’s reliance on this statutory provision is misplaced, as it is part of a Code section that has been declared unconstitutional.

Judgment affirmed.

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

       See Zant v. Dick, 249 Ga. 799 (294 SE2d 508) (1982) (in application for interlocutory injunction, there should be balancing of conveniences and consideration of whether greater harm might be done by refusing than by granting the injunction).

        Allen v. Hub Cap Heaven, 225 Ga. App. 533, 540 (8) (484 SE2d 259) (1997).

        Habif, Arogeti & Wynne, P.C. v. Baggett, 231 Ga. App. 289-290 (1) (498 SE2d 346) (1998).

        Rash v. Toccoa Clinic Med. Assoc., 253 Ga. 322, 325-326 (2) (320 SE2d 170) (1984).

        McAlpin v. Coweta Fayette Surgical Assoc., 217 Ga. App. 669, 671 (1) (458 SE2d 499) (1995).

       (Citations and punctuation omitted.) Id. at 671-672.

       Id. at 671.

       (Emphasis supplied.) Cash v. Street & Trail, Inc., 136 Ga. App. 462, 466 (221 SE2d 640) (1975).

       210 Ga. App. 767 (437 SE2d 619) (1993).

       Id. at 769 (1); see also McAlpin, supra, 217 Ga. App. 669.

        Pittman, supra, 210 Ga. App. at 771 (4).

        Allen, supra, 225 Ga. App. at 538 (5) (a); see Roberts v. Tifton Med. Clinic, 206 Ga. App. 612, 614 (426 SE2d 188) (1992).

       241 Ga. App. 494 (525 SE2d 159) (1999).

       Id. at 495.

       Id. at 496.

        Webster v. Star Distrib. Co., 241 Ga. 270, 272 (a) (244 SE2d 826) (1978).

       578 NW2d 659 (Iowa 1998).

       Id. at 662.

        Jackson & Coker, Inc. v. Hart, 261 Ga. 371 (405 SE2d 253) (1991).


text:
    A00A1391.
    TURNER v. BUTLER.
    (537 SE2d 703)
   Phipps, Judge.

In 1998, Ardith Butler, the mother of a child born out of wedlock, brought this action against Dale Turner, the child’s father. Butler seeks damages based on the claim that Turner fraudulently misrepresented his income in a 1994 child support recovery action against him by the Department of Human Resources (DHR). The trial court denied Turner’s motion for a directed verdict, rejecting his argument that this action is barred because Butler has not set aside the consent judgment entered against him in the earlier action. We find merit in this argument and reverse the judgment entered on a jury verdict in favor of Butler.

Butler gave birth to the parties’ child in 1984. She was the sole provider of support for the child until 1993 when she applied for public assistance from the DHR. She began receiving benefits in October 1993, and those payments continued for about a year.

In July 1994, the DHR brought the child support recovery action against Turner to establish paternity, to recover payments made by the DHR for the child’s support, and to order Turner to provide for the future support of the child. In 1995, a consent order was entered establishing that Turner is the child’s biological father. The order required Turner to reimburse the state in the amount of $1,057 and to pay child support in the amount of $400 per month to the Office of Child Support Enforcement. The amount of child support was based on application of statutory child support guidelines to a finding in the order that Turner’s gross income was $2,350 per month or $28,000 per year. In 1997, Butler filed a petition against Turner seeking upward modification of child support. Butler claims that at the time of a 1998 hearing in the modification action, she discovered that Turner had fraudulently misrepresented his income in the action against him by the DHR.

Later in 1998, Butler filed this complaint against Turner. Butler claims that during the pendency of the DHR’s child support recovery action, Turner’s gross annual income was over $100,000 and that child support payments should have been set at no less than $1,250 per month. In 1999, a consent order entered in the modification action transferred physical custody of the child to Turner based on the child’s election to live with him.

Turner moved for a directed verdict in this case, arguing that the consent judgment entered in the child support recovery action is res judicata and binding until reversed or set aside and that it is now too late to set it aside because a motion to set aside a judgment for fraud must be brought within three years from entry of the judgment. The trial court denied the motion, holding the doctrine of res judicata inapplicable on the ground that Butler was not a privy of the DHR insofar as concerns the consent judgment. The jury returned a verdict in favor of Butler for $40,000 in compensatory damages and $20,000 in attorney fees and litigation expenses. The trial court denied Turner’s motion for judgment notwithstanding the verdict based on the same grounds urged in support of the motion for directed verdict.

1. As argued by Turner, the trial court erred in denying his motions for directed verdict and j.n.o.v. on the issue of res judicata.

Under the doctrine of res judicata, a judgment of a court of competent jurisdiction shall be conclusive between the same parties “and their privies” as to all matters put in issue or which might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside. “ 'Privies are all persons who are represented by the parties and claim under them, all who are in privity with the parties; the term privity denot[es] mutual or successive relationship to the same rights of property.’ [Cit.]”

Relying on Miller v. Charles, Butler argues that she was not the DHR’s privy in the child support recovery action. In Miller, Debra Charles brought an action against Terry Miller for determination of paternity and child support. Miller filed a plea of res judicata because the DHR had brought a prior child support recovery action in which another man had acknowledged paternity of Charles’s child. This court in Miller determined that the State’s interest in the child support recovery action was “not co-extensive or fully congruent with” either the mother’s or child’s interest or purpose in seeking a determination of paternity. Consequently, Miller held that the DHR did not fully represent the interest of the mother or child in the child support recovery action and, therefore, neither was a privy to the DHR in that litigation.

This case is distinguishable from Miller because the purpose of both this action by Butler and the prior action by the DHR is or was the recovery of child support. The gravamen of this action is that Turner misrepresented his income to the DHR in the earlier proceeding. If Butler was not a privy of the DHR in that proceeding, then she was a stranger to it and lacks standing to bring this suit.

In Rose v. Thorpe, Arnita Thorpe, with the assistance of the DHR, obtained a consent order requiring her child’s father, James Rose, to pay monthly child support. Five years later, Thorpe filed an action in which she obtained a retroactive modification of child support on grounds that Rose had fraudulently underrepresented his income in the earlier proceeding. This court reversed, holding that the proper way to recoup support by an obligor due to an under-reporting of income is by motion to set aside the judgment. A motion to set aside a judgment for fraud must be brought within three years of its entry. Because Butler has not moved to set aside the 1995 consent judgment entered in the child support recovery action, the precondition set forth in Rose has not been met and cannot now be met.

2. There is no merit in Butler’s argument that the three-year statute of limitation for setting aside the consent judgment has been tolled by Turner’s fraud.

“If the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud.” But

“ ‘the fraud in question is not that which gives (a cause of action), but that which conceals a cause of action. . . .’ ” “ ‘To constitute concealment of a cause of action so as to prevent the running of limitations, some trick or artifice must be employed to prevent inquiry or elude investigation, or to mislead and hinder the party who has the cause of action from obtaining information, and the acts relied on must be of an affirmative character and fraudulent.’ ” [Cits.]

Decided July 19, 2000

Browning & Tanksley, Thomas J. Browning, for appellant.

Banks, Stubbs & Neville, Robert S. Stubbs III, Dana A. Azar, for appellee.

Although we do not doubt that Turner misrepresented his income in the child support, recovery action, there is no evidence that he has engaged in any affirmative act preventing inquiry into the matter.

3. Remaining issues are moot.

Judgment reversed.

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

       OCGA § 9-12-40.

        Roberts v. Hill, 81 Ga. App. 185, 186 (3) (58 SE2d 465) (1950).

       211 Ga. App. 386 (439 SE2d 88) (1993).

       Id. at 388 (1).

       240 Ga. App. 834 (525 SE2d 381) (1999).

       But see Young v. Young, 188 Ga. 29, 31 (1) (2 SE2d 622) (1939) (holding that fraud which will permit the setting aside of a judgment is limited to matters which are extrinsic and collateral to the issue tried in the case and do not include fraud in procuring a judgment by false testimony).

       OCGA § 9-11-60 (d) (2), (f).

       OCGA § 9-3-96.

        Union Circulation Co. v. Trust Co. Bank, 146 Ga. App. 612-613 (2) (247 SE2d 197) (1978); see Marshall v. Russell, 222 Ga. 490, 497 (3) (150 SE2d 667) (1966).


text:
    A00A1534.
    ATLANTA ARTISTS CENTER, INC. v. FULTON COUNTY BOARD OF ASSESSORS.
    (537 SE2d 701)
   Phipps, Judge.

The primary question for decision in this case is whether a facility owned and operated by the Atlanta Artists Center, Inc. (AAC) constitutes a building “erected for and used as a college, incorporated academy, or other seminary of learning,” thereby entitling it to an ad valorem tax exemption under OCGA § 48-5-41 (a) (6). We conclude that it does not.

The Fulton County Board of Tax Assessors denied AAC’s application for a tax exemption. AAC appealed to the Fulton County Board of Equalization. In the appeal, AAC also complained of the valuation of the property and a lack of uniformity in assessment based on assessments against real properties of similar educational institutions.

After the Board of Equalization rendered a decision adverse to it, AAC appealed to the Fulton Superior Court. AAC moved for summary judgment on the issue of its tax-exempt status. The Board of Assessors filed a cross-motion for summary judgment, asserting that the sole issue in this case is the taxability of the subject property. AAC responded to the cross-motion, stating that there are issues of uniformity of taxation and valuation as well as taxability. The superior court found that the property is not tax exempt and awarded complete summary judgment to the Board.

The evidence shows that AAC is a nonprofit, nonstock corporation recognized by the Internal Revenue Service as exempt from federal income taxes. It is supported by membership dues and voluntary contributions. The object of the corporation, as set forth in its charter application, is the advancement of artistic standards for its members and the community, promotion of the general welfare and good fellowship among artists, assistance in the cultural advancement of the community, and other charitable activities. AAC’s facility, known as the Atlanta Arts Center, is located on Grandview Avenue in Atlanta. At the center, a library is maintained, art meetings are conducted at which art teachers or instructors make educational presentations, and off-site educational activities are coordinated.

AAC maintains that the center is entitled to a 90 percent tax exemption because it is used 90 percent of the time for “sketch groups,” which are offered to members and nonmembers. One of AAC’s officers, who is also a professional artist, testified that only persons who have an innate and natural ability to form perceptions and translate the form of animate and inanimate objects to paper or canvas can become artists; that only those who have developed this ability can be taught artistic techniques; and that development of this ability is achieved through sketching, which improves through practice and is self-taught. Aspiring artists learn of AAC sketch groups through word of mouth, art teachers in high schools and colleges, and artists. Fees range from $2 to $5 dollars. Sketching sessions are held throughout the year. There are no teachers or students. There is no grading, curriculum, or degree program. Held:

1. It is the use to which property is put that determines the question of exemption from taxation under OCGA § 48-5-41 (a) (6). We construe this statute by giving the words used in it their ordinary and everyday meaning.

The ordinary and everyday meaning of “college” is a school of higher learning that grants a bachelor’s degree in liberal arts or science or both and may include a technical or professional school. An “academy” is ordinarily understood as meaning a secondary or college-preparatory school. A “seminary” is ordinarily thought of simply as a school, especially a theological school for the training of members of the clergy. According to ordinary understanding, a school is an institution in which teachers instruct students.

Decided July 19, 2000.

Chambers, Chambers & Chambers, John W. Chambers, Sr., Timothy D. Chambers, for appellant.

Carothers & Mitchell, Richard A. Carothers, for appellee.

Consistent with these meanings, J.A.T.T. Title held that a four-year post-high school trade school qualified for a property tax exemption. Camp held that a building owned by a society of physicians and used for the continuing education of members and for the meetings of various civic organizations and medical professional groups did not qualify for an exemption. American Institute of Indus. Engineers v. Chilivis held that the national headquarters for an organization composed of industrial engineers and dedicated to the purpose of advancing engineering knowledge was not tax exempt.

The latter two cases show that use of a building for some educational purpose does not necessarily qualify it for a tax exemption. At a minimum, the building must be a place where teachers instruct students. A building in which aspiring artists develop their abilities by practicing their craft does not qualify. The superior court did not err in granting summary judgment to the Board on the issue of taxability.

2. The court did, however, err in awarding full summary judgment to thé Board in view of the unresolved issues relating to property valuation and uniformity of assessment.

Judgment affirmed in part and reversed in part.

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

        Camp v. Fulton County Med. Society, 219 Ga. 602, 605 (3) (135 SE2d 277) (1964).

        Mgmt. Compensation Group/Southeast v. United Security Employee Programs, 194 Ga. App. 99, 102 (2) (389 SE2d 525) (1989).

       See American Heritage Dictionary (2nd college ed. 1985), p. 291.

       See id. at 70.

       See J.A.T.T Title Holding Corp. v. Roberts, 258 Ga. 519 (1) (371 SE2d 861) (1988); American Heritage Dictionary, supra at 1175.

         American Heritage Dictionary, supra at 1098.

         Supra, 258 Ga. 519.

       Supra, 219 Ga. 602.

       236 Ga. 793 (225 SE2d 308) (1976).