text:
    A90A0613.
    BOYCE v. MURRAY.
    (395 SE2d 255)
   Banke, Presiding Judge.

The administratrix of the estate of the appellee’s deceased mother brought this action to recover approximately $60,000 which the appellee had retained from the sale of certain real property his mother had owned. The appellee had sold the property in November of 1984, prior to his mother’s death, pursuant to a power of attorney she had given him in June of 1982. The mother’s mental condition had deteriorated in the interim; and within a few weeks after the property was sold, she was confined to a nursing home.

The case has been tried twice. During the first trial, the appellee took the position that he was entitled to the proceeds from the sale as reimbursement for certain expenses he had incurred on his mother’s behalf and as compensation for certain services he had performed for her. The trial court directed a verdict against him on this claim and instructed the jury that the only issue was how much he owed the estate. Contrary to the court’s instructions, however, the jury failed to return a verdict against the appellee in any amount; and the trial court accordingly granted a motion by the administratrix for a new trial. The appellee filed a direct appeal to this court from that order, but that appeal was dismissed on the ground that the order was interlocutory. See Murray v. Rozier, 186 Ga. App. 184 (367 SE2d 886) (1988). The original administratrix died during the course of these proceedings, and prior to the retrial of the case the appellant herein was named as substitute administratrix over the appellee’s objections. See Brannen v. Boyce, 190 Ga. App. 385 (378 SE2d 743) (1989).

During the second trial of the case, the appellee took the position that his mother had given him the land in question before he sold it or, in the alternative, that she had given him the proceeds from the sale after he sold it. Asked during the trial whether he had deposited the sale proceeds into a joint bank account which he maintained with his mother, the appellee was unable to recall; however, it was shown that he had previously testified during a deposition that this was “probably” what he had done with the money, adding: “I had been putting my monies with her monies for 40 years.” Held:

1. “To constitute a valid parol gift of land, it is necessary not only that the donee should take possession under the gift, but that he should make valuable improvements thereon upon the faith of the donor’s promise, or declared intention, to make the gift.” Foskey v. Dockery, 241 Ga. 26, 27 (243 SE2d 70) (1978). (Citations and additional quotation marks omitted.) As there was no evidence that the appellee had ever taken possession of the property in question or made valuable improvements to it, it follows that there was no evidentiary basis for a finding that decedent had conveyed the land to him as a gift prior to its sale.

Nor was there evidentiary support for a finding that the decedent had made the appellee a gift of the proceeds from the sale of the property. “A valid inter vivos gift requires three elements: Intention to give the gift, acceptance, and delivery. See OCGA § 44-5-80. The burden is on the party claiming the gift to prove all of the essential elements of a gift by clear and convincing evidence, although acceptance is presumed unless a contrary result is shown.” Smith v. Fleming, 183 Ga. App. 342, 343 (1) (358 SE2d 900) (1987). (Emphasis supplied.) Accord Gregory v. Gregory, 252 Ga. 154 (312 SE2d 313) (1984).

The appellee presented no evidence whatever that the decedent had “delivered” the sale proceeds to him. “ ‘The deposit of money in a bank in a joint checking account or subject to the demand of another where the depositor also retains the right to jointly or severally demand and receive the funds so deposited, nothing else appearing, is not such a surrender of dominion over the funds thus deposited as to satisfy the requirements of delivery for the making of a gift. (Cit.)’ ” Freeman v. Freeman, 162 Ga. App. 433, 433-434 (291 SE2d 770) (1982).

With respect to the issue of the decedent’s intention, the only evidence that she desired for the appellee to keep the proceeds from the sale consisted of his own self-serving testimony to that effect. However, it is apparent without dispute that the decedent was suffering from diminished mental capacity by the time the property was sold, to the point where, according to the appellee, she had to be strapped to a chair at night; and it is further evident that the appellee was in a position of dominance and control over her at this time. For these reasons, as well as because he was acting as her attorney-in-fact in selling the land, he clearly owed her a fiduciary duty of utmost loyalty and good faith in connection with the transaction. See generally OCGA § 23-2-58; Harrison v. Harrison, 214 Ga. 393 (1) (105 SE2d 214) (1958); Fletcher v. Fletcher, 242 Ga. 158, 160 (2) (249 SE2d 530) (1978).

“ ‘When such a relationship of dominance of one party exists, . . . as is ordinarily the case where there is a fiduciary or confidential relation between the parties, ... it raises a presumption of undue influence and throws upon the dominant party the burden of establishing the fairness of the transaction and that it was the free act of the other party.’ ” Trustees of Jesse Parker Williams Hosp. v. Nis bet, 191 Ga. 821, 842 (14 SE2d 64) (1941). Under the circumstances, we conclude that the appellee’s uncorroborated testimony that his mother had intended for him to keep the proceeds from the sale was insufficient to meet this burden. Compare Swain v. C & S Bank of Albany, 258 Ga. 547, 550 (2) (372 SE2d 423) (1988). For this reason, as well as because there was no evidence of any “delivery” of the sale proceeds to the appellee, we hold that the trial court erred in denying the appellant’s motion for directed verdict.

Decided May 25, 1990.

W. Vincent Settle III, for appellant.

Houston & Golub, Francis Houston, Phillip N. Golub, for appellee.

2. The foregoing holding renders it unnecessary for us to reach the appellant’s remaining enumeration of error.

Judgment reversed.

Birdsong and Cooper, JJ., concur.


source: Caselaw Access Project

author: Birdsong, Judge.

license: Public Domain

text:
    A90A0652.
    JOYCE’S SUBMARINE SANDWICHES, INC. v. CALIFORNIA PUBLIC EMPLOYEES’ RETIREMENT SYSTEM.
    (395 SE2d 257)
   Birdsong, Judge.

Joyce’s Submarine Sandwiches, Inc., (Joyce’s) appeals from the award of past due rent and liquidated damages to the State of California Public Employees’ Retirement System (the retirement system) after a bench trial in a dispossessory proceeding. Possession was earlier awarded to the retirement system by a consent judgment.

Joyce’s is a franchisor of sandwich shops, and this dispute arises from the lease of a location for a franchise in a shopping mall owned by the retirement system. After Joyce’s franchisee stopped paying rent and abandoned the property, the retirement system began dispossessory proceedings. Joyce’s contended the lease was between its franchisee and the retirement system and therefore agreed to the consent judgment on possession, but disputed that Joyce’s owed any past due rent or liquidated damages. The trial court, however, found that Joyce’s was liable on the lease. That decision is not contested on appeal.

Instead, Joyce’s contends the trial court erred by not finding the lease provision on liquidated damages was an unenforceable penalty; by admitting in evidence, over Joyce’s best evidence rule objection, a photocopy of the lease; and by allowing the dispossessory affidavit to be enlarged by amendments which were not verified before trial. Held:

1. It is well settled that “[p]hotostatic copies are not best evidence and may not be admitted over objection without accounting for the original.” First Ga. Leasing v. First Ga. Bank, 188 Ga. App. 847, 849 (374 SE2d 751). Our law, however, only requires that the original be accounted for before a copy may be admitted. OCGA § 24-5-4 (a). In this instance the original was accounted for and the record demonstrates that the trial judge did not abuse its discretion in admitting the photocopy in evidence in this bench trial.

2. Joyce’s contends the lease provision for liquidated damages of $50 for every day the premises remained closed is an unenforceable penalty. The challenged clause provides, in essence, that the parties agreed that, because of the difficulty or impossibility of determining damages arising through the loss to the retirement system of anticipated percentage rent based on sales by Joyce’s and other tenants or occupants in the whole shopping center, or by way of loss of value in the property because of adverse publicity or appearances from Joyce’s actions, if Joyce’s vacated, abandoned, or deserted the premises or ceased operating its business therein, and if the retirement system did not terminate the lease, in addition to all other remedies available, the retirement system would have the right to collect the minimum rent and additional rent owed and $50 per day, for each and every day the premises are not operated by Joyce’s, and the $50 amount should be deemed liquidated damages in lieu of percentage rent that might have been earned by the landlord during the period.

The percentage rent referred to was a sum, in addition to the $2,166.66 minimum monthly rent on the premises, which the landlord was entitled to recover from all tenants in the shopping center based upon a tenant’s gross sales. The amount of percentage rent was determined through a formula specified in the lease. In Joyce’s case, the percentage rent was 10 percent of Joyce’s gross sales in excess of $260,000 in gross annual sales and was payable monthly.

Georgia law allows parties to agree to liquidated damages in their contracts. OCGA §§ 13-6-1 and 13-6-7 provide that damages are given as compensation for injuries sustained as a result of breach of contract, and if parties agree in their contract what the damages shall be for a breach, unless the agreement violates some principle of law, they are bound by their agreement.

In deciding whether liquidated damages provisions are enforceable, courts must determine whether three requirements are met: First, is the injury caused by the breach difficult or impossible to estimate accurately; second, did the parties intend to provide for damages rather than for a penalty; and, third, is the stipulated sum a reasonable pre-estimate of the probable loss. Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230 (227 SE2d 340); Fields v. Smith, 190 Ga. App. 369-370 (378 SE2d 741). As the defaulting party, Joyce’s had the burden of showing that the lease provision was a penalty. Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co., 258 Ga. 808, 809 (375 SE2d 222); Daniels v. Johnson, 191 Ga. App. 70, 71 (381 SE2d 87).

Joyce’s contends that $50 per day is a penalty because a retirement system witness repeatedly termed it such in her testimony and therefore the parties must have intended the $50 per diem to be a penalty. Although testimony of one not a party to contract can be relevant, to the extent the witness took no part in the negotiations of the lease, and is not testifying about what the parties intended, it is less so. In this instance, the witness worked in the leasing office for the mall, and her testimony was directed toward the amount of past due rent and liquidated damages owed. While she repeatedly used the word “penalty” in referring to the amount claimed as liquidated damages, it is plain this was merely her own description, and not a reflection of the retirement system’s intent. Accordingly, this argument is not persuasive. Further, the relevant period for consideration was when the lease was executed by the parties, not at trial. Adams v. D & D Leasing Co., 191 Ga. App. 121 (381 SE2d 94).

Joyce’s also argues that the damages caused by the breach were not difficult or impossible to estimate accurately because the lease contained a formula for calculating the percentage rent owed by Joyce’s. This argument, however, disregards the fact that the liquidated damages called for in the lease were intended not only to compensate the retirement system for percentage rent lost from Joyce’s but also for percentage rent lost from all other mall tenants as a result of Joyce’s not operating. In the lease the parties recognized that success of the mall and all the tenants was dependent to some degree on all the tenants being open and operating, and that the percentage rent would be reduced if they were not. Moreover, it is clear that the actual amount of total percentage rent lost could only be proved with great difficulty, if at all, through the testimony of economists, accountants, or other expert witnesses, and that percentage rent lost would be difficult to prove since the loss might represent a diminished increase rather than an overall or individual loss. Therefore, since the injury to the percentage profits of the other tenants caused by Joyce’s not operating and the resulting loss to the retirement system would be difficult or impossible to estimate accurately, we find that this requirement is also met. Further, expressing the liquidated damages on a per day basis does not require that we find them to be a penalty. Mathis v. Rome Tractor Co., 180 Ga. App. 426 (349 SE2d 282).

We find that under the circumstances the $50 per day liquidated damages provided in the lease was a reasonable pre-estimate of the probable loss of percentage rent lost from Joyce’s and all the other mall tenants. The lease in the record shows that the amount of liquidated damages was adjusted to Joyce’s circumstances since the figure was substituted for another higher figure previously typed there. Also, the record indicates that $50 per day liquidated damages would be a reasonable estimated loss when apportioned among the total tenants in a shopping center of this size. Thus, the trial court correctly found that the lease provided for liquidated damages and not a penalty. Southeastern Land Fund v. Real Estate World, supra; Fields v. Smith, supra. Moreover, the record shows that Joyce’s presented no evidence on whether the injury caused was difficult or impossible to estimate accurately and whether the $50 per diem was a reasonable pre-estimate of the probable loss. Accordingly, Joyce’s failed to meet its burden. Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co., supra; Daniels v. Johnson, supra.

Decided May 25, 1990.

Worthington & Flournoy, Thomas M. Flournoy, Jr., for appellant.

Kelly, Denney, Pease & Allison, Ray L. Allison, Bradford C. Dodds, for appellee.

3. Joyce’s also contends the trial court erred by permitting the dispossessory affidavit to be expanded by unverified amendments. See Fleming v. Fleming, 141 Ga. App. 51, 53 (232 SE2d 391). The failure to verify is an amendable defect (Mellon Bank N.A. v. Coppage, 243 Ga. 219 (253 SE2d 202)), and affidavits are amendable as other pleadings (Hyman v. Leathers, 168 Ga. App. 112 (308 SE2d 388)). Since there is no evidence that Joyce’s was prejudiced by permitting the affidavits to be amended, the trial court did not err by allowing the affidavit to be amended to add the verification (Bandy v. Hosp. Auth. of Walker County, 174 Ga. App. 556 (332 SE2d 46)), and the fact that the amendment was verified after the trial does not change this result (Benson v. Sullivan, 162 Ga. App. 829, 830 (293 SE2d 380)). See also McClindon v. Wright, 160 Ga. App. 348 (287 SE2d 74).

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


author: Banke, Presiding Judge.

text:
    A90A0684.
    COXWELL v. THE STATE.
    (395 SE2d 38)
   Banke, Presiding Judge.

The appellant was convicted of child molestation. He brings this appeal from the denial of his motion for new trial. Held:

1. The appellant contends that the trial court erred in refusing to declare a mistrial in response to the following remarks made by the state’s attorney during his opening statement: “If for any reason either attorney requests that the child be ordered to testify, the court can put the child on the stand and require her to testify. Hopefully, that won’t happen in this case. I do not intend to put her on the stand. I don’t think she will be put on the stand.” The appellant contends that these remarks resulted in a violation of his rights under Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987), which holds that where the Child Hearsay Statute, OCGA § 24-3-16, is invoked to introduce out-of-court declarations made by the alleged victim and either party desires to cross-examine the child, the court shall “inform the jury that it is the court who has called the child,” in order to avoid the possibility that the jurors might “resent the defendant for forcing the child to take the stand and undergo cross-examination.” Id. at 299.

In response to the appellant’s motion for mistrial, the judge informed counsel that if the victim were called to testify he would instruct the jury that she had been called as a witness by the court. The appellant did not thereafter renew his motion, and there was no request by either party that the child be called as a witness. See Brown v. State, 187 Ga. App. 347 (1) (370 SE2d 203) (1988). Consequently, we find this enumeration of error to be without merit.

2. In an attempt to prove that the child had fabricated the allegations upon which the indictment was based, the appellant sought to introduce evidence that she and her mother had, on a previous occasion, falsely accused another person of child molestation. Following an evidentiary hearing conducted outside the presence of the jury, the trial court excluded this evidence on the ground that it had not been shown that there was a “reasonable probability” that the prior accusation had in fact been false. See Smith v. State, 259 Ga. 135 (377 SE2d 158) (1989). We agree and consequently find this enumeration of error to be without merit.

3. The appellant contends that the trial court erred in allowing a social worker employed by the Department of Family & Children Services (DFCS) to state her opinion on the ultimate issue of whether the child had been sexually molested. The witness testified that her job was to investigate reports of child abuse and stated that she had received training in interviewing young children and in observing behavioral characteristics and traits common to sexually molested children.

“There is conflicting authority as to whether such expert testimony is admissible. Such cases as State v. Butler, 256 Ga. 448 (2) (349 SE2d 684) (1986); Grayer v. State, 181 Ga. App. 845 (2) (354 SE2d 191) (1987); and Pegg v. State, 183 Ga. App. 668 (3) (359 SE2d 678) (1987), hold that it is, while in Allison v. State, 256 Ga. 851 (6) (353 SE2d 805) (1987), the Supreme Court appeared to express the opinion that it is not.” Wilson v. State, 188 Ga. App. 779, 781 (374 SE2d 325) (1988). Because Allison is the more recent expression on the issue by the Supreme Court and because the Supreme Court, without reference to Butler, recently relied upon Allison in reversing a conviction for child abuse in Smith v. State, supra, 259 Ga. at 138 (2), we conclude that it, rather than Butler, is controlling. Accordingly, we hold that the trial court committed reversible error in allowing the social worker to state her opinion on the issue of whether the victim had been sexually molested.

Decided May 25, 1990.

Robert M. Boulineau, for appellant.

Joseph H. Briley, District Attorney, Alberto C. Martinez, Jr., Assistant District Attorney, for appellee.

Judgment reversed.

Birdsong and Cooper, JJ., concur.


text:
    A90A0184.
    DEPARTMENT OF MEDICAL ASSISTANCE OF GEORGIA et al. v. BEVERLY ENTERPRISES, INC.
    (395 SE2d 15)
   Banke, Presiding Judge.

The appellee, Beverly Enterprises, Inc., owns and operates nursing home facilities throughout Georgia and participates in the federal Medicaid program, administered in this state by the Department of Medical Assistance of the State of Georgia (DMA). Upon being notified by the DMA of a revision in the per diem medicaid rates applicable to certain of its facilities, the appellee sought administrative review of that decision. However, the DMA denied the application as untimely based on the appellee’s asserted lack of compliance with certain rules governing the administrative appeal process as set forth in the DMA’s “Policies and Procedures for Nursing Home Services Manual.” The appellee then brought the present action in the Superior Court of Fulton County, seeking to appeal the DMA’s decision and also to obtain certain declaratory relief pursuant to OCGA § 50-13-10 (a), which provides that an aggrieved party may bring a declaratory judgment action to challenge the “validity of any [agency] rule . . . when it is alleged that the rule or its threatened application interferes with or impairs the legal fights of the petitioner . . . whether or not the petitioner has first requested the agency to pass upon the validity of the regulation in question.” Specifically, the appellee sought a determination that the DMA’s rules were invalid because they violated due process and because the manner in which they had been promulgated was not in compliance with the Georgia Administrative Procedure Act (see OCGA §§ 50-13-4; 50-13-6; and 50-13-7), the DMA’s enabling statute, or the agency’s own rules.

Decided May 11, 1990

Rehearing denied May 29, 1990

Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, Stephanie B. Manis, Deputy Attorney General, William C. Joy, Kathryn L. Allen, Senior Assistant At torneys General, for appellants.

After filing its complaint, the appellee served various requests for discovery on the DMA pursuant to Rule 34 of the Georgia Civil Practice Act (OCGA § 9-11-34). The DMA objected to these discovery requests, and the trial court ultimately issued an order compelling responses to them. The case is currently before us pursuant to our grant of the DMA’s application for interlocutory review of that order. Held:

1. The Civil Practice Act has no application to appeals from administrative agency decisions. See Hewes v. Cooler, 169 Ga. App. 762 (315 SE2d 276) (1984). Accordingly, the validity of the discovery requests is dependent on whether the declaratory judgment count of the complaint states a judicially cognizable claim. Although the DMA made no such assertion in the trial court, it contends on appeal that a justiciable claim for declaratory relief has not been presented. As this issue goes to subject matter jurisdiction, we hold that it is properly before us notwithstanding the DMA’s failure to raise it below. See generally Kaylor v. Kaylor, 236 Ga. 777 (225 SE2d 320) (1976).

2. As previously indicated, OCGA § 50-13-10 specifically provides that an aggrieved party may bring an action for declaratory relief to challenge the validity of a state agency’s rules. See generally Pope v. Cokinos, 231 Ga. 79 (2) (200 SE2d 275) (1973). We reject the DMA’s contention that the appellee’s claim for declaratory relief is barred by the prior pendency of the administrative proceedings between the parties, since it does not appear that the validity of the DMA’s rules was in issue during those proceedings, and since the DMA, having promulgated the rules, could not, in any event, be expected to provide a neutral forum in which to adjudicate a challenge to their validity. Pursuant to OCGA § 50-13-10 (a), “ the state has consented to suit in actions alleging necessity of a declaratory judgment on validity of rules of state agencies.” Georgia State Bd. of Dental Examiners v. Daniels, 137 Ga. App. 706, 707 (224 SE2d 820) (1976). It follows that the appellee’s declaratory judgment action was properly before the court, with the result that the judge was authorized to compel responses to the discovery requests.

Judgment affirmed.

Birdsong and Sognier, JJ., concur. Cooper, J., disqualified.

Troutman, Sanders, Lockerman & Ashmore, Herbert D. Shell-house, for appellee.


author: Carley, Chief Judge.

text:
    A90A0259.
    RANDALL v. THE STATE.
    (395 SE2d 2)
   Carley, Chief Judge.

After appellant and several co-defendants were tried before a jury, he was found guilty of trafficking in cocaine, distribution of cocaine, use of a communications facility in the commission of a felony, and possession of a firearm during the commission of a felony. He appeals from the judgments of conviction and sentences that were entered by the trial court on the jury’s guilty verdicts. The facts are set forth in the appeal of appellant’s co-defendants and need not be repeated here. See Cassie v. State, 192 Ga. App. 484 (385 SE2d 129) (1989).

1. Appellant’s enumeration of the general grounds is without merit. Cassie v. State, supra at 485 (1).

2. The trial court’s charge on actual and constructive possession does not require reversal under Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988). Cassie v. State, supra at 486 (5).

3. Less than ten days before trial, appellant filed a demand for a copy of the written scientific report on the analysis of the alleged contraband. The written report was not received by the State until the date of the trial and a copy was provided to appellant at that time. Appellant objected to the admission of evidence regarding the results of the analysis, contending that the State had not timely complied with OCGA § 17-7-211. The trial court’s failure to sustain this objection is enumerated as error.

It was not the State’s compliance, but appellant’s request which was untimely under OCGA § 17-7-211. “[F]or a request to be timely, whether it is made ‘at arraignment’ or at some other time, it must precede the tenth day before the trial of the case. Otherwise, it would be impossible for the [S]tate to comply with the statute.” State v. Meminger, 249 Ga. 561, 564 (2) (292 SE2d 681) (1982). As soon as the State received the report, a copy was furnished to appellant. There was no violation of OCGA § 17-7-211 and the trial court did not err in failing to sustain appellant’s objection to the admission of evidence regarding the results of the analysis. State v. Meminger, supra.

4. The two drug offenses for which appellant was convicted did not merge. Cassie v. State, supra at 486 (2).

5. The State called as one of its witnesses the informant whose tip had ultimately resulted in the arrest of appellant and the co-defendants. See Cassie v. State, supra. On direct examination, the informant testified that he had been in jail on drug charges when he agreed to assist the police and, on cross-examination, he testified that a deal had been made for his cooperation. Further cross-examination of the informant disclosed that there were also other criminal charges pending against him in Houston County. However, the State objected to pursuit of this line of questioning and the trial court refused to allow appellant to inquire into the specifics of these other pending criminal charges. Appellant enumerates this ruling as an erroneous curtailment of his right to cross-examine the informant.

The defendant in a criminal trial is guaranteed “both the general right to cross-examine witnesses against him and the more specific right to cross-examine a key [S]tate’s witness concerning pending criminal charges against the witness.” Hines v. State, 249 Ga. 257, 259 (2) (290 SE2d 911) (1982). However, the informant in the instant case can hardly be characterized as a “key” State witness. Compare Owens v. State, 251 Ga. 313, 314 (1) (305 SE2d 102) (1983); Hines v. State, supra; Hamilton v. State, 185 Ga. App. 536 (1) (365 SE2d 120) (1988). The truly inculpatory testimony was that of the police officers who had arrested appellant and the co-defendants when they responded to the informant’s inquiry and arrived at the specified location with cocaine. The informant’s testimony was, at most, merely explanatory of the arresting officers’ conduct and the case against appellant and the co-defendants was in no way dependent upon his testimony.

Moreover, the record reveals that, in his subsequent redirect examination, the informant testified that “[n]othing that [he did in the instant case] makes any difference down in Houston County. . . .” Thus, the error, if any, in disallowing appellant’s pursuit of the topic of the other criminal charges pending against the informant was certainly harmless. “Since the question of whether the witness entertained any belief of personal benefit from testifying favorably for the prosecution was addressed, in any event, the trial court’s disallowance of the more direct questioning about any pending charges constituted harmless error. It is, of course, settled that harmless error will not authorize a reversal by this court. [Cit.]” Morris v. State, 166 Ga. App. 137, 141 (3) (303 SE2d 492) (1983).

6. Appellant enumerates as error the trial court’s failure to give a recharge that was responsive to the jury’s request for clarification concerning the venue requirements as to the crime of using a communications facility in the commission of a felony.

The record would seemingly support appellant’s contention that the trial court’s recharge was not responsive to the jury’s actual inquiry. The jury, however, apparently did not consider it to be unresponsive. The trial court inquired whether the recharge would “suffice [the jury’s] needs?” and the jury foreman stated that it would. See Welch v. State, 251 Ga. 197, 198 (2) (304 SE2d 391) (1983). Compare Murray v. State, 180 Ga. App. 493, 494 (1) (349 SE2d 490) (1986). However, even assuming that, despite the jury’s indication to the contrary, the trial court nevertheless failed to give a responsive recharge, the error was harmless. The question of venue was not contested at trial and the evidence showed, without conflict, that venue would be proper in Douglas County pursuant to whatever statutory provisions might otherwise be applicable. See OCGA § 17-2-2 (a), (e), and (h). Accordingly, the failure to recharge on venue was harmless because, under the evidence, no jury question was presented as to that issue and any finding other than that venue was proper would not have been authorized. Cf. Murray v. State, supra at 494 (1).

Decided May 2, 1990

Rehearing denied May 29, 1990

Alden W. Snead, J. M. Raffauf, for appellant.

Frank C. Winn, District Attorney, for appellee.

Judgments affirmed.

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


author: McMurray, Presiding Judge.

text:
    A90A0264.
    YEARBY v. THE STATE.
    (395 SE2d 29)
   McMurray, Presiding Judge.

Defendant Year by appeals his conviction of forgery in the first degree and of being determined as a recidivist in three counts. Held:

1. Defendant’s first enumeration of error contends that OCGA § 17-10-7 (b) is unconstitutional in that it constitutes a legislative usurpation of the executive function, in violation of Art. I, Sec. II, Par. III of the Constitution of Georgia of 1983. However, defendant lacks standing to contest the statute until such time as he claims a right of parole and the statute is asserted against him as a bar. Green v. State, 244 Ga. 755 (262 SE2d 68).

2. Next, defendant contends that he was deprived of effective assistance of counsel at trial. “To prevail on such a claim, [defendant] must show (1) that his counsel’s performance was deficient, and (2) that this deficient performance prejudiced his defense in that there is a reasonable probability that, but for counsel’s unprofessional errors, the outcome of the trial would have been different. Foote v. State, 188 Ga. App. 304, 305 (372 SE2d 843) (1988).” Littlejohn v. State, 191 Ga. App. 852, 854 (7) (383 SE2d 332).

Pretermitting the issue of counsel’s deficiency, we find that defendant has failed to show any prejudice resulting from the asserted acts and omissions of trial counsel. The sole defense presented by defendant was lack of intent. There is no evidence that any other viable defense was available. Defendant admitted attempting to cash a check, which was shown by the State’s evidence to have been stolen and by defendant’s testimony to have been endorsed by another person who had solicited defendant’s assistance in getting it cashed. While defendant was permitted to testify in narrative form, we do not believe the presentation of this evidence in a more structured format would have affected the verdict. Nor do we view any absence of direction to defendant in regard to concealing his prior criminal record as prejudicial, since some disclosures in this regard were germane to defendant’s testimony. Young v. State, 191 Ga. App. 651, 653 (2) (382 SE2d 642).

Decided May 22, 1990

Rehearing denied May 29, 1990

Hudson & Montgomery, Kenneth Kalivoda, for appellant.

Harry N. Gordon, District Attorney, Steve C. Jones, Assistant District Attorney, for appellee.

3. The trial court was not required to conduct a Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908), hearing or enter findings as to whether defendant’s statement was voluntarily made since such issues were not raised before the trial court, but were raised for the first time on appeal. Nixon v. State, 255 Ga. 656, 658 (2a) (340 SE2d 7); Davidson v. State, 183 Ga. App. 557, 559 (5) (359 SE2d 372); Hunt v. State, 166 Ga. App. 524, 526 (4) (304 SE2d 576).

4. In his final enumeration of error, defendant contends the trial court erred in charging the jury that: “You are authorized to infer that a person of sound mind and discretion intends the natural and probable consequences of his acts.” Defendant’s argument, that this language is burden shifting, falling within the proscription of Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39), and its progeny, has been rejected by our Supreme Court in Crawford v. State, 256 Ga. 585, 587 (3) (351 SE2d 199).

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


author: Cooper, Judge.

text:
    A90A0295.
    BOYD v. THE STATE.
    (395 SE2d 7)
   Cooper, Judge.

Appellant and three co-defendants were indicted on the charge of theft by shoplifting. At the joint trial of appellant and one of his co-defendants, the jury returned a verdict of guilty. This appeal follows the denial of appellant’s motion for new trial.

The evidence adduced at trial showed that appellant and the three co-defendants drove, in a van, to a Wal-Mart store in Newnan, Georgia. While two of the co-defendants diverted the attention of a store employee, appellant and the other co-defendant loaded a buggy with Wal-Mart merchandise and, without paying for the merchandise, took it from the store, through the garden shop, to the van. Appellant and the others drove away from the Wal-Mart, but the van broke down shortly thereafter in a nearby parking lot. The police arrived while the van was disabled, and appellant and the co-defendants ran away; however, two of the co-defendants were apprehended that day. When the police were able to ascertain the names of the other two suspects, warrants were issued and appellant and another co-defendant were subsequently arrested.

One of appellant’s co-defendants entered a guilty plea and testified for the State as to appellant’s participation in the shoplifting. An employee of Wal-Mart testified that she saw a man pushing a buggy loaded with Wal-Mart merchandise out of the garden section of the store toward a burgundy van, that he threw the merchandise in the van, and that she got a look at the man as he pushed the empty buggy back to the store. She identified appellant, at trial, as the man she saw pushing the buggy back to the store. Another witness for the State testified that after she became aware of the shoplifting, she followed the van in her car to get the license number, and that she pulled her car alongside the van and looked “eye to eye” with the driver. She identified appellant as the driver of the van.

Following appellant’s conviction, his trial counsel filed a motion for new trial and appellant, acting pro se, filed an amended motion for new trial. The trial court heard evidence on both motions, and both appellant and his attorney were allowed to question witnesses. Appellant is represented on appeal by his trial counsel, who has filed an enumeration of errors and brief. Appellant filed, pro se, a supplemental brief, in which he raises several enumerations of error not contained in his counsel’s enumerations. Appellant does not have a right to be represented by counsel and also to represent himself. Ga. Const. 1983, Art. I, Sec. I, Par. XII. Cargill v. State, 255 Ga. 616 (3) (340 SE2d 891) (1986). Therefore, we will consider only those enumerations of error presented by counsel, whose representation of appellant is still in effect.

1. Appellant contends that the trial court erred in denying his motion for new trial on the grounds of an illegal pre-trial identification. At the hearing on his motion for new trial, appellant presented evidence that on the morning of trial, both of the witnesses who identified him during the trial were allowed to look at him as he sat in the holding cell behind the courtroom. Since neither witness identified appellant prior to trial, appellant contends that their identification during trial was tainted by the alleged impermissible pre-trial identification. To rebut appellant’s evidence the State presented evidence that although one of the witnesses may have seen appellant in the holding cell, neither participated in a pre-trial identification, and that the witnesses’ identification of appellant at trial was based on their recollection of seeing appellant on the night of the crime. “The weight of the evidence and the credibility of witnesses are questions for the triers of fact. . . . [Cit.]” Brown v. State, 178 Ga. App. 691 (1) (344 SE2d 509) (1986). “Assuming arguendo some form of taint had occurred in the pretrial identification of appellant, a witness’ in-court identification may still be admitted provided it has an ‘independent origin’ therefrom. [Cit.]” Brown v. State, 192 Ga. App. 187 (1) (384 SE2d 254) (1989). The trial court, as the factfinder at the hearing on the motion for new trial, participated in the questioning of witnesses and weighed the evidence in favor of the State. Finding no abuse of discretion, the judgment of the trial court will not be disturbed. Butler v. State, 177 Ga. App. 167, 168 (338 SE2d 540) (1985).

Decided May 4, 1990

Rehearing denied May 29, 1990

Sanders, Mottola, Haugen & Mann, Walter S. Haugen, for appellant.

William G. Hamrick, Jr., District Attorney, Agnes T. McCabe, Assistant District Attorney, for appellee.

2. Appellant’s contention that the State knowingly permitted the use of false testimony is without merit. Appellant argues that because the State was surprised by the witnesses’ in-court identification of appellant, the State had a duty to alert the court that the testimony was false. Where the record does not disclose that the conviction was based on the State’s knowing use of perjured testimony, no reversal is required. Arnold v. State, 163 Ga. App. 10 (1b) (293 SE2d 501) (1982). Accordingly, we find no error with the trial court’s denial of appellant’s motion for new trial.

Judgment affirmed.

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


author: Deen, Presiding Judge. Beasley, Judge,

text:
    A90A0344.
    MINK v. MINK.
    (395 SE2d 237)
   Deen, Presiding Judge.

Carl and Merrylee Mink married on April 27, 1977, subsequently gave birth to one child during their union, and divorced in DeKalb County, Georgia, on February 15, 1985. In the divorce decree Carl Mink was awarded custody of the child.

Carl Mink later obtained a position as an accountant for the new Vrindaban Hare Krishna community in West Virginia, and some time in 1986 he and the child moved there. On October 25, 1986, the child returned to Atlanta for one week of visitation with her mother, and on October 30, 1986, Merrylee Mink filed a petition for change of custody. In the petition Merrylee Mink asserted that the Hare Krishna commune in West Virginia had been cited for unsanitary living conditions and contaminated food, causing several children to contract hepatitis, typhoid fever, and other diseases; the petition also alleged that the United States Justice Department and State of West Virginia were investigating the commune for various criminal offenses.

In the petition Merrylee Mink alleged that Carl Mink and the child had moved to West Virginia on July 15, 1986. In answering the petition, Carl Mink asserted that, they moved on April 13, 1986, and moved to dismiss the petition on the basis that Georgia was no longer the home state of the child or the appropriate forum to hear the custody petition. On December 5, 1986, following a temporary hearing, the trial court denied Carl Mink’s motion to dismiss and placed temporary custody of the child with Merrylee Mink, pending the trial of the case.

Nothing further transpired in the case until early 1988, when Carl Mink moved for a final hearing on the matter. A hearing was begun on March 22, 1988, but was truncated when the trial court decided to refer the matter to the Neighborhood Justice Center for mediation. Carl Mink subsequently moved for partial summary judgment on two specific issues, i.e., whether Merrylee Mink bore the burden of proof and whether evidence adduced at the temporary hearing in December 1986 would be considered by the trial court at the final hearing. The trial court ruled negatively on both issues and denied the motion. Carl Mink again had to move to bring the matter on to a final hearing, which was held on June 5, 6, and 9, 1989. Following that hearing the trial court concluded that Carl Mink had not demonstrated a material change of circumstances, and that it was in the best interests of the child to leave custody with the mother. This discretionary appeal by Carl Mink followed. Held:

1. At the final hearing, the trial court only allowed the parties to present the live testimony of each party and one witness, pursuant to Rule 24.5 of the Uniform Superior Court Rules. Any other testimonial evidence had to be submitted by affidavit. We agree with the appellant that in doing so the trial court erred. Rule 24.5 by its own terms applies only to temporary hearings; application of that rule to a final hearing impermissibly restricts the right of cross-examination. OCGA § 24-9-64, generally; see Camp v. Camp, 213 Ga. 65 (2) (97 SE2d 125) (1957).

2. In a change of custody action, evidence of the circumstances of the parties prior to the last custody award is inadmissible. Mallette v. Mallette, 220 Ga. 401 (139 SE2d 322) (1964). The necessary corollary is that evidence of circumstances following the last award is admissible. The trial court’s order of December 5, 1986, temporarily placing the child with the mother as an emergency matter, did not render immaterial the evidence considered by the trial court in reaching that decision. It is clear that the trial court understood that a final hearing would follow, at which all of the evidence of circumstances of the parties since the date of the divorce decree could be adduced and reviewed. The trial court subsequently presiding over the final hearing thus erred in excluding evidence of the circumstances that existed between the date of the divorce decree and the order of December 5, 1986.

3. In a child custody action, a change of custody may be awarded only upon a showing of a change in material circumstances of a parent or the child subsequent to the previous custody award, and that the change in custody would be in the best interest of the child. OCGA § 19-9-1, generally; Blackburn v. Blackburn, 168 Ga. App. 66 (308 SE2d 193) (1983). The trial court placed the burden of proof on the appellant, because of the order of December 5, 1986, temporarily placing the child with the mother, and because the appellant had moved to bring the action to a final hearing.

“A decree awarding temporary custody [pending the custody determination] is a matter of discretion with the court. It is not an adjudication of the rights of the parties. The best interests of the child pending adjudication of the rights of the mother and father are the basis for the award. The parental rights of the parties are not adjudicated by the award of temporary custody. A temporary award of custody differs from a permanent award as the latter is a final adjudication of the rights of the parties on the existing facts, is res judicata, and is subject to change only upon a showing of change of conditions affecting the best interests of the child.” Adams v. State, 218 Ga. 130, 131 (126 SE2d 624) (1962).

The order of December 5, 1986, was a stop-gap measure until the final adjudication on the mother’s petition for change of custody could take place. The mother had the burden of proof with regard to that petition, and retained that burden at the eventual final hearing. The fact that the appellant, in response to the lengthy inaction in the matter, filed the motion that brought the action to a final hearing did not bestow upon him the burden of proof in his adversary’s petition. The trial court erred in doing just that.

In asserting that the order of December 5, 1986, was final and that the subsequent proceedings and final order of August 9, 1989, were a nullity, the special concurrence misplaces its reliance upon Perry v. Perry, 212 Ga. 668 (1) (95 SE2d 2) (1956). Perry, which held that “[a] judgment fixing the custody of a minor child of divorced parents is a final one . . .,” is inapposite to the instant case, because the order of December 5,1986, was not a judgment fixing the custody; as discussed above, that order was merely an emergency, temporary measure until the custody of the child could be fixed.

4. The evidence in this case was of the ilk that would tax the patience and wisdom of Solomon. Both parents were fit and loving of the child; the child was bright, excelled in school, and loved both parents. There were somewhat exotic aspects to each parent. The appellant was a long-time adherent of Hare Krishna, although in recent years this participation has diminished. His present wife was also in the Hare Krishna movement, having spent about 10 years traveling as a bookseller for the movement. The appellee also had been a participant in the Hare Krishna movement. In more recent years, for a while she had joined the Mahikari DoJo practicing Mahikari, which, as explained by a Fulton County assistant district attorney who testified on the appellee’s behalf, is a spiritual discipline involving a technique of spiritual purification by focusing divine energy primarily through the palm of one’s hand (“giving light”). More recently, she had participated in seminars of the Circle of Life, another consciousness-raising, positive-thinking type of humanistic self-improving discipline.

Because of the closeness of the evidence, the improper shifting of the burden of proof, the incorrect exclusion of relevant evidence, and the erroneous restriction of the live testimony in this case, the trial court’s award of custody cannot be upheld. The matter will unfortunately have to be reheard.

5. The appellant’s remaining enumerations of error are without merit.

Judgment reversed.

Pope, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

The appeal should be reversed but for a different reason. According to the following cases, the order of December 5, 1986, despite its language contemplating its temporary nature, was a final judgment: Draper v. Draper, 170 Ga. App. 727 (318 SE2d 314) (1984); Hancock v. Franks, 162 Ga. App. 691 (293 SE2d 353) (1982); Simpson v. Moon, 238 Ga. 152 (231 SE2d 754) (1977); and the cases cited therein. What governed in those cases and governs in this one is the rule stated in Perry v. Perry, 212 Ga. 668 (1) (95 SE2d 2) (1956): “A judgment fixing the custody of a minor child of divorced parents is a final one on the facts then existing and any attempt by the trial judge to retain jurisdiction of the child is a nullity.” By application in the later cases cited above, this rule from Perry, which involved a divorce action, was extended to post-divorce change-of-custody proceedings.

Decided May 15, 1990

Rehearing denied May 29, 1990

Russell & Herrera, Ann J. Herrera, for appellant.

Dean, Setliff & Smith, William T. Dean, Jr., James T. Barfield III, for appellee.

Temporary custody may be awarded pending divorce proceedings. OCGA § 19-9-1. Adams v. State, 218 Ga. 130 (126 SE2d 624) (1962), a case quoted by the majority but involving a temporary custody order during a divorce proceeding, explained at pages 131-132 that in such circumstances, “[t]he best interests of the child pending adjudication of the rights of the mother and father are the basis for the award. The parental rights of the parties are not adjudicated by the award of temporary custody. A temporary award of custody differs from a permanent award as the latter is a final adjudication of the rights of the parties on the existing facts, is res judicata, and is subject to change only upon a showing of change of conditions affecting the best interests or the child.”

While a change of custody pending a final full-blown hearing and order in a change of condition case may seem prudent, the upset inherent in shifting the child back and forth from parent to parent is good reason for not allowing it. This policy is strengthened by the wisdom of avoiding protracted hearings and inordinate delays in reaching finality concerning the best interests of the child, who may be adversely affected by the passage of each day (if custody should be changed) and by the uncertainty inherent in temporariness even if the most appropriate custodian is the current one.

Since the order of December 5 was final, the further proceedings and the order of August 9, 1989, were a nullity insofar as custody is concerned, and no appeal on the merits or internal procedural aspects lies. See Ashburn Bank v. Gorday, 189 Ga. App. 565 (377 SE2d 30) (1988), where appeal from a void judgment would not lie. The judgment should be reversed for this reason, with the effect of leaving custody in the mother who was awarded it in December 1986. The father’s remedy was to have appealed from that order or he could have sought change by a new petition. Blalock v. Blalock, 247 Ga. 548 (277 SE2d 655) (1981).

       The limited temporary custody authorization contained in subsection (a) is not at issue.


author: Beasley, Judge.

text:
    A90A0419.
    JONES v. ADMIRAL INSURANCE COMPANY.
    (395 SE2d 234)
   Beasley, Judge.

The issue is whether a release executed by the insured bars a claim for statutory penalty and attorney fees against the insurer under OCGA § 33-34-6 (b).

Defendant Admiral Insurance Company issued a fire insurance policy on a commercial building and contents owned by plaintiff Jones. Two weeks after the effective date of the policy, the building and its contents were damaged by fire. Sixty-one days after the insurer received Jones’ demand for payment under the policy, Jones filed the present action seeking payment of the maximum coverage of $42,400 on the building and $10,000 on the contents, OCGA § 33-34-6 (b) penalty and attorney fees, and interest. Unaware of the suit, the insurer paid Jones the maximum policy benefits two days later and obtained a full release from him of all claims.

Summary judgment was granted to Admiral because of the release. Jones contends that the $52,400 paid in exchange for the release was the undisputed amount for the basic benefits under the policy so that there was no consideration to support the release.

“Where a party receives no more than the amount legally owed and where at that time there is no dispute existing between the parties, then the absence of any additional consideration (such as settlement of a disputed account), caúses the purported release to fail, it being a nudum pactum. [Cits.]” Stamsen v. Barrett, 135 Ga. App. 156, 159 (1) (217 SE2d 320) (1975). This is not the situation here.

The release itself stated that the payment of the $52,400 was “not to be construed as an admission of liability” but was “a compromise of a disputed claim” and “executed in full settlement and satisfaction” of Jones’ rights arising out of the fire loss.

The insurer’s evidence showed that the claim was not undisputed or liquidated. The adjuster assigned to investigate the fire questioned the high value which the insured placed on the damaged structure. Even though the policy provided that the insured could collect up to the amount he eventually did, the collection of that sum was not a foregone conclusion. The insurer could have paid any amount up to the maximum, depending upon its assessment of damage and other factors.

The evidence showed that the insurer paid the maximum in the face of the adjuster’s skepticism. The fact that the insurer did not affirmatively plead the release or accord and satisfaction does not alter the impact of evidence that the money was paid to Jones in compromise of a questioned claim.

The executed release does not fail on the basis urged by Jones. It barred the claim for statutory penalty and attorney fees as a “right” arising out of the fire loss. Summary judgment was required since there was valuable consideration for the release even of the right to statutory penalty under OCGA § 33-34-6 (c). Henry v. Allstate Ins. Co., 129 Ga. App. 223 (1) (199 SE2d 338) (1973), modified in part on other grounds, Tucker v. Chung Studio, 142 Ga. App. 818, 820 (3) (237 SE2d 223) (1977).

Decided May 9, 1990

Rehearing denied May 29, 1990.

W. Douglas Adams, for appellant.

Dickey, Whelchel, Brown & Readdick, J. Thomas Whelchel, for appellee.

Judgment affirmed.

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


text:
    A90A0467.
    TURNER v. MIKELL.
    (395 SE2d 20)
   Banke, Presiding Judge.

This is a declaratory judgment action brought by the appellant against the appellee, as executor of the estate of the appellant’s deceased mother, to obtain a ruling that she [the appellant] was entitled to the proceeds of three bank certificates of deposit titled jointly in her name and that of her mother. The certificates, which had a total face value of $40,000, each contained printed language specifying that in the event of the death of one of the two named depositors, the proceeds would be payable to the survivor.

The case was tried before a jury, which found that one of the certificates, in the face amount of $10,000, belonged to the appellant, and that the other two, in the total face amount of $30,000, belonged to the estate. The appellant brings this appeal from the denial of her motion for judgment notwithstanding the verdict or, in the alternative, new trial. Held:

1. The appellant contends that the trial court erred in allowing the other heirs to the estate, consisting of the decedent’s other four children and her surviving spouse, to testify that while the decedent had mentioned having placed the appellant’s name on one of the certificates so as to make those funds readily available in the event she [the decedent] became sick or incapacitated, she had never told them that the appellant’s name was also on the other two certificates. Several of these witnesses further testified that the decedent had told them she wanted all her children to share equally in the proceeds of the certificates upon her death.

The appellant argues that this testimony should not have been admitted because it was offered by witnesses who were interested in the case and because there were no factors tending to guarantee the trustworthiness of the asserted declarations. However, “circumstances indicating that a witness has an interest in the case ... go to the credibility of the witness, not to the admissibility of the declarant’s statement.” Swain v. C & S Bank of Albany, 258 Ga. 547, 550 (372 SE2d 423) (1988). Here, as in Swain, the decedent’s declarations were not self-serving at the time they were made, and the fact that more than one witness reported having heard them was a circumstance tending to establish their trustworthiness. Accordingly, the trial court did not abuse its discretion in admitting this testimony.

Decided May 14, 1990

Rehearing denied May 29, 1990

William J. Edgar, for appellant.

Houston & Golub, Phillip N. Golub, for appellee.

2. “Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent, unless there is clear and convincing evidence of a different intention at the time the account is created. . . .” OCGA § 7-1-813 (a). (Emphasis supplied.) It was established without dispute through the testimony of one of the appellant’s sisters that it was the appellant who had first suggested the idea “that someone else’s name should be put on [the certificates] with Mama[’s] for convenience purposes in case Mama got sick. ...” This witness further testified that her mother had told her she wanted her to be present at the bank “when everything was handled” and that on on the day the appellant drove her to the bank to make the change she [the witness] was “dressed and ready” to go with them, but they “never came by” for her. Considered in its entirety, the evidence provided clear and convincing support for the jury’s determination that the decedent had added the appellant’s name to the certificates for convenience rather than to effect a gift of the funds to her. Accord James v. Elder, 186 Ga. App. 810 (368 SE2d 570) (1988); Georgia Savings &c. Co. v. Sims, 332 FSupp. 1306 (N.D. Ga. 1971). Accordingly, the trial court did not err in denying the appellant’s motions for directed verdict and judgment notwithstanding the verdict.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


author: Sognier, Judge.

text:
    A90A0487.
    DAVIS v. TRUSTHOUSE FORTE HOTELS WORLDWIDE, INC. et al.
    (395 SE2d 235)
   Sognier, Judge.

Michael G. Davis brought suit against Trusthouse Forte Hotels Worldwide, Inc. d/b/a Viscount Inn and three hotel employees, Dean Taylor, Gloria Rike, and Curtis Davis, alleging a claim for malicious prosecution. The trial court granted summary judgment to the defendants, and Davis filed this appeal.

The record below, which consists primarily of the transcript of appellant’s criminal trial, reveals that on the night of September 22, 1988, appellee Rike was stationed at the hotel desk when appellant entered the lobby and requested change for a $50 bill. Appellant explained that he was buying gas at the service station next door, which would accept no bill larger than a twenty, and that he had left his $50 bill with the station attendant. When Rike expressed reluctance to give him change without receiving the $50 bill in exchange, appellant offered to leave his credit card and driver’s license as security. Rike testified that after appellant searched his wallet but found neither item, she then instructed appellee Curtis Davis, a hotel bellman, to accompany appellant to the service station to exchange the money. Davis testified that he and appellant walked out the front door of the hotel lobby to find appellant’s car sitting in front with the motor running. Davis declined appellant’s offer of a ride and began walking across the parking lot to the service station as appellant drove there. Davis stated that an armed man then stepped from the shadows and ordered him to give up the money. After handing over the $50, Davis saw appellant stop his car and open the door for the armed man, and the two drove away. On his way back to the hotel, Davis discovered appellant’s wallet in the parking lot. Rike summoned the police, who later arrested appellant and charged him with armed robbery. At trial, appellant testified that he gave his wallet to Davis in exchange for the $50 and then drove away without giving Davis the alleged $50 bill, but that there was no armed accomplice involved. The jury acquitted appellant of armed robbery but convicted him of theft by deception.

1. Appellant contends the trial court erred by concluding that under Monroe v. Sigler, 256 Ga. 759 (353 SE2d 23) (1987), the denial of appellant’s motion for directed verdict of acquittal in his criminal trial constituted a binding determination of the existence of probable cause, thereby defeating his claim for malicious prosecution. We disagree and affirm. In Monroe, the Supreme Court held that one of the essential elements of an action for malicious prosecution, the lack of probable cause (see OCGA § 51-7-40), cannot be established as a matter of law if in the preceding criminal action the court denied the claimant’s motion for directed verdict of acquittal and that ruling stands unreversed and untainted by fraud or corruption. Monroe, supra at 761 (6). In the case at bar, the judge presiding over appellant’s criminal trial denied appellant’s directed verdict motions made both at the close of the State’s case and again at the close of all the evidence. Accordingly, the existence of probable cause having been established as a matter of law, appellees had pierced an essential element of appellant’s case and thus were entitled to summary judgment. Id. at 762.

Although appellant claims that a fact question remains regarding whether appellees Rike and Davis gave perjured testimony at the trial, he has presented no evidence to support this theory, and in the absence of any such evidence, summary judgment was proper. Akins v. Warren, 258 Ga. 853, 854 (3) (375 SE2d 605) (1989). Appellant also argues the directed verdict ruling could be reversed on appeal; however, there is no evidence appellant has filed an appeal of his criminal conviction. Further, given that appellant was acquitted of armed robbery, we do not expect him to appeal the denial of his motion for directed verdict on the armed robbery charge.

2. Appellant’s contention that material fact questions remain as to other causes of action alleged in his complaint is similarly without merit. While appellant’s complaint could be liberally construed to assert a claim for slander, “ [statements made in good faith pursuant to investigation by police or other officers authorized to investigate crime or criminal activity are made in the performance of a public duty and are privileged. [OCGA § 51-5-7 (1).]” Hardaway v. Sherman Enterprises, Inc., 133 Ga. App. 181 (210 SE2d 363) (1974). Thus, given the absence of any evidence rebutting their assertions of good faith, appellees were entitled to summary judgment. Id. The other “claims” appellant has identified in his complaint are merely statements of types of damages alleged to have arisen from the claimed malicious prosecution and slander, and do not set forth additional causes of action.

3. Appellant’s three enumerations asserting errors of constitutional dimension all present arguments not ruled upon by the trial court, and consequently they cannot be addressed on appeal. Hardison v. Haslam, 250 Ga. 59, 61 (295 SE2d 830) (1982). Nonetheless, we note that because appellant’s arguments urge the overruling or disregarding of the binding precedent of Monroe, supra, these enumerations are without merit.

4. We also disagree with appellant that the trial court’s ruling was in conflict with South Ga. Grocery Co. v. Banks, 52 Ga. App. 1 (182 SE 61) (1935). Contrary to his argument, we do not find Davis’ trial testimony to be so “incredible, impossible, or inherently improbable [cit.],” id. at 7, that it should not have been relied upon as a basis for a finding of probable cause. See id. Moreover, while the Banks court did hold that the determination of whether the facts and circumstances necessary to establish probable cause exist “is a pure question of fact [cits.],” id., “where the material facts are not in dispute or only one inference can be drawn, the question becomes one of law. [Cit.]” Abernathy v. Dover, 139 Ga. App. 323 (228 SE2d 359) (1976). Given that Monroe established a mandatory inference to be drawn under the circumstances here, we affirm the trial court’s grant of summary judgment to appellees.

Decided May 14, 1990

Rehearing denied May 29, 1990.

Michael G. Davis, pro se.

Long, Weinberg, Ansley & Wheeler, J. M. Hudgins IV, Lance D. Lourie, Debra E. LeVorse, for appellees.

Judgment affirmed.

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


text:
    A90A0498.
    CHESTER v. THE STATE.
    (395 SE2d 4)
   Deen, Presiding Judge.

Jamie Lee Chester was convicted of violating the Georgia Controlled Substances Act (sale of cocaine). The evidence showed that a confidential informant arranged a meeting between Chester’s co-indictee, Hopkins, and an undercover GBI agent who wanted to buy cocaine. Chester delivered the drugs to Hopkins’ residence and was present when the sale was made.

1. Appellant first contends that prosecutorial misconduct occurred when the assistant district attorney informed the court that “no deal” was reached between Hopkins and the State when, in fact, the State had agreed to offer Hopkins immunity from prosecution in exchange for his testimony against Chester.

During the trial, appellant’s counsel repeatedly made an issue of Hopkins’ being a participant in the sale, but not being on trial with appellant for the crime. In her objection to severance, counsel claimed that Hopkins was an essential witness in the case, that he was not listed on the State’s witness list, and that she had no way of contacting him. Later, she moved for a continuance so that Hopkins could be subpoenaed. The court indicated that it would be inclined to grant the motion if Hopkins were not available to testify the next day. The State then mentioned that the court should keep in mind Hopkins’ Fifth Amendment right not to testify. Prior to the evening recess the prosecution indicated that it had no further evidence, but the evidence was not closed. The court asked that defense counsel’s subpoena be served on Hopkins before court reconvened in the morning. Hopkins appeared the next morning and was called as a witness by the State.

After Hopkins was sworn as a witness and stated that he had not previously met with the prosecutor, the district attorney offered him limited immunity (his testimony at Chester’s trial would not be held against him in a future proceeding). Defense counsel did not want the limited use immunity to be placed before the jury. The trial court felt that immunity should be placed before the jury and overruled the objection. Hopkins testified that he and appellant sold cocaine to the GBI agent.

The record fails to set forth any evidence of prosecutorial misconduct.

2. The trial court did not err in denying appellant’s motion to reveal the identity of the confidential informant who accompanied the GBI agent to Hopkins’ residence. He did not participate in the transaction.

The informant’s identity was sought pursuant to a Brady motion, which was denied after the court heard argument shortly prior to trial. The court held that mere presence at the scene of the transaction was not sufficient to require disclosure of his identity, there was no showing that the witness would provide exculpatory information so as to require the State to reveal his identity, and the defendant’s identity would be established by other testimony.

We find no error under Thornton v. State, 238 Ga. 160 (231 SE2d 729) (1977), as alleged by appellant, because the trial court correctly balanced the public interest in protecting the flow of information against Chester’s right to prepare his defense. The sole reason given for need of the informant’s identity was to impeach his credibility because the person counsel believed to be the informant “has two prior convictions for giving a false name to an officer and one conviction for violation of the Georgia Controlled Substances Act.” Appellant was therefore not seeking to elicit any favorable testimony from him. As the informant was not a co-defendant or a witness, his prior criminal record was irrelevant. The trial court correctly found that appellant had not made an adequate showing of need for disclosure of the informant’s identity.

3. The morning after the evidence was closed the court charged the jury, and it deliberated most of that day. The following morning it returned a verdict with the word “participation” in parentheses under the words “of selling cocaine.” The court informed the jury that the verdict was not in proper form and that it should return to the jury room and provide the court with a verdict in proper form. Appellant contends that the court erred in instructing the jury before they again retired to deliberate that whether he was “guilty by virtue of being a party to the crime or by being involved in it in whatever fashion, and that is the question the court needs to have answered.”

The sentence of which appellant complains has been taken out of context. The court, in its earlier charge, charged on mere presence and parties to a crime. In the recharge in question, the court again explained that the basic question was whether the defendant was guilty or not guilty of the crime of selling cocaine by being a party to the crime and that there is no crime called “selling cocaine by participation.” When that portion of the charge to which appellant objects is taken in context with the entire charge, it was not erroneous or confusing. Bowles v. State, 168 Ga. App. 763, 765 (310 SE2d 250) (1983).

4. There is no evidence to support appellant’s contention that the jury verdict was not freely and voluntarily reached. After the jury had deliberated for several hours, the court inquired as to its progress and gave an Allen charge. By the time for the evening recess, the jury informed the court that it was split 8-3, one undecided. Defendant’s motion for a mistrial was denied because the court felt that the undecided juror needed to reach a decision. The next morning the jury returned its first verdict, which was not accepted by the court. After the second verdict was presented to the court, the jury was polled and a juror stated that he had some difficulty with it and that, while he voluntarily reached the verdict, he still believed that the defendant was a participant. The court reminded him of the earlier charge on the State’s burden of proof and that the word “participate” was not used in the jury instructions “except perhaps in relation to parties to a crime,” and asked the juror if he had reached the verdict in the jury room based on these instructions and if he agreed to the verdict. The juror stated that he was still having difficulty with the verdict. The jury retired again, and a verdict was reached. When the jury was polled all jurors stated that it was their verdict and that it was freely and voluntarily given.

We find no error. Appellant’s reliance upon Thornton v. State, 145 Ga. App. 793, 795 (245 SE2d 22) (1978), is misplaced. The jury in the instant case did not claim to be deadlocked or otherwise unable to reach a verdict, but rather one juror seemed to have difficulty in understanding the court’s instructions. The jury was allowed to deliberate at its own speed. After the verdict in correct form was returned, a poll of the jurors indicated that it was arrived at freely and voluntarily. Scruggs v. State, 181 Ga. App. 55 (351 SE2d 256) (1986).

Judgment affirmed.

Pope, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I fully concur in Divisions, 1, 3 and 4. I also agree that no error was committed by the court’s refusing to identify the confidential informant. But no application of the balancing test was necessary. Defense counsel admitted that they knew who the informant was and had even obtained his criminal record. The co-defendant referred to him by name, “Bobby.” There was no unknown or questionable identity for the State to be compelled to disclose.

Decided May 3, 1990

Rehearing denied May 29, 1990

Chandelle T. Summer, for appellant.

C. Andrew Fuller, District Attorney, W. M. Brownell, Jr., Assistant District Attorney, for appellee.


text:
    A90A0070.
    THE STATE v. GRIMES.
    (395 SE2d 42)
   Carley, Chief Judge.

Appellee was indicted for possession of cocaine with intent to distribute, possession of a firearm by a convicted felon, and carrying a concealed weapon. He filed a pre-trial motion to suppress on the ground that “no probable cause existed to suspect [him] of any crime and/or seize his person or property.”

At the hearing on the motion to suppress, the only witnesses who testified were the two officers who had arrested appellee. Their unrebutted testimony was as follows: At approximately 6:30 p.m., the officers drove into the parking lot of an apartment complex. They were in a marked police car and were en route to a location in the apartment complex where they were to provide backup for an undercover drug buy. While driving by one of the buildings in the complex, the officers observed appellee walking toward a parked vehicle. When appellee saw the officers in their marked police car, his reaction was to turn away quickly and walk back toward the apartment building. He then tried to gain entry to a downstairs unit, but was unsuccessful. As the police car moved closer, appellee ran up the stairs to the second floor of the apartment building, where he again tried unsuccessfully to gain entry to another unit. Based upon appellee’s suspicious actions, the officers parked and left their patrol car to investigate. As they approached the apartment building, they saw appellee remove a shiny silver object from the waistband of his pants and drop that object to the floor. One of the officers drew his gun and walked up the stairway only as far as the landing between the two floors. While he was standing on the landing, this officer saw that there was a pistol on the floor near appellee. The officer then pointed his gun at appellee and ordered him to raise his hands. Meanwhile, the other officer had continued up the stairs and, upon arriving at the second floor, he also drew his gun and pointed it at appellee. The officer who had remained on the landing informed the officer who had continued up the stairs that there was a pistol on the floor. The pistol was then retrieved and appellee was arrested for carrying a concealed weapon. A search of appellee revealed a set of car keys. Apparently without giving appellee the Miranda warnings, the officers questioned him about the keys. Appellee stated that the keys were to the vehicle that he had been walking toward when he had first been observed by the officers. When appellee was asked for permission to search the vehicle, his reply was “go ahead.” A search of the vehicle revealed a holster, ammunition, and cocaine.

On this evidence, the trial court granted appellee’s motion to suppress and the State appeals.

1. Flight at the approach of law officers is a strong indicium of mens rea. State v. Webb, 193 Ga. App. 2, 4 (1) (386 SE2d 891) (1989). Indeed, flight coupled with other circumstances has been held to establish probable cause for an immediate arrest. Scott v. State, 193 Ga. App. 74 (387 SE2d 31) (1989); State v. Billoups, 191 Ga. App. 834 (383 SE2d 198) (1989). However, even assuming that the other circumstances which were present in the instant case were not such as to establish probable cause for appellee’s immediate arrest, his flight “was nevertheless clearly a sufficiently suspicious . . . response to the [approach of law officers] so as to give [them] at least a reasonable suspicion of appellee’s criminal activity and to warrant further investigation.” State v. Webb, supra at 4 (1). The officers were at the apartment complex for the very reason that drug activity had been reported at that location. When they were seen by appellee, he abruptly turned and unsuccessfully attempted to enter not one but two different units. The officers were clearly authorized to investigate this suspicious activity. “ ‘The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow ... a criminal to escape.’ [Cit.]” State v. Webb, supra at 4 (1).

Appellee urges that the officers’ investigatory reaction to his suspicious activity became an illegal “seizure” of his person when at least one of the officers drew his gun while approaching the apartment building and before walking up the stairway. It is undisputed, however, that no gun was drawn until after the officers had seen appellee remove a shiny silver object from the waistband of his pants. Under these circumstances, it was more than reasonable for the officers to suspect that appellee might be armed. Even though the officers had also seen appellee drop the shiny silver object to the floor, there was no reason for them not to suspect that he might still be armed with some weapon or that he might retrieve the shiny silver object by the time that they reached the top of the stairway. Moreover, the confrontation was occurring in an apartment complex where drug activity had been reported. “An investigatory stop is not automatically an arrest simply because an officer is armed. . . . [Cits.] It is often necessary for the police to approach a person with a drawn weapon in a suspiciously dangerous situation in order to protect the physical well-being of both police officers and the public.” Franklin v. State, 143 Ga. App. 3, 5 (2) (237 SE2d 425) (1977). Under the undisputed circumstances of the instant case, the mere fact that at least one of the officers had drawn his weapon prior to the actual confrontation with appellee was certainly reasonable, and clearly did not, in and of itself, transform the officers’ authorized investigatory reactions to appellee’s suspicious activity into an illegal arrest. “ ‘An officer may take appropriate self-protective measures when he lawfully confronts an individual and reasonably believes him to be armed or otherwise dangerous to the officer or others. The usual police response will be to conduct a frisk, patting the individual’s clothing in search of a weapon. (Cits.) Where an immediate frisk is not feasible, however, the officer will be justified in approaching the suspect with weapon drawn or at the ready. (Cits.) The key question in all cases remains whether the protective measures taken by the officer were reasonable under the circumstances.’ [Cits.]” Edwards v. State, 165 Ga. App. 527, 528 (301 SE2d 693) (1983).

There was no “seizure” of appellee’s person until the officer who was standing on the landing actually pointed his gun at appellee and ordered him to raise his hands. It is undisputed that this did not occur until after the officer had seen that the shiny silver object that appellee had removed from the waistband of his pants was in fact a pistol. The officers observations established probable cause to believe that appellee had committed the offense of carrying a concealed weapon, and authorized the immediate arrest of appellee for the commission of that offense and the immediate seizure of the pistol as evidence of his guilt. It follows that the trial court erred in granting appellee’s motion to suppress the pistol.

2. It is unclear what effect the trial court’s erroneous suppression of the pistol may have had upon its determination also to suppress the holster, ammunition, and cocaine that were found in the subsequent search of the vehicle. As we have held in Division 1, the arrest of appellee for commission of the crime of carrying a concealed weapon was not unauthorized. Accordingly, the items that were seized in the subsequent search of the vehicle would not be subject to suppression as the “poisonous” fruit of appellee’s illegal arrest and, if the trial court suppressed those items on this basis, it erred. Those items would be subject to suppression only if the State failed to prove that the search and seizure of the vehicle that was conducted after the appellant’s authorized arrest was not otherwise justified under any exception to the warrant requirement. Since it does not appear that the trial court’s ruling on the subsequent search and seizure was unaffected by its erroneous ruling on the initial seizure of appellee and the pistol, the case must be remanded for a new suppression hearing to determine whether the subsequent search and seizure was justified under any exception to the warrant requirement, including but not necessarily limited to the consensual search exception. See Atkins v. State, 254 Ga. 641 (331 SE2d 597) (1985); State v. Peacock, 178 Ga. App. 96 (342 SE2d 364) (1986); State v. Waters, 170 Ga. App. 505, 507 (2) (317 SE2d 614) (1984).

Decided May 29, 1990.

Robert E. Wilson, District Attorney, Donald C. English, Assistant District Attorney, for appellant.

Bruce S. Harvey, for appellee.

Judgment reversed and case remanded with direction.

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


text:
    A90A0133.
    DUKES v. THE STATE.
    (395 SE2d 263)
   Birdsong, Judge.

Tony Dukes appeals his conviction by a jury of violating the Georgia Controlled Substances Act by unlawfully having in his possession more than one ounce of marijuana. He was sentenced to five years in the penitentiary.

He contends the trial court erred by denying his motion for a directed verdict of acquittal because there was no proof of his actual or constructive possession of the marijuana, and the trial court erred by not charging the jury on the law of handwriting evidence after the State made handwriting evidence an issue in closing argument. Held:

1. The evidence of record shows that acting on a report of a reliable informant, the sheriffs department secured a warrant to search a house that they believed to be Dukes’ residence. When the warrant was executed, no one was home, but when inside, the authorities found mail, including cancelled checks, telephone bills, and other papers addressed to Dukes, and male clothing. In their search, the deputy sheriffs found no evidence showing that anyone other than Dukes lived there.

Dukes’ motion for a directed verdict of acquittal contended that this evidence was insufficient to prove that he had actual or construetive possession of the marijuana, and thus the motion for a directed verdict of acquittal should be granted.

The standard to be applied in deciding a motion for a directed verdict of acquittal is whether there was any conflict in the evidence and the evidence with all reasonable deductions and inferences therefrom demanded a verdict of acquittal. OCGA § 17-9-1 (a). Obviously, it is not error to deny a motion for a directed verdict of acquittal when a rational trier of fact, viewing the evidence in a light most favorable to the State, could have found the essential elements of the crime beyond a reasonable doubt. Gaily v. State, 181 Ga. App. 906, 907 (354 SE2d 442). Because of Dukes’ property in the house, it cannot be said that there was no conflict in the evidence and that the evidence demanded a verdict of acquittal. Accordingly, the trial court did not err by denying the motion. See Conger v. State, 250 Ga. 867, 870 (301 SE2d 878).

2. Dukes also contends that the trial court “erred in not charging the jury on the law of handwriting evidence after the State made handwriting evidence an issue in its closing argument.” The transcript shows that after the prosecutor invited the jury to compare the handwriting on certain defense exhibits and to take that into consideration when reviewing the evidence, defense counsel interrupted and stated: “I want to place my objection on the record, and I will ask for my necessary motion after she has got through.” The transcript also shows that after the jury was charged, the defense continued argument on this point, but the record does not show that defense counsel at any time made a motion for mistrial, requested that the trial court charge the jury on the issue it now raises, or even suggested what charge on this issue might be warranted.

We find no error below. The prosecutor’s argument was suggested by the evidence (see Durden v. State, 250 Ga. 325, 329-330 (297 SE2d 237); Brooks v. State, 191 Ga. App. 705 (382 SE2d 432)), and Dukes failed to request the charge about which he now complains. See OCGA § 5-5-24 (b); Spear v. State, 230 Ga. 74, 75 (195 SE2d 397). Further, as the transcript shows that Dukes did not move for a mistrial or seek other corrective action, he cannot complain that the trial court did not go beyond the relief requested. Hall v. State, 180 Ga. App. 881, 883 (350 SE2d 801).

3. Moreover, the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that Dukes was guilty of the offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.

Decided May 29, 1990.

Hasty & Wingo, Lee R. Hasty, for appellant.

William G. Hamrick, Jr., District Attorney, Monique F. Kirby, Assistant District Attorney, for appellee.


text:
    A90A0186.
    SHOFFNER v. WOODWARD et al.
    (394 SE2d 921)
   Sognier, Judge.

James P. Shoffner brought suit against Constance and M. G. Woodward to recover additional compensation allegedly due pursuant to the terms of a stock purchase agreement. The parties filed cross-motions for summary judgment, and Shoffner appeals from the judgment entered in favor of the Woodwards.

The parties agree the material facts are undisputed and the question before the court is one of contract interpretation. In 1982, appellant was engaged by Team Temporaries, Inc., the predecessor in interest to Team Services, Inc. (the “company”), to generate additional capital for the company’s operations. As a result of his efforts, 300 shares of company stock were sold to appellee M. G. Woodward. Appellant received 100 shares of company stock as compensation for his services. On June 27, 1985, he and appellees executed the stock purchase agreement (the “agreement”) whereby Constance Woodward, with M. G. Woodward as guarantor, agreed to purchase appellant’s 100 shares in the company for $1,125 per share (the “base price”). The agreement provided that upon the issuance, sale, purchase, or redemption by the company, or sale by certain stockholders, of shares of company stock for a price in excess of the base price during a specified time period (a “qualifying sale”), appellant was to receive additional compensation calculated according to a specified formula. Sales of company stock to insiders, including appellees, were not subject to additional compensation. In addition, section 1.02 (c) of the agreement provided in pertinent part that if “there shall be any stock dividend or other distribution of capital stock or any increase or decrease in the number of outstanding shares of capital stock of the [company] as a result of recapitalization, reorganization, merger or otherwise, [appellant is entitled to additional compensation according to the formula] so that [he] is entitled to receive the same amount that he would have received had the [qualifying [s]ale taken place immediately prior to such stock distribution or increase or decrease in the number of shares of capital stock of the [company] as a result of recapitalization, reorganization, merger or other such change in the capital structure of the [company].” (Emphasis supplied.) At the time the parties executed the agreement, there were 1,199 shares of company stock outstanding.

Thereafter, in April 1987, the company’s shareholders (appellees and Lawrence Stumbaugh) entered into a contract (the “sale contract”) to sell 1,900 shares of outstanding company stock to Hestair pic, an English corporation, at a price of $4,750,000. As a prerequisite to the sale, Hestair required that the company retire certain obligations and establish a balance of $800,000 in net working capital. Accordingly, prior to the May 1987 closing, the company sold 781 shares to the shareholders at the base price ($1,125 per share) in exchange for cash and a note, both of which were used to reduce the company’s outstanding obligations and to increase its working capital. At the closing of the sale contract, Hestair received the outstanding 1,980 shares (1,199 original shares plus the 781 sold to the shareholders in April). Appellees then notified appellant that a qualifying sale had occurred and paid him additional compensation of $60,795.50 pursuant to the agreement. This amount was calculated by dividing the net purchase price of $4,635,000 (sale price less $15,000 applied to Hestair’s letter of credit and $100,000 retained by the company to pay employee bonuses) by 1,980 shares.

1. Appellant maintains the sale by the company of 781 shares to appellees and Stumbaugh occurred “as a result of recapitalization, reorganization, merger or otherwise” as stated in section 1.02 (c), and thus the equitable adjustment provision in that section of the agreement should have been applied so that upon the sale to Hestair appellant would have received the amount to which he would have been entitled before the sale of the additional 781 shares.

(a) We first address his contention that the sale of the 781 shares to appellees and Stumbaugh constituted a “recapitalization” because the effect of the transaction was to change the debt/equity ratio of the company’s balance sheet. Since “recapitalization” is not defined in the agreement, we must determine its meaning in the context of the parties’ intention, e.g., Rodgers v. Rodgers, 234 Ga. 463 (216 SE2d 322) (1975), and the parties agree that section 1.02 (c) is an antidilution provision intended to protect appellant’s rights to additional compensation in the event of a qualifying sale.

When interpreting contracts, we follow the rule that “[w]ords generally bear their usual and common signification; but . . . words used in a particular trade or business will be construed, generally, to be used in reference to this peculiar meaning.” OCGA § 13-2-2 (2). Although not expressly defined therein, “recapitalization” is a term used in the Georgia Business Corporation Code to refer to certain stock transactions. See OCGA §§ 14-2-1110 (5) (F), — 1112 (b) (3) (A) (iii); see also Comment to OCGA § 14-2-1004 (a) (10). Accordingly, we find recapitalization is a business finance term, and as the agreement at issue involved the sale of stock, we will assume the term was used in that sense. Neither party has cited us to a Georgia case or statute that defines or interprets the term recapitalization, nor has our research disclosed any Georgia authority. The term is most commonly interpreted in cases concerning the applicability of 26 USC § 368, which defines certain corporate transactions that are exempt from taxation, and which includes “recapitalization” in the definition of “reorganization.” Id. at (a) (1) (E). Courts applying this provision have defined recapitalization as “reshuffling of a capital structure within the framework of an existing corporation” (Helvering v. Southwest Consolidated Corp., 315 U. S. 194, 202 (62 SC 546, 86 LE 789) (1942)); as “a new form of the previous participation in an enterprise, involving no change of substance in the rights and relations of the interested parties one to another or to the corporate assets” (Bazley v. Commissioner, 331 U. S. 737, 740 (67 SC 1489, 91 LE 1782) (1947)); as a transaction in which stockholders receive new securities “without substantially changing their original investment” (Commissioner v. Neustadt’s Trust, 131 F2d 528, 530 (2nd Cir. 1942)); and as “ ‘(a) an arrangement whereby the stock, bonds or other securities of a corporation are readjusted as to amount, income or priority, or (b) an agreement of all stockholders and creditors to change and increase or decrease the capitalization or debts of the corporation or both.’ [Cit.]” United Gas &c. Co. v. Commissioner, 142 F2d 216, 218 (3rd Cir. 1944). See also 17 Fletcher, Cyclopedia of Corporations, § 3:48 (defines recapitalization as any change in the amount or type of authorized stock, including an increase or decrease in the amount of authorized shares or a change in par value of existing shares); Treas. Reg. § 1.368-2 (e) (examples of recapitalization include exchanging bonds for stock and surrendering preferred stock in exchange for no par value common stock).

Like the Bazley court, 331 U. S. at 741, we will not attempt an abstract definition of recapitalization, but will ascertain the meaning of the term in the context in which it is used and in accordance with the parties’ intention. The purpose of the antidilution provision was to provide for an adjustment in the event there was a proportional change in the company’s outstanding shares through corporate actions such as a stock split so that appellant’s right to additional compensation at the time of a subsequent qualifying sale would not be diluted. See Wood v. Coastal States Gas Corp., 401 A2d 932, 938 (II) (c) (Del. Supr. 1979). Accordingly, we hold the term “recapitalization” in section 1.02 (c) was intended to encompass a change in the number or character of the outstanding shares of the company unaccompanied by a change in the stockholders’ existing investment. Where, however, additional investments are made by the stockholders so as to increase the economic value of the company, that constitutes a fundamental change in the company’s capital structure—a capitalization rather than a recapitalization—and the antidilution provision does not apply. In the transaction at issue, while the total number of outstanding shares increased, there also was a corresponding rise in the net economic value of the company in the form of the consideration paid by appellees and Stumbaugh for the 781 shares. Thus, rather than diluting appellant’s share, the transaction increased the value of the company. We agree with appellant that the debt/equity ratio of the company changed as a result, but this change occurred not because of a recapitalization of the existing investments but as a consequence of the addition of new capital to the company’s balance sheet.

(b) Appellant also contends the phrase “or otherwise” in the clause at issue should be interpreted to mean any action that results in a “distribution of capital stock or any increase or decrease in the number of outstanding shares” as stated in section 1.02 (c). We do not agree, for that interpretation is inconsistent with the meaning of the rest of this antidilution provision, which provides for equitable adjustment only when there is a change in capital stock as a result of recapitalization, reorganization, or merger, all of which involve changes in the nature of the outstanding stock but not necessarily an increase in the net economic value of the company. Such an interpretation would be contrary to the rule that the “construction which will uphold a contract in whole and in every part is to be preferred.” OCGA § 13-2-2 (4). Further, when we look to the entire contract, id., we find that whenever this phrase is repeated in section 1.02 (c), it refers to “recapitalization, reorganization, merger or other such change in the capital structure of the [company].” Favoring this more specific provision over the broader phrase “or otherwise,” Hearn v. Old Dominion Freight Lines, 172 Ga. App. 658, 659 (1) (324 SE2d 517) (1984), we construe the phrase “or otherwise” to mean “or other such change in the capital structure” of the company similar to a recapitalization, reorganization, or merger, and thus find section 1.02 (c) was not activated by the sale of the additional 781 shares.

(c) We need not address appellant’s argument that the sale of the 781 shares diluted his interest through payment of an artificially low price because we have determined that the antidilution provision does not apply to the transaction. We do note, however, that this transaction actually may have increased, rather than diluted, appellant’s interest because it enhanced the economic value of the company so that Hestair was willing to pay the price it ultimately paid to purchase the company’s stock.

2. Appellant’s other contention concerning appellees’ calculation of the additional compensation due him is that the calculation should have been made based upon the stated purchase price in the sale contract of $4,750,000, not the net price to the stockholders of $4,635,000. He asserts the differential of $115,000 resulted from an allocation of the sale contract price to other items, not a reduction in the price paid to appellees and Stumbaugh, and that the agreement did not contemplate calculations based on a net price.

Decided May 29, 1990.

Glass, McCullough, Sherrill & Harrold, John A. Sherrill, Susan L. Goodman, for appellant.

Parker, Johnson, Cook & Dunlevie, Kirk W. Watkins, for appellees.

The sale contract provided that $15,000 of the total price would be withheld from the sellers and applied to the cost of Hestair’s letter of credit, and that $100,000 of the total would be used to pay the bonuses of employees other than appellees and Stumbaugh who remained in the employ of the company for one year after the sale. The remaining amount of $4,635,000 was to be paid to the sellers in cash and promissory notes. There is no evidence either the bonuses or the letter of credit were existing obligations of the stockholders. It thus appears that while the total consideration paid by Hestair may have totalled $4,750,000, the stockholders received only $4,635,000.

Nonetheless, the agreement provides for the payment of additional consideration to appellant in the event “shares of the capital stock of the [company] are transferred for consideration having a value in excess of the [b]ase [p]rice,” and the calculation is to be based upon the excess of the sale price per share over the base price. Given this focus on the price paid to and consideration received by the company, not by appellees, and given that there is no provision in the agreement for calculation of a net price per share or the price per share actually paid to appellees, we agree with appellant that his additional compensation should have been calculated on a sale price of $4,750,000.

Judgment affirmed in part and reversed in part.

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