text:
    A99A1233.
    CARTER et al. v. MURPHEY.
    (526 SE2d 149)
   Phipps, Judge.

This case arose out of a real estate development that went bad. The parties attempted to develop 250 acres of land along the Savannah River in McCormick County, South Carolina. When the project failed, Alexander Murphey sued C. E. Carter and Margaret Carter for $208,747.94 on a contract for reimbursement. The Carters countersued Murphey to recover $500,000 that they had invested in the project. They alleged that Murphey breached a separate contract and breached a fiduciary duty he owed to them. A jury returned a verdict of $202,814 for Murphey. The Carters were awarded nothing on their counterclaim.

The Carters appeal, presenting two issues. First, did the trial court err by denying the Carters’ motion for continuance which was based on the absence of their expert witness who had been subpoenaed? Second, was the evidence sufficient to support the jury’s award to Murphey? We find that the trial court abused its discretion when it denied the Carters’ motion for continuance, and we reverse on that ground. Because we find that there was evidence to support it, we affirm the jury’s award to Murphey.

In 1983, Murphey, a physician, learned of an opportunity to buy property which was known as Furey Plantation. Murphey approached the Evans brothers about purchasing the property with him. The Evans brothers had experience in real estate development. They insisted that C. E. Carter, an electrical contractor, be allowed to join the group. Murphey agreed on the condition that he would be a participant in the development of the property. Eventually, the four purchased the plantation. The venture was titled Furey Development, Inc. About 1985, the Evans brothers wanted to quit the venture, and Murphey and Carter bought them out.

In 1987, Murphey and Carter decided to develop Furey Plantation as a residential subdivision. Murphey had participated in the development of a medical care building and, by this time, had obtained a broker’s license and opened a business called Murphey Real Properties, Inc.

Furey Development, with Murphey acting as president, contracted with Murphey Properties to develop Furey Plantation. Mur-phey Properties was to be paid $100,000 plus additional fees. Carter transferred his shares in Furey Development to his wife and continued to act as an officer. Murphey and the Carters obtained mortgages totaling approximately $1.25 million to finance the development.

Murphey and Carter learned that a portion of the plantation was in a flood plain. Murphey contacted the Federal Emergency Management Authority (FEMA) and submitted a certification that the development would not affect the flood level in the area. They continued with plans to develop the property, even though FEMA did not respond to the certification.

Murphey Properties marketed the development as an exclusive subdivision and began selling lots along the riverside in 1987. Brochures detailed plans for a gated entrance, a boat ramp and dock, a clubhouse, tennis courts, swimming pools, and fitness trails.

During construction of the clubhouse in 1990, a FEMA representative inspected the subdivision and declared that all existing construction, including homes and the clubhouse, violated federal requirements for building in a flood plain. FEMA banned further construction in the development until existing construction was brought into compliance with federal standards or until no-rise certificates were provided. The ban was in effect for over two years, until Murphey supplied the requested certificates.

Only one lot was sold after the ban began. Many of the promised amenities were never built. The development was unable to generate money, but the loan obligations continued. The development stayed alive only because Murphey personally advanced money to Furey Development.

On April 18, 1991, Murphey and the Carters signed a contract whereby the Carters agreed to reimburse Murphey for half of the advancements he made to Furey. One month later, the Carters exercised a clause to cease advancements by Murphey that created reimbursement obligations for them. Between 1993 and 1995, Murphey and the Carters liquidated their interests in Furey Plantation. In the end, Murphey and C. E. Carter split $80,000 of unpaid debt.

In May 1997, Murphey sued the Carters for unreimbursed advancements. The Carters counterclaimed, alleging Murphey had negligently operated the development and breached a fiduciary duty to them. Subsequently, they amended their negligence claim to one of breach of contract.

1. On the day the case was scheduled for trial, August 24, 1998, the Carters moved for continuance because their subpoenaed expert witness, William Belangia, was absent. The Carters filed a written motion for continuance, and their attorney restated the motion when the judge called the case to trial. Belangia had been served with the subpoena on July 23, 1998, and the Carters’ attorney had informed Belangia of the trial date six days before trial. Counsel informed the court that he had not discharged Belangia from the subpoena. The judge denied the motion for continuance but ruled that he would “require [Belangia] to show cause as to why he should not be held in contempt of [c]ourt for not appearing for [the] court appearance.”

“All applications for continuances are addressed to the sound legal discretion of the court. . . .” We reverse only where there is a clear abuse of that discretion. Our analysis is guided by the requirements of OCGA § 9-10-160 and the principle that “[a] motion for a continuance, put on the ground of ‘the absence of a witness,’ ought to be granted if his testimony will be ‘material.’ ” Under OCGA § 9-10-160, applications for continuances made upon the ground of the absence of a witness must show:

(1) That the witness is absent;
(2) That he has been subpoenaed;
(3) That he does not reside outside of the state;
(4) That his testimony is material;
(5) That the witness is not absent by the permission, directly or indirectly, of the applicant;
(6) That the applicant expects he will be able to procure the testimony of the witness at the next term of the court;
(7) That the application is not made for the purpose of delay but to enable the party to procure the testimony of the absent witness; and
(8) The facts expected to be proved by the absent witness.

There is no question Belangia’s testimony was material. According to the Carters’ motion, Belangia had years of experience in real estate development and would testify as an expert that:

It [was] poor judgment to begin a development without clearance from FEMA and without adequate financing (which caused severe problems for the development) and that the actions of the developer poisoned the atmosphere and, even after the prohibition against building permits was lifted, resulted in depressed prices for the lots and difficulty in selling the lots, leading to the failure of the development.

Also, the Carters expected Belangia to testify regarding his experiences as a purchaser of a lot in the development. As such, he was one of those who could neither build on their property nor sell it and who never saw the promised amenities.

The Carters met the requirements of OCGA § 9-10-160. Their written motion made all the necessary averments, and their attorney’s representations were consistent with the statutory requirements. We find that the trial court abused its discretion in denying the Carters’ motion for continuance.

Murphey argues that the Carters waived their motion for continuance because they opposed a motion for mistrial Murphey made after the close of evidence. Murphey cites no authority for this point. Further, Murphey moved for a mistrial on the ground that the Carters should not have been allowed to present their counterclaim and that evidence they introduced in support of their counterclaim and defense should not have been admitted. The Carters could not have been expected to agree to a mistrial on this basis. The grant of a mistrial would have resulted in another trial in which the Carters could not present their counterclaim and where much of their evidence would be excluded. The Carters did not waive their motion for continuance.

Murphey raises several arguments which go to the issue of whether the trial court’s denial of the continuance was harmless. He asserts the counterclaim was not properly before the trial court because: (1) the applicable statute of limitation was four years, which had lapsed; (2) the Carters had not presented an expert affidavit under OCGA § 9-11-9.1; and (3) neither Murphey nor the Carters were parties as individuals to the contract for development of Furey Plantation. Murphey presented these arguments to the trial court in a motion to dismiss and a motion for directed verdict. The trial court denied both motions. Murphey did not file a cross-appeal. Therefore, we cannot consider these assertions.

Decided November 23, 1999

Reconsideration denied December 8, 1999.

Jay M. Sawilowsky, for appellants.

Allen W. Johnson, for appellee.

2. The jury’s award of $202,814 to Murphey falls “within the range of evidence and testimony” presented by Murphey. Murphey and the Carters had jointly retained a certified public accountant (CPA) firm to perform a cash flow analysis on Furey Development to determine the amount of reimbursement the Carters owed Murphey. They supplied the documentation, and the CPA firm performed the analysis according to procedures upon which they agreed. At trial, a representative of the CPA firm testified that the total principal and interest due Murphey was $202,571.30. He testified that he had used a shortcut method to calculate interest and that the interest would have been greater under a longer calculation method. Murphey testified that the Carters owed him $208,747.94 and that he believed the cash flow analysis understated his damages. We do not find reversible error in the amount of damages awarded to Murphey.

Because the trial court abused its discretion in denying the Carters’ motion for continuance, we reverse the court’s judgment to the extent that it relates to the Carters’ counterclaim. We remand the case to the trial court for a new trial on the counterclaim. We affirm the judgment of the trial court to the extent it awards $202,814 to Murphey on his claim.

Judgment affirmed in part and reversed in part.

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

       Murphey asserts that the subpoena was not valid because it did not specifically mention August 24,1998, as the appropriate term of court and because the Carters did not show that the proper witness fee had been paid to Belangia. The trial judge did not find, and the record does not show, a defect in the subpoena.

       OCGA § 9-10-167 (a).

        Payton v. Green, 179 Ga. App. 438, 439 (2) (346 SE2d 884) (1986).

       (Citation, punctuation and emphasis omitted.) Ricketson v. Blair, 171 Ga. App. 714, 717 (320 SE2d 788) (1984).

        Jefferson Pilot Life Ins. Co. v. Clark, 202 Ga. App. 385-386 (1) (414 SE2d 521) (1991).

       See Anderson v. Chatham, 190 Ga. App. 559, 565 (4) (379 SE2d 793) (1989); see also Mercer v. Woodard, 166 Ga. App. 119, 127 (10) (303 SE2d 475) (1983).


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    A99A1622.
    ZEHNER v. THE STATE.
    (525 SE2d 416)
   Johnson, Chief Judge.

A jury found Rodney Zehner guilty of driving under the influence of alcohol. He appeals from the conviction entered on the verdict, contending that the trial judge erred in expressing to the jury his opinion about Zehner’s guilt and in denying Zehner’s motion in limine to exclude unlawfully obtained evidence. Zehner’s failure to preserve these arguments below precludes our consideration of them on appeal. Therefore, we affirm.

1. During voir dire, the trial judge asked the jurors if they had, “from having seen these crimes committed or having heard any of the testimony delivered on oath,” formed any opinion regarding the guilt or innocence of the accused. Defense counsel did not object or move for mistrial, but asked and was permitted to approach the bench. A bench conference was held off the record. The trial court then asked the jurors if they had any prejudice or bias for or against the defendant, to which they replied that they did not.

Zehner argues that, by including in its question the words “having seen these crimes committed,” the trial court implied that crimes had been committed and that Zehner was guilty. This, he contends, was an expression of opinion in violation of OCGA § 17-8-57. That statute prohibits a judge in a criminal case from expressing his opinion as to what has or has not been proved or as to the guilt of the accused.

We note that the language of which Zehner complains was taken from former Ga. Code Ann. § 59-806 (1), which provided that a trial court may ask jurors during voir dire whether they have, “from having seen the crime committed, or having heard any of the testimony delivered on oath, formed and expressed any opinion” regarding the guilt or innocence of the defendant. See Bloodworth v. State, 119 Ga. App. 677, 678 (1) (168 SE2d 334) (1969). Our courts have specifically approved the use of this question during voir dire, holding that the “having seen the crime committed” language of the statute does not assume that a crime has been committed. See Brown v. State, 226 Ga. 114, 115 (2) (172 SE2d 666) (1970). The statute was later amended, and the words “from having seen the crime committed, or having heard any of the testimony delivered on oath” were replaced with “for any reason.” See Jordan v. State, 247 Ga. 328, 339, n. 14 (276 SE2d 328) (1981); OCGA § 15-12-164.

We need not decide in this case whether the trial court committed reversible error by using the language from the former statute. This is because the issue of whether OCGA § 17-8-57 was violated is not reached unless an objection or motion for mistrial is made on that ground. Davitt v. State, 232 Ga. App. 427, 428 (2) (502 SE2d 300) (1998); Santone v. State, 187 Ga. App. 789, 792 (4) (371 SE2d 428) (1998). Zehner has not shown on the record that he objected or moved for a mistrial on the ground asserted here. By failing to assert at trial that the trial court was making an impermissible expression or intimation of its opinion, Zehner waived the right to raise the issue on appeal. See Rowe v. State, 266 Ga. 136, 137 (2) (464 SE2d 811) (1996); Davis v. State, 237 Ga. App. 508 (1) (515 SE2d 646) (1999).

Decided November 17, 1999

Reconsideration denied December 8, 1999.

Chestney Hawkins Law Firm, Michael M. Hawkins, for appellant.

Joseph J. Drolet, Solicitor, Marko L. Burgar, Assistant Solicitor, for appellee.

2. Zehner contends that the trial court erred in denying his motion in limine concerning incriminating statements made to police and evidence obtained by police during his detention. Although he objected to the admission of this evidence prior to trial in a motion in limine, he has not shown where he elicited or obtained a ruling from the trial court on this motion. Nor has our review of the record revealed such a request or ruling. The failure to invoke a ruling on a motion in limine results in a waiver of the motion. Brown v. State, 193 Ga. App. 26, 27 (3) (386 SE2d 903) (1989); see Smith v. State, 221 Ga. App. 428 (2) (472 SE2d 4) (1996).

Judgment affirmed.

McMurray, P. J, and Phipps, J., concur.


author: Eldridge, Judge.

text:
    A99A2057.
    VAUGHAN et al. v. GLYMPH.
    (526 SE2d 357)
   Eldridge, Judge.

Sherry and Glenn Vaughan sued individual defendants Gary Dulin and Clarence Glymph for injuries received in a February 1996 automobile collision in DeKalb County. In this appeal, the Vaughans challenge the trial court’s grant of summary judgment to Glymph. Finding that factual issues exist as to whether Glymph was negligent and whether such negligence proximately caused the collision, this Court reverses the grant of summary judgment.

Viewed in the light most favorable to the Vaughans, as non-movants, the facts show that, at approximately 9:00 a.m. on February 3, 1996, the Vaughans were traveling southbound in the far right lane of South Hairston Road in DeKalb County. South Hairston Road has four lanes, two in each direction, which are divided by a grassy median. Glymph was driving northbound in the right-hand lane, and Dulin was traveling behind Glymph.

At his deposition, Glymph stated that it was snowing and the road was icy that morning. As Glymph approached the intersection of South Hairston Road and Stalter Road, he activated his turn signal, braked, and began turning right onto Stalter Road. However, according to Glymph, as he slowed down,

the tail end of my truck slid over some into the — into the other lane. And as I glanced ahead, I mean, I couldn’t help but see [the accident] because his car, Mr. Dulin’s car, came shooting past me. And I saw him go down the hill, and he crossed over the median. And at that time I saw the [Vaughans’] car coming up the hill. And, you know, he made effort to try to avoid him, but the ice, the way it was out there was really not a lot of control, as far as controlling the car. And they collided together.

Glymph further explained that his truck had “fishtailed” into approximately one-fourth of the left-hand lane after he hit a patch of ice and just before Dulin attempted to pass him.

According to Glymph’s deposition, after Dulin “came zooming past” him, Glymph pulled his car over and witnessed the head-on collision between Dulin and the Vaughans. Glymph approached the scene of the collision and checked to see if anyone had been injured. At that time, Dulin told Glymph that he had tried to go around Glymph’s truck after seeing it fishtail into the left-hand lane. Dulin repeated this contention in both a pre-trial order and an affidavit.

The incident happened so quickly, however, that the Vaughans were unable to discern exactly what happened. Their first indication of trouble occurred moments before impact, when they saw Dulin careening out of control in their direction. As such, they were unable to provide information at their deposition that directly implicated Glymph in the incident. But while Dulin and Glymph claim that icy patches caused them to temporarily lose control of their vehicles, the Vaughans denied that ice was on the roadway.

The Vaughans filed suit against Dulin in Clayton County Superior Court on September 3, 1996. After conducting some discovery, the Vaughans moved to add Glymph as a defendant. Once Glymph was added, the Vaughans amended their complaint to include the assertion that Glymph was jointly and severally liable for allowing his vehicle to move into the pathway of Dulin’s car.

Glymph moved for summary judgment, claiming that the Vaughans were unable to present any evidence that he was negligent. After conducting a hearing, the trial court granted Glymph’s motion. The Vaughans appeal. Held:

The Vaughans assert that the trial court erred in concluding that no genuine issue of material fact existed as to Glymph’s negligence and that he was, therefore, entitled to summary judgment. Because we find that jury issues exist both as to whether Glymph was negligent and whether such negligence was a proximate cause of the collision, we reverse the trial court’s judgment.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.

(Emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). If the defendant, as movant, is able to make such showing, then the burden shifts to the nonmovant to produce evidence giving rise to a triable issue or suffer summary judgment. Id.; OCGA § 9-11-56 (e).

In Georgia, the essential elements of a cause of action for negligence are: (1) a legal duty; (2) a breach of this duty; (3) an injury; and (4) a causal connection between the breach and the injury. Tuggle v. Helms, 231 Ga. App. 899, 901 (2) (499 SE2d 365) (1998). As to the issue of legal duty, “[t]he Uniform Rules of the Road require that a driver maintain and control the vehicle within the lane and not run off the roadway. OCGA §§ 40-6-40; 40-6-41; 40-6-48; 40-6-272.” Id. at 906 (Eldridge, J., dissenting). The failure to maintain such control may be negligence per se. Id.; see also OCGA § 51-1-2. However, even without such statutory duty, issues of negligence and causation generally are not appropriate for Summary adjudication unless the evidence is plain, palpable, and undisputable. Robinson v. Kroger Co., 268 Ga. 735, 739 (493 SE2d 403) (1997). This is not such a case.

Glymph is unable to demonstrate that no jury issues exist as to negligence or causation because his own admissions, combined with Dulin’s allegations, raise jury issues as to these essential elements of the Vaughans’ claim. For example, Glymph admitted that it was snowing and the roads were icy in February 1996 as he drove his truck along South Hairston Road. He acknowledged that his truck “fishtailed” a few feet into the left-hand lane as he attempted to make a right-hand turn. Glymph also admitted that Dulin lost control of his vehicle when Dulin attempted to pass him in the left-hand lane.

Decided November 24, 1999

Reconsideration denied December 8, 1999

Gladys H. Pollard, for appellants.

A jury could infer from these facts that Glymph was traveling too fast for conditions, i.e., based on the weather conditions, the existing traffic, and the fact that he was approaching an intersection, or that he was otherwise negligent. See OCGA § 40-6-180. Since Glymph failed to make the requisite showing on his summary judgment motion, the burden to present additional evidence never shifted to the Vaughans, as nonmovants. Therefore, the fact that this incident happened so quickly that the Vaughans were unable to ascertain exactly what happened does not preclude them from surviving a motion for summary judgment.

As such, this case is clearly distinguishable from that relied upon by the trial court. In finding that there was no jury issue as to Glymph’s negligence, the trial court based its decision on Tuggle v. Helms, supra. Tuggle v. Helms involved an incident which occurred on a clear April evening at dusk, when an automobile left the road and crashed, killing one teenager and severely injuring another. Id. at 900. A third teenager, the driver, denied that she was speeding or otherwise negligent in the operation of her vehicle. Id. at 902. The injured teenager remembered nothing about the incident, and there were no other witnesses. Id. at 900. In a 4-3 decision, this Court ruled that the driver was entitled to summary judgment because the plaintiffs were unable to present any evidence to rebut the driver’s testimony. Id.

In contrast, this Court finds that Glymph was not entitled to summary judgment because he failed to demonstrate the absence of a jury issue as to whether he was negligent when he lost control of his vehicle. There is also a jury issue as to whether Glymph’s fishtailing caused Dulin to lose control of his vehicle and collide with the Vaughans’ car. Accordingly, the trial court erred in granting summary judgment to Glymph.

Judgment reversed.

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

Harper, Waldon & Craig, Hilliard V. Castilla, Downey & Cleveland, Russell B. Davis, Sean L. Hynes, for appellee.

       Dulin is not a party to this appeal.

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       The pre-trial order was entered before Glymph was added as a defendant.

       The hearing was not transcribed.


text:
    A99A1897.
    REESE v. THE STATE.
    (526 SE2d 867)
   Johnson, Chief Judge.

A jury found Leonard Reese guilty of armed robbery, kidnapping, burglary, aggravated assault, false imprisonment, possession of a firearm during the commission of a crime, sexual battery, and two counts of making terroristic threats. He was found not guilty of theft by taking. Reese appeals from the judgments of conviction entered on the verdicts and the denial of his motion for new trial. Because each of his six enumerations of error is without merit, we affirm.

1. Reese challenges the sufficiency of the evidence to support the convictions, contending the victim was not credible and her testimony was “inconsistent and weak.”

On appeal, this court does not weigh the evidence or determine witness credibility. We determine if the evidence is sufficient by deciding whether, viewing the evidence in a light most favorable to the verdict, a rational trier of fact could find all the essential elements of the crimes charged beyond a reasonable doubt.

So viewed, the evidence shows that the victim was alone in her boyfriend’s apartment when someone knocked on the door. She looked out and saw someone whom she thought she recognized. As the victim opened the door, she saw the muzzle of a gun and tried to shut the door. Three men, none of whom she knew, forced the door open, knocking her to the floor. All three men had guns.

Reese was the first man to enter the apartment. The second man, later identified as co-defendant Cobey Lindsey, directed Reese to stay with the victim as he and the third man ransacked the apartment. Reese stayed with and pointed a gun at the victim, telling her he would kill her if she screamed. He took her into another room of the apartment. The men demanded money and drugs. The victim said she had no money or drugs, but gave Lindsey the jewelry she was wearing. The men took jewelry and change from a desk.

Reese took the victim to another room where Lindsey told her to take off her clothes. Lindsey struck her on the head with his gun as Reese blocked the doorway. At Lindsey’s request, Reese took the victim to another room. Lindsey told the victim he was going to rape and then kill her. As Reese stood in the doorway watching, Lindsey pushed the muzzle of the gun into the victim’s vagina and again said he was going to rape her. Reese threw a jacket over the victim’s face. Lindsey went to another room and called for Reese to bring the victim in there. Reese complied. The men again asked the victim for money and drugs. Lindsey tied her ankles and wrists with electrical cords and threatened to kill her if she moved.

The victim positively identified Reese in a photographic lineup as one of the three assailants. She also positively identified him in court, stating that she was “one hundred percent” certain of her identification. The evidence was sufficient for a rational trier of fact to find Reese guilty beyond a reasonable doubt. We note that even if, as Reese contends, the victim made inconsistent statements about what happened, the question of her credibility was for the jury to decide.

2. Reese, an African-American, contends the trial court erred in denying his challenge to the array from which the jury was selected. He challenged the array because no African-American males and only four African-American females were on the list of forty-eight potential jurors.

At trial, Reese presented no evidence in support of his challenge. Defense counsel admitted that he did not know how jurors were selected in Douglas County and that he knew of no process by which the comity systematically excluded African-Americans. Having failed to establish any flaw in the method by which the county creates its venire, Reese has not carried his burden of showing purposeful discrimination. The trial court did not err in denying his challenge to the array of the jury.

3. Reese asserts that the trial court erred in allowing written jury instructions to go out with the jury. He complains that, because the trial court informed the jurors before reading the instructions to them that they would receive a printout of the instructions, they may not have listened carefully when the trial court gave the instructions orally. He also argues that having the written instructions may have caused the jurors to debate the meanings of the written terms, become confused, and conduct legal research while deliberating.

We will not presume that the jurors did not listen carefully or that they acted improperly absent evidence of such in the record. And we fail to see how the jury would be confused by having a transcript of the instructions the court gave orally. Indeed, the contrary is more likely.

It is frequently desirable that instructions which have been reduced to writing be not only read to the jury but also be handed over to the jury. . . . We see no good reason why the members of the jury should always be required to debate and rely upon their several recollections of what a judge said when proof of what he said is readily available.

This case involved some ten criminal charges. We believe the trial court’s decision to give the jury a printout of the oral instructions could only have been beneficial here. This enumeration is without merit.

4. Reese argues that the trial court erred in allowing Lindsey to be present in the courtroom on two occasions during the trial. He says the jury saw Lindsey, who was wearing shackles and prison clothing, on the witness stand after a recess and later standing near Reese in the courtroom. Reese says he was prejudiced by Lindsey’s presence because the jury might have associated Reese with his guilty co-defendant. He also says he was denied his right to confront Lindsey as a witness against him.

The record shows that the state called Lindsey to the stand, outside of the presence of the jury, to ascertain whether he would testify on the state’s behalf. Lindsey had already been convicted for his participation in the home invasion. Once on the stand, and while the jury was still out of the courtroom, Lindsey asserted his privilege against self-incrimination and refused to testify. Before Lindsey was excused, the court called the jury back into the courtroom, informed them that it was tending to some legal business, and then excused them for the day. Defense counsel voiced no objection to the jury entering the courtroom while Lindsey was present.

The next day, after the trial court ruled that Lindsey would not be compelled to testify, the state announced that it intended to bring Lindsey back into the courtroom so that the victim could identify him in front of the jury. Defense counsel’s only objection to the proposed procedure was that the victim had already testified and it would be “like we’re trying [Lindsey].”

Lindsey was brought into the courtroom, although it is not clear from the transcript whether he stood near Reese. With the victim on the stand, the prosecutor asked her if Lindsey was one of the men involved in the home invasion. The victim responded affirmatively. On cross-examination, with Lindsey still present, defense counsel asked the victim if she had said that Reese was darker in complexion than Lindsey. She replied that she had so testified. Defense counsel then asked her if she was sure about her description.

Although he now argues that the identification procedure was objectionable because it likely made the jury associate Reese with one of the men convicted of these crimes, he made no such argument below. In fact, defense counsel made use of Lindsey’s presence by inviting a comparison of the men’s appearances while the jury was in the courtroom. Reese cannot now complain of a procedure in which he participated and to which he failed to specifically object.

In any event, there is nothing in the record indicating that the jury knew that Lindsey had been convicted of the crimes. We fail to see how Reese was harmed by the procedure.

Finally, because Lindsey did not testify and no reference was made at trial to the content of any prior statements made by him, Reese was not denied his right to confront a witness testifying against him.

5. Reese claims the trial court erred in not allowing him to introduce evidence of the victim’s disciplinary history from her position as a police officer with the City of Conyers. He says her employment history “had the potential of showing” she falsified police reports or committed a “similar act of moral turpitude,” and could have been used to impeach her credibility. This argument is without merit.

Instances of specific misconduct may not be used to impeach a witness’ veracity unless the misconduct has resulted in the conviction of a crime involving moral turpitude.* Since no such conviction was shown to exist in this case, the trial court did not err in limiting Reese’s cross-examination of the victim.

Moreover, a trial court may restrict cross-examination if the inquiry is not relevant to the issues being tried. In this case, the trial court examined the victim’s disciplinary records and determined that they, were not relevant. The admission or exclusion of evidence on the ground of relevance lies within the sound discretion of the trial court. The trial court did not abuse its discretion by finding that the victim’s personnel records were not relevant to the charges pending against Reese.

Decided December 8, 1999.

Hurl R. Taylor, Jr., for appellant.

David McDade, District Attorney, Stephen L. Corso, Assistant District Attorney, for appellee.

6. Based on the foregoing, the trial court did not err in denying Reese’s motion for new trial.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.

        Elrod v. State, 238 Ga. App. 80, 81-82 (1) (517 SE2d 805) (1999).

       See generally Kinney v. State, 234 Ga. App. 733, 734-735 (1) (506 SE2d 441) (1998).

       See Havron v. State, 234 Ga. App. 413, 414 (1) (506 SE2d 421) (1998).

       See Hansley v. State, 267 Ga. 48, 49 (2) (472 SE2d 305) (1996); Jewell v. State, 261 Ga. 861, 862-863 (3) (413 SE2d 201) (1992); Lane v. State, 239 Ga. App. 230, 231 (2) (b) (520 SE2d 705) (1999); compare Barrow v. State, 239 Ga. 162, 166 (2) (a), (b) (236 SE2d 257) (1977).

       See Chisholm v. State, 231 Ga. App. 835, 839 (3) (500 SE2d 14) (1998), overruled on other grounds, Murphy v. State, 270 Ga. 72, 74 (2) (c) (508 SE2d 399) (1998).

       (Citations, punctuation and emphasis omitted.) Anderson v. State, 262 Ga. 26, 27-28 (3) (a) (413 SE2d 732) (1992).

       See generally James v. State, 270 Ga. 675, 679 (11) (513 SE2d 207) (1999).

       See Williams v. State, 234 Ga. App. 191, 195 (6) (506 SE2d 237) (1998); Clayton v. State, 203 Ga. App. 843, 845 (4) (a) (418 SE2d 610) (1992).

       See generally Allen v. State, 208 Ga. App. 854, 855 (2) (432 SE2d 600) (1993).

       See Jacobs v. State, 201 Ga. App. 57, 58 (2) (410 SE2d 320) (1991).

        Dunton v. State, 216 Ga. App. 191 (453 SE2d 800) (1995).

        Cook v. State, 221 Ga. App. 831, 834 (4) (472 SE2d 686) (1996).

         Collins v. State, 235 Ga. App. 852 (2) (510 SE2d 609) (1998).


author: Andrews, Presiding Judge.

text:
    A99A1960.
    STROBHERT v. THE STATE.
    (526 SE2d 863)
   Andrews, Presiding Judge.

Alan Strobhert appeals from the judgment entered after a jury found him guilty of driving left of center and obstruction of a law enforcement officer. Strobhert claims the trial court’s charge to the jury was misleading and authorized the jury to find him guilty of obstructing an officer on a theory not supported by the evidence. We agree and reverse.

This case arose when Officer Kelmer, of the Forsyth County Sheriff’s Department, was returning home around midnight after working a security shift at a hospital. Just before Kelmer reached the entrance to the trailer park where he lived, a car coming from the opposite direction made a U-turn in front of him and, after turning, drove down the wrong side of the road. The car then turned into Kelmer’s trailer park, went to the end of the road and turned around. After driving a short distance the car stopped.

By this time, Kelmer had backed into his parking space, and when the car stopped, Kelmer’s lights were shining on the car and the driver appeared to have blood and vomit on him. Kelmer, who was wearing his sheriff’s jacket, identified himself as a sheriff’s deputy and told the man in the car, later identified as Strobhert, that he needed to “see [his] hands.” Kelmer said that Strobhert showed him his hands, but then put them down, put the car in drive and drove off, knocking Kelmer down. Strobhert ran his car into a dumpster, hitting Kelmer’s truck door in the process.. Kelmer again went over to the car and tried to handcuff Strobhert. Strobhert resisted, and Kelmer was able to get the handcuffs around only one wrist before Strobhert ran away.

Strobhert ran to the door of one of the nearby trailers, and Henry Arnold, who lived there, said Strobhert told him that someone had tried to take his car and he needed help. Strobhert wanted to call some friends, but Arnold saw a handcuff dangling from Strobhert’s wrist and told Strobhert he was calling the police. At that point, Officer Kelmer, who had gone to call for backup, saw Strobhert on Arnold’s porch, pointed a gun at him and told him to “get on the ground.” Strobhert complied, but when Kelmer tried to handcuff him, Strobhert again started struggling. Kelmer said he was continually identifying himself as an officer; nevertheless, Strobhert kept saying “Why are you doing this to me?” At that point, Arnold came to help Kelmer, and shortly after that, other officers arrived. After Strobhert was arrested, he agreed to blood, breath and urine tests, all of which came back negative for drugs and alcohol.

Strobhert was charged with driving left of center, aggravated assault and obstruction of an officer. The jury acquitted him of aggravated assault and convicted him of the other two charges. This appeal followed.

1. During deliberations, the jury sent out a note asking, “Could we please have a clarification of the term ‘offering violence’ in Official Code of Georgia Annotated Section 16-10-24 (a).” The trial court initially responded to the question by instructing the jury that the term had no specific legal definition. The court also said, “Words or terms used in statutes which do not have a specific legal definition should be considered by the jury as words or terms having their common ordinary dictionary definition.”

A short while later, the jury requested a dictionary, and the court refused that request. The jury then sent out a note with another question, “Does resisting arrest in itself constitute obstruction of justice?”

At that point, the judge had the jury brought back in and, before responding to the question, told the jury that he was going to charge them further in regard to their last question requesting clarification of the term “offering violence.” The court then stated:

In that regard, I charge you that verbal threats of force or violence can obstruct an officer and authorize a conviction under OCGA Section 16-10-24. Communications that reasonably can be interpreted as threats of violence can constitute opposition to an officer’s authority sufficient to support a conviction for obstruction.

Decided December 8, 1999.

Whitmer & Law, George H. Law III, for appellant.

The court then re-charged the jury on OCGA § 16-10-24 (b). Defense counsel objected to this response, arguing there was no evidence of verbal threats. We agree.

The instructions in a criminal trial should be tailored to the indictment and adjusted to the evidence admitted in court. Any instruction should stand upon a base founded in the evidence or the lack thereof. It is also the general rule that instructions [,] even though abstractly correct . . . , should not be given unless authorized by the evidence . . . and when such an unauthorized instruction is given, if it should be confusing or misleading to a jury, a new trial will be required. . . . Where the inapplicable instruction authorizes the jury to reach a finding of guilty by a theory not supported by the evidence of record, we cannot say as a matter of law that the charge was neither confusing nor misleading.

(Citations and punctuation omitted.) Hightower v. State, 210 Ga. App. 386, 388 (436 SE2d 28) (1993).

Here, a review of the trial transcript shows no evidence that Strobhert ever verbally threatened Officer Kelmer. The only testimony on this issue was Officer Kelmer’s and Henry Arnold’s. Kelmer said Strobhert kept repeating: ‘You’re stealing my car”; ‘You’re trying to beat me up”; and “I need to see your ID.” Arnold said Strobhert was saying, “What did I do? What do you want me for? . . . Leave me alone.” Therefore, the court’s response to the jury’s question could have allowed the jury to find Strobhert guilty of a crime under a theory totally unsupported by the evidence. Joiner v. State, 163 Ga. App. 521, 523 (295 SE2d 219) (1982).

Moreover, this is not a case in which the charge as a whole is correct, containing a portion which is applicable and one portion which is inapplicable or not adjusted to the facts. Rice v. State, 217 Ga. App. 456, 458 (458 SE2d 368) (1995). The only definition given in response to the request for a definition of “offering violence” as it is used in OCGA § 16-10-24 concerned verbal threats. Therefore, we cannot say that the re-charge did not mislead or confuse the jury. Joiner, supra.

2. Because of our holding in Division 1 above, we do not address the remaining enumerations of error.

Judgment reversed and case remanded.

Ruffin and Ellington, JJ., concur.

Philip C. Smith, District Attorney, Jeffrey W. Frazier, Assistant District Attorney, for appellee.

       The jury meant to cite to OCGA § 16-10-24 (b), which states:
      Whoever knowingly and willfully resists, obstructs, or opposes any law enforcement officer, prison guard, correctional officer, probation supervisor, parole supervisor, or conservation ranger in the lawful discharge of his official duties by offering or doing violence to the person of such officer or legally authorized person is guilty of a felony and shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years.


author: Blackburn, Presiding Judge.

text:
    A99A1975.
    NEWSOME v. DEPARTMENT OF ADMINISTRATIVE SERVICES.
    (526 SE2d 871)
   Blackburn, Presiding Judge.

In this case of first impression, Audrey Newsome appeals, on interlocutory grant, from the denial of her motion to dismiss the Department of Administrative Services’ (DOAS) subrogation claim filed pursuant to OCGA § 34-9-11.1 (c), contending the statute of limitation barred the claim. Because we find that the trial court applied the wrong statute of limitation to the subrogation claim, we reverse.

A motion to dismiss for failure to state a claim upon which relief may be granted should be granted where:

(1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. ... In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

(Footnotes omitted.) Anderson v. Flake, 267 Ga. 498, 501 (2) (480 SE2d 10) (1997).

The pertinent facts are undisputed. On November 2,1995, Annie Stephens, while in the scope of her employment with the Public Health Department of the State of Georgia, was in an automobile collision with Audrey Newsome. DOAS, the insurer for Stephens’ employer, paid workers’ compensation benefits in excess of $45,000 to or on behalf of Stephens.

Although Stephens never personally filed a complaint against Newsome, on November 12, 1997, DOAS asserted Stephens’ cause of action against Newsome by filing a complaint in its own name pursuant to OCGA § 34-9-11.1 (c). This statute allows an insurer who has paid workers’ compensation benefits to assert the employee’s cause of action against a third party who caused the injuries. DOAS alleged that Newsome’s negligence caused Stephens’ injuries and that, as a resúlt, Newsome was liable to DOAS in the amount of workers’ compensation benefits paid to or on behalf of Stephens.

Newsome moved to dismiss the suit, arguing that the subrogation claim was barred by the two-year statute of limitation applicable to Stephens’ cause of action. DOAS argued that the claim had a 20-year statute of limitation under OCGA § 9-3-22 which governs “[a]ll actions for the enforcement of rights accruing to individuals under statutes.” The trial court, agreeing with DOAS, denied Newsome’s motion to dismiss.

In interpreting OCGA § 34-9-11.1 (c), we “must look for the intent of the legislature and construe [the statute] to effectuate that intent.” City of Roswell v. City of Atlanta, 261 Ga. 657 (1) (410 SE2d 28) (1991). We give words their ordinary significance. OCGA § 1-3-1 (b). OCGA § 34-9-11.1 (c) provides “[s]uch action . . . by the employee must be instituted in all cases within the applicable statute of limitations.” It is undisputed that the statute of limitation applies to Stephens’ cause of action. If the employee does not assert the claim within a year, the employer or the employer’s insurer may assert “the employee’s cause of action in tort.” Id. The cause of action, although asserted by the insurer, is still the employee’s cause of action. The cause of action is the same, and the same statute of limitation applies. This unambiguous language shows the General Assembly’s intent to apply the statute of limitation applicable to the injured employee’s claim to the subrogation claim as well.

Moreover, OCGA § 34-9-11.1 (c) further provides that “[flor purposes of this subsection only, ‘employee’ shall include not only the injured employee but also those persons in whom the cause of action in tort rests or survives for injuries to such employee.” It is clear that the legislature intended that the asserting employer be deemed an “employee” for statute of limitation purposes and subject to the two-year statute of limitation applicable to Stephens.

Moreover, this interpretation is consistent with general concepts of subrogation. In a subrogation action, one party is essentially substituted in place of another; it is often said that one party “stands in the shoes” of another. See Parks v. State Farm Gen. Ins. Co., 238 Ga. App. 814 (3) (520 SE2d 494) (1999). The legislature has expressed this intent quite plainly in OCGA § 34-9-11.1, which provides that the insurer or employer is “assert [ing] the employee’s cause of action.” Here, DOAS “stand[s] in [Stephens’] shoes and assume[s] only those claims that [she] has, subject to any defenses that could be asserted against [her].” Id. at 817. As Stephens’ claim was subject to a two-year statute of limitation, the subrogation claim asserted by DOAS was also subject to that limit. Furthermore, we note that the majority of states apply the same limitation period to the subrogation claim and the employee’s claim. 7 Larson’s Workers’ Compensation Law, § 75.30 (1999).

Decided December 8, 1999.

Daniel Bullard TV, Jon-Selby Hawk, for appellant.

Thurbert E. Baker, Attorney General, Daniel M. Formby, Deputy Attorney General, Mark D. Oldenburg, for appellee.

DOAS erroneously relies on OCGA § 9-3-22 in support of its contention that the statute of limitation on the subrogation action is 20 years. The purpose of that Code section is to provide a statute of limitation for rights created by statute which do not otherwise have a limitation period. McDaniel v. Kelley, 61 Ga. App. 105 (3) (5 SE2d 672) (1939). Although the employer’s or insurer’s right of subrogation arises solely by operation of statute, K-Mart Apparel Corp. v. Temples, 260 Ga. 871 (1) (401 SE2d 5) (1991), because the employer or insurer is asserting the employee’s tort action which has a limitation period, we find that OCGA § 9-3-22 does not apply.

Judgment reversed.

Eldridge and Barnes, JJ, concur.


text:
    A99A2130.
    BROWN v. THE STATE.
    (526 SE2d 873)
   Johnson, Chief Judge.

In 1996 Christopher Brown pled guilty to aggravated assault and possessing cocaine with intent to distribute. In 1998 he moved to file an out-of-time appeal, claiming that the judge at the plea hearing failed to determine that Brown understood the nature of the offenses charged or that there was a factual basis for the cocaine charge. The same judge who had accepted Brown’s guilty plea denied his motion for an out-of-time appeal. Brown now appeals from the denial of that motion.

When a defendant pleads guilty and then seeks an out-of-time appeal from that plea, he must make the threshold showing that he would have been entitled to file a timely direct appeal from the plea because the issues he is raising can be decided from facts appearing in the record. If the defendant makes that showing, he must then show that he did not timely file a direct appeal because he received ineffective assistance of counsel. In the instant case, Brown has made the threshold showing, but not the second, so he is not entitled to an out-of-time appeal.

The issues that Brown seeks to raise — that the judge failed to determine that Brown understood the nature of the crimes charged or that there was a factual basis for the cocaine charge — can be decided from facts appearing in the record, including the transcript of the plea hearing. Because those issues can be decided by reference to the record, Brown has made the threshold showing that he would have been entitled to file a timely direct appeal from his guilty plea.

We therefore must consider if Brown has also shown that he did not timely file such a direct appeal due to ineffective assistance of counsel. Brown admitted in his out-of-time appeal motion that he did not seek to file an appeal from his guilty plea, either with or without counsel. But, he now claims, he failed to pursue an appeal because at the plea hearing the judge erroneously told him that he could not appeal from a guilty plea.

At the hearing, the judge properly informed Brown of all the rights he would waive by pleading guilty. Among other things, the judge explained to Brown that he would have the right to appeal from a conviction after a trial, but that he could not appeal after a guilty plea. In the context of all the instructions the judge gave to Brown, we construe the judge’s explanation concerning an appeal to be a correct, albeit incomplete, statement of the law that a criminal defendant has no unqualified right to directly appeal from a conviction entered on a guilty plea; rather, a direct appeal will lie from a conviction entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record.

Contrary to Brown’s claim, the trial judge’s correct, but incomplete, statement of the law did not deprive him of the right to effective assistance of counsel in seeking an appeal after his guilty plea. Brown was represented by counsel at the plea hearing, and he has made no showing that the decision not to appeal from the plea was due to counsel’s ineffectiveness. The record before us contains no testimony from the attorney, and instead it appears that any failure to timely appeal was due to Brown’s own decision not to seek an appeal.

Moreover, even if Brown were able to present some evidence showing that his attorney had failed to file an appeal on his behalf, such a failure would not amount to ineffective assistance of counsel because it is apparent from the transcript of the plea hearing that the issues Brown now seeks to raise in an out-of-time appeal are completely without merit. The transcript reveals without question that Brown was fully informed of the nature of the offenses to which he pled guilty and that there was a factual basis provided by the prosecutor for the cocaine charge. An attorney’s failure to file an appeal frivolously attacking those indisputable facts proved by the transcript could not be deemed ineffectiveness.

Decided December 8, 1999.

Christopher Brown, pro se.

J. Gray Conger, District Attorney, Roger H. Anderson, Assistant District Attorney, for appellee.

Because Brown has not shown that he was denied effective assistance of counsel in filing a timely appeal from his guilty plea, the trial court did not abuse its discretion in denying his motion for an out-of-time appeal.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.

        Smith v. State, 266 Ga. 687 (470 SE2d 436) (1996).

        Grantham v. State, 267 Ga. 635 (481 SE2d 219) (1997).

       Compare Wheeler v. State, 269 Ga. 547, 548 (499 SE2d 629) (1998).

        Grantham, supra; Gibbs v. State, 239 Ga. App. 249-250 (1) (a) (519 SE2d 511) (1999).

       Id. at 249.

       Compare Lunsford v. State, 237 Ga. App. 696, 697 (1) (515 SE2d 198) (1999); Penrod v. State, 233 Ga. App. 532, 533-534 (504 SE2d 757) (1998).


text:
    A99A2297.
    ODOM v. THE STATE.
    (526 SE2d 646)
   Blackburn, Presiding Judge.

Bobby Odom appeals his conviction, following a jury trial, for incest, child molestation, and the statutory rape of his minor daughter, contending that the trial court erred by (1) admitting character evidence against him regarding altercations that he had been in with his wife and (2) allowing the State to strike a juror based on his status as a single parent. For the reasons set forth below, we affirm.

1. Odom contends that the trial court erred by allowing the State to elicit similar transaction evidence from him on cross-examination about an altercation that he had with his wife which was unrelated to the acts of molestation. At the time that these questions were asked, however, Odom made no objection, and, as such, he has waived his right to raise this argument on appeal. Parrish v. State, 237 Ga. App. 274, 279 (4) (514 SE2d 458) (1999). Moreover, even if it had been preserved for our review, Odom’s argument is untenable. The same evidence about which he now complains was originally introduced into evidence during direct examination by his own attorney, and “where the same fact has been admitted in evidence before the jury, without objection, such admitted evidence renders harmless admission of the same evidence over objection.” Masters v. State, 186 Ga. App. 795, 797 (3) (368 SE2d 557) (1988); Cherry v. State, 230 Ga. App. 443, 446 (4) (496 SE2d 764) (1998).

2. Citing Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), Odom contends that the trial court improperly allowed the State to strike a juror based on his status as a single father, arguing that the State’s true reason for making the strike was simply because the juror was male, thereby constituting gender discrimination.

In J. E. B. v. Alabama, 511 U. S. [127] (114 SC 1419, 1429-1430, 128 LE2d 89) (1994), the United States Supreme Court advanced its holding in Batson[, supra], to prevent litigants from exercising peremptory jury strikes based upon gender. The Equal Protection Clause of the United States Constitution prohibits discrimination in jury selection on the basis of gender as well as race. See Tedder v. State, 265 Ga. 900, 901 (2) (463 SE2d 697) (1995); Jackson v. State, 220 Ga. App. 98 (469 SE2d 264) (1996).
Claims that jury strikes were based on gender are reviewed under the same standards as apply to race. See Jackson, supra. “Batson directs a three-step process for evaluating a claim of (gender) discrimination in the State’s use of peremptory jury strikes: (1) the defendant must make a prima facie showing that the prosecution has exercised its peremptory challenges on the basis of (gender); (2) the burden then shifts to the prosecutor to articulate a (gender)neutral explanation for striking the jurors in question; and (3) the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.” Kelly v. State, 209 Ga. App. 789, 790 (1) (434 SE2d 743) (1993). The explanation need not justify a challenge for cause, but it must be neutral, related to the case to be tried, and constitute a clear and reasonably specific legitimate reason or reasons. Gamble v. State, 257 Ga. 325, 327 (5) (357 SE2d 792) (1987).

Herrin v. State, 221 Ga. App. 356, 357-358 (471 SE2d 297) (1996). “[T]he ultimate burden of persuasion about the [gender-based] motivation rests with and never leaves the opponent of the strike.” Holt v. Scott, 226 Ga. App. 812, 816 (3) (487 SE2d 657) (1997).

Here, the State used four peremptory strikes, all against male potential jurors. At trial, Odom challenged all four strikes as being discriminatory on the basis of gender, but he argues only with respect to a single prospective juror on appeal. When asked to give his reason for striking this juror, the prosecutor replied: “Number seven . . . , he’s a single father. I think bias in this particular matter [is] such that it was reasonable for the [S]tate to strike him.” The trial court accepted this explanation, and Odom provided no further evidence that the strike was inappropriate. Under these circumstances, Odom failed to carry his burden.

Decided December 8, 1999.

Coatsey Ellison, for appellant.

A trial court’s determination of a Batson challenge “rests largely upon assessment of the attorney’s state of mind and credibility; it therefore lies peculiarly within a trial judge’s province. The trial court’s factual findings must be given great deference and may be disregarded only if clearly erroneous.”

Holt, supra.

The initial inquiry in this type of case is “whether [Odom] established a prima facie case of discrimination to trigger the prosecutor’s duty to give [gender-] neutral reasons for the exercise of his challenged peremptory strikes.” Lewis v. State, 262 Ga. 679, 680 (2) (424 SE2d 626) (1993). In this case, because the trial court ruled on the ultimate question of intentional discrimination, the preliminary issue of whether [Odom] made a prima facie case of discrimination is rendered moot. Id. Accordingly, we focus on the ultimate question of intentional discrimination.

Richard v. State, 223 Ga. App. 98 (476 SE2d 849) (1996).

The State explained that it struck juror no. 7 because of his status as a single father, not simply because he was a male as Odom contends. Apparently, the State feared that this would cause the juror to be biased in favor of Odom. This explanation does not violate the standards set forth in Batson. Batson does not demand that the explanation given by a prosecutor be persuasive or even plausible. The explanation must simply be one which does not deny equal protection. Purkett v. Elem, 514 U. S. 765 (115 SC 1769, 131 LE2d 834) (1995).

Here, the trial court determined that the State’s explanation for the strike was reasonable and was not solely based on the gender of the juror but on another factor as well — namely his status as a single parent. As we have previously held that the characteristics of being single with no children are gender-neutral, Herrin, supra, we cannot say that the trial court abused its discretion in allowing the peremptory strike of juror no. 7.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.

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


text:
    A99A2424.
    WILDER v. THE STATE.
    (526 SE2d 883)
   Blackburn, Presiding Judge.

Following a jury trial, Frances C. Wilder appeals her conviction of arson. Wilder contends that the evidence was insufficient to establish her guilt beyond a reasonable doubt.

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses. To sustain the conviction, the evidence must be sufficient to authorize the jury’s finding of the defendant’s guilt of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(Punctuation omitted.) West v. State, 224 Ga. App. 190 (1) (480 SE2d 238) (1997).

Viewed in the light most favorable to support the verdict, the evidence reveals that Wilder directed her son and another woman to bum Wilder’s house. Wilder promised that she would pay off her son’s probation fees and pay the accomplice $2,500 from the proceeds of the insurance on the house. Both Wilder’s son and the accomplice testified that Wilder told them to bum the house. The State introduced letters written by Wilder from prison to her son and the accomplice. The letters emphatically stated that “ £[t]he house needs to be done by 3/23/98. . . . You can have the lights turned on or burn it without them being on. It doesn’t matter.’ ” Additionally, despite the fact that the house was virtually empty when it was burned, Wilder submitted a claim under her homeowner’s insurance for $81,243 worth of contents.

Although Wilder testified that she was not involved in the arson and that she did not intend for anyone to bum her house, it is well settled “that it is the prerogative of the jury to accept the defendant’s statement as á whole, or to reject it as a whole, to believe it in part, or disbelieve it in part. In the exercise of this discretion they are unlimited.” (Punctuation omitted.) Cooper v. State, 232 Ga. App. 461, 462-463 (1) (502 SE2d 306) (1998). The jury in this case obviously chose to disbelieve Wilder’s testimony and convicted her based on the corroborated testimony of the accomplices. Therefore, the evidence was sufficient to support the jury’s determination of Wilder’s guilt of arson. See Jackson v. Virginia, supra.

Decided December 8, 1999.

Robert M. Bearden, Jr., for appellant.

Charles H. Weston, District Attorney, Myra Y. Christian, Assistant District Attorney, for appellee.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


text:
    A99A2447.
    SEWELL et al. v. HULL/STOREY DEVELOPMENT, LLC et al.
    (526 SE2d 878)
   Johnson, Chief Judge.

Norma Sewell sued Hull/Storey Development, LLC, James Hull, Karen Hull, Mason McKnight III, and William McKnight (collectively “appellees”) for personal injuries alleged to have occurred when she was robbed while working for General Cinemas as manager of one of its theaters. Her husband also sued for loss of consortium. The trial court granted the appellees’ motion for summary judgment, and the Sewells appeal. For reasons which follow, we affirm.

The record shows that Norma Sewell worked as the manager of a theater owned by General Cinemas. The theater was located in a shopping center owned, operated, managed, leased, maintained and/ or controlled by James Hull, Karen Hull, Mason McKnight III, and William McKnight through Hull/Storey Development, a corporation. On the day of the incident, Sewell arrived at work in the morning to perform some office work before the theater opened. A fellow employee was there and assisted her until he left to attend school classes. The fellow employee left the theater through the front doors, which lock when the doors are closed. After the fellow employee left, robbers appeared in the theater, bound and gagged Sewell, and locked her in a closet. Sewell was discovered by co-workers hours later.

According to the Sewells, the appellees owed a contractual duty to provide security under the terms of the lease. They further argue that even if the appellees did not owe a contractual duty under the lease, they voluntarily undertook the duty to provide security and were negligent in carrying out that duty On appeal of the grant of summary judgment, this court applies a de novo review of the evidence to determine whether any question of material fact exists. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993). Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A defendant meets this burden by

showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiffs case. . . . All of the other disputes of fact are rendered immaterial.

Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

1. The Sewells first contend that the trial court erred in granting summary judgment to the appellees because questions of material fact exist regarding whether the appellees owed a duty to provide security services inside the General Cinemas theater. We disagree.

The lease at issue obligated the lessor to construct a building for General Cinemas on 9.6 acres. The building to be constructed and the acreage were referred to as the “demised property.” This property, along with two other tracts, were collectively referred to as the “shopping center.” According to the lease, the term “shopping center” means “the entire development, including any and all proposed structures, parking facilities, common facilities and the like to be built on the land. . . .”

Article V, entitled “Outside Facilities and Parking Area,” sets forth the duties and obligations of the landlord. Section 4 of this article requires the landlord to operate, maintain and repair the common areas of the shopping center. This section states that “landlord’s common area costs” mean “all costs of operating and maintaining the common areas of the H.A.I. Tract and the demised premises in a manner deemed by Landlord appropriate for the best interests of Tenants and other occupants of the Shopping Center.” Included among the costs and expenses constituting common area costs were, at the option of the landlord, costs and expenses of police protection and security and security patrol.

The Sewells claim that this portion of the lease should be read as requiring the landlord to provide security and police protection for common areas of the H.A.I. Tract and for all of the demised property, including the theater building. We disagree.

Construction and interpretation of a contract are matters of law for the court. OCGA § 13-2-1. If the court finds that an ambiguity exists, it is the court’s duty to resolve that ambiguity by applying the pertinent rules of contract construction. See OCGA § 13-2-2. A contract should be construed by the court where the language is undisputed, but the meaning of that language is in dispute:

If the contract does not require disentanglement of the language by a jury, i.e., the words used are plain and clear in their common usage, it remains the duty of the trial court to look to the language of the contract with a view to effectuating the intent of the parties.

(Citations omitted.) Bd. of Regents &c. of Ga. v. A. B. & E., Inc., 182 Ga. App. 671, 673 (357 SE2d 100) (1987). Issues of contract construction are submitted to a jury only when there appears to be an ambiguity in the contract which cannot be resolved by the court’s application of the statutory rules of construction. See Gill v. B & R Intl., 234 Ga. App. 528, 530 (1) (a) (507 SE2d 477) (1998).

At issue in the present case is what the parties meant by “common areas of the H.A.I. Tract and the demised premises.” In construing a contract, courts must give words their usual and common meaning. OCGA § 13-2-2 (2). In addition, the law favors a construction of the language which will uphold the contract as a whole, and the entire contract should be looked to in arriving at the construction of any part. OCGA § 13-2-2 (4).

In the present case, it is clear from a reading of the entire lease that the parties intended the landlord’s duties to be limited to the common areas of the demised property, not the entirety of the demised property. The portion of the lease at issue is specifically entitled “Outside Facilities and Parking Area.” In addition, subsection 4 of this section begins with the sentence: “Landlord will operate, maintain and repair the common areas of the Shopping Center.” It then defines and describes common area costs. The only logical interpretation of the language given the entire lease is that the landlord» was responsible for providing security and police protection for the common areas of the H.A.I. Tract and the common areas of the demised premises.

In addition, it is important to note that General Cinemas provided security inside the theater building and to escort employees while making bank deposits. General Cinemas never had any discussions with the landlord about providing security inside the building. In addition, when Hull/Storey Development employed a security service following this incident, the security service was for outside only. General Cinemas did not request or demand security service for inside the theater building. General Cinemas’ conduct and actions in providing its own security inside the theater building demonstrates General Cinemas’ interpretation of the lease and should be heavily relied upon by the court. See Eickhoff v. Eickhoff, 263 Ga. 498, 505 (6) (435 SE2d 914) (1993); Scruggs v. Purvis, 218 Ga. 40, 42 (126 SE2d 208) (1962). The trial court did not err in finding that the appellees did not owe a duty to provide security or police protection inside the theater building under the lease at issue.

2. The Sewells next contend that even if the appellees did not owe a duty to provide security and police protection under the lease, they voluntarily assumed this duty and failed to carry out those obligations. We disagree.

In late January 1994, an employee of one of the other shopping center’s tenants was shot during a robbery. Hull/Storey Development sent a memo to the shopping center’s tenants asking if they wanted security services for the shopping center:

The recent shooting incident at Funsations has heightened everyone’s awareness of the need for a safe work environment. At the request of one of our tenants, I am hereby surveying your group to determine if there is sufficient interest in providing security services at this center. The idea would be to contract with a local security firm to provide a uniformed officer in the area during certain hours. We could include this as a common area expense and bill each tenant proportionately. If your response is positive toward this approach, I will proceed by contacting some security agencies in the area and getting quotes on this service. Please call our office ... to register your response. Also, if you wish to have security, tell us which hours are most critical for your business.

Sewell responded immediately, expressing her desire for security. The two other tenants also asked for security.

During the six-week period between this letter and Norma Sew-ell’s attack, the appellees met at least weekly to discuss the issue of security. In addition, Sewell had regular conversations with Hull/ Storey Development regarding her request for security. However, there was a dispute over the type of guard necessary. The lease gave the landlord sole discretion regarding the type of security to provide for the shopping center, and the landlord wanted to use unarmed guards. The tenants, however, wanted armed, off-duty deputies. In an attempt to comply with the wishes of the tenants, the appellees were internally debating and seeking legal opinions on the issue of workers’ compensation insurance for off-duty deputies.

Clearly, the January 31 letter does not show that the appellees undertook a duty to provide security for the shopping center. This letter was merely an inquiry as to whether the tenants wanted security. After the tenants replied affirmatively, the appellees then sought quotes and legal opinions in an attempt to determine the best type of security to provide for the shopping center. While it is unfortunate that Norma Sewell was robbed during the six-week period that security issues were being discussed, there is no evidence in the record that the appellees undertook a duty to provide security for the shopping center prior to the attack on Sewell.

Decided December 8, 1999.

Joseph W. Padgett, for appellants.

Dye, Tucker, Everitt, Wheale & Long, A. Rowland Dye, for appel-lees.

Contrary to the Sewells’ arguments, Cooperwood v. Auld, 175 Ga. App. 694 (334 SE2d 22) (1985), is not controlling in this case. In Cooperwood, an employee admitted to the victim that he saw the assailant attempting to break into her apartment the morning she was raped but did not report his observations. In addition, there was some evidence that the employee’s duties included “looking out for the safety of the apartment premises and the residents.” Id. No such duties or observations are present in this case.

When a landlord acts to provide security, it must do so in a non-negligent manner. See Cooperwood, supra. Here, however, the appel-lees were still researching their options regarding security and had not yet undertaken the duty to provide security to the shopping center. They cannot be held liable for any breach of a duty they had not undertaken or for negligently performing a duty they had not undertaken. The trial court did not err in granting the appellees’ motion for summary judgment.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.


text:
    A99A2506.
    JOHNSON v. THE STATE.
    (526 SE2d 882)
   Johnson, Chief Judge.

John Johnson appeals his conviction for armed robbery in Whitfield County, arguing that the trial court erred in denying his motion for jail time credit. We disagree and affirm.

Johnson contends his guilty plea was the result of a negotiated plea and that it was understood that he was to receive his jail time credit. However, the transcript of the guilty plea hearing fails to support this contention. There is no mention of jail time credit in either the hearing transcript or the court’s sentence.

Moreover, Johnson was not entitled to jail time credit under the circumstances. The record shows that Johnson was confined in Bar-tow County for crimes in their jurisdiction and that a hold was placed on him to face a charge in Whitfield County. The Supreme Court has clearly held that the provision for crediting prison sentences with time spent in confinement applies only to persons who would not be confined but for the charges which give rise to the sentence for which credit is sought. Spann v. Whitworth, 262 Ga. 21, 23-24 (2) (413 SE2d 713) (1992); Tucker v. Stynchcombe, 239 Ga. 356, 357 (236 SE2d 623) (1977). In the present case, Johnson was not being held in Bartow County on the Whitfield County charges, but on an unrelated Bartow County charge. The Whitfield County court did not err in denying Johnson’s request for jail time credit.

Decided December 8, 1999.

John A. Johnson, pro se.

Kermit N. McManus, District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.


author: McMurray, Presiding Judge.

text:
    A00A0347.
    LONG v. THE STATE.
    (526 SE2d 875)
   McMurray, Presiding Judge.

Defendant Thomas Long was tried before a jury and found guilty of child molestation (Counts 1, 2, and 4), aggravated sexual battery (Count 3), and aggravated sodomy (Count 5), for sexual acts committed on his minor sister-in-law, S. O. The trial court ultimately set aside the convictions for child molestation under Counts 1 and 2, concluding the State failed to prosecute within the applicable statute of limitation. Remaining grounds in Long’s motion for new trial were overruled, and this appeal followed. Held:

Long enumerates the denial of his motions for directed verdict as to the remaining count of child molestation (Count 4) and the charge of aggravated sodomy (Count 5); the introduction of alleged opinion evidence regarding the victim’s testimony; and the exclusion of evidence that the victim had previously made false accusations of child abuse. We affirm.

1. The indictment was handed up June 16,1997. Count 4 alleged that, between August 8, 1989 and August 8, 1990, the exact date unknown, Long committed the indecent and immoral act of “placing] his finger inside the vagina” of the child, S. O., then under the age of 14. Long contends any prosecution for this act of child molestation is time-barred, arguing there is insufficient evidence the act took place any time within the statute of limitation.

(a) Under OCGA § 17-3-1 (c), prosecution for felonies committed against victims who are, at the time of the crime, under age fourteen, must commence within seven years after commission of the crime. In criminal cases, the statute of limitation runs from the time of the criminal act to the time of indictment, and not from the time of the act to the time of trial. Hall v. Hopper, 234 Ga. 625, 626 (1) (216 SE2d 839). Consequently, there must be some evidence that this particular act of molestation occurred between June 16, 1990 (seven years before indictment) and the date of the indictment.

(b) Viewed in the light most favorable to the jury’s verdicts, the evidence authorizes the following facts: The victim, S. O., was 18 during the May 1998 trial. S. O. went to live with her half-sister Karen and her husband Tommy (defendant Long) in March 1988, when S. O. was eight and would turn nine in August. Defendant began taking indecent liberties with the victim around November 1988; “it wasn’t long after [they] moved. . . .” He continued until “from [when S. O. was] the age of nine to sixteen — fifteen or sixteen, whenever [S. O.] moved out.” In 1990, when defendant’s wife was “pregnant with Rodney [, who was born in] October of 1990,” defendant “put one of his fingers inside [S. O.],” while measuring S. O.’s inseam for a pair of protective chaps. It was summertime, “about the middle of softball season.” S. O. was “fixing to turn eleven” that August. This proof, pinpointing the time near her eleventh birthday (August 1990), is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), to authorize the conclusion that the child molestation alleged in Count 4 of the indictment occurred after June 16, 1990. The trial court correctly concluded that Long’s conviction for this count is valid, based on proof that prosecution was commenced within the applicable limitation period. Thompson v. State, 212 Ga. App. 175, 176 (2) (442 SE2d 771).

2. Count 5 of the indictment alleged that, between August 8, 1994 and August 8, 1995, defendant “place [d] his penis in the mouth of [S. O.] with force and against the will of [S. O.]” Long contends the trial court erred in denying his motion for directed verdict of acquittal as to the aggravated sodomy alleged in Count 5, arguing there is no evidence of force.

Force may be proved by direct or circumstantial evidence. Daniel v. State, 194 Ga. App. 495, 496 (2) (391 SE2d 128). Lack of resistance, induced by fear, is not legally cognizable consent but is force. Ingram v. State, 211 Ga. App. 252, 253 (2) (438 SE2d 708). Force, as an element of aggravated sodomy under OCGA § 16-6-2 (a), may be inferred by evidence of intimidation arising from the familial relationship. Shelton v. State, 196 Ga. App. 163 (1) (395 SE2d 618). Here, Long was a Paulding County Sheriff’s Deputy. S. O. testified she was intimidated by Long because he was a police officer. Living in Long’s house, S. O. was dependent upon him for food and shelter. The circumstantial evidence of force through intimidation is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307, supra, to authorize the jury’s verdict that Long is guilty, beyond a reasonable doubt, of the aggravated sodomy alleged in Count 5. The trial court correctly denied Long’s motion for directed verdict of acquittal. Daniel v. State, 194 Ga. App. at 496 (2), supra.

3. After the State’s attorney finished questioning Mary Claire Brannon, a child and adolescent counselor to whom S. O. confided that defendant had molested her, Brannon added a statement, “I think [S. O.] had built some trust.” Defendant objected to this as impermissible opinion and asked that it be stricken. The trial court did not hear what the witness said and overruled the objection. This evidentiary ruling is enumerated as error. “ An expert witness may not testify as to his opinion of the victim’s truthfulness. (Cits.) . . . (A)n expert witness may not put his . . . stamp of believability on the victim’s story. (Cit.)’ State v. Oliver, 188 Ga. App. 47, 50-51 (2) (372 SE2d 256) (1988).” Dickerson v. State, 207 Ga. App. 241 (2), 242 (427 SE2d 591). But this opinion by the counselor, that the victim had built up some trust, simply does not put an expert’s imprimatur on the truthfulness of the victim’s statements. The trial court did not err in failing to strike this statement.

4. The fourth enumeration contends the trial court erroneously excluded evidence that the victim made a prior false accusation of child abuse against Peggy Ann Peebles, based upon Peebles disciplining S. O. with a belt.

Outside the presence of the jury, S. O. testified she complained to authorities that Peebles “was trying to hit me in the face” by slinging a belt. Peebles admitted hitting S. O. with a belt “across the behind three times.” The trial court ruled the prior altercation was irrelevant and inadmissible.

The general character of the parties and especially conduct in other transactions are generally irrelevant. OCGA § 24-2-2. In Georgia, however, evidence of prior false accusations of sexual misconduct is admissible to attack the credibility of the prosecutrix and as substantive evidence tending to prove that the instant offense did not occur. Smith v. State, 259 Ga. 135, 137 (1) (377 SE2d 158). This is an exception to the rule that the victim’s character cannot be attacked by proof of specific bad acts but must be challenged by evidence of the victim’s general reputation for veracity under OCGA § 24-9-84. Id. The evidence proffered in this case did not involve prior false accusations of sexual misconduct and so fell within the general rule that proof of bad character cannot be proven by specific bad acts. Postell v. State, 261 Ga. 842, 843 (2) (412 SE2d 831). The trial court correctly excluded the proffered evidence as legally irrelevant.

Decided December 8, 1999.

Donald R. Donovan, for appellant.

James R. Osborne, District Attorney, Elizabeth L. Larson, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Smith, Judge.

text:
    A99A1088.
    KRIEGER v. WALTON COUNTY BOARD OF COMMISSIONERS et al.
    (525 SE2d 147)
   Smith, Judge.

This is the second appearance of this case in the appellate courts of Georgia. In Krieger v. Walton County Bd. of Commrs., 269 Ga. 678 (506 SE2d 366) (1998), the Supreme Court affirmed in part and reversed in part the trial court’s ruling in favor of the board in the suit brought by John Krieger, Chairman of the Board of Commissioners of Walton County, against the Walton County Board of Commissioners and the six district commissioners. In that action, Krieger challenged a number of actions taken by the board, which Krieger characterized as attempts to strip him of the duties vested in his position. Id. at 679. The Superior Court of Walton County granted judgment in favor of the board as to all issues. Krieger appealed to the Supreme Court, which generally upheld the authority of the board to act as it did, concluding that “neither the constitution nor general laws prohibit!] the board from assuming authority over county personnel matters.” Id. at 684. The Supreme Court held, however, that because local legislation governed two specific actions, the board could not assume the power to hire, supervise, and fire county employees without first amending the local legislation. Id.

After the Supreme Court’s ruling, Krieger filed an application in the trial court for attorney fees and costs of litigation, claiming the Supreme Court had ruled in his favor. The trial court denied the application, and Krieger appeals, raising six enumerations of error.

1. The record shows that when the suit was filed, the county attorney for Walton County declined to participate in the litigation, and the board voted to authorize the hiring of private defense counsel. A resolution was passed authorizing attorney fees and costs incurred in defending the suit to be paid by the board. In Krieger’s first two enumerations of error, he maintains that the board lacked authority to employ outside counsel and pay attorney fees for defending this action.

An error of law has as its basis a specific ruling made by the trial court. In order for a Georgia appellate court to review a trial court ruling for legal error, a party must set forth in the enumeration of errors the allegedly erroneous ruling. OCGA § 5-6-40. The appellate court is precluded from reviewing the propriety of a lower court’s ruling if the ruling is not contained in the enumeration of errors. [Cits.]

Felix v. State, 271 Ga. 534, 539 (523 SE2d 1) (1999). In his notice of appeal, Krieger specifies that the order appealed from is the order entered on October 30, 1998, denying his application for attorney fees and costs. But that order recites expressly that the trial court has not approved the payment of any attorney fees or costs in this case. And it is clear that the trial court made no rulings regarding the authority of the board to employ outside counsel. Since the trial court did not rule on those matters, Krieger’s first two enumerations present nothing for review.

2. Krieger next enumerates as error the trial court’s denial of his request for attorney fees. Even if we agreed with Krieger’s characterization of himself as the “prevailing party” in the underlying lawsuit, “[a]s a general rule, Georgia law does not provide for the award of attorney fees to the prevailing party unless authorized by statute or contract.” (Citation and footnote omitted.) Indus. Distrib. Group v. Waite, 268 Ga. 115, 116 (1) (485 SE2d 792) (1997). Krieger’s application for attorney fees includes no citation of authority for such an award. In its order, the trial court indicated that Krieger asked the court for attorney fees “pursuant to Guhl v. Williams, 237 Ga. 586 [(229 SE2d 382) (1976)].” But we agree with the trial court that Guhl has no application to the facts of this case. Guhl also involved a dispute about proposals diminishing the power of the commission chairman. But unlike this case, the chairman and the board of commissioners in Guhl “agreed to resolve their dispute in the courts, and the county attorney was authorized and instructed to institute an action for declaratory judgment to resolve the legal issue.” Id. at 587.

The trial court’s order also states that “[i]n the alternative, [Krieger] asked that Walton County be ordered to pay his attorneys fees and cost of litigation pursuant to OCGA § 13-6-11.” The trial court found no basis for granting Krieger’s request under that statute. We agree with the trial court that even if OCGA § 13-6-11 applies here, Krieger has not shown the bad faith or stubborn litigiousness on the part of the board that would support an award of fees and costs. The board had a reasonable defense to Krieger’s action, as shown by the fact that its actions were upheld by the Supreme Court, with exceptions as to the form of two of those actions. “A plaintiff may not recover expenses of litigation for stubborn litigiousness where a bona fide controversy exists.” (Citations and punctuation omitted.) Homeland Communities v. Rahall & Fryer, P.C., 235 Ga. App. 440, 443 (4) (509 SE2d 714) (1998). It can hardly have been bad faith on the part of the board to assert a position that ultimately prevailed on a majority of the issues.

The trial court’s order also recites that Krieger sought attorney fees under OCGA § 9-15-14. Although Krieger purported to base his motion for attorney fees upon OCGA § 9-15-14, the trial court’s order, shows that this issue was never argued. We agree with the trial court that because Krieger apparently abandoned this theory and made no showing that the board’s actions were frivolous, this request was without merit.

Appellees address in their briefs the issue of whether Krieger is entitled to seek attorney fees under OCGA § 45-9-21 (a), which allows governing bodies to undertake the defense of suits filed against government employees and officials arising out of the performance of their duties. We need not address this issue because Krie-ger has stated in his brief that he “does not claim that he has a right to recover attorneys’ fees under OCGA § 45-9-21.”

Because Krieger has shown no statute or contract authorizing an award of attorney fees to him (and because we cannot agree with him that he is the “prevailing party”), the trial court did not err in denying his request for an award of attorney fees and costs of litigation.

3. We find no reference in the record of the proceedings below to the issue raised by Krieger’s enumeration of error in this court that the trial court should have enjoined the payment of appellees’ attorneys because of violations of the State Open Meetings Act, OCGA §§ 50-14-1 through 50-14-6, and local law. Clearly, the trial court did not address this issue. It is well established that an issue not raised below may not be raised for the first time on appeal. “We do not consider issues raised for the first time on appeal, because the trial court has not had opportunity to consider them.” (Citation and punctuation omitted.) Padilla v. Melendez, 228 Ga. App. 460, 461 (1) (491 SE2d 905) (1997).

Decided November 12, 1999

Reconsideration denied December 9, 1999

Dillard & Galloway, George P. Dillard, Howell F. Wright, Jr., for appellant.

Robert N. Elkins, for appellees.

4. Krieger requested that the trial court order appellees to reimburse Walton County for the cost of their defense of his lawsuit. We agree with the trial court that it lacked authority to order reimbursement to Walton County, which was not a party to the lawsuit. On appeal, Krieger argues that the trial court ruled that “a taxpayer may not prosecute a claim for the use and benefit of the county as a use plaintiff.” To the extent we can understand it, Krieger’s argument is that as a taxpayer in Walton County, he brought the claim as a nominal plaintiff on behalf of the county to recover “public funds unlawfully expended” on attorney fees by the board, and the county should be reimbursed for this expense. But we find no reference in the trial court’s order to the broad, general statement of law asserted as a “ruling” by Krieger. The trial court simply ruled that the payment by the county of appellees’ attorney fees was not properly before the court. Krieger’s enumeration therefore lacks merit.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

       Krieger filed an application for discretionary appeal, relying upon OCGA § 5-6-35 (a) (10), which makes the discretionary appeal procedure applicable to awards of attorney fees or expenses of litigation under OCGA § 9-15-14. Because Krieger did not rely primarily upon OCGA § 9-15-14, we found OCGA § 5-6-35 (a) (10) to be inapplicable. Eickhoff v. Eickhoff, 263 Ga. 498, 499 (1) (435 SE2d 914) (1993) (OCGA § 5-6-35 (a) (2) inapplicable to case in which primary issue was enforcement of settlement agreement rather than “domestic relations”). But because the order in issue was directly appealable, Krieger’s application was granted.

       It is clear from the Supreme Court’s opinion that the board may easily accomplish its purpose as to the two exceptions simply by first amending the local legislation. Appellees suggest in their reply brief that this was in fact accomplished.

       Krieger does not appear to offer in his briefs any argument or citation of authority supporting the claim set out in enumeration of error 4 that the board’s actions violated local legislation. This portion of the enumeration may therefore also be deemed to have been abandoned. Court of Appeals Rule 27 (c) (2)'.


author: Miller, Judge.

text:
    A99A1337.
    EMPIRE FIRE & MARINE INSURANCE COMPANY v. STATE FARM FIRE & CASUALTY COMPANY.
    (525 SE2d 741)
   Miller, Judge.

This case arose from a motor vehicle collision that involved Troy Daniel and Chukwudi Chukwuma. Daniel, a passenger in a vehicle insured by Empire Fire & Marine Insurance Company, sued Chukwuma for damages as a result of the collision. Following a default judgment against Chukwuma, the trial court added State Farm Fire & Casualty Company, as a party defendant, as the insurer of the vehicle that Chukwuma operated.

The owner of the vehicle that Chukwuma drove admitted that for the sum of $50 per week, he rented the vehicle to Chukwuma. Based on this admission, State Farm denied coverage for the vehicle under the “rented to others” exclusion of the insurance policy and moved for summary judgment. Empire denied Daniel’s claim for uninsured motorist coverage and also moved for summary judgment. The trial court granted State Farm’s motion for summary judgment and denied Empire’s, which rulings Empire appeals.

Decided November 18, 1999

Reconsideration denied December 9, 1999.

Michael L. Wetzel, for appellant.

Summary judgment is proper only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Applying the de novo standard of review to an appeal from a grant of summary judgment, we must view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmoving party.

Empire contends that State Farm is not entitled to summary judgment because the “rented to others” exclusion does not apply in this case. Because the plain language of the insurance contract states otherwise, we affirm.

The exclusion provides: “THERE IS NO COVERAGE: 1. WHILE ANY VEHICLE INSURED UNDER THIS SECTION IS: a. RENTED TO OTHERS OR USED TO CARRY PERSONS FOR A CHARGE.”

“Where the terms and conditions of an insurance contract are clear and unambiguous, they must be given their literal meaning.” Here, the policy excludes from coverage any vehicle that is rented to others for a charge. Because both Chukwuma and the owner of the vehicle that Chukwuma operated admit that the vehicle was rented to Chukwuma for $50 per week, it is undisputed that the vehicle was rented for a charge. Based on the express terms of the exclusion provision in the policy, there was no coverage provided for the vehicle that Chukwuma operated. The trial court did not err in granting summary judgment to State Farm.

Because we hold that there was no coverage under the policy issued by State Farm, it follows that the trial court properly denied Empire’s motion for summary judgment as the uninsured motorist carrier.

Judgment affirmed.

Blackburn, P. J., and Ellington, J., concur.

John T. Croley, Jr., for appellee.

       OCGA § 9-11-56 (c).

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

        Adams v. Atlanta Cas. Co., 235 Ga. App. 288, 289 (1) (509 SE2d 66) (1998).

         See Burnette v. Ga. Life &c. Ins. Co., 190 Ga. App. 485 (1) (379 SE2d 188) (1989).


text:
    A99A1713.
    BONDS v. BONDS.
    (527 SE2d 215)
    Decided December 9, 1999.

      Josephine B. Jones, for appellant.

      Lawson & Sippel, John A. Lawson, for appellee.
   Johnson, Chief Judge.

Brendalyn Bonds filed an application for discretionary appeal from an order of the trial court modifying child custody. We granted her application primarily to address her argument that the trial court erred in failing to include in its order any findings of fact. This enumeration, as well as others raised, is without merit.

1. The trial court did not err in failing to make specific findings of fact. Under former law, it was mandatory in a contested child custody case for the trial judge to include findings of fact in its final order. See Haralson v. Moore, 236 Ga. 131, 133 (3) (223 SE2d 107) (1976); Githens v. Githens, 234 Ga. 715 (217 SE2d 291) (1975); Jordan v. Jordan, 179 Ga. App. 155, 157 (1) (345 SE2d 675) (1986). In fact, where the trial judge neglected to make such findings, we remanded the case for the entry of such findings. See Haralson, supra; Githens, supra.

In 1987, however, the legislature amended OCGA § 9-11-52 (a). Under the amended statute, entry of findings of fact became mandatory only upon request by a party. OCGA § 9-11-52 (a); Poor v. Leader Fed. Bank, 221 Ga. App. 889 (1) (473 SE2d 563) (1996); Doe v. Chambers, 188 Ga. App. 879, 881 (2) (374 SE2d 758) (1998). The record in this case does not show that any party requested that the trial court enter findings of fact. Therefore, the failure to do so was not error. See Burks v. First Union Mtg. Corp., 209 Ga. App. 41 (1) (432 SE2d 822) (1993); Doe, supra.

2. There being no transcript of the proceedings or statutorily authorized substitute, we must presume that the evidence supported the trial court’s ruling. Marshall v. SDA, Inc., 234 Ga. App. 312, 313 (3) (506 SE2d 661) (1998); Goodman v. Lake Buckhorn &c., 224 Ga. App. 765 (3) (481 SE2d 882) (1997). Accordingly, the remaining enumerations are without merit.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.