author: Mikell, Judge.

text:
    A00A2550.
    KODADEK et al. v. LIEBERMAN et al.
    (545 SE2d 25)
   Mikell, Judge.

While Dr. Richard Lieberman was suturing a blood vessel that began to bleed during young Ryan Kodadek’s tonsillectomy, the needle broke. A portion of the needle lodged in Ryan’s tonsil fossa, or the opening through which the tonsil was removed. The bleeding increased when Dr. Lieberman began to probe for the needle, so he elected not to retrieve it. Instead, he x-rayed the area, determined that the needle did not pose a danger to Ryan, and completed the surgery.

Dr. Lieberman immediately wished to discuss the incident with Ryan’s mother, Diana Kodadek. A meeting was arranged by Donna Bryan, the Director of Perioperative Services for HCA Health Services of Georgia, Inc. d/b/a Columbia Northlake Regional Medical Center, where the surgery was performed. During the meeting, which nurse Bryan attended, Dr. Lieberman testified that he informed Mrs. Kodadek that a “small portion” of the needle remained in Ryan’s throat. He recommended that Ryan refrain from physical activity and advised that the family remain in town, instead of taking a planned extended vacation, so that Dr. Lieberman could monitor his condition. He indicated that if Mrs. Kodadek insisted on taking a trip, that upon their return, he would perform a CT scan and remove the needle. Mrs. Kodadek’s recollection of this meeting differed substantially from Dr. Lieberman’s. She claimed he told her that the needle was tiny, would never need to be removed, and the “biggest problem” it would ever cause Ryan would be “beeping going through [airport] security” and that this type of occurrence happens “all the time.” Mrs. Kodadek leveled similar allegations against nurse Bryan.

Ryan was discharged and saw Dr. Lieberman for a follow-up visit two days later. Dr. Lieberman testified that he reiterated his concerns about Ryan leaving town, but the Kodadeks indicated they had “family, medical people in Chicago” who could care for Ryan.

The Kodadeks took their scheduled trip. Mr. and Mrs. Kodadek returned to Georgia, leaving Ryan in Chicago in his grandmother’s care. There, one month after the surgery, Ryan began experiencing pain in his throat. He presented to a physician, who recommended surgical removal of the needle. His parents flew to Chicago to be by his side. The surgery proceeded uneventfully, and, after one followup visit to the surgeon, Ryan was discharged from medical care. He suffered no permanent injury.

Ryan’s parents, David and Diana Kodadek, individually and on Ryan’s behalf, sued Dr. Lieberman, the hospital, and the operating room nurses, Lin Stennes and Faith Yurman, initially asserting claims of negligence and fraud. An investigation revealed that Yurman had inadvertently handed Dr. Lieberman a needle thinner than the one he had requested. Plaintiffs claimed that Dr. Lieberman violated the applicable standard of care by, inter alia, failing to extract the needle from Ryan’s throat, misrepresenting to Mrs. Kodadek that it was medically safe to leave it there, and misrepresenting to her the size of the needle. In his operative note, Dr. Lieberman estimated the portion of the needle that remained in Ryan’s throat at 0.25 inch, or 0.635 centimeter. The portion removed actually measured 1.6 centimeters. Plaintiffs also claimed Dr. Lieberman’s misrepresentations constituted fraud.

Plaintiffs alleged that the hospital and nurses fraudulently attempted to conceal the incident by failing to document it in the patient’s chart, and that Bryan made false statements about the occurrence during the meeting with Dr. Lieberman. Plaintiffs sought damages to recover for Ryan’s pain and suffering and medical expenses as well as funds expended to fly the family to Chicago for the surgery. Plaintiffs also contended that “they lost the opportunity to have an enjoyable summer” and that they suffered severe emotional distress and mental anguish surrounding the Chicago surgery. They sought punitive damages against the hospital.

Plaintiffs later dismissed the nurses from the action. Finally, they amended their complaint to assert claims of breach of public and private duty, breach of fiduciary duty and constructive fraud, and to demand recovery of $17,303.36 in special damages.

Summary judgment was granted to the hospital on plaintiffs’ claim that the nurses violated a public duty. Summary judgment was also granted on the issue of punitive damages, with the exception of whether Bryan’s alleged misrepresentations evidenced a conscious disregard for the consequences.

The case proceeded to trial. The jury returned a verdict exonerating Dr. Lieberman. The jury also found for the defendants on Mr. and Mrs. Kodadek’s claims brought in their individual capacities. However, the jury found in favor of Ryan Kodadek against the hospital, awarding him $22,100 in compensatory damages and $16,910.24 in punitive damages. The trial court granted the hospital’s motion for judgment notwithstanding the verdict as to the punitive damages award. Plaintiffs moved for a new trial on all claims except the award of compensatory damages to Ryan Kodadek. That judgment has been satisfied. Plaintiffs’ motion for new trial was denied, and this appeal followed. We affirm.

1. Plaintiffs contend that the trial court erred in charging the jury on actual fraud as well as constructive fraud and breach of fiduciary duty. They maintain that the charges were inconsistent and confiised the jury. We disagree.

Actual fraud requires proof of five elements: a false representation, scienter, intent to induce the plaintiff to act or refrain from acting, justifiable reliance by the plaintiff, and damages.

Actual fraud consists of any kind of artifice by which another is deceived. Constructive fraud consists of any act of omission or commission, contrary to legal or equitable duty, trust, or confidence justly reposed, which is contrary to good conscience and operates to the injury of another. OCGA § 23-2-51 (b).

In the case sub judice, Mrs. Kodadek testified that Dr. Lieberman affirmatively misrepresented to her the size of the needle that remained in Ryan’s throat and that she relied to her detriment on that representation. Further, the testimony of plaintiffs’ nursing expert gave rise to an inference that nurses Stennes and Yurman fraudulently misstated the needle count in the intraoperative report. This evidence warranted a charge on actual fraud.

Additional evidence necessitated a charge on constructive fraud. Mrs. Kodadek testified that Bryan told her that the needle in Ryan’s throat was “so small you can hardly see it. You need a microscope.” However, the evidence established that Bryan had been summoned to the operating room after the needle broke and was unaware of the size of the portion that remained in Ryan’s throat at the time she spoke with Mrs. Kodadek. Accordingly, the trial court was correct in charging the jury on both actual and constructive fraud. In any event, any error in this regard was self-induced, as plaintiffs refused to withdraw their claim of actual fraud.

Dent v. Mem. Hosp. of Adel, upon which plaintiffs rely in support of their claim, is inapposite. In that case, the parents of a baby who died in the hospital while hooked up to an apnea monitor sued the hospital, asserting theories of both professional and ordinary negligence. The judge instructed the jury that “ ‘if you find from the evidence in this case that the defendants did not commit any acts of professional negligence or malpractice, a verdict in the plaintiffs’ favor would be unlawful.’ ” The jury returned a defense verdict. In reversing, the Supreme Court ruled that the challenged charge conflicted with the instructions on ordinary negligence and might have misled the jury into believing that it could not return a plaintiffs’ verdict based upon ordinary negligence.

The error in Dent did not occur in the case sub judice. The court correctly charged the jury on the elements necessary to prove actual fraud, breach of fiduciary duty, and constructive fraud. The court charged the jury that “[m]ere concealment of a material fact, unless done in such a manner as to deceive and mislead, will not support an action.” While plaintiffs complain that this language was an erroneous instruction on the law applicable to breach of fiduciary duty, they quote the charge out of context. The language was immediately preceded by the instruction that “willful misrepresentation of material fact made to induce another to act, upon which such person acts to his injury, will give him a right of action.” The judge then explained to the jury that knowledge of the falsehood was an intentional element of the tort of deceit, but that a “fraudulent or reckless representation of facts as true when they are not, if intended to deceive, is equivalent to a knowledge of their falsehood. . . .” The court also charged the jury: “Where a person sustains toward another a relation of trust and confidence, his silence when he should speak or his failure to disclose what he ought to disclose is as much a fraud in law as an actual affirmative false representation.”

Thus, the evidence does not support plaintiffs’ assertion that the jury was instructed that in order to find a breach of fiduciary duty, the jury must find that defendants intentionally made a false statement. “It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.” The charge in the instant case, considered as a whole, was accurate, adjusted to the evidence, and did not mislead the jury. Accordingly, this enumeration is meritless.

2. Plaintiffs next assert that the trial court erred in granting j.n.o.v. on the issue of punitive damages. We disagree.

In reviewing the grant of j.n.o.v., the appellate court views the evidence in the light most favorable to the party who obtained the jury verdict, and the standard of review is whether there is any evidence to support the verdict. However, the appellate inquiry does not end here.

The issue on appeal remains whether or not there is any evidence sufficient under the applicable standard. In the case of punitive damages, the standard of review must also be applied in conjunction with the requirement under OCGA § 51-12-5.1 (b) that the evidence must be clear and convincing.

In other words, it is our appellate responsibility to determine whether there is any evidence to support the jury’s determination that the evidence of fraud or breach of fiduciary duty was clear and convincing. In this regard, “it remains the rule that something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage.”

We conclude that the trial court did not err in granting j.n.o.v. to the defense on the issue of punitive damages. Mrs. Kodadek’s testimony that Bryan stated that the needle remaining in Ryan’s throat was “microscopic” in size and that this occurrence was common is not “clear and convincing,” given that it is contradicted by the testimony of Bryan and Dr. Lieberman, as well as Dr. Lieberman’s notes of the conversation. Bryan and Dr. Lieberman both testified that he explained to Mrs. Kodadek that a “small portion” of the needle lodged in Ryan’s throat. Dr. Lieberman further testified that neither he nor Bryan stated to Mrs. Kodadek that “this happens all the time.” Finally, he testified that he instructed Mrs. Kodadek that Ryan should refrain from physical activity and not travel so that Dr. Lieberman could supervise his medical care.

Nor does the evidence that the operating room nurses violated the standard of care by misstating the needle count in the intraoperative report justify the award of punitive damages, given the fact that Mrs. Kodadek was immediately informed of the incident and that it was reported in Dr. Lieberman’s operative note. Accordingly, having reviewed the record and transcript, we do not find sufficient evidence that the hospital or its employees showed the requisite degree of wilful misconduct, malice, wantonness, or oppression or otherwise evinced that entire want of care as to authorize the imposition of punitive damages under OCGA § 51-12-5.1 (b). Accordingly, we affirm the trial court’s grant of j.n.o.v. on this issue.

3. Next, plaintiffs complain that the trial court erred in refusing to grant them a new trial on the basis of juror misconduct. In this regard, plaintiffs’ counsel offered his own affidavit, relating the following: After the trial had concluded, counsel was approached in a restaurant by a juror. Counsel averred that this juror “was rather insistent that my clients should not appeal the verdict.” She “represented that the jurors had an ongoing bet with respect to the outcome of the trial [and] that she had a friend or boyfriend that works for . . . the firm that represented [the hospital].” An attorney who overheard this conversation submitted an affidavit that confirmed counsel’s recollection.

Since the juror who made the statements to plaintiffs’ counsel was not called to testify at the hearing on the motion for new trial, her statements constituted hearsay and could not authorize the grant of a new trial. “[H]earsay testimony is inadmissible and wholly without probative value unless it comes within a recognized exception to the hearsay rule, which this did not.” Therefore, the trial court did not abuse her discretion in refusing to grant the motion on this ground.

4. Next, plaintiffs complain that the trial court erred in denying their motion for new trial on the basis of newly discovered evidence. This enumeration is meritless.

The standard for granting a new trial on the basis of newly discovered evidence is well established. It is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness. All six requirements must be complied with to secure a new trial. Implicit in these six requirements is that the newly discovered evidence must be admissible as evidence.

The “evidence” at issue is information taken from the Internet site of Columbia HCA/Healthcare Corporation, the parent company of the defendant hospital. Plaintiffs contend the information shows that the parent company owns the hospital; that the hospital misrepresented its true ownership; and that the trial court’s denial of their motion to name the parent company as the proper party defendant harmed their ability to prove punitive damages because they were prohibited from introducing evidence of the parent company’s greater “worldly circumstances.” However, this argument is rendered moot by our affirmance in Division 2 of the trial court’s grant of j.n.o.v. as to punitive damages.

Plaintiffs also claimed that based on the hospital’s misrepresentation of its ownership, plaintiffs incorrectly relied on the policies and procedures of Northlake Regional Medical Center in attempting to prove negligence and fraud, as opposed to a national code of conduct applicable to all Columbia employees. The national code of conduct proffered by plaintiffs states that “[n]o one may falsify or inappropriately alter information in any record or document.” We note that the effective date of this code of conduct is February 11, 1998. The surgery and subsequent events which form the basis of this litigation took place in 1996. Accordingly, this evidence would not have been admissible at trial because it is irrelevant to the policies in place at the time in question.

Furthermore, this evidence cannot be considered newly discovered because plaintiffs brought it to the court’s attention prior to the conclusion of trial. Moreover, it appears that the material was printed by plaintiffs’ counsel on November 9, 1998, over two months prior to trial.

Finally, in denying plaintiffs’ motion for new trial on this ground, the court relied on the affidavit of an assistant vice-president of HCA Health Services of Georgia, Inc., who averred that at all relevant times, that entity owned and operated Northlake Regional Medical Center. “When a trial judge decides not to grant a motion for new trial [s]he becomes the trier of fact, and [her] discretion in refusing the motion will not be disturbed unless manifestly abused.” We find no abuse of discretion here and affirm the trial court’s ruling.

5. Plaintiffs challenge the denial of their motion for new trial on the additional ground that the hospital misrepresented the availability of its chief executive officer (“CEO”) as a witness at trial. Plaintiffs further maintain that the trial court erred in failing to instruct the jury that a negative presumption arose from the hospital’s failure to produce the CEO. However, plaintiffs’ enumeration of error in this regard states only that they were severely prejudiced by misrepresentations as to which entity owned the hospital. See Division 4. “As an enumeration of error cannot be enlarged by a brief to give appellate viability to an issue not contained in the original enumeration, this Court will not consider” plaintiffs’ additional arguments. In any event, in denying plaintiffs’ motion for new trial, the court found that the hospital had not supplied incorrect information to plaintiffs concerning the CEO and that they were not harmed by the CEO’s unavailability because his deposition was read into evidence. Having reviewed the record and transcript, this Court is not persuaded that the judge abused her discretion in so finding.

Decided January 19, 2001.

Neal H. Howard, Joann Brown-Williams, William D. James, for appellants.

Long, Weinberg, Ansley & Wheeler, Alan M. Maxwell, Anna C. Palazzolo, Elaine W. Whitehurst, for appellees.

6. Plaintiffs’ final enumeration of error asserts that the trial court erred in refusing to assess sanctions against the hospital. Plaintiffs’ argument is premised upon its claims that the hospital misrepresented its ownership and attempted to conceal the whereabouts of its CEO. As we have resolved those claims against plaintiffs, this argument too must fail.

7. Although plaintiffs’ brief violates Court of Appeals Rule 27 (c) (3) by providing inadequate citations to the voluminous record — 27 volumes — this Court declines Dr. Lieberman’s request to dismiss this appeal and assess sanctions against the plaintiffs.

Judgment affirmed.

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

        ComSouth Teleservices v. Liggett, 243 Ga. App. 446, 449 (3) (531 SE2d 190) (2000).

       (Citation and punctuation omitted.) Smith v. Wilfong, 218 Ga. App. 503, 507 (462 SE2d 163) (1995). See also Vickers v. Roadway Express, 210 Ga. App. 78, 79 (2) (435 SE2d 253) (1993).

       See Time Warner Entertainment Co. v. Six Flags Over Ga., 245 Ga. App. 334, 347 (2) (a) (537 SE2d 397) (2000) (“Error, if any, was self-induced and cannot be complained of on appeal”).

       270 Ga. 316 (509 SE2d 908) (1998).

       Id. at 317.

       Id. at 317-318.

       OCGA § 51-6-2 (a).

       (Citation and punctuation omitted.) Clemons v. Atlanta Neurological Institute, 192 Ga. App. 399, 401 (1) (b) (384 SE2d 881) (1989).

        Peters v. Hyatt Legal Svcs., 220 Ga. App. 398, 400 (1) (b) (469 SE2d 481) (1996).

       (Punctuation, omitted; emphasis supplied.) Uniroyal Goodrich Tire Co. v. Ford, 218 Ga. App. 248, 255 (3), n. 2 (461 SE2d 877) (1995), aff'd in part and rev’d in part, Ford v. Uniroyal Goodrich Tire Co., 267 Ga. 226 (476 SE2d 565) (1996).

       (Citation and punctuation omitted.) Tri-County Investment Group v. Southern States, 231 Ga. App. 632, 638 (4) (b) (500 SE2d 22) (1998).

       See Brown v. DeKalb Med. Center, 225 Ga. App. 4, 7 (2) (482 SE2d 511) (1997); Roseberry v. Brooks, 218 Ga. App. 202, 209-210 (4) (461 SE2d 262) (1995).

        Satterwhite v. State, 235 Ga. App. 687, 688-689 (509 SE2d 97) (1998).

        K-Mart Corp. v. Lovett, 241 Ga. App. 26, 29 (4) (525 SE2d 751) (1999).

       (Citations omitted.) Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980). Accord Collins v. Kiah, 218 Ga. App. 484, 486 (2) (462 SE2d 158) (1995).

        Fugarino v. State, 243 Ga. App. 268, 270 (2) (531 SE2d 187) (2000).

       (Citation omitted.) Rolleston v. Cherry, 226 Ga. App. 750, 753 (1) (b) (487 SE2d 354) (1997).

       See Poole v. Estfan, 206 Ga. App. 510, 511 (1) (426 SE2d 61) (1992).


source: Caselaw Access Project

license: Public Domain

text:
    A01A0559.
    SEA TOW/SEA SPILL OF SAVANNAH v. PHILLIPS.
    (545 SE2d 34)
   Mikell, Judge.

Sea Tow/Sea Spill of Savannah (“Sea Tow”) filed suit in state court against Robert L. Phillips seeking recovery for services rendered in connection with the salvage of Phillips’ boat. Phillips filed a motion to dismiss the complaint, contending that the court lacked subject matter jurisdiction because the action was subject to federal maritime law. On February 7, 2000, prior to expiration of the time permitted for Sea Tow to respond, the court granted Phillips’ motion. Sea Tow filed a motion to set aside the dismissal on July 18, 2000, on the ground that it had not received a copy of the court’s order or any notice of the adverse decision. The court denied the motion to set aside, and this appeal followed. We reverse.

1. Phillips has moved to dismiss this appeal, arguing that the denial of a motion to set aside judgment is not subject to direct appeal, and that Sea Tow failed to follow the discretionary appeal procedure. OCGA § 5-6-35 (a) (8). See also Magnum Communications v. IBM Corp., 206 Ga. App. 131 (1) (424 SE2d 379) (1992). However, “[m]otions to set aside brought on the grounds that the court failed to notify the losing party of its decision are cognizable as motions to correct a clerical error pursuant to OCGA § 9-11-60 (g) and are properly the subject of a direct-appeal.” Downs v. C.D.C. Fed. Credit Union, 224 Ga. App. 869 (1) (481 SE2d 903) (1997), citing Leventhal v. Moseley, 264 Ga. 891, 892 (453 SE2d 455) (1995). Accordingly, Phillips’ motion to dismiss this appeal is denied.

2. First, Sea Tow argues that the court erred in denying its motion to set aside because the court failed to notify counsel for Sea Tow that the order of dismissal had been entered.

OCGA § 15-6-21 (c) provides that a trial court must notify counsel of an adverse decision on a motion. If a trial court fails to send notice to the losing party, that party can file a motion to set aside the earlier order or judgment. Brown v. E.I. du Pont de Nemours & Co., 240 Ga. App. 893, 896 (4) (525 SE2d 731) (1999). Upon a finding that the losing party did not receive notice, the trial court should grant the motion to set aside, reenter the dismissal order, and give the losing party 30 days to file a notice of appeal. Id., citing Cambron v. Canal Ins. Co., 246 Ga. 147, 148 (1) (269 SE2d 426) (1980).

Sea Tow contends that it did not receive notice from the court that Phillips’ motion to dismiss had been granted. This contention is supported by the fact that Sea Tow filed a response to the motion to dismiss after the court had entered its order and wrote a letter to a member of the judge’s staff confirming that Sea Tow received no notice from the court. The record shows that Phillips informed Sea Tow of the dismissal on July 10, 2000, and that Sea Tow immediately filed a motion to set aside the order.

Phillips argues that the court properly denied Sea Tow’s motion to set aside, because there was insufficient proof that Sea Tow did not receive notice of the dismissal. We agree that it would have been the better practice for Sea Tow to attach an affidavit to its motion evidencing that notice was not received; however, it is uncontroverted that Sea Tow did not receive notice of the adverse decision.

Accordingly, we conclude that the court erred in denying Sea Tow’s motion to set aside the order of dismissal. The court’s failure to provide counsel with notice of the adverse decision effectively deprived Sea Tow of the opportunity to seek reconsideration or appeal of the order of dismissal.

Decided January 19, 2001.

Portman & Felser, Barnard M. Portman, James F. Shehane IV, for appellant.

Hunter, Maclean, Exley & Dunn, Colin A. McRae, for appellee.

3. In its remaining enumerated errors, Sea Tow argues that the court erred in considering matters outside the pleadings in connection with the motion to dismiss, and that the dismissal was erroneous as a matter of law. However, the only notice of appeal before us was filed more than 30 days after the entry of the order of dismissal. Thus, we have no jurisdiction to consider the merits of that order or whether the court abused its discretion in considering matters outside the pleadings. See Brown, supra, 240 Ga. App. at 895 (2). Based on our holding in Division 2, the court must set aside and reenter its order; therefore, Sea Tow may file a notice of appeal within 30 days of the reentry of the order of dismissal.

Judgment reversed.

Blackburn, C. J., and Pope, P. J., concur.


author: Smith, Presiding Judge.

text:
    A00A1848.
    LEVELL v. THE STATE.
    (544 SE2d 523)
   Smith, Presiding Judge.

The issue in this appeal concerns the timeliness of a motion to reduce sentence filed by Anthony Levell. Because the record shows that Levell filed the motion after expiration of the term of court in which his sentence was entered, we conclude that the trial court correctly determined it did not have authority to modify Levell’s prison sentence.

On January 14, 1997, Levell entered a guilty plea in DeKalb County to one count of public indecency and one count of child molestation. He was sentenced to a total term of ten years, with four years to be served in prison and six to serve on probation. At the time he entered his plea, Levell was a senior in college. So Levell could complete his final semester, the trial judge allowed him to serve a portion of his probationary sentence before beginning his prison sentence. He began his prison sentence on March 29, 1997, upon completing his last examination. After the term of court expired, Levell filed a motion to reduce sentence and later an amended motion to reduce sentence. Following a hearing, the trial court denied the relief sought by Levell. This appeal ensued. We find no error, and we affirm.

1. The law in this State is well settled that “a trial court loses power to modify, suspend, or vacate its judgments after the term [in] which they are rendered. [Cits.]” Latham v. State, 225 Ga. App. 147-148 (483 SE2d 322) (1997). In Latham, the defendant filed a motion to modify her sentence after the term of court expired. This court stated that under former OCGA § 17-10-1 (a), “‘[a]fter the term of court, or 60 days from the date on which the sentence was imposed by the judge,’ ” id. at 148, whichever was greater, the trial judge had no authority to change a defendant’s sentence except with respect to probation. Id. But the statute was revised in 1992 to eliminate the 60-day time limit provision. We concluded that this amendment did not afford a trial court unlimited time in which to modify a defendant’s custodial sentence. Id. at 149. Because the defendant filed her motion to modify sentence after the term of court expired, we found that the trial court correctly refused to consider the motion. Id. at 150. Here, too, Levell filed his motion to reduce sentence after expiration of the term in which the judgment and sentence were entered. This was too late.

Contrary to Levell’s argument, Thomas v. State, 226 Ga. App. 409 (486 SE2d 673) (1997), decided three months after Latham, does not require a different conclusion. In Thomas, we quoted Crumbley v. State, 261 Ga. 610, 611 (409 SE2d 517) (1991) and stated that “ ‘[a] trial court has no jurisdiction to modify a sentence after the term of court ends or 60 days pass. [Cits.] Where a sentence is void, however, the court may resentence the defendant at any time. [Cits.]’” Thomas, supra, 226 Ga. App. at 409-410. We do not agree with Levell that the reference to the 60-day provision in Thomas gave the trial court in this case jurisdiction to consider his motion to modify sentence. Crumbley was decided when the prior version of OCGA § 17-10-1 (a) was in effect. But as discussed in Latham, the statute was amended to eliminate the time provision. Also, the issue necessary to our decision in Thomas was whether the defendant’s sentence was void. Any reference to the 60-day provision is dicta and is not binding. See White v. State, 213 Ga. App. 429, 430 (445 SE2d 309) (1994).

Levell also argues that the trial judge had jurisdiction to consider his motion under OCGA § 42-8-34 (g), which provides:

The sentencing judge shall not lose jurisdiction over any person placed on probation during the term of his probated sentence. The judge is empowered to revoke any or all of the probated sentence, rescind any or all of the sentence, or, in any manner deemed advisable by the judge, to modify or change the probated sentence at any time during the period of time originally prescribed for the probated sentence to run.

(Emphasis supplied.) We cannot agree with Levell that the emphasized portion of this provision allows a trial judge to modify a defendant’s sentence even after the term of court has expired. “A statute must be construed and harmonized to give meaning to every part.” Latham, supra, 225 Ga. App. at 150. So reading the provision relied on by Levell, we conclude that the legislature intended it to apply only to a trial court’s authority to modify a probationary sentence. The provision appears in the article relating specifically to probation. And Levell’s interpretation of the provision would render meaningless the legislature’s express statement in OCGA § 42-8-34 (g) concerning the trial judge’s jurisdiction over the defendant “during the term of his probated sentence” (Emphasis supplied.) This interpretation also would circumvent the well-established rule, discussed above, that a trial court cannot modify a judgment after the term of court in which it is rendered. Latham, supra, 225 Ga. App. at 147-148. As stated in Latham:

Courts cannot at their pleasure reopen questions which have been concluded by solemn adjudication. There must be some point at which stare decisis applies, and that point, with respect to a judgment upon the merits, unexcepted to, is the conclusion of the term at which it is rendered.

(Citation and punctuation omitted.) Id. at 148. Under well-established principles, the trial court did not have authority to reduce the prison portion of Levell’s sentence, and the court did not err in so ruling.

2. Levell contends that even if we conclude his motion to reduce sentence was untimely filed, we should reverse because “the timing of the filing was the result of the excusable neglect of [his] counsel and not the result of any of [Levell’s] conduct.” But the issue of whether counsel’s neglect was excusable was a factual issue to be resolved by the trial court, and the trial court here had no authority to consider the motion. We find no merit in Levell’s contention that this case is similar to cases permitting out-of-time appeals “when the tardy filing is a result of the attorney not performing his professional duties.” Such cases address the jurisdiction of this court to consider untimely filed appeals and the propriety of an out-of-time appeal when “the deficiency involves not the trial but the denial of the right of appeal.” (Citation and punctuation omitted.) Rowland v. State, 264 Ga. 872, 875 (452 SE2d 756) (1995). The issues in this case do not involve the jurisdiction of this court when a defendant’s counsel has failed to properly appeal a conviction. Levell cites us to no authority that would extend the reasoning we employ concerning out-of-time appeals to the circumstances of this case, and we find none. We affirm.

Decided January 22, 2001.

Howard J. Weintraub, for appellant.

J. Tom Morgan, District Attorney, Kristin L. Wood, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, P. J., and Phipps, J., concur.


text:
    A00A1989.
    LONDON v. THE STATE.
    (544 SE2d 525)
   Smith, Presiding Judge.

After a joint trial with co-defendant James Howard, Tycion London was found guilty by a jury of burglary, two counts of false imprisonment, and two counts of aggravated assault. His motion for new trial, as amended, was denied. He appeals following the grant of his motion to file an out-of-time appeal. London raises five enumerations of error: He challenges the denial of his motions to sever trial and for a directed verdict of acquittal, the testimony of a co-defendant who pleaded guilty before trial, and a jury instruction; he also raises the general grounds. We find no merit in any of London’s contentions, and we affirm the judgment below.

The record shows that the charges against London arose out of a home invasion in Atlanta. When Atlanta police officers responded, the victims, three roommates and the girlfriend of one of them, informed the officers that three black men wearing bandannas over their faces had burst into their home in the early morning hours. The victims described the invaders as wearing dark, possibly green, sweat suits and stated that one of them had his hair styled in cornrows or dreadlocks. The girlfriend told police she saw that the eyes of one of the invaders were green.

One victim stated that he and his girlfriend had been awakened when the men broke in and stomped through the house. They could hear one of the housemates screaming and knew he was being beaten. They hid in the shower, but were found and led to the kitchen by two men, one of whom had a knife. On the way, they passed their roommate, who had been beaten and was tied up and lying on the floor. The assailants demanded the key to a recording studio located in the basement of the home. The key was provided, and these victims were taken to the basement and tied up.

The victim who was beaten testified that two men grabbed him while he was sleeping, beat him, and “hog-tied” him. He testified they hit him with a hard object when he would not divulge the location of the key to the studio. The third housemate testified that when he heard the commotion, he made his way to the attic, where he kept his rifle, and shot it to attract the attention of neighbors. He then saw two men running from the house to a car and shot toward the car headlights. This victim had known co-defendant Howard for about six years.

After hearing the gunshots, the two victims tied up in the basement heard their captor say, “I’m getting out of here,” whereupon he left. The victims then heard “tires screeching off.” They were able to struggle free and telephone the police from a neighbor’s house.

Several Atlanta police officers responded to that call and a previous call reporting shots fired. After speaking with the victims, the officers noted that the door had been kicked in, there was a bullet hole in one of the vehicles parked outside, and a Taser gun had been left behind. One officer found a piece of a t-shirt in the street about a block away.

While on patrol, an Atlanta police officer heard the lookout and description posted for the men who had invaded the home. He decided to look for “anything suspicious” in the general area, and he observed a car with three occupants matching the description given. He moved closer and saw that the driver had cornrows in his hair, that the occupants of the car kept looking back at him, and that the backseat passenger “kept ducking down like he was doing something on the floorboard.” The officer, along with another officer, pulled the car over in the parking lot of a doughnut shop. As they approached the car, they saw that the clothing worn by the occupants of the car also matched the descriptions given, a police scanner was on the backseat, and the backseat passenger was holding a portion of t-shirt with a distinctive pattern. They asked the car’s occupants to leave the car and asked for permission to “look in” the car, which was given. Damp sweat clothes pushed up under the backseat were removed, as were red bandannas on the seats.

The victims were then brought to the parking lot to identify the suspects, who had been separated and placed in three different cars. One of the suspects was identified as Howard, with whom the victims were acquainted. London was also known to at least one of the victims. The suspects were then arrested and taken to the police station.

Shortly thereafter, one of the suspects, Laveal Jones, asked to speak with an officer and tell him what happened. Jones eventually pled guilty and testified for the State at trial.

1. London contends the trial court abused its discretion when it denied his motion to sever his trial from that of co-defendant Howard. London sought severance on the ground that his defense and that of Howard were inconsistent.

When the death penalty is not sought, the severance of defendants’ trials is within the sound discretion of the trial court and its decision will not be disturbed unless there is an abuse of that discretion. The burden is on the defendant moving for severance to demonstrate more than the possibility that a separate trial would provide him with a better chance of acquittal; he must establish a clear showing of prejudice.

(Citations omitted.) Dixon v. State, 268 Ga. 81, 83 (2) (485 SE2d 480) (1997). The fact that the defendants had inconsistent defenses is not in itself sufficient to warrant severance. Id. The trial court must consider three factors in deciding whether to grant severance: (1) whether the number of defendants creates contusion as to the law and evidence to be applied to each; (2) whether a danger exists that evidence admissible against one defendant might be considered against the other notwithstanding instructions to the contrary; and (3) whether the defenses are antagonistic to each other or each other’s rights. Shelley v. State, 239 Ga. App. 841, 842 (2) (521 SE2d 855) (1999).

In this case, there were only two defendants. The law applicable to each was identical, and no showing was made that presenting evidence about both defendants would have confused the jury. Jones implicated them both. Contrary to London’s argument, all evidence presented against Howard, including Jones’s testimony, would have been admissible against London at a separate trial, and the defenses of London and Howard were not antagonistic. Howard maintained he did not participate in any crime and even that no crime occurred. London’s defense was also that he did not participate in a crime and that, in fact, it was doubtful that a crime really took place. Neither defendant testified, and the only defense witness was an alibi witness for Howard. London failed to satisfy the criteria for severance, and the trial court did not err in denying his motion.

2. London maintains the trial court erred in denying his motion for a directed verdict of acquittal as to the counts of aggravated assault. He argues that a fatal variance exists between the allegations of the indictment and the evidence presented at trial with regard to how the aggravated assaults were committed. We do not agree.

Not all differences between an indictment and proof constitute fatal variances. An accused must be definitely informed of the charges against him so that he may present a defense, and he must be protected against a second prosecution for the same offense. If a variance does not present these dangers, it is not fatal. Mitchell v. State, 218 Ga. App. 330, 331 (461 SE2d 292) (1995). Here, the indictment charged London, Jones, and Howard in Counts 4 and 5 with aggravated assault on two of the victims “by using a taser and a knife to forcibly enter the residence” and then binding the victims and demanding the key to the studio, “all with intent to commit armed robbery.”

The victim in Count 4 testified that he was struck in the back of the head with a heavy metal object. In Battles v. State, 262 Ga. 415, 417 (5) (420 SE2d 303) (1992), the Supreme Court concluded that no fatal variance existed when the indictment charged that the victim had been hit with a wrench, while testimony at trial showed that the weapon used was a gun. The court concluded that because a wrench and a gun produce similar injuries when used to strike a victim on the head, the defendant was adequately informed of the charges against him and was able to prepare a defense. Id. at 417-418.

The facts here are even more compelling. A Taser is a heavy metal object, and thus no variance exists. Further, a heavy metal object and a Taser gun, when used as blunt objects to strike a victim, would produce similar injuries. London therefore was sufficiently informed of the charges against him to prepare a defense. Battles, supra. See also Mitchell, supra at 331-332 (no fatal variance because knife and broken glass produce similar injuries when used to stab).

As to Count 5, evidence was presented of the use of a knife. The girlfriend of the victim in Count 5 testified that the men who assaulted them had a knife and were holding it to her boyfriend’s neck. She identified London as one of the men. It is clear that London would not face the danger of a subsequent prosecution for either charge, and therefore no fatal variance exists as to either charge.

Contrary to London’s argument, a directed verdict of acquittal was not mandated by the fact that Howard was found guilty of a lesser offense. The inconsistent verdict rule was abolished by the Supreme Court in Milam v. State, 255 Ga. 560 (341 SE2d 216) (1986). See also Larry v. State, 266 Ga. 284, 285 (1) (466 SE2d 850) (1996).

3. London asserts error in the trial court’s charge on aggravated assault. The trial court charged the jury that

[a] person commits aggravated assault when he assaults another person with intent to murder, rape, or rob, or with a deadly weapon or any object, device, or instrument which when used offensively against another person is likely to or actually does result in serious bodily injury.

London relies upon the principle that a conviction must be reversed if a reasonable possibility exists that because of an overinclusive charge the jury convicted the defendant of a crime not charged in the indictment. See, e.g., Pettway v. State, 204 Ga. App. 804 (420 SE2d 619) (1992). But no such possibility existed here. Although inapplicable portions of the Code section were given, that does not warrant reversal. Kennedy v. State, 205 Ga. App. 152, 155-156 (5) (a) (421 SE2d 560) (1992). And in this case, no evidence was presented regarding an intent to murder or rape. The indictment alleged intent to rob, and only that intent was shown. The jury was further instructed that the State must prove each element of the indictment. We find no reversible error. Hill v. State, 228 Ga. App. 362, 364 (2) (492 SE2d 5) (1997) (no reversible error caused by jury instruction that armed robbery committed through use of “offensive weapon” when indictment specified pistol, because no testimony presented that anything other than pistol used).

4. London contends the State engaged in prosecutorial misconduct because it had made a deal with Jones in exchange for his testimony and failed to disclose it to the defense, violating his due process rights.

Under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), the State must disclose material evidence favorable to the defendant, including impeachment evidence that could be used to show the bias or interest of a witness. Ferguson v. State, 226 Ga. App. 681, 682 (2) (487 SE2d 467) (1997). But to show a Brady violation, a defendant must show that the State had evidence of the deal and he did not, nor could he obtain it with reasonable diligence; that the State suppressed evidence of the deal; and that if the evidence had been disclosed, a reasonable probability existed that the trial’s result would have been different. Id. at 682-683. Here, the record discloses no deal between the State and Jones.

Jones did plead guilty. He testified at trial that “some discussion” took place regarding his sentence. The defense was certainly aware of the discussions that took place and cross-examined Jones regarding them. The State has not denied that these discussions took place. But the State has denied that any deal or agreement was made with Jones. The prosecutor specifically stated before trial began that “[t]here is no deal, no promises have been made. He has pled guilty.” It is clear that London has not satisfied the requirements for demonstrating a Brady violation.

5. London also raises the general grounds, particularly as to identity. He correctly notes that he was not positively identified by any victim as having committed an assault on them and that no weapon was placed in his hands by any of the victims. But that evidence was not necessary to authorize the jury to find him guilty. He was identified by a victim as being present during the home invasion. Jones’s testimony implicated him as having been present not only at the scene of the crime but also at meetings when the crime was being planned. In addition, circumstantial evidence, including the clothing found in the car and the pieces of the t-shirt found both in the car and near the scene of the crime, corroborated Jones’s testimony and implicated all three men in the crime. It was not necessary to place a weapon in London’s hands to find him guilty of being a party to the crime. Parkman v. State, 241 Ga. App. 756, 757-758 (3) (526 SE2d 640) (2000). The jury was charged on parties to a crime, and the evidence presented was sufficient to authorize them to find London guilty of the charged crimes under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided January 22, 2001.

John R. Greco, for appellant.

Paul L. Howard, Jr., District Attorney, David E. Langford, Christopher M. Quinn, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson, P. J., and Phipps, J., concur.


author: Phipps, Judge.

text:
    A00A2006.
    MILLSAP v. THE STATE.
    (544 SE2d 530)
   Phipps, Judge.

A Gordon County jury found Daniel Lee Millsap guilty of three counts of child molestation and one count of aggravated child molestation. Millsap claims that the evidence was insufficient to support the verdict. We disagree and affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Under Jackson v. Virginia, we determine if any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt.

Viewed in the light most favorable to the verdict, the evidence shows that Millsap, who was then 35 years old, lived with his mother and older brother. Millsap’s niece, ten-year-old R. R., lived nearby on the same street with her mother, stepfather and younger sister. R. R. enjoyed spending time with her grandmother (Millsap’s mother), and she and her sister spent occasional weekend nights at her house.

R. R. testified about several incidents that occurred when she spent the night at her grandmother’s house. She said that Millsap touched her “private part” with his hands and with his “private part” while they were in his bedroom. She testified that Millsap put his mouth on her “private part” when they were in the laundry room. She also testified that Millsap made her put her hand on his “private part” in his room, her grandmother’s room and the laundry room. She said that Millsap had told her not to tell anyone what had happened. R. R. testified that the last time she went to her grandmother’s house, before the incidents were reported to the police, Millsap had tried to get her to go to his room and get on top of him, but she had refused. R. R. said that all of the incidents took place at night when her sister and grandmother were asleep. She said that she did not know if her other uncle was home at the time because he always kept his bedroom door shut.

R. R.’s mother testified that in May 1999, R. R. told her that Millsap had “tried to touch her and mess with her” while she was spending the night at her grandmother’s house. At R. R.’s insistence, her mother promised not to tell anyone about it. Near the end of that school year, R. R. again asked to spend the night with her grandmother. When R. R. returned home, she was upset and crying. She told her mother that Millsap had tried to touch her again and that she had not been able to sleep well that night. At that point, R. R.’s mother confronted Millsap and told her husband about what had happened. Her husband called the police.

Gordon County Patrol Sergeant Grady Jolly responded to the call and obtained a report of alleged molestation involving Millsap and R. R., which he forwarded to Gordon County Chief Detective Michael Garigan. In accordance with established protocol, Garigan contacted the Department of Family & Children Services (DFACS). Garigan first conducted a brief informal interview with R. R. at the sheriff’s office. He and DFACS investigator Deanna Campbell next conducted a formal, taped interview of R. R. at the DFACS office. (The taped interview was played for the jury at trial.)

Garigan then obtained a warrant for Millsap’s arrest. After Mill-sap was arrested and informed of his Miranda rights, Detectives Garigan and Kyle Burkett interviewed him at the jail. The interview was taped and was played for the jury at trial.

During the interview, Millsap initially said that he had never touched R. R. except to hug her neck and that he had been out all night the last night R. R. spent at her grandmother’s house. At that point, the detectives turned off the tape and concluded the interview. Millsap then asked them if they believed him and they said they did not. Millsap began crying and said that he wanted to tell what had really happened. The taped interview resumed, and Millsap said that R. R. had asked him if she could play with his penis and when he said “no,” she unbuttoned and unzipped his pants, pulled his penis out and started playing with it. When Millsap realized what she was doing, he made her stop. At that point in the interview, the tape was turned off again. But Millsap began crying again, told the detectives that he had not told the whole story and asked if they could help him. They told him that they just needed the truth. The tape was restarted, and Millsap said that R. R. had come to his bedroom and asked him a second time if she could play with his penis. He let her do so until he ejaculated.

The indictment charged Millsap with four separate violations of Georgia’s child molestation statute. The alleged acts included: placing his mouth against R. R.’s vaginal area, having R. R. place her hand on his penis, placing his hand against R. R.’s vaginal area and placing his penis against R. R.’s vaginal area.

At trial, Millsap initially testified that he did not remember giving a statement to Garigan and that he had never touched R. R. inappropriately. On cross-examination, Millsap admitted that he remembered meeting Garigan once before trial and going into a room with him so that he could tell his side of the story.

After his conviction, Millsap filed a motion for new trial on the grounds that the verdict was contrary to the law and the evidence. The trial court denied the motion.

Millsap contends that no rational trier of fact could have found him guilty of the offenses as charged. Based on the fact that R. R.’s mother continued to allow R. R. and her younger sister to visit their grandmother, he claims that R. R.’s mother did not believe R. R.’s initial allegations against him. He also relies on his testimony that he had no specific recollection of the interview with Garigan and the fact that, during his trial testimony, he never admitted any of the conduct alleged in the indictment or testified to by R. R. at trial.

Even if we accept Millsap’s arguments, they would not preclude the possibility that any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. “Taking the victim’s testimony as true, as we must, it alone was clearly sufficient to authorize [Millsap’s] conviction of the offenses as charged under the standard set forth in Jackson v. Virginia”

Decided January 22, 2001.

William R. Thompson, Jr., for appellant.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

Judgment affirmed.

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

        Newman v. State, 233 Ga. App. 794 (1) (504 SE2d 476) (1998).

       Supra.

       OCGA § 16-6-4.

       Under OCGA § 16-6-4 (c), this act constitutes aggravated child molestation.

       (Citation and punctuation omitted.) Cantrell v. State, 231 Ga. App. 629, 630 (500 SE2d 386) (1998).


text:
    A00A2111.
    SPEARS v. THE STATE.
    (545 SE2d 36)
   Smith, Presiding Judge.

Curtis A. Spears, who represented himself during his jury trial, was convicted of the misdemeanor offenses of simple battery and carrying a concealed weapon. His motion for new trial was denied, and he appeals. Although the record contains a transcript of Spears’s hearing on his motion for supersedeas bond, his trial apparently was not reported. Spears contends that reversal is required because the record fails to reflect a valid waiver of his constitutional right to counsel. We are constrained to agree, and we therefore reverse and remand this case for proceedings consistent with this opinion.

A defendant on trial for any offense for which imprisonment is a penalty has the constitutional right to counsel, which can “be waived only by voluntary and knowing action. [Cits.]” Braswell v. State, 240 Ga. App. 510 (1) (523 SE2d 904) (1999). Before an accused may proceed pro se in any trial the trial judge has the “serious and weighty responsibility ... of determining whether there [was] an intelligent and competent waiver” of the right to counsel. Hamilton v. State, 233 Ga. App. 463, 466 (1) (b) (504 SE2d 236) (1998). To show effective waiver, the record must contain “evidence of relinquishment of this right.” (Citation and punctuation omitted.) Id. This requires a showing that the accused had knowledge of the nature of the charges and the statutory offenses included within the charges, the range of possible punishments, possible defenses and circumstances in mitigation, “and all other facts essential to a broad understanding of the | matter.” (Citation, punctuation and emphasis omitted.) Id.

The State contends that testimony contained in the hearing transcript on Spears’s motion for supersedeas bond reflects that the trial court adequately informed Spears of his rights. During that hearing, the prosecutor simply stated:

[I]f there was an attempt to re-create a transcript by recollection, . . . the transcript would show that your honor went through a colloquy with the defendant about whether or not he had been to law school, whether or not he had any knowledge about conducting a trial. And it was explained to him how he would have to act as his own lawyer, make specific objections, cross-examine and direct examine witnesses, to which all of which the defendant did; and the defendant knowing that he had not had any formal legal training, did admit that he read some books in the library. . . . And after your honor went through all the perils of representing himself, defendant still made the decision to proceed at that time without counsel.

Decided January 22, 2001.

Morriss, Lober & Dobson, Bruce F. Morriss, Daniel Shim, for appellant.

Carmen Smith, Solicitor, Jody L. Peskin, Cynthia Strong-McCarthy, Assistant Solicitors, for appellee.

This recitation did not amount to a showing that the trial court met its heavy burden of ensuring that Spears knowingly relinquished his right to counsel. Defense counsel (apparently obtained by Spears to represent him at the supersedeas hearing) did not object to this recitation or contradict it. But the recitation was not evidence, nor did this procedure in any manner conform to the requirements of preparing a transcript from recollection, as permitted by OCGA § 5-6-41 (g). More importantly, the prosecutor’s statement completely fails to show that Spears was adequately informed of the nature of the charges against him, the possible punishments he faced, the dangers of proceeding pro se, and other circumstances that might affect his ability to adequately represent himself. The State has failed to show that Spears voluntarily relinquished his right to counsel, and we therefore reverse and remand this case to the trial court for proceedings consistent with this opinion.

Judgment reversed and remanded.

Johnson, P. J., and Phipps, J., concur.


author: Johnson, Presiding Judge.

text:
    A00A2319.
    MITCHELL et al. v. CONTRACTORS SPECIALTY SUPPLY, INC. REISSIGER et al. v. CONTRACTORS SPECIALTY SUPPLY, INC.
    A00A2320.
    (544 SE2d 533)
   Johnson, Presiding Judge.

Case No. A00A2319

Bennie and Betty Mitchell sued Contractors Specialty Supply, Inc. (“CSSI”), claiming that CSSI manufactured the allegedly defective synthetic stucco cladding used in the construction of their home. They asserted claims against CSSI for strict liability, negligence, negligent misrepresentation, breach of contract, fraud and bad faith. Finding that the applicable statute of limitation had expired, the trial court granted CSSI’s motion for summary judgment. In this case, the Mitchells appeal the trial court’s grant of summary judgment with respect to their strict liability claim. We are constrained to agree with the trial court and affirm on this issue.

In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. On appeal of the grant of summary judgment, we must determine whether the trial court erred in concluding that no genuine issue of material fact exists and that the party was entitled to summary judgment as a matter of law.

The Mitchells purchased their new home in September 1994 from Joseph P. Jones d/b/a Progressive Builders. They sued Jones, and on July 13, 1999, they filed an amended complaint adding CSSI as a defendant.

In opposition to CSSI’s motion for summary judgment, the Mitchells submitted an engineer’s affidavit and attached report stating that the exterior insulation and finishing system (“EIFS”) supplied by CSSI was defective, that the EIFS had allowed water to seep in behind its surface, that water damage was occurring on a daily basis and that the Mitchells would not have been aware of the damage without additional investigation. Bennie Mitchell affirmed that he did not discover the water damage to his home until 1999 and that the necessary repairs to the house were estimated to cost $52,668.75.

Recently, there have been several cases in this Court dealing with damage caused by the use of synthetic stucco. In most of those cases, the homeowners sued the builders, and the main issue concerned the applicability of various statutes of limitation. The sole issue on appeal in this case is whether the Mitchells’ strict liability claim against CSSI was barred by the applicable statute of limitation. The Mitchells agree that OCGA § 9-3-30 (a), providing for a four-year statute of limitation in strict liability actions, applies to their claim. However, they argue that the statute of limitation should begin to run only when the damage to their home was, or should have been, discovered.

In Corp. of Mercer Univ. v. Nat. Gypsum Co., our Supreme Court held to the contrary, finding that the “discovery rule” was confined to bodily injury which developed over an extended period of time. Accordingly, with respect to damage to real property, “[an] action under OCGA § 9-3-30 must be brought within four years of substantial completion.” This rule applies notwithstanding the fact that the Mitchells may have had no knowledge of any alleged defects until after the substantial completion of the house.

The Mitchells nevertheless maintain that the four-year period for filing a claim did not first accrue on the date of substantial completion of their home, but rather from the date on which the damage to the home occurred. They cite OCGA § 51-1-11 (b) (1), which states that a product liability claim arises only when the product is defective and it causes damage. Accordingly, they argue, the statute of limitation in a strict liability action begins to run only when the house is damaged, and the date on which their home first became water damaged is a question of material fact which should be answered by a jury.

It is well settled that a cause of action for damage to a building accrues at the time of construction. Neither the discovery rule nor the continuing tort theory is applicable to actions involving only damage to real property. Since the Mitchells’ damages strictly involved damage to real property, their action for strict liability must have been filed within four years of substantial completion of the house. Cases cited by the Mitchells involving defects in property not owned by the plaintiffs are not applicable here.

The Mitchells further argue that OCGA § 51-1-11 (c), which establishes a ten-year statute of repose with respect to product liability negligence claims, established by implication a discovery rule which would apply to their claim. The statute of repose actually appears to lie with OCGA § 51-1-11 (b) (2), which pertains to strict liability claims. The Mitchells argue that, where a statute of repose and a statute of limitation both apply, the statute of repose has no separate application unless the statute of limitation is applied from the date of discovery of the damage. The authority cited for this reasoning, Lumbermen’s Mut. Cas. Co. v. Pattillo Constr. Co., was overruled by Corp. of Mercer Univ. v. Nat. Gypsum Co. And, we have previously found that a statute of limitation may coexist with a statute of repose, even when no discovery rule is applicable to the statute of limitation. Thus, under the law which was in effect at the time this cause of action arose, we are constrained to hold that the Mitchells’ strict liability action began to run in September 1994 and was not timely filed pursuant to OCGA § 9-3-30.

Finally, the Mitchells argue that the amended OCGA § 9-3-30, which became effective March 28, 2000, and recognizes a discovery rule for property damage caused by synthetic siding, should apply to their claim. However, applying the law applicable at the time the Mitchells asserted their claim against CSSI, the Mitchells’ claim expired before March 28, 2000. As amended, OCGA § 9-3-30 (b) (2) provides: “This subsection shall apply to causes of action which had not expired under the former law before March 28, 2000. This subsection shall not revive any cause of action which was barred by former law before March 28, 2000.”

For the foregoing reasons, the trial court correctly found that the Mitchells’ claim was barred by the statute of limitation.

Decided January 22, 2001

Eugene C. Brooks IV, for appellants.

McCorkle, Pedigo & Johnson, David H. Johnson, A. Martin Kent, Joseph Y. Rahimi II, Margaret W. Sigman, for appellee.

Case No. A00A2320

On June 3, 1994, John and Kathy Reissiger purchased a new home constructed with an EIFS supplied by CSSI. In 1999, the Reissigers discovered that the house had experienced substantial wood rot which they claim resulted from water which had seeped into the EIFS. On July 23, 1999, the Reissigers filed a product liability claim against CSSI. The trial court granted summary judgment to CSSI because the applicable statute of limitation had previously expired. The Reissigers’ arguments for reinstating their strict liability claim mirror the arguments which we considered in Case No. A00A2319. Accordingly, and for the reasons set forth above in Case No. A00A2319, the trial court correctly granted summary judgment to CSSI because the statute of limitation on the Reissigers’ claim had expired.

Judgments affirmed.

Smith, P. J., and Phipps, J., concur.

        Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988).

        Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).

       See, e.g., Smith v. KLS Constr. Co., 247 Ga. App. 493 (544 SE2d 197) (2000); Stimson v. George Laycock, Inc., 247 Ga. App. 1 (542 SE2d 121) (2000); Mitchell v. Jones, 247 Ga. App. 113 (541 SE2d 103) (2000).

       258 Ga. 365 (1) (368 SE2d 732) (1988).

        Corp. of Mercer Univ., supra at 366 (1); see also Mitchell v. Jones, supra.

       See Mitchell v. Jones, supra.

       See U-Haul Co. &c. v. Abreu & Robeson, Inc., 247 Ga. 565, 566 (277 SE2d 497) (1981); Corp. of Mercer Univ., supra; Hanna v. McWilliams, 213 Ga. App. 648, 649 (2) (a) (446 SE2d 741) (1994).

        Hanna, supra.

       The situation experienced by the Mitchells has been the subject of remedial action by the legislature. See amended OCGA § 9-3-30, which became effective March 28, 2000, and recognizes, prospectively, a discovery rale for property damage caused by synthetic siding.

       The Mitchells cite Gleaton v. City of Atlanta, 131 Ga. App. 399 (206 SE2d 46) (1974), and Cox v. Cambridge Square Towne Houses, 239 Ga. 127 (236 SE2d 73) (1977), which are both actions in nuisance.

       254 Ga. 461 (330 SE2d 344) (1985).

        Howard v. McFarland, 237 Ga. App. 483, 486 (3) (a) (515 SE2d 629) (1999).

       Effective March 28, 2000, the statute was amended to provide, in part: The causes of action specified in Code Section 51-1-11 and subsection (a) of Code Section 9-3-51 for recovery of damages to a dwelling due to the manufacture of or the negligent design or installation of synthetic exterior siding shall accrue when the damage to the dwelling is discovered or, in the exercise of reasonable diligence, should have been discovered, whichever first occurs. In any event, such cause of action shall be brought within the time limits provided in Code Sections 51-1-11 and 9-3-51, respectively.
      OCGA § 9-3-30 (b) (1).


author: Pope, Presiding Judge.

text:
    A00A1907.
    ROGERS v. FARMERS & MERCHANTS BANK.
    (545 SE2d 51)
   Pope, Presiding Judge.

Jesse Lee Rogers appeals from a grant of summary judgment in favor of Farmers & Merchants Bank on the bank’s claim on a promissory note and on Rogers’ counterclaim for wrongful conversion of collateral. We reverse the grant of summary judgment in favor of the bank because there are issues of fact remaining.

Construed in favor of Rogers, the relevant evidence of record shows that on November 11,1997, Rogers borrowed $12,000 from the bank in order to purchase a truck from T. Coleman Hadden. Both Rogers and Hadden signed a “Simple Interest Note, Disclosure, and Security Agreement” whereby they became jointly and severally liable to repay the money with interest and agreed that the truck would be given as security on the note.

In February 1998 the truck was involved in two collisions and needed repair. In April and May, Rogers received two separate checks totaling approximately $2,500 from his own insurance company for the property damage to the truck, and he deposited the checks in his wife’s bank account because he did not have one. In July, Rogers arranged for the necessary repairs with L & S Paint & Body Shop and informed the bank. L & S agreed to perform the repairs for $660 provided Rogers would provide certain of the required parts and that Rogers himself would take care of part of the repairs.

While repairs were still underway, the bank contacted L & S and instructed it to repair all of the items set forth in the insurance claim, including the items Rogers intended to repair himself, with parts it could obtain through regular channels rather than with parts provided by Rogers. The bank told L & S that Hadden owned the truck, that the bank had a lien on the truck, that L & S should turn the truck over to the bank when the work was finished and that L & S should not release the truck to Rogers. Rogers brought the parts and the $660 payment to L & S to repair the truck, but L & S refused the payment because of the statements made by the bank. L & S completed the work ordered by the bank for $1,559.54, the bank paid that amount and L & S released the truck to the bank on August 8, 1998.

Thereafter, the bank sold the truck for $9,500 to Hadden, the copromissor, and brought suit against Rogers for the deficiency of $2,330.78, which included the amount the bank paid for the repairs and court costs and filing fees. The trial court granted summary judgment in favor of the bank and against Rogers on his counterclaim for wrongful conversion.

Rogers’ only argument is that he never defaulted under the agreement. Farmers & Merchants Bank claims that it was entitled to repossess the truck and collect the deficiency after the sale because Rogers was in default under either of two provisions of the note: (1) because one or more payments were not made on time; or (2) because “the collateral [was] damaged, destroyed, or stolen.”

In his affidavit, the vice president of the bank stated that at the time that the bank paid L & S to repair the truck, payment on the note was past due and that therefore Rogers was in default. However, although Rogers admits that he made the July 1998 payment one week late, the bank accepted that payment, and Rogers made timely payments in August and September. Also, the evidence shows that the bank did not pay L & S and repossess the truck until August 8. Finally, the agreement provides that the bank may waive any right it may have against the parties signing the note, e.g., the right to demand timely payment. Thus there is an issue of fact concerning whether the bank waived timely payment in July and therefore whether any payments were past due at the time that the bank claimed default.

With regard to default based on damage to the truck, construing the agreement as a whole, we cannot conclude that the simple fact that the truck was damaged in an accident constitutes an event of default under the agreement. In addition to the damage default clause, the agreement also provides that the promissors were required to maintain insurance on the property and that the bank would be named as a loss payee “so that the benefits arising from the insured risks will be paid to [the bank] and applied to the secured obligations.” And the promissors were required to keep the property “in good condition and repair.” Thus, the agreement clearly contemplates that insurance proceeds would be used to repair the collateral in a reasonable and timely fashion without the damage constituting an automatic default. Otherwise, any minor accident would allow the bank to immediately repossess the collateral, accelerate the payments and seek a deficiency from the promissor. Therefore there is an issue of fact concerning whether Rogers intended to repair the collateral in a reasonable and timely manner.

Decided January 23, 2001.

Martin L. Fierman, for appellant.

Christopher D. Huskins, for appellee.

We note that the agreement also provides that the promissors would be in default if “any fact appears or event occurs that causes [the bank] to consider [itself] insecure, or the prospect of payment, performance, or realization on the collateral is impaired.” This clause sets out a subjective basis upon which the bank could find a default, and in his affidavit, the vice president of the bank stated that “it became evident that Jesse Lee Rogers never intended to live up to his obligations under the promissory note.” Further, it is undisputed that the insurance proceeds were deposited in an account owned by Rogers’ wife and not paid jointly to the bank. But “[w]here the manner of performance is left more or less to the discretion of one of the parties to the contract, he is bound to the exercise of good faith.” (Citation and punctuation omitted.) MacDougald Constr. Co. v. State Hwy. Dept., 125 Ga. App. 591, 593-594 (1) (188 SE2d 405) (1972). And the question of good faith is for the jury. Id.

Thus, the trial court was not authorized to find that there was a default under the agreement as a matter of law.

Judgment reversed.

Miller and Mikell, JJ, concur.


text:
    A00A2174.
    MEADOWS v. THE STATE.
    (545 SE2d 76)
   Pope, Presiding Judge.

Reuben Meadows was convicted of possession of cocaine and marijuana. He appeals, and for the following reasons, we affirm the court’s denial of his motion to suppress and the conviction for possession of cocaine. Nevertheless, we agree with Meadows that the evidence was insufficient to convict him of possession of marijuana, and we reverse that conviction.

The record shows that on May 7,1999, at about 1:30 p.m. Officer Randle-Ervin of the Georgia Bureau of Investigation received a phone call from a reliable confidential informant. The informant told Randle-Ervin that Meadows was transporting cocaine to Cusseta from Columbus. The informant conveyed that the vehicle was mobile. The informant named Meadows, specifically described the vehicle he would be operating, identified the passenger who would be accompanying Meadows and identified the route he would be taking.

Randle-Ervin testified that the informant was reliable and that during the previous eight months this informant had supplied the police with four to five contacts, two of which led to arrests. In the instances in which the informant gave information which did not lead to an arrest, Randle-Ervin testified that the information had been confirmed as true. Randle-Ervin said that the informant had first-hand knowledge of Meadows’ activities. Randle-Ervin testified that the informant was providing information because he was charged with drug offenses in another investigation. Upon receiving the phone call, at about 2:30 p.m. Randle-Ervin, another agent and deputies from the Chattahoochee County Sheriff’s Department established surveillance on Highway 520. Several of the officers were familiar with Meadows, his passenger and the vehicle he was driving.

About 45 minutes later, at 3:15 p.m., the officers saw the vehicle being driven by Meadows. The car was traveling in the direction described by the informant, accompanied by the woman who had been identified by the informant. The agents stopped Meadows. Randle-Ervin admitted that the sole reason she stopped Meadows was the information from the informant. Although the informant reported that there would be two people in the car, there were actually three people in the vehicle.

Officer Gordy had Meadows step out of the vehicle. Randle-Ervin recalled that Meadows was not completely cooperative with Gordy. Then Gordy patted down Meadows, looking for both weapons and drugs. Gordy reached in Meadows’ front pocket and removed a small plastic bag, which appeared to contain cocaine residue. Meadows was placed under arrest and taken to the police station where he was read his rights and signed a form waiving his rights. Meadows then consented to a search of his residence.

The officers searched Meadows’ home and found numerous small plastic baggies in the bedroom. Under the outside porch of the home, the officers found a plastic bag that contained a partially smoked marijuana cigarette. Randle-Ervin testified that when the search was executed an older gentleman was present at the residence. There was also evidence that other people, including Meadows’ mother, lived at the residence with Meadows. Meadows referred to the residence as “his mother’s residence.”

Meadows then gave a statement in which he stated that he was “a drug dealer and that he considered himself a hustler and that he only sold drugs to make a living.” Meadows also stated that he would have had much more cocaine if the agents had waited until 6:30 p.m. to arrest him. Meadows also explained that there were no drugs in the house because he kept all drugs outside in the bushes. Meadows disavowed these statements at trial. With respect to the marijuana, in his statement Meadows said that although he did smoke marijuana, several other people at the house also smoked it and that sometimes they just threw the baggies underneath the porch. At trial Meadows admitted that he had told Randle-Ervin that he and members of his household smoked marijuana outside. He denied that he would have thrown the baggies under the porch.

1. In his first enumeration of error, Meadows claims that the trial court erred in denying his motion in limine regarding the warrantless search of his person. He argues that Officer Gordy’s search exceeded that allowed under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), and that therefore his motion should have been granted.

Although we agree that Officer Gordy’s search may have exceeded that allowed under Terry, see Corley v. State, 236 Ga. App. 302, 304 (1) (a) (512 SE2d 41) (1999), the search in this case was justified by the existence of probable cause. In other words, the officers were not conducting a Terry search; they were conducting a warrant-less search which was justified by exigent circumstances and probable cause.

When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to the questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citation omitted.) Edgerton v. State, 237 Ga. App. 786, 787 (516 SE2d 830) (1999).

“One of the exigent circumstances justifying a warrantless search is where there is a seizure and search of a moving vehicle based upon probable cause.” (Citations and punctuation omitted.) Archer v. State, 217 Ga. App. 395, 396 (457 SE2d 679) (1995).

Given the evidence that the officers received the tip regarding Meadows at 1:30 p.m., set up surveillance on the route at 2:30 p.m. and apprehended Meadows at 3:15 p.m., it was reasonable to believe, as Randle-Ervin testified, that there was no time to obtain a search warrant. Singleton v. State, 236 Ga. App. 438, 440 (1) (511 SE2d 541) (1999).

Whether a search is sought to be justified as incident to an arrest for possession of cocaine or whether it is sought to be justified by exigent circumstances, it cannot be upheld unless probable cause existed for a belief that the suspect was currently in unlawful possession of cocaine. . . . The sufficiency of information obtained from an informant is not to be judged by any rigid test. Generally, probable cause is determined by the totality of the circumstances surrounding (1) the basis of the informant’s knowledge and (2) the informant’s veracity or reliability. A deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.

(Citations and punctuation omitted.) Polke v. State, 203 Ga. App. 306-307 (1) (417 SE2d 22) (1992).

Here, Officer Randle-Ervin testified that the confidential informant had provided information in five different contexts, over an eight-month period, which had proven true. She also testified that in two of these instances, information from this informant had led to arrests. The testimony demonstrated the informant’s veracity and reliability. Furthermore, the tip was corroborated in several respects by the officers: Meadows and his identified passenger were traveling in the described car via the route the informant described at the time the informant had predicted that the car would be traveling. Finally, Randle-Ervin’s recollection that Meadows was uncooperative in getting out of his car further indicated that the information from the informant was correct.

“Where the details of a tip are corroborated by the personal observation of the investigating officers, a reliable informant’s tip is sufficient to establish probable cause for a warrantless search.” (Citation and punctuation omitted.) Singleton v. State, 236 Ga. App. at 439 (1). Although there was little evidence as to the basis of the informant’s knowledge, “any deficiency in the basis of the informant’s knowledge was adequately compensated by the informant’s previous record of reliability.” Britt v. State, 208 Ga. App. 157, 158 (430 SE2d 28) (1993). Moreover, the informant’s tip was corroborated in some respects by the police officers. Probable cause for the stop of the vehicle existed. See Singleton, 236 Ga. App. at 439-440. We find no error in the court’s denial of the motion to suppress.

2. Meadows claims that the trial court erred in denying his motion for directed verdict and judgment notwithstanding the verdict as to the misdemeanor marijuana charge. He claims that because the portion of marijuana was found under the porch of his residence and other people had access to this area, the evidence was insufficient to convict. We agree and reverse the conviction for possession of marijuana.

Although Meadows admitted that he had smoked marijuana and admitted that he, along with others, had thrown bags down which ended up under the porch, there was no evidence directly linking the marijuana which was found under the porch to Meadows. This situation differs from that in Cronan v. State, 236 Ga. App. 374 (1) (b) (511 SE2d 899) (1999), where the defendant admitted having smoked marijuana on the morning of the date set out in the indictment. In contrast, in this case, Meadows made a general statement that he “had smoked” marijuana. He did not specify a date on which he had smoked the substance.

The evidence showed that the house was inhabited by several residents, including Meadows’ mother. The evidence showed that various people, including Meadows, smoked marijuana on the porch and threw the bags under the porch. Nevertheless, there was absolutely no evidence that Meadows had ever controlled or possessed the marijuana which the officers found under the porch.

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

Decided January 23, 2001.

Peter B. Hoffman, for appellant.

J. Gray Conger, District Attorney, Mark C. Post, Assistant District Attorney, for appellee.

(Citation and punctuation omitted; emphasis in original.) Mathis v. State, 204 Ga. App. 896, 897-898 (1) (420 SE2d 788) (1992). In this case, the evidence affirmatively showed that people other than Meadows could have possessed the marijuana under the porch, and there was no evidence which showed that Meadows directly or indirectly possessed this marijuana. See Stevens v. State, 245 Ga. App. 237, 238-239 (1) (537 SE2d 688) (2000). Accordingly, the court erred in denying his motion for a directed verdict of acquittal on this charge.

Judgment affirmed in part and reversed in part.

Miller and Mikell, JJ, concur.


author: Miller, Judge.

text:
    A00A2203.
    BRAND v. SOUTHERN EMPLOYMENT SERVICE.
    (545 SE2d 67)
   Miller, Judge.

Southern Employment Service sued Jack Brand for breach of contract, and Brand counterclaimed for breach of an alleged employment contract he had “with Plaintiff.” At the bench trial, Brand moved to dismiss the action on the ground that Southern Employment Service was not a legal entity. Finding that Southern Employment Service was a proprietorship owned by Millard Burke, the court denied the motion. The court entered judgment in favor of Southern Employment Service, and Brand moved for judgment notwithstanding the verdict, which the court denied. Since the name “Southern Employment Service” does not import a legal entity, we reverse.

Russell v. O’Donnell reiterated that an action pursued by a plaintiff that is not a natural person or other legal entity is a nullity:

An action cannot be maintained in a name as plaintiff which is neither that of a natural person, a partnership, nor of such artificial person as is recognized by the law as capable of suing. A proceeding commenced in such a name, there being no plaintiff, is not an action, but a mere nullity, and may be dismissed at any time on motion.

Southern Employment Service is not a corporation, it is not a partnership, it is not an individual; rather, it is the trade name for the proprietorship owned by Burke. An unincorporated proprietorship is not a legal entity separate from the proprietor, and the use of a trade name for the business does not create a separate legal entity. Although a suit may be instituted in the trade name of the plaintiff, that trade name must import a legal entity, such as a natural person, a partnership, or other legally recognized artificial entity. “Southern Employment Service” does not imply or connote any of these. Rather, “Southern Employment Service” is analogous to “Rentz Grocery,” “Computer Listings,” “Dalton Marble Works,” and “Ansley Forest Apartments,” all of which were found not to import a legal entity. Even if “Southern Employment Service” could be construed to connote a corporation or a partnership, the facts showed it was merely the trade name of an individual’s proprietorship, thus negating this possible construction. Moreover, if the defendant objects before judgment, a plaintiff suing in a proper trade name must amend the pleadings to reflect the accurate legal name, which was not done here.

Accordingly, the trial court erred in failing to dismiss the action and in failing to grant judgment n.o.v.

Decided January 23, 2001.

Hagler, Hyles & Hix, M. Stephen Hyles, for appellant.

Richard E. Flowers, for appellee.

Judgment reversed.

Pope, P. J., and Mikell, J., concur.

       Southern Employment Service’s argument that the matter was waived is belied by the court’s order on the issue. In the absence of a transcript, we assume the court’s actions are supported by the record. Gary v. Weiner, 233 Ga. App. 284-285 (1) (503 SE2d 898) (1998).

       132 Ga. App. 294 (208 SE2d 107) (1974).

       (Citations and punctuation omitted.) Id. at 296 (2).

        Dowis v. Watson, 161 Ga. App. 749, 750 (2) (289 SE2d 558) (1982).

        Galindo v. Lanier Worldwide, 241 Ga. App. 78, 84 (3) (526 SE2d 141) (1999).

        Cheek v. J. Allen Couch & Son Funeral Home, 125 Ga. App. 438, 443 (4) (187 SE2d 907) (1972); see Donald v. Luckie Strike Loans, 148 Ga. App. 318, 319-320 (251 SE2d 168) (1978).

        Russell, supra, 132 Ga. App. at 296.

        Waters v. Rentz, 108 Ga. App. 711, 712 (134 SE2d 527) (1963).

        Cook v. Computer Listings, 137 Ga. App. 526 (224 SE2d 501) (1976).

        Western &c. R. Co. v. Dalton Marble Works, 122 Ga. 774, 776 (2) (50 SE 978) (1905).

        Russell, supra, 132 Ga. App. at 296 (2).

        Sam’s Wholesale Club v. Riley, 241 Ga. App. 693, 695-696 (2) (a) (527 SE2d 293) (1999), cited by Southern Employment Service, is distinguishable in that it focused on the proper naming of the defendant, not the plaintiff. Russell emphasized this distinction. 132 Ga. App. at 295-296 (2).

        Western &c. R. Co., supra, 122 Ga. at 776 (2); see Waters, supra, 108 Ga. App. at 712.

       See Donald, supra, 148 Ga. App. at 319-320. Compare Clark Bros. v. Wyche, 126 Ga. 24, 26 (54 SE 909) (1906) (if no objection raised before judgment, then party estopped from raising issue).

        Cook, supra, 137 Ga. App. at 527; Russell, supra, 132 Ga. App. at 296 (2).

        Waters, supra, 108 Ga. App. at 712-713.