author: Smith, Judge. McMurray, Presiding Judge, Eldridge, Judge,

text:
    A97A2505, A97A2506.
    FORD v. UNIROYAL GOODRICH TIRE COMPANY et al. (two cases).
    (497 SE2d 596)
   Smith, Judge.

These related appeals mark the return to this Court of two related personal injury actions that arose in 1989 and were originally tried in Fulton County. Previous appeals resulted in remand of both actions for new trial. See Uniroyal Goodrich Tire Co. v. Ford, 218 Ga. App. 248 (461 SE2d 877) (1995) (Ford I), aff’d in part and rev’d in part, Ford v. Uniroyal Goodrich Tire Co., 267 Ga. 226 (476 SE2d 565) (1996) (Ford II), on remand, 224 Ga. App. 187 (481 SE2d 6) (1997) (Ford III). The plaintiff-appellants have settled with the sole Fulton County defendant, and this appeal involves a single issue: the appropriate venue for these cases after settlement with and dismissal of that defendant. In each case, the trial court wrote an excellent, thorough, complete, and correct order granting defendant-appellees’ motions to transfer. We adopt the text of the trial court’s orders, in slightly modified form, as our opinion in this case.

These cases arose out of a vehicular collision that occurred on August 26,1989. Appellants Claudia and Franklin Ford were passengers in a van when one of the tires on the vehicle separated and wrapped itself around the rear axle. The van was immobilized, stranding the occupants in the middle of 1-85 where they were then struck in the rear by another vehicle. As a result, Franklin Ford suffered severe and permanent brain damage and Claudia Ford suffered a badly fracturéd leg. Ford I, supra at 249.

The Fords filed suit in Fulton County against International Automotive Corporation d/b/a NTW and Uniroyal Goodrich Tire Company, a Delaware corporation (the UGTC Corporation). Uniroyal Goodrich Tire Company, a New York partnership (the UGTC Partnership), the actual manufacturer of the tire at issue, was not sued. NTW, the tire retailer, was a resident of Fulton County and an alleged joint tortfeasor with the UGTC Corporation.

During the lawsuit, NTW settled with the Fords, denying liability and obtaining broad and general releases. When the Fords did not dismiss NTW, the UGTC Corporation moved to enforce the settlement and have NTW dismissed. UGTC also moved to transfer venue. The trial court denied the motion on the ground that NTW was still a party to the lawsuit because cross-claims between NTW and the UGTC Corporation were still pending. Thereafter, NTW and the UGTC Corporation settled the cross-claims, fully releasing each other and dismissing the claims. The UGTC Corporation and NTW thereupon jointly moved again to enforce the settlements and to have NTW dismissed; the trial court denied the motion. In addition, the trial court, on its own motion, added the UGTC Partnership. Ford I, supra at 251-252 (2).

This Court held that the trial court’s order declining to dismiss NTW and directing that it remain a defendant during the trial was reversible error. Id. at 256-257 (4). We directed that upon remand, NTW’s settlements be enforced and NTW be dismissed from the lawsuit. The only remaining defendants in the case are the UGTC Corporation and the UGTC Partnership, appellees here.

Appellees moved for transfer of the action due to improper venue, contending that venue in Fulton County vanished with the dismissal of the only Fulton County resident in the case. The Fords insist that venue in Fulton County is still proper because one of the partners of the UGTC Partnership is subject to suit there. The trial court granted appellees’ motions to transfer, and we affirm.

UGTC Partnership

A partnership’s residency is determined by statute. OCGA § 9-10-90 provides: “[T]he term ‘nonresident’ includes ... a partnership . . . not residing, domiciled, organized, or existing in this state at the time a claim or cause of action under Code Section 9-10-91 arises. . . . The term ‘nonresident’ shall also include ... a partnership . . . [that], at the time a claim or cause of action arises under Code Section 9-10-91, was residing, domiciled, organized, or existing in this state and subsequently becomes a resident, domiciled, organized, or existing outside of this state as of the date of perfection of service of process.”

On the date of the accident, the UGTC Partnership was a New York general partnership. It was not formed or organized in Georgia or under Georgia law. It was not registered to do business in Georgia, it had no office in Georgia, its principal activities were not in Georgia, and it had no registered agent in Georgia. Because the UGTC Partnership is a nonresident, the relevant provisions of the Long Arm Statute, OCGA § 9-10-90 et seq., must be applied to determine venue. Under OCGA § 9-10-93, venue “shall lie in any county wherein a substantial part of the business was transacted, the tortious act, omission, or injury occurred, or the real property is located.” In this case, the business was transacted in Alabama, where the tire was manufactured, and the act or omission took place in DeKalb County, where the collision occurred. Therefore, venue over the UGTC Partnership would be proper in DeKalb County.

The Fords contend that venue as to the partnership lies in Fulton County because one of the partners has a Fulton County registered agent and a partnership can be sued wherever one of its partners resides. We disagree. The plain language of the Long Arm Statute shows that the status of the defendant partnership, not the status of the individual partners, determines both residency and venue. OCGA §§ 9-10-90; 9-10-93. See Dodd v. Simpson, 191 Ga. App. 369, 370 (381 SE2d 585) (1989) (transfer of case against partnership to Whitfield County improper even though one partner resident of that county). The Fords’ reliance on decisions predating the enactment of the Long Arm Statute is misplaced. Equally misplaced is their reliance on Reading Assoc., Ltd. v. Reading Assoc. of Ga., 236 Ga. 906 (225 SE2d 899) (1976), because in that action on a contract the partnership itself had an office in Fulton County and venue was established for a resident partnership under the general venue provisions of Ga. Const. 1983, Art. VI, Sec. II, Par. IV. As to nonresidents, in contrast, venue must be established under the specific venue provisions of the Long Arm Statute, and the Supreme Court applied OCGA § 9-10-93 to establish venue as to a nonresident partner in the county where the business was transacted. Id. at 907.

UGTC Corporation

The UGTC Corporation, on the other hand, is a Georgia resident. Accordingly, venue is determined pursuant to OCGA § 14-2-510 (b). That Code section provides that a domestic corporation may be sued “[f]or purposes of proceedings generally, in the county where its registered office is maintained,” and “[f]or purposes of proceedings for damages because of torts, wrong, or injury done, in the county where the cause of action originated, if the corporation has an office and transacts business in that county.” OCGA § 14-2-510 (b) (1) and (3). The UGTC Corporation’s registered office is located in Clayton County. The UGTC Corporation does not have an office in Fulton County or in DeKalb County. Accordingly, venue as to the UGTC Corporation is in Clayton County. Because the UGTC Partnership had consented to venue in Clayton County, the trial court offered the Fords the choice of transfer to DeKalb County or Clayton County, and they chose DeKalb County. The trial court’s decision was correct. See Collipp v. Newman, 217 Ga. App. 674, 675 (458 SE2d 701) (1995).

On appeal, the Fords raise the additional contention that the UGTC Partnership waived the issue of venue. The dissents suggest that the UGTC Partnership made an admission in judicio. But no such waiver or admission was ever made. It is well established that a party may make admissions in judicio in its pleadings, motions, or briefs. But it is equally well established that “ ‘admissions in judicio apply only to facts in litigation.’ [Cit.] They do not apply when the admission is merely in the nature of the pleader’s opinion as to fact or law. [Cit.]” O’Brien Family Trust v. Glen Falls Ins. Co., 218 Ga. App. 379, 381 (2) (461 SE2d 311) (1995). “The rule as to admissions in judicio applies only to admissions of fact and does not apply to opinions or conclusions. [Cits.]” Aycock v. Calk, 228 Ga. App. 172, 174 (491 SE2d 383) (1997). Accord Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828, 829 (2) (360 SE2d 280) (1987) (statement in pleading that service was perfected held statement of opinion not fact). Compare Nadew v. Alemu, 217 Ga. App. 438, 440 (457 SE2d 709) (1995), where this Court relied upon defendant’s admission as to his residence, a fact, rather than venue, a legal conclusion. A response to a brief and conclusory allegation regarding venue in the pleadings of the opposing party is simply a legal conclusion or opinion of the pleader and cannot constitute an admission in judicio.

More importantly, the consolidated pretrial order entered in this case expressly superseded the pleadings as provided by Uniform Superior Court Rule 7.2. See generally Benschoter v. Shapiro, 204 Ga. App. 56, 58 (3) (418 SE2d 381) (1992). In the pretrial order, the Fords did not contend that the venue issue was waived by an admission in judicio; instead, they asserted venue over the UGTC Partnership based upon the Fulton County defendant. Moreover, the UGTC Partnership explicitly preserved its venue defense in the pretrial order. The pretrial order established the issues in litigation, and the Fords cannot rely on an assertion that they did not preserve in the pretrial order and that, in fact, appears inconsistent with their contentions in the pretrial order. “Here no reason was advanced nor given for exceeding these boundaries and contravening the purpose of the Rules, which is to provide for the speedy, efficient, and inexpensive resolution of disputes and prosecutions.” (Citations and punctuation omitted.) Id.

The UGTC Partnership did not waive the issue of venue, and the trial court correctly granted the motions to transfer.

Judgments affirmed.

Andrews, C. J., Birdsong, P. J., Beasley and Ruffin, JJ, concur. McMurray, P. J., and Eldridge, J., dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent from the judgments of affirmance because, in my view of the cases sub judice, defendants are estopped to deny that venue is proper in Fulton County. Based on the recent authority of G. H. Bass & Co. v. Fulton County Bd. of Tax Assessors, 268 Ga. 327 (1) (486 SE2d.810), I submit the majority errs in ruling that the subject of the admissions in these cases sub judice, namely proper venue, are strictly impermissible legal conclusions. Rather, it is my opinion that the pleadings admitting proper venue in Fulton County constitute permissible admissions of correct legal opinions or conclusions as applied to facts relevant to these cases. Id. at 329. Since these evidentiary admissions have not been withdrawn, the pretrial order formulating the issues does not control. Consequently, I would reverse the transfer of the cases to DeKalb County.

Plaintiff Franklin E. Ford III (“Franklin Ford”), an incapacitated adult, and his mother, plaintiff Claudia Ford, brought these multiparty tort actions seeking to recover for personal injuries sustained on August 26,1989, allegedly as a result of the failure of a defectively manufactured automobile tire, contributing to a highway collision in DeKalb County, Georgia. Appellee-defendants are Uniroyal Goodrich Tire Company, a New York partnership (“the New York partnership”), and Uniroyal Goodrich Tire Company, a Delaware corporation (“the Delaware corporation”). Prior judgments for plaintiffs were set aside due to improper joinder of the cases without the consent of all parties, due to evidentiary errors, and also due to error in the charge on punitive damages. Uniroyal Goodrich Tire Co. v. Ford, 218 Ga. App. 248 (461 SE2d 877), aff’d in part and rev’d in part, Ford v. Uniroyal Goodrich Tire Co., 267 Ga. 226 (476 SE2d 565).

On remand, defendants objected to venue in Fulton County and moved to transfer both cases to Clayton County. The following procedural history is relevant to the disposition of these motions: When the Franklin Ford case was initiated in the State Court of Fulton County, Georgia in 1990, B. F. Goodrich Tire Company and International Automotive Corporation d/b/a NTW were named as the original defendants. Paragraph 5 of the complaint alleged: “Defendant B. F. Goodrich is subject to both the jurisdiction and venue of this CourtE, i.e., the State Court of Fulton County, Georgia].” In its answer, B. F. Goodrich “admit[ted] the allegations of Paragraphs 3, 4 and 5 of the Complaint.” But defense counsel stipulated to the trial court that the New York “partnership is the proper party because . . . it was the entity that actually manufactured it [the tire]. The manufacturing responsibilities were [subsequently] transferred to a corporation, [the] Delaware corporation, which is why the Delaware corporation is also a proper party.” By consent, the New York partnership voluntarily appeared in the Franklin Ford case and substituted itself as the correct party defendant “in all pleadings filed to date, including the Complaint, Answer, etc., and all future pleadings. The B. F. Goodrich Company [was] dropped as a party without prejudice and . . . [n]o further service of the Complaint or Answer is required.”

When Claudia Ford initiated her case in the State Court of Fulton County, the named defendants were International Automotive Corporation d/b/a NTW and simply Uniroyal Goodrich Tire Company, without any distinction between the New York partnership and the Delaware corporation. Service of process was effectuated on the Delaware corporation by serving its registered agent in Clayton County. In its answer, the Delaware corporation “admitted the allegations of Paragraphs 2, 3, 4, and 5 of the Complaint.” The effect of this was to admit that this defendant “is a Delaware corporation engaged in the business of manufacturing tiré products for motor vehicles[; that defendant] transacted business in the State of Georgia^ that the Delaware corporation] may be served through its registered agent . . . [in] Forest Park, Georgia[; and that the Delaware corporation] is subject to both the jurisdiction and venue of this Court[, i.e., the State Court of Fulton County].”

According to the affidavit of Frank Skorzewski, the Assistant Secretary of the New York partnership, that partnership “was not formed or organized under Georgia law, was not registered to do business in Georgia, had no office in Georgia, and had no registered agent in Georgia. The principal activities of the . . . New York partnership were not in Georgia. As of August 26, 1989, the two partners in the . . . New York partnership were Uniroyal Goodrich Tire Company, Inc., a Delaware corporation, and Uniroyal Tire Company, Inc., a New Jersey corporation. [The New Jersey corporation,] Uniroyal Tire Company, Inc. had a registered agent in Georgia on August 26, 1989.”

The trial court granted the motions by transferring both cases to DeKalb County, where the injuries occurred, but certified its orders for immediate review. Permission to pursue interlocutory appeals were granted by this Court, and timely notices of appeal were filed. In Case No. A97A2505, Franklin Ford appeals, and in Case No. A97A2506, Claudia Ford appeals.

Case No. A97A2505

1. Plaintiff Franklin Ford enumerates the transfer of his case to DeKalb County, arguing the New York partnership admitted venue is proper in Fulton County in its answer. The New York partnership contends that, because it is a nonresident of Georgia, venue is controlled by OCGA § 9-10-93, the venue provisions under Georgia’s Long Arm Statute. I do not reach the merits of defendant’s position. Rather, I conclude the New York partnership’s answer constitutes a solemn admission in judicio on this point, which estops the partnership to deny venue is proper in Fulton County. Consequently, I would reverse the transfer of Franklin Ford’s case. “Without offering the same in evidence, either party may avail himself of allegations or admissions made in the pleadings of the other.” OCGA § 24-3-30. “Conclusive presumptions of law are termed estoppels; averments to the contrary of such presumptions shall not be allowed.” OCGA § 24-4-24 (a). “Estoppels include presumptions in favor of: [s]olemn admissions in judicio.” OCGA § 24-4-24 (b) (7). “ ‘A party to a suit (or proceeding) will not be allowed to disprove an admission made in his pleadings, without withdrawing it from the record.’ Florida Yellow Pine Co. v. Flint River Naval Stores Co., 140 Ga. 321 (2) (78 SE 900). . . .” Anderson v. Oakley, 133 Ga. App. 758, 759 (1) (212 SE2d 875).

In the case sub judice, we are not shown where, in a voluminous record of over 6,000 pages spread over three separate appeals, the New York partnership amended its answer to withdraw the matters admitted by B. F. Goodrich. Consequently, the New York partnership must be deemed to have made a solemn admission in judicio when it substituted itself for B. F. Goodrich in all the pleadings. Specifically, the partnership’s answer admitted paragraph 5 of the complaint, namely that jurisdiction and venue were proper in the State Court of Fulton County, Georgia. “By such admission, made in judicio, the [partnership] is estopped from asserting [that venue is improper in Fulton County].” Duke v. Ayers, 163 Ga. 444, 453 (2) (136 SE 410). Under this evidentiary posture, the trial court erred in concluding that venue in Fulton County was improper as to the partnership, regardless of the result under OCGA § 9-10-93 or any other venue provision.

Case No. A97A2506

2. Plaintiff Claudia Ford enumerates the transfer of her case to DeKalb County, where her injuries were sustained.

(a) The record is not clear whether the defendant Delaware corporation is also that entity identified as Uniroyal Goodrich Tire Company, Inc., one of the two partners in the defendant New York partnership. I assume, then, that the uncontradicted affidavit evidence of Frank Skorzewski establishes that the New York partnership is a nonresident of Georgia as defined in OCGA § 9-10-90. Consequently, I agree with defendants that venue is determined under the Long Arm Statute and hold that venue over the nonresident New York partnership is governed by OCGA § 9-10-93 as amended by Ga. L. 1997, p. 480, § 1. “[A] reviewing court should apply the law as it exists at the time of its judgment rather than the law prevailing at the rendition of the judgment under review, and may therefore reverse a judgment that [may have been] correct at the time it was rendered, . . . where the law has been changed in the meantime and where such application of the new law will impair no vested right. . . .” (Emphasis in original.) City of Valdosta v. Singleton, 197 Ga. 194, 206 (3), 208 (28 SE2d 759).

(b) “Venue in cases under this article [OCGA § 9-10-90 et seq.] shall lie in any county wherein a substantial part of the business was transacted, the tortious act, omission, or injury occurred, or the real property is located. Where an action is brought against a resident of this state, any nonresident of this state who is involved in the same transaction or occurrence and who is suable under the provisions of this article may be joined as a defendant in the county where a resident defendant is suable. Under such circumstances, jurisdiction and venue of the court of and over such nonresident defendant shall not be affected or lost if at trial a verdict or judgment is returned in favor of such resident defendant.” (Emphasis supplied.) OCGA § 9-10-93, as amended.

Here, the defendant Delaware corporation is a Georgia resident, registered to do business in this State. In my view, the Delaware corporation is also estopped to deny that venue is proper in Fulton County, because it also admitted the allegations as to venue in its answer. Since the resident defendant is suable in Fulton County, Georgia, the nonresident New York partnership may be joined in an action against the resident defendant in Fulton County under the unambiguous terms of OCGA § 9-10-93 as amended. The transfer of Claudia Ford’s case from Fulton County to DeKalb County is erroneous under the facts of this particular case and should be reversed.

I am authorized to state that Judge Eldridge joins in this dissent.

Eldridge, Judge,

dissenting.

I concur in the dissent of Presiding Judge McMurray; however, I wish to point out a case regarding admissions in judicio as to venue that controls this issue.

Uniroyal Goodrich Tire Company (“UGTC”) came into the suit by a consent order for substitution. UGTC in both suits admitted venue in Fulton County.

In Nadew v. Alemu, 217 Ga. App. 438, 440 (457 SE2d 709) (1995), this Court held that residence and venue were facts that could bind as an admission in judicio when admitted in the answer by a nonresident joint tortfeasor. “[UGTC] was in the best possible position to know both [its] county of residence and what strategies might be involved in a decision to waive venue or other available affirmative defenses. When [it] made an admission in [its] pleadings, [Ford] was not required to look behind that admission even if there was information to suggest that it should not have been made. The policy reflected in the law is so strongly in favor of allowing other parties to rely upon the admissions that the party making the admission is not even allowed to introduce evidence at trial to prove the admission is erroneous until the admission has been withdrawn. [Cits.]” Since UGTC admitted that it was subject to venue without qualification, then this admission constituted more than an admission in judicio that could be withdrawn by amendment to the pleadings. This Court found that the admission that the defendant “ ‘is subject to the jurisdiction of this court. . . . (D)efendants are subject to the jurisdiction of this court.’. . . Such an admission would appear to preclude the subsequent contention that jurisdiction over [defendant’s] person existed solely by virtue of his being a co-defendant of a resident defendant. Moreover, even assuming that [defendant’s] answer did not invalidate his defenses based upon venue and jurisdiction over the person,” this Court went on to find additional grounds for waiver. (Emphasis omitted.) Harrell v. Gomez, 174 Ga. App. 8, 10 (3) (329 SE2d 302) (1985). This was a waiver under OCGA § 9-11-12 (h) (1), because the answer made an unqualified admission of venue. The wording of the answer did not deny venue or raise the potential defense of loss of venue, which could ripen in the future or assert the defense in abatement of venue; if the answer had stated that venue was proper pursuant to suits against joint tortfeasors only, then the venue defense would not be waived in the future when the joint tortfeasor is dismissed. See generally Ga. Const. 1983, Art. VI, Sec. II, Par. IV; Watkins v. M & M Clays, Inc., 199 Ga. App. 54, 56 (1) (404 SE2d 141) (1991); Crawford v. Randle, 191 Ga. App. 112, . 114-115 (381 SE2d 77) (1989).

Decided February 18, 1998

Reconsideration denied March 9, 1998

Smolar, Roseman, Brantley & Seifter, Yehuda Smolar, G. Grant Brantley, James I. Seifter, Antoinette D. Johnson, Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., for appellants.

Love & Willingham, Daryll Love, Allen S. Willingham, Robert P. Monyak, for appellees.

I am authorized to state that Presiding Judge McMurray joins in this dissent.

       This language was amended by Ga. L. 1997, p. 480, § 1.

       On the relevant date, the two partners of the UGTC Partnership were a Delaware cor- ' poration and a New Jersey corporation. The New Jersey corporation had a registered agent for service in Fulton County.


source: Caselaw Access Project

author: POPE, Presiding Judge.

license: Public Domain

text:
    A96A1643.
    DEPARTMENT OF TRANSPORTATION v. SCOTT et al.
    (497 SE2d 274)
    Decided March 9, 1998.

      Thurbert E. Baker, Attorney General, Sanders, Haugen & Sears,

      C. Bradford Sears, Jr., for appellant.
   POPE, Presiding Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, Dept. of Transp. v. Scott, 268 Ga. 579 (492 SE2d 216) (1997), our decision in Dept. of Transp. v. Scott, 224 Ga. App. 231 (480 SE2d 272) (1997), is hereby vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment reversed.

Andrews, C. J., and Smith, J., concur.

Peek & Whaley, J. Corbett Peek, Jr., James G. Peek, for appellees.


author: Ruffin, Judge.

text:
    A97A2127.
    NATIONAL LOAN INVESTORS, L.P. v. SATRAN. AYLWARD v. SATRAN.
    A97A2128.
    (497 SE2d 627)
   Ruffin, Judge.

Neal Satran, d/b/a Satran & Marino, P.A., filed a garnishment against Wickliffe Company (“Wickliffe”), seeking to garnish $50,656 that Wickliffe owed to Parco, Engineering, Inc. (“Parco”). In its answer, Wickliffe stated that it owed Parco $79,625. National Loan Investors, L.P. (“NLI”), filed a competing claim to the garnished funds under OCGA § 18-4-95, arguing that it had a priority security interest in the funds. Jillian Aylward filed what she characterized as a “contingent claim” for the garnished funds, also under OCGA § 18-4-95, asserting she was entitled to the funds only if the trial court found that NLI assigned its interest in the money to her. NLI and Satran filed cross-motions for summary judgment on their respective rights to the garnishment proceeds. The trial court denied NLI’s motion and granted Satran’s motion, awarding him $47,644 in principal, interest and court costs. We granted appellants’ Applications for Discretionary Appeal. In Case No. A97A2127, NLI asserts that the trial court erred in denying its motion and granting summary judgment to Satran. Aylward raises the same assertions of error in Case No. A97A2128. For reasons which follow, we affirm the trial court’s judgments in both cases.

1. NLI and Aylward assert that the trial court “erred in ruling that NLI does not have standing in this case.” They argue that OCGA § 18-4-95 expressly authorizes any person with a competing demand for the garnished money to file a claim and become a party to the garnishment proceedings. Both NLI and Aylward contend in their appellate briefs that their claims “complied in every respect with [OCGA] § 18-4-95.” We disagree.

OCGA § 18-4-95 provides that “[a]t any time before judgment is entered on the garnishee’s answer or money or other property subject to garnishment is distributed, any person may file a claim in writing under oath stating that he has a claim superior to that of the plaintiff to the money or other property in the hands of the garnishee subject to the process of garnishment; and the claimant shall be a party to all further proceedings upon the garnishment.” (Emphasis supplied.)

Although the record in this case contains written claims filed by NLI and Aylward, it does not appear that either of the claims, as expressly required by OCGA § 18-4-95, was filed under oath. See OCGA § 18-4-95; Terrell v. Fuller, 160 Ga. App. 56, 58 (286 SE2d 50) (1981). “Recognizing that our garnishment statute is in derogation of the common law and, thus, must be strictly construed [cit.], we are compelled to conclude that [appellants] failed to comply with necessary procedural requirements to enable [them] to assert [their] ‘claim’ to the [garnished funds].” Id. Having failed procedurally to invest themselves with the prerequisite “claimant” status, the trial court was without jurisdiction to consider their claim and, therefore, did not err in granting summary judgment in favor of Satran and against NLI and Aylward. See id. The trial court’s judgments in both appeals are affirmed.

Decided March 9, 1998.

Womble, Carlyle, Sandridge & Rice, R. Wayne Bond, Devereaux F. McClatchey TV, for appellants.

Stokes, Lazarus & Carmichael, William K. Carmichael, for appellee.

2. In light of our decision in Division 1, it is unnecessary to address appellants’ remaining enumerations of error.

Judgments affirmed.

Birdsong, P. J., and Eldridge, J., concur.


author: Birdsong, Presiding Judge.

text:
    A97A2492.
    REEVES v. THE STATE.
    (497 SE2d 625)
   Birdsong, Presiding Judge.

T. Reeves appeals his conviction for alternative counts of driving under the influence in Dawson County, Georgia. He was sentenced to a prison term, a fine, and various fees and charges.

Reeves contends he was deprived of effective assistance of counsel because his defense counsel, Raymond George, did not inform him that a few days before appellant’s trial, George accepted a position as Chief Assistant District Attorney with the office prosecuting appellant for these offenses. Particularly, Reeves contends he signed no written waiver of jury trial and that he would not have waived jury trial if he had been properly informed of the distinctions between bench trial and jury trial, and that he had a defense witness whose name he had given his attorney but who did not appear for his bench trial.

According to the transcript for appellant’s motion for new trial, however, appellant contends he discovered his defense attorney’s conflict of interest when his wife asked trial counsel to file an appeal of his conviction and trial counsel replied that he could not do so because he had accepted a position with the district attorney’s office.

There is no trial transcript; George, after he became Chief Assistant District Attorney, testified at appellant’s motion for new trial that appellant knowingly made this choice.

As to whether he told appellant that he had been hired by the district attorney’s office, George, as Chief Assistant in the district attorney’s office which is now defending this appeal so as to uphold the convictions, testified at the motion for new trial: “I believe I told him the day before trial. We didn’t have contact a lot till the day of trial but I do recall telling him on the day of trial before trial.”

George did not have appellant’s trial transcribed. As a result of the attorney’s decision, we cannot fairly determine whether any actual deficiency in representation or other impropriety occurred.

At the time of appellant’s motion for new trial and the hearing on that motion, his trial counsel, Raymond George, was employed as Chief Assistant District Attorney for the district attorney’s office which prosecuted appellant and obtained this conviction, and which responds to this appeal. Held:

We note first that, as more fully explained below, the testimony of Chief Assistant District Attorney George, at appellant’s motion for new trial, that George told appellant he had been hired by the district attorney’s office and that appellant chose not to have the trial transcribed, was fatally conflicted by the fact that of necessity his interests at the time of appellant’s motion for new trial were given entirely to the State, whose only interest is to preserve these convictions and controvert appellant’s assertions with evidence. Secondly, George’s testimony that appellant chose not to have the trial transcribed must likewise be disregarded, particularly inasmuch as the attorney had a responsibility to show by the record, even at his own behest, that the client voluntarily chose to proceed with the attorney’s representation after “full disclosure”; even if the client did choose not to transcribe his criminal trial, the attorney must know that without a record he cannot prove “full disclosure” and voluntarily acceptance of his services by the client — particularly since the attorney knew that, when this case, came up for appeal, the attorney would be working for the prosecution which seeks to uphold the convictions without a record, and the attorney moreover knew that without a record of the proceedings his client would be unable to show error in the trial, or in his representation. See In the Matter of Dale A. Allison, Jr, 267 Ga. 638, 644-645 (481 SE2d 211).

Ethical Consideration 7-8 of the Ga. State Bar Rules & Regulations states: “A lawyer should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations. A lawyer ought to initiate this decision-making process if the client does not do so. Advice of a lawyer to his client need not be confined to purely legal considerations. ... In assisting his client to reach a proper decision, it is often desirable for a lawyer to point out factors which may lead to a decision that is morally just as well as legally permissible. . . .”

In Williams v. State, 258 Ga. 305, 314 (369 SE2d 232); Frazier v. State, 257 Ga. 690, 693 (1) (362 SE2d 351); and Billings v. State, 212 Ga. App. 125 (441 SE2d 262) the appellants complained of the prosecutor’s failure to disqualify itself for having hired appellants’ defense counsel. Reference was made to Ethical Consideration 7-13, which states: “The responsibility of a public prosecutor differs from that of the usual advocate. . . .” In those cases, no conflict of interest was found.

In this case, we need not find that a conflict of interest existed per se in the attorney’s defending appellant after having been hired as Chief Assistant of the district attorney’s office which prosecuted this case. A potential conflict of interest existed and the appearance of impropriety existed. See Canons 4 and 5. What was necessary was that, before defending appellant in a criminal trial, George must fully advise appellant of the fact that George had accepted a position as Chief Assistant District Attorney with the prosecutor’s office.

Under Canon 9 of the State Bar Rules & Regulations, an attorney is required to avoid even the appearance of impropriety. See Summerlin v. Johnson, 176 Ga. App. 336, 338 (1) (335 SE2d 879) which describes many reasons for the avoidance of potential conflict.

Furthermore, an inherent conflict of interest taints the testimony of the Chief Assistant District Attorney George at appellant’s motion for new trial hearing, on behalf of the State and in an effort to preserve the conviction, that before appellant’s trial he advised appellant not only of the fact that he had been hired by the district attorney, but also of the distinctions between jury trial and bench trial and the validity of appellant’s supposed waiver of jury trial, the calling of any witnesses, and — that which is of special detriment in this case since it prevents any review of the trial evidence and proceedings — the failure to have the trial proceedings recorded and transcribed for review on appeal. This inherent conflict prevents us from favoring the trial court’s acceptance of trial counsel’s testimony. From at least the moment he was hired by the district attorney, George had interests to some extent with the district attorney’s office; they were potentially divided at best.

In the absence of a record to assist appellant in an appeal, and in view of the great appearance of impropriety and particularly in view of the fact that all testimony of the Chief Assistant District Attorney, the office seeking to preserve these convictions, Chief Assistant District Attorney George was incompetent to testify as to what he told appellant while acting as defense attorney after he had been hired by the district attorney; his defense attorney’s testimony, which incontrovertibly is now on behalf of the State and to preserve this conviction, is fatally conflicted and must be disregarded. In all the circumstances of this case, the conviction cannot be saved.

Decided March 9, 1998.

Summer & Summer, Daniel A. Summer, for appellant.

Lydia J. Sartain, District Attorney, Jessica K. Moss, Assistant District Attorney, for appellee.

Judgment reversed.

Ruffin, J., concurs. Eldridge, J., concurs in the judgment only.


author: Johnson, Judge.

text:
    A98A0355.
    BURGEST v. THE STATE.
    (497 SE2d 623)
   Johnson, Judge.

A jury found Alfred Burgest, Jr. guilty of armed robbery and possession of a firearm during the commission of a crime. Burgest appeals, alleging the trial court erred in denying his motion for new trial on the general grounds. We affirm.

Viewed in the light most favorable to support the verdict, the evidence shows that the victim was walking down a road and noticed a four-door, gray car with no hubcaps and a rusty top driving down the road. The car stopped, and Burgest, whom the victim knew from school, exited the car and told the victim to stop and “give it up.” When the victim started laughing, Jerome Spivey, who had exited the car with Burgest, put a 12-gauge shotgun to the victim’s chest. Burgest grabbed a chain the victim wore around his neck and told him again to “give it up.” The victim raised his hands while Burgest searched his pockets, then Spivey struck the victim in the face with the shotgun.

A woman who lives in the neighborhood testified that she saw Burgest and another person exit the car. While she did not see the actual robbery, the witness claimed that Burgest held the shotgun and that he carried it as he walked away from the victim. The witness then spoke with the victim, who told her what had happened.

The police officer who met the victim at his home noticed that the victim was upset and had scratches on his neck and throat, a puffy face with abrasions, and a bloody mouth. Burgest was arrested, advised of and waived his Miranda rights, and gave a statement to police. In this statement, Burgest never mentioned an alibi or provided witnesses who could verify his whereabouts at the time of the armed robbery.

At trial, Burgest presented alibi witnesses who claimed he was at his mother’s house on the night of the armed robbery.

Decided March 9, 1998.

Rodney L. Allen, for appellant.

J. David Miller, District Attorney, Anthony S. Gunn, Assistant District Attorney, for appellee.

On appeal, we view the evidence in the light most favorable to the jury’s verdict, and we do not speculate which evidence the jury chose to believe or disbelieve. Wright v. State, 226 Ga. App. 499, 500 (1) (486 SE2d 711) (1997). We do not weigh or assess witness credibility. A review of the transcript reveals sufficient evidence from which a rational trier of fact could have found Burgest guilty beyond a reasonable doubt of the crimes charged. Id.; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.


author: Judge Harold R. Banke. Beasley, Judge,

text:
    A97A1738.
    PARKS v. STATE FARM GENERAL INSURANCE COMPANY.
    (497 SE2d 575)
   Judge Harold R. Banke.

Robert L. Parks sued State Farm General Insurance Company (“State Farm”) seeking payment under two insurance binders allegedly issued by State Farm. Parks appeals the trial court’s order granting State Farm summary judgment.

Viewed in a light most favorable to Parks, the non-movant, the evidence was as follows. In early February 1993, Parks met with his State Farm agent of fourteen years, Ronald Ray, to renew two State Farm insurance policies which had expired a few months earlier. Parks testified that when he informed Ray that his existing State Farm policies on two rental houses had lapsed and that he wanted to “get some coverage,” Ray responded, “Okay.” Parks did not recall that Ray told him that State Farm’s home office or that someone in State Farm’s underwriting department would have to make the decision to bind coverage. Parks testified that if Ray had so informed him he would have remembered that fact.

During their transactions, Parks gave a $500 check for the anticipated premiums to Ray, who retained the check, a fact admitted by State Farm. Although Ray did not provide a copy of the paperwork at issue to Parks, the application stated that “coverage is not provided until this application is approved by State Farm’s Underwriting Department.” According to Parks, this disclaimer language did not concern him because he had previously obtained insurance notwithstanding the same language. At the time Parks met with Ray, Parks had existing auto insurance and fire insurance with State Farm. Parks testified that when he left his agent’s office, he did so with the understanding that he had a binder for temporary insurance on both properties and that State Farm would subsequently issue written policies to him as it had done on previous occasions.

About ten days later, Ray appeared at Parks’ place of business and told Parks that he was returning his check and that State Farm “wouldn’t be able to write it.” Parks became angry because he felt that State Farm had suddenly left him stranded with no insurance. Almost immediately after Ray contacted him, believing that State Farm had left him stranded with no protection for his property, Parks sought and obtained coverage from Southern General Insurance Company (“Southern General”). About six days later, on February 21, 1993, a tornado virtually demolished both rental houses.

On March 6, about a month after Parks had applied for insurance, State Farm notified him in writing that it had decided to reject his applications for policies. In each of two letters, State Farm stated, “After careful review, we regret that we are unable to issue a policy as requested. The coverage provided under this application and binder is cancelled effective April 8, 1993. We are not able to issue a policy as requested due to not meeting underwriting requirements. For your continued protection, we urge you to secure other insurance to prevent any lapse in coverage.”

State Farm’s underwriter, Ruby Aldridge, testified that she made the decision to decline the requested coverage based on previous claims and losses and Parks’ inconsistent payment history. According to Aldridge, she contacted Ray so that he could notify Parks of State Farm’s decision. Aldridge claimed that State Farm sent these two letters to Parks by mistake. The rejection letters from State Farm clearly indicate that State Farm had agreed to provide temporary coverage and would continue to do so until April 8, well after the date of loss.

Ray disputed Parks’ version of events. Ray testified that when Parks came to him “seeking to put insurance coverage back on the two properties,” he informed Parks that the underwriting department would have to provide approval before any coverage would be provided. According to Ray, he returned Parks’ premium check before State Farm made its underwriting decision to decline Parks’ applications.

Under its insurance policy with Parks, Southern General paid Parks for the losses to both houses. Southern General then unsuccessfully sought reimbursement from State Farm as Parks’ subrogee. Southern General sued State Farm in the name of its insured, Parks, alleging that State Farm breached its contract to provide Parks with typical short-term binder coverage pending approval of the policies. The trial court determined that there was no meeting of the minds as to the creation of any binder prior to the time of the loss. Finding that Parks failed to prove that a contract had been formed, the trial court granted State Farm’s motion for summary judgment. Held:

In his sole enumeration of error, Parks contends that the trial court erred in ruling that State Farm did not issue a binder for insurance. We agree. Although the dissent declares that “there never was a binder,” that conclusion is unjustifiable given the disputed factual evidence showing the creation of a binder.

A binder is a contract for temporary insurance protection, the creation of which requires language or conduct sufficient to show that there has been a meeting of the minds. Peterson v. Liberty Mut. Ins. Co., 188 Ga. App. 420, 423 (373 SE2d 515) (1988). A binder can be oral or written. OCGA § 33-24-33; Thomas v. Union Fidelity Life Ins. Co., 168 Ga. App. 267, 268 (1) (308 SE2d 609) (1983). A binder is not a mere offer but is itself" ‘ “a contract — temporary, sketchy, and informal. . . .” ’ [Cit.]” Cincinnati Ins. Co. v. Stuart, 139 Ga. App. 80, 82 (1) (227 SE2d 771) (1976). A binder affords temporary protection pending the investigation of risk by an insurer or until the issuance of a formal policy. Id.

The language or conduct necessary to create an insurance binder is fact-specific. It is simply that which is enough to show that there has been a meeting of the minds, such as “you’re covered,” or a receipt for premiums or an extensive course of similar prior insurance transactions between the parties. Ray v. Ga. Farm &c. Ins. Co., 176 Ga. App. 776, 778 (337 SE2d 779) (1985); see Jenkins & Miller, Ga. Auto. Ins. Law Including Tort Law (1994 ed.), § 1-1. A receipt for premiums may in certain circumstances constitute a binder, provided that the surrounding circumstances would lead a reasonable person to conclude that such was the parties’ intention. Greene v. Commercial Union Ins. Co., 136 Ga. App. 346, 347 (1) (221 SE2d 479) (1975). Compare Peterson, 188 Ga. App. at 421. See Keeton & Widiss, Insurance Law, A Guide to Fundamental Principles, Legal Doctrines & Commercial Practices, 1988, p. 72, § 2.4 (a) (“An application for insurance is an offer which is regarded as having been accepted (that is, acceptance is inferred or implied) when an insurer remains silent after receiving the application, especially when such silence is accompanied by the retention of a premium payment.”).

Ray’s conduct, including his acceptance of the premium check, coupled with the parties’ past course of dealings, was sufficient evidence to foreclose summary judgment as to whether a binder for temporary protection had been created. State Farm’s correspondence, which stated “[f]or your continued protection, we urge you to secure other insurance to prevent any lapse in coverage [after April 8],” and State Farm’s admission that its agent retained a “check as a down payment” buttress Parks’ evidence that he had temporary protection for his property until State Farm provided legally sufficient notice of its cancellation. Therefore, a jury must resolve the facts in dispute to determine whether a binder was, in fact, created.

The dissent miscasts the entire controversy by commingling facts relating to the creation of a binder and facts regarding the issuance of a policy. No one claims that State Farm ultimately decided to issue a policy. In dispute is whether Parks obtained temporary protection from State Farm until April 8, coverage which the record fails to show that State Farm effectively cancelled in compliance with state law which requires that an insurer provide ten days’ written notice before cancellation. OCGA § 33-24-44 (d). Compare Goodley v. Fireman’s Fund &c. Ins. Co., 173 Ga. App. 277, 278 (1) (326 SE2d 7) (1985) (statutory notice requirement inapplicable where policy expired or lapsed due to policyholder’s failure to pay premiums). OCGA § 33-24-44.

Although it is true that Parks stated that he did not believe that he had coverage after Ray returned his check, neither Ray’s unilateral act of orally attempting to cancel the binder contract nor Parks’ belief, if mistaken, would have dissolved the binder if it had been in existence. OCGA § 13-2-4. See McDuffie v. Criterion Cas. Co., 214 Ga. App. 818, 821 (449 SE2d 133) (1994). As the dissent correctly notes, several days after the business had been transacted in Ray’s office, Ray returned the premium check to Parks and told him that State Farm would not provide coverage. State Farm failed to offer any explanation as to why Ray would suddenly feel compelled to seek out Parks to inform him that State Farm would not be able to issue a binder to him, unless Ray had earlier told Parks otherwise.

The record belies the dissent’s assertions that there is “not even a shadowy semblance” of acceptance and that “there is no evidence whatsoever that a binder with State Farm existed at the time of the loss.” Parks had a longstanding course of obtaining State Farm insurance through dealing with Ray as his agent for 14 years. According to Parks’ testimony, he went to his State Farm agent, applied for coverage, presented a premium check, and left with the understanding that his property was insured. Parks’ claim that he had obtained short-term binder protection is supported by the correspondence from State Farm which stated this temporary coverage would cease on April 8, approximately two months after Parks applied for binder protection, and well after the date of loss. As discussed above, under our law, a binder for temporary protection can be created with significantly less formality than a typical contract. Critical evidence remains in dispute as to what actually transpired between Parks and Ray during the application process. Whether there was a meeting of the minds sufficient to give rise to a binder is a jury question. In light of the disputed evidence as to whether Ray’s alleged conduct and the attendant circumstances would have led a reasonable person to conclude that a short-term binder had been created, it cannot be said that State Farm was entitled to summary judgment as a matter of law. Greene, 136 Ga. App. at 349 (1).

Judgment reversed.

McMurray, P. J., Ruffin and Eldridge, JJ., concur. Andrews, C. J., Birdsong, P. J., and Beasley, J., dissent.

Beasley, Judge,

dissenting.

I respectfully dissent because the trial court was correct. I would adopt its order explaining the reasons for the grant of summary judgment to State Farm and the denial of summary judgment to plaintiff Parks. Considering the undisputed facts, there is an absence of evidence to support at least one essential element of the nonmoving party’s case, the test for summary judgment articulated in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

There never was a binder, and the mistake in the letters (there were two identical letters, one for each property) did not inadvertently create a binder nunc pro tunc to cover the property damage that occurred after Parks’ check for premiums had been returned to him and he had been told State Farm would not provide coverage.

Parks, an experienced businessman, realized one day that the insurance on two of his four rental properties had lapsed for nonpayment of premiums several months earlier. He went to insurance agent Ray and provided the required information for the agent to complete application forms for new insurance with State Farm, which had previously provided coverage, and he signed the applications.

He understood the provision on the forms which stated: “I understand that coverage is not provided until this application is approved by State Farm’s underwriting department.” In fact, a handwritten “x” is marked in the box “not provided . . .” as opposed to the box “provided by this application,” right above his signature confirming that all the statements in the “application” are true. He also read and signed for each property a “Rental Dwelling Binder Receipt” that was not signed by an agent and that stated: “This Binder is not valid unless signed by a State Farm agent.” The receipts contained in addition the same statement acknowledging there would be no coverage until the underwriting department approved.

Parks left a check at Ray’s office even though Ray did not request any money at that time. The check was for $500, an amount Parks wrote although the proposed base premiums subject to revision were shown on the applications to be $206 and $198. He testified that when he left, he “assumed” he had coverage because, on earlier occasions, agents just phoned and got approval for a binder from other insurers. He did not see Ray do so on this occasion, and he did not testify that Ray told him he had coverage or a binder. In response to a question, he testified only that he did not recall Ray telling him that the policies would have to be approved by the underwriting department and thought he would have remembered if he did. He was aware that he was in difficulty with State Farm, as it had cancelled his insurance before. Ray testified in affidavit that he “informed Mr. Parks that the underwriting department would have to provide approval before any coverage could be provided.”

State Farm’s underwriting department did not approve the application. State Farm did not “admit that Ray retained the check” but merely that Parks submitted an. application “together with a check.” Ray returned the unnegotiated check to him at his place of business. Ray told him that State Farm “wouldn’t be able to write” a policy. Parks understood that he did not have coverage, so he called another agent, who promised to get a binder with another company the next day, which he did. That insurance, with third-party defendant Southern General Insurance Company, covered the two properties at the time of the subsequent tornado damage, and Parks was paid $31,000 for one and $32,000 for the other. The “current market value” of the two properties was shown on the State Farm applications as $34,000 and $32,000, respectively.

Several weeks after payment by Southern General, Parks received from State Farm two identical letters, one on each rental property. They each contained two errors. One was the sentence “For your continued protection, we urge you to secure other insurance to prevent any lapse in coverage.” Parks knew his previous policies had lapsed before he went to Ray to apply for new insurance, so he did not have continuous coverage on the properties. The second was the sentence “The coverage provided under this application and binder is cancelled effective April 08, 1993.” Parks knew he had no binder; he had signed two documents making that clear, and Ray had told him he had no coverage when he returned his check.

Parks was surprised when he received the letters, because he did not believe he had coverage with State Farm. If he had thought so, he said, he would have made the Southern General policy commence on the date the State Farm coverage ended. He took the letters to the Southern General agent and never filed a proof of loss claim with State Farm. Instead, thereafter he signed two purported loan receipts for Southern General, and this suit was filed two and one-half years later.

Parks, who is knowledgeable about the value of real property, testified that he does not seek any more than what Southern General already paid him, which was the policy limit on one house and the negotiated sum of $31,000 on the other house. The suit is in actuality between two insurance companies, one which never wrote policies on the property after earlier ones lapsed and one which did.

There is no evidence whatsoever that a binder with State Farm existed at the time of the loss. Parks knew there was none, knew his application had been rejected, and had taken steps to obtain and did obtain other insurance. As recognized by the trial court, a binder is a contract for temporary insurance, which requires a meeting of the minds. OCGA § 33-24-33 (a); McDuffie v. Criterion Cas. Co., 214 Ga. App. 818, 819-820 (449 SE2d 133) (1994); Peterson v. Liberty Mut. Ins. Co., 188 Ga. App. 420, 423 (373 SE2d 515) (1988). Here the meeting of the minds when the tornado struck is exhibited by the application and receipt documents, the return of the check, the accepted statement that there was no coverage, and the acquisition of other coverage. Both Parks and State Farm understood that there was no binder or other expression of coverage by State Farm at that time. There had been only an application, an offer to purchase insurance which was rejected by the insurance company.

Parks’ assumption when he left Ray’s office the day he made the application cannot surmount the documents he signed clearly stating otherwise. OCGA § 24-6-1 provides: “[p]arol contemporaneous evidence is generally inadmissible to contradict or vary the terms of a valid written instrument.” Even in contracts, OCGA § 13-2-4 provides: “The intention of the parties may differ among themselves. In such case, the meaning placed on the contract by one party and known to be thus understood by the other party at the time shall be held as the true meaning.” A contract cannot be created by one party’s unilateral assumption which directly contravenes what is written and signed in an application. Parks was bound to what he signed. Matin v. Servisco, 172 Ga. App. 418 (1) (323 SE2d 278) (1984).

The tendering of a check which Parks intended to cover premiums made no difference. “ ‘[A]n application for insurance, even with the concurrent prepayment of premiums, creates no binding contract of insurance until the insurer manifests its acceptance.’ ” (Citations omitted.) Karp v. Western Life Ins. Co., 182 Ga. App. 693, 694 (356 SE2d 893) (1987). There was not a single manifestation of acceptance, not even a shadowy semblance. Just as in Karp and Peterson, there was no meeting of the minds creating a binder at the time the application was made, much less at the pivotal time, liability-wise, which is the time of the loss, which occurred after the check had been returned and Parks was informed the company refused to approve the application. Parks, when deposed, testified that he never paid any money to State Farm for these policies after his check was returned and that he never received a written policy from State Farm in this connection.

Decided February 11, 1998

Reconsideration denied March 10, 1998.

Jenkins & Nelson, Frank E. Jenkins III, Peter R. Olson, for appellant.

Magruder & Sumner, J. Clinton Sumner, Jr., Clay M. White, for appellee.

As the trial court ruled with respect to the later-received letters, a jury could draw only the conclusion that the statement in the letters targeted by Parks after the fact was a mistake, as the underwriter testified without contradiction. It was the type of letter sent when there is a binding application, which the documents show did not exist. And never did Parks rely to his detriment on any communication or any action or any inaction by State Farm or its agent with respect to coverage.

Summary judgment to State Farm was proper.

I am authorized to state that Chief Judge Andrews and Presiding Judge Birdsong join in this dissent.

       Each Rental Dwelling Binder Receipt stated that this “[blinder is not valid unless signed by a State Farm Agent,” and neither contains a signature in the designated block.

       The case was originally filed in state court, then removed to federal court, but remanded back to state court on plaintiff’s motion for the stated reason that the amount in controversy did not exceed $50,000. In the amended complaint, Parks seeks from State Farm “an amount to be determined by interpretation and reconciliation of the ‘other insurance’ provisions” of the Southern General and State Farm policies. It is not clear what “policy” of State Farm is meant, as none was issued. State Farm filed a third-party claim against Southern General, apparently for an amount less than $50,000.


text:
    A97A2101.
    REYNOLDS v. THE STATE.
    (497 SE2d 580)
   Ruffin, Judge.

A jury found Johnny Stephen Reynolds guilty of false imprisonment and simple battery. Reynolds appealed, claiming ineffective assistance of counsel, insufficiency of the evidence and errors committed by the trial court. We affirm for reasons which follow.

Viewed in a light most favorable to support the verdict, the evidence shows that at approximately 10:30 p.m. on May 31, 1993, the victim, Kimberly Ann Crossley, drove to a video store to rent a movie. Crossley noticed Reynolds walking his dog on a leash in the parking lot in front of the store. Upon exiting the video store and returning to her car, Reynolds initiated a conversation with Crossley. Reynolds then asked her if she would assist him in jump-starting his van that was located on the other side of the large parking lot. Crossley agreed, and she, Reynolds and the dog got into her vehicle. Reynolds then said that he had lied and that he really needed a ride to Macon, Georgia. When she denied this request, Reynolds asked her if she could at least give him a ride to his house which was only a couple of blocks away. Crossley agreed, and Reynolds directed her to drive down a dead end street. However, Reynolds could not identify which house was his. When Crossley reached the end of the road, she turned around and Reynolds directed her to drive down a pathway that led into the woods. Crossley refused and advised Reynolds to get out of the car. Reynolds again told Crossley to drive down the path, and when Crossley resumed driving on the main road, Reynolds reached over, “slammed [the car] into park and said you don’t want to do this.” Reynolds then grabbed her, and she began fighting to escape. Crossley elbowed Reynolds during the struggle, broke loose, exited her car and ran towards another vehicle that was traveling down the street. Reynolds ran off with his dog. Crossley denied that she ever consented to Reynolds touching or grabbing her in any way. Reynolds admitted making a sexual advance towards Crossley, testifying at trial that he kissed her and “rubbed across the front of her shirt.”

1. We conclude that there was sufficient evidence to authorize a rational trier of fact to find Reynolds guilty beyond a reasonable doubt of false imprisonment and simple battery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Reynolds held Crossley against her will while he made sexual advances toward her and physically caused her harm. OCGA §§ 16-5-23 (a); 16-5-41 (a).

2. Reynolds argues that the simple battery conviction should have merged with the false imprisonment conviction. We disagree. “Offenses may be said to merge when (1) one is a lesser offense included in another or (2) each of the two different charges arises out of the same conduct as the other, and all the evidence is used to establish one of the offenses charged.” Johnson v. State, 195 Ga. App. 723 (2) (394 SE2d 586) (1990).

Simple battery is committed when a person either “[i]ntentionally makes physical contact of an insulting or provoking nature with the person of another” or “[i]ntentionally causes physical harm to another.” OCGA § 16-5-23 (a). A person commits false imprisonment when he confines or detains another person without legal authority and in violation of the other person’s personal liberty. OCGA § 16-5-41 (a). In light of these definitions, we find that false imprisonment does not necessarily require an offensive touching as is required with simple battery. Accordingly, we conclude that simple battery is not, by definition, a lesser included offense of false imprisonment.

In the instant case, the jury could have found that Reynolds committed simple battery on Crossley by grabbing her, fighting with her as she tried to escape, or by making his sexual advance which included rubbing against the front of her shirt. The separate evidence of Reynolds slamming the car into park and holding Crossley against her will supported the false imprisonment conviction. Accordingly, the evidence to support the simple battery conviction was not necessarily “used up” to prove the elements of false imprisonment. Johnson, supra; Gilbert v. State, 176 Ga. App. 561 (2) (336 SE2d 828) (1985).

3. Reynolds asserts that the trial court improperly commented on the verdict in the presence of the jury in violation of OCGA § 17-9-22. We disagree.

The record shows that after the jury had announced the guilty verdict, the trial court proceeded to sentence Reynolds. The court allowed the jurors to view the sentencing proceeding if they so desired. The trial judge stated during sentencing that he wanted to give Reynolds the maximum sentence, but was concerned that the state pardons and parole board would release Reynolds early. The judge commented that “[i]f I had more time to work with I wouldn’t worry about putting him in prison for ten years. . . . But eleven is the maximum I’ve got. There is also some other arguments about merging of the two offenses. That is something the court needs to consider. I’m sure the jury doesn’t understand what I’m talking about but I do and I think the lawyers do.”

OCGA § 17-9-22 (a) provides that “[n]o judge of any court shall either directly or indirectly express in open court his approval or disapproval of the verdict of any jury in any case tried before him. . . .” In the instant case, the judge was not expressing his disapproval of the jury’s verdict, but was merely considering the sentencing options available in light of the convictions. Accordingly, there was no error.

4. Reynolds next asserts that the trial court erred in not allowing his counsel, Johnny Moore, to withdraw from representation and in failing to appoint new counsel.

The record reveals that Moore was Reynold’s third appointed trial counsel. Reynolds disliked and distrusted his first attorney because the attorney advised Reynolds of certain evidence the State was planning to use to incriminate him. Reynolds did not trust his second attorney because he was a court-appointed attorney and was afraid that the attorney and the State were trying to set him up. Reynolds also did not trust Moore and declined to cooperate in the preparation for his trial. At trial, Reynolds again expressed his distrust of Moore, and the trial court gave him the option of representing himself or proceeding with Moore as his attorney. Reynolds reluctantly agreed to be represented by Moore.

“[T]here was no error arising in [Reynolds] being confronted with choosing between representation by the appointed defense counsel and proceeding pro se. While an indigent defendant accused of a crime for which imprisonment is possible is entitled to have reasonably effective counsel provided to assist him, he is not entitled to counsel of his own choosing. [Cit.] A request by an indigent criminal defendant to discharge one court-appointed counsel and have another substituted in his place addresses itself to the sound discretion of the trial court. [Cit.]” Durham v. State, 185 Ga. App. 163, 164 (1) (363 SE2d 607) (1987). See also Rivers v. State, 250 Ga. 303, 307 (6) (298 SE2d 1) (1982). There was no abuse of discretion in this case. The trial court was very accommodating of Reynolds by dismissing his prior two court-appointed attorneys solely because Reynolds felt he could not trust them. As the trial judge appropriately stated, the court could not “keep going through lawyers perpetually because [Reynolds] tend[ed] not to like or trust [his] lawyer.”

5. Next, Reynolds asserts that the trial court erred in failing to recharge the jury on false imprisonment. During its initial charge, the trial court instructed the jury that “intent is an essential element of any crime and must be proven by the state beyond a reasonable doubt.” The trial court also charged the jury that “a person commits the offense of false imprisonment when in violation of the personal liberty of another he detains such person without legal authority.” During deliberations, the jury sent out a note that stated “charge on false imprisonment.” Underneath this was written, “any time frames?” and “intent involved?” The trial court held an unrecorded conference with Reynolds’ attorney and the State to discuss the appropriate response to the jury’s note. Following the unrecorded conversation, the trial judge stated on the record that “we have now agreed on the record that what the court should do is send back a note to the jury which says; the charge I’ve already given you on false imprisonment is as specific as I can be. You should consider the charge as a whole. . . .” The trial court asked the State and defense counsel if the response was agreeable with them, and they both said that it was. Defense counsel declined to put anything on the record, such as an objection or an exception to the trial court’s response, when the trial court offered him the opportunity to do so.

“When the jury requests a charge or recharge on a particular point, the trial court has discretion to also give or not give additional instructions. [Cit.]” Patterson v. State, 264 Ga; 593, 594 (2) (449 SE2d 97) (1994). However, it is also well established that “[w]hen the jury requests the court to recharge them on any point, it is the court’s duty to do so. [Cits.]” Edwards v. State, 233 Ga. 625, 626 (2) (212 SE2d 802) (1975). See also Glisson v. Glisson, 268 Ga. 164, 165 (1) (486 SE2d 167) (1997). “ ‘Merely sending a message to the jury to consider the instructions previously given (may be) insufficient under the circumstances. (Cit.)’ ” Id. at 165.

Pretermitting whether the trial court’s response to the jury’s note may have been inadequate under the circumstances, we conclude that Reynolds waived his right to enumerate as error the failure to recharge by his own failure to object to the court’s response. Fox v. State, 163 Ga. App. 601 (1) (295 SE2d 563) (1982); White v. State, 243 Ga. 250 (253 SE2d 694) (1979). The proposed response was agreed to by the court, the State and defense counsel. Defense counsel was an active participant and was present when the note was sent back to the jury. At no point was there any objection or exception to the trial court’s response. Accordingly, Reynolds’ attorney induced any error in the response by his participation, and this coupled with the fact defense counsel failed to object when given the opportunity to do so precludes Reynolds from raising this issue on appeal. See Ingram v. State, 160 Ga. App. 300, 301 (4) (287 SE2d 304) (1981) (induced error is impermissible); Moore v. Sinclair, 196 Ga. App. 667, 671 (5) (396 SE2d 557) (1990); Edwards v. State, 235 Ga. 603, 604 (2) (221 SE2d 28) (1975).

6. Reynolds asserts that Moore did not provide effective assistance of counsel. We first note that Reynolds could not refuse to cooperate with his court-appointed attorney and then claim later that he was not effectively represented. Jefferson v. State, 209 Ga. App. 859, 861 (1) (434 SE2d 814) (1993). However, since it appears that Reynolds did cooperate to some extent with his attorney during the trial, we will further consider this enumeration.

“In order to prevail on a claim of ineffective assistance of counsel [Reynolds] must show that his counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. Smith v. Francis, 253 Ga. 782, 783 (325 SE2d 362) (1985) (citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)). To meet the first prong of this test, [Reynolds] must overcome the strong presumption that counsel’s performance fell within a wide range of reasonable professional conduct and that counsel’s decisions were made in the exercise of reasonable professional judgment. The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the circumstances of the case. The second prong requires [Reynolds] to show there is a reasonable probability that, absent counsel’s unprofessional errors, the result of the trial would have been different.” (Citations and punctuation omitted.) Brown v. State, 268 Ga. 354, 357 (4) (490 SE2d 75) (1997)..

Decided February 11, 1998

Reconsideration denied March 10, 1998

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

Daniel J. Porter, District Attorney, Brian K. Wilcox, Assistant District Attorney, for appellee.

(a) Reynolds argues that his attorney was not prepared to proceed to trial. However, this was due to Reynolds’ own failure to cooperate with his attorney, and therefore he cannot complain on appeal in this regard. Jefferson, supra.

(b) Reynolds also asserts that his counsel failed to object when the trial judge improperly commented on the jury verdict. As we held in Division 3 that the trial judge did not violate OCGA § 17-9-22, trial counsel did not err in failing to object.

(c) Reynolds maintains that trial counsel was deficient in failing to request jury charges on lesser included offenses to the charge of false imprisonment and discussing these lesser included offenses with his client. Trial counsel testified in the motion for new trial hearing that at the time he had to make the decision regarding what charges to request, Reynolds was upset and was unwilling to cooperate. Reynolds cannot complain that his attorney did not adequately represent him when Reynolds refused to cooperate during this portion of the trial. Jefferson, supra. Additionally, defense counsel's reasons for not requesting jury charges on the lesser included offenses to the false imprisonment count were strategic and made in the exercise of his reasonable professional judgment. Brown, supra. Furthermore, Reynolds has failed to show how defense counsel’s decision affected the results of the trial. Id. See also Van Alstine v. State, 263 Ga. 1 (426 SE2d 360) (1993).

(d) Finally, Reynolds argues that his counsel was ineffective in failing to object to the trial court’s response to the jury’s question on false imprisonment. There is no indication in the record as to trial counsel’s reasons for not objecting to the court’s answer to the jury question or requesting a recharge. Regardless, however, Reynolds has failed to show that there is a reasonable probability that, absent the attorney’s error, the results of the trial would have been different. Brown, supra.

Judgment affirmed.

Birdsong, P. J, and Eldridge, J., concur.


text:
    A97A2189.
    In the Interest of B. G. et al., children.
    (497 SE2d 572)
   Ruffin, Judge.

The mother of B. G. and R. G. appeals the Gwinnett County Juvenile Court’s order extending temporary legal custody of her children to the Gwinnett County Department of Family & Children Services (“DFCS”) pursuant to OCGA § 15-11-41.* Because the juvenile court was without authority to extend DFCS’s temporary legal custody under OCGA § 15-11-41, we reverse.

The evidence reveals that the children were removed from their home on June 28, 1993. See OCGA §§ 15-11-17 (when child may be taken into custody); 15-11-18 (when detention of child permitted) and 15-11-19 (procedure on taking child into custody). The juvenile court, in a July 26, 1993 order, found B. G. and R. G. to be deprived due to neglect and abuse. The court gave DFCS temporary custody of the children in accordance with former OCGA § 15-11-41 (d). This subsection provided that “an order of disposition placing a deprived child in foster care under the supervision of [DFCS] shall continue in force for 18 months after the date of original placement with the department or until sooner terminated by the court.” OCGA § 15-11-41 (d).

By order of the juvenile court entered on December 30, 1994, DFCS’s temporary custody was extended for two years pursuant to former OCGA § 15-11-41 (f), which stated that “[t]he court which made the order [of disposition] may extend its duration for not more than two years. . . .” The order of disposition and the extension of the order did not deprive the mother of all parental rights in her children. In the Interest of K. B., 188 Ga. App. 199 (1) (372 SE2d 476) (1988).

Prior to the expiration of the two years, DFCS filed a petition to terminate the mother’s parental rights in accordance with OCGA § 15-11-80 et seq. In a written order entered on July 10, 1996, the juvenile court granted the termination petition and committed the children to the custody of DFCS. This order remained in effect until reversed or modified by a reviewing court on appeal. OCGA § 15-11-64.

The mother appealed to this Court, and on March 14, 1997, we reversed the order of termination due to the juvenile court’s error in excluding the mother from the courtroom while the children testified. In the Interest of B. G., 225 Ga. App. 492 (484 SE2d 293) (1997). The case was remanded to the juvenile court for a new termination hearing. Id.

On March 20,1997, DFCS moved for an extension of the juvenile court’s order of December 30, 1994, that gave DFCS temporary legal custody until December 1996. DFCS also filed new deprivation petitions with the juvenile court regarding the children, noting that the children were adjudicated deprived in 1993 and that the mother had failed to comply with case plan goals. DFCS also admitted in the new deprivation petitions that its temporary legal custody had expired. Despite DFCS’s admission that its temporary legal custody had expired and the requirements of OCGA § 15-11-41 (f) that an order of disposition can only be extended for two years and that no extension can be granted unless a hearing is held regarding the motion for extension prior to the expiration of the disposition order, the juvenile court granted the motion for extension of temporary legal custody pursuant to OCGA § 15-11-41 and declined to address DFCS’s new deprivation complaints. The mother appealed from this latest order of the juvenile court.

In this procedurally unusual case, we first conclude that the juvenile court’s termination order was rendered a nullity by our reversal. “The legal effect of the reversal of a judgment on appeal is to nullify the effect of such judgment in all its aspects and place the parties in the same position in which they were before such judgment. [Cit.]” McKay v. McKay, 93 Ga. App. 42 (3) (90 SE2d 627) (1955). See also Kirkland v. Southern Discount Co., 187 Ga. App. 453 (3) (370 SE2d 640) (1988); Franklyn Gesner Fine Paintings v. Ketcham, 259 Ga. 3 (3) (375 SE2d 848) (1989).

Accordingly, we find that the reversal of the termination order placed DFCS in the same position it would have been in had there been no termination order. Prior to the termination order, DFCS was entitled to temporary legal custody of the children until December 1996 in accordance with the December 30, 1994 order extending custody for two years. This right to custody ended, however, in the interim between the July 1996 termination order and our March 1997 opinion reversing the termination order. Since the custody period ended in December 1996, DFCS had no right to custody in March 1997.

Furthermore, even if DFCS had temporary custody after our reversal of the termination order, the juvenile court could not have again granted an extension of temporary custody. It had already extended the original disposition order for two years in its December 30, 1994 order. The juvenile court thus had no authority to extend it further, as OCGA § 15-11-41 (f) provides that an order of disposition giving DFCS temporary custody of a deprived child can be extended “for not more than two years.” Accordingly, there was no viable method by which the juvenile court could have extended DFCS’s original award of temporary legal custody pursuant to OCGA § 15-11-41.

Decided January 28, 1998

Reconsideration denied March 10, 1998

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

Thurbert E. Baker, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, ShalenA. Sgrosso, Assistant Attorney General, Cheely & King, Grant-land G. King III, Deborah A. Stone, for appellee.

However, DFCS was not without recourse. In accordance with OCGA § 15-11-1 et seq., DFCS properly filed new deprivation petitions, arguing that the children would be deprived if returned to their mother. See OCGA §§ 15-11-11 (commencement of proceedings); 15-11-24 (who may make petition) and 15-11-25 (contents of petition). However, the juvenile court erred in failing to address the petitions and stating that the deprivation complaints were “unnecessary” because it had ruled on DFCS’s motion to extend temporary custody, which we have already determined was erroneous.

Accordingly, we reverse the juvenile court’s order granting DFCS’s motion to extend temporary legal custody under OCGA § 15-11-41 and remand the case for the juvenile court to determine whether the deprivation petitions have any continuing viability. If they do not, then DFCS must file new deprivation petitions, stating that the new petitions are in the best interest of the children and that the children are in custody. OCGA § 15-11-25. The trial court can then allow the children to remain with DFCS upon finding that the children would still be deprived if returned to their mother. OCGA § 15-11-34. If the petitions are not filed and addressed, then DFCS would have no right to continued custody of the children, and they must be returned to their mother. However, if the mother does not comply with the summons regarding the termination petition ordering her to bring the children to court or the summons cannot be served upon her, then the trial court can issue an order to take the children into protective custody pending the disposition of the termination petition. OCGA § 15-11-86.

2. Since the juvenile court did not have authority to extend DFCS’s temporary legal custody, it is unnecessary for this Court to address the mother’s claim regarding the sufficiency of the evidence to support an extension of custody.

Judgment reversed.

Birdsong, P. J., and Eldridge, J., concur.

       The Code section was substantially rewritten and this revision became effective July 1, 1996. While it is unclear whether the juvenile court, in granting the extension of custody, relied on the former version of OCGA § 15-11-41 or the revised version, which applied to all cases pending as of July 1,1996, this issue does not affect the disposition of the appeal.


author: Eldridge, Judge.

text:
    A98A0073, A98A0074.
    CARTER v. THE STATE (two cases).
    (497 SE2d 812)
   Eldridge, Judge.

This Fayette County case arose as a part of a lengthy, ongoing dispute between appellant Anthony Carter and a neighbor, Lester Walden, which dispute was, apparently, referred to locally as the “Carter/Walden feud.” In this instance, a jury found appellant Carter guilty of misdemeanor criminal trespass for piling dirt against Walden’s fence, thereby causing damage to the fence and to Walden’s property. In addition to the above conviction, appellant, who represented himself at trial, ignored numerous warnings by the trial court and repeatedly cast aspersions upon Lester Walden during his cross-examination of Walden, thereby engendering another conviction for criminal contempt of court. Pro se, Carter appeals both convictions. We affirm both.

Case No. A98A0074: Criminal Trespass

1. Upon arrest and prior to the presentment of the accusation charging him with criminal trespass, appellant filed a pro se demand for speedy trial. He claims he was denied his speedy trial rights. We disagree. To the extent that appellant’s pro se contentions encompass such right pursuant to OCGA § 17-7-170 (a), the demand was not filed timely. A demand for speedy trial pursuant to the provisions of this section may not be made until an indictment has been returned or an accusation preferred. State v. Black, 213 Ga. App. 331, 332 (444 SE2d 368) (1994), rev’d on other grounds in Hurst v. Grange Mut. Cas. Co., 266 Ga. 712 (470 SE2d 659) (1996). To the extent that appellant’s contentions raise a constitutional claim, appellant has failed to demonstrate how the 18-month period between his arrest and trial resulted in any impairment of appellant’s defense. Barker v. Wingo, 407 U. S. 514, 515 (92 SC 2182, 33 LE2d 101) (1972); State v. Auerswald, 198 Ga. App. 183, 184 (401 SE2d 27) (1990).

2. Next appellant contends that this case should have been dismissed as res judicata because the same issues had allegedly been raised in a prior civil case filed in the Superior Court of Fayette County, Civil Action No. 91V-0481. Because of the different standards of proof, the “judgment in a civil action is not admissible in a criminal action to prove any fact determined in the civil action.” Flynt v. State, 153 Ga. App. 232, 243 (264 SE2d 669) (1980). Further, no final judgment in the prior civil case was introduced, thereby precluding the application of the doctrine of res judicata or collateral estoppel under OCGA § 9-12-40. Quinn v. State, 221 Ga. App. 399 (471 SE2d 337) (1996).

3. There was no error in the trial court’s refusal to allow the appellant, following the guilty verdict, to “poll” the jury by asking them: (1) if they had “made a decision [based] on the Carter — Walden fued [sic] going on in local papers for about 7 years”; and (2) if they “felt sorry for Lester Walden and did not go by evidence presented to them.” A defendant’s right to poll a jury following the verdict does not encompass questioning which attempts to impeach the verdict. See, e.g., OCGA § 17-9-41.

4. Next appellant contends that he was hampered in presenting his defense because he was intimidated by the trial court. We have reviewed the record in the instant case. The only factor that could possibly be considered “intimidating” was the trial court’s appropriate attempts to require appellant to comply with rules of evidence and procedure, which task appellant willingly undertook when he decided to represent himself. Further, if appellant was “intimidated” by the trial court, such was not apparent by his conduct during the presentation of his defense, and appellant has failed to show any harm resulting from his alleged “intimidation.” “Both error and harm must be shown affirmatively by the record to authorize a reversal on appeal. [Cit.]” Robinson v. State, 212 Ga. App. 613, 616 (2) (442 SE2d 901) (1994).

5. The trial court did not err in denying appellant’s motion for directed verdict. The state introduced numerous pictures taken by Walden which showed appellant using a tractor to push dirt and debris up against the combination of hog wire and chain link fence that separated their common boundary line. In addition, Lester Walden testified that he had his property surveyed three times, and that the fence was on his property; that appellant, without consent, continually piled dirt up to and over the fence, which caused damage to the fence and the property on the other side; and that appellant’s acts were in retaliation for other benign acts committed by Walden.

Appellant, on the other hand, testified that the fence may have been on the property line originally, but rainwater had pushed the fence over onto his land; that since the fence was on his land, he could rightfully push his own dirt up against his own fence if he chose to do so; and that Walden filed these charges in retaliation for other benign acts committed by appellant.

“ Tt is the province of the jury, and theirs alone, when considering conflicting evidence and statements of defendant ], to decide what evidence to believe or disbelieve.’ [Cit.]” Crews v. State, 133 Ga. App. 764, 765 (213 SE2d 34) (1975). Further, “the intent with which an act is done is peculiarly a question of fact for determination by the jury.” Brown v. State, 174 Ga. App. 913 (331 SE2d 891) (1985). There was no error.

6. Appellant next contends that the deputy who investigated Walden’s complaint and the magistrate who issued the arrest warrant “were bias [sic] and lied in Court,” because both allegedly testified that Walden’s allegations against appellant were investigated before appellant’s arrest. Appellant contends that “Court Records show incident was investigated 30 days after arrest. Court records were falsified by adding a date to original Sept. Stamp.” It appears to this Court that the date on which Walden’s allegations were “investigated” does not impact on the validity of the investigation. Nor does it impact on the jury’s credibility determination regarding the “swearing contest” of conflicting testimony presented by appellant and Walden as to the essential elements of the crime for which appellant was convicted. However, that aside, appellant has made no effort to identify the allegedly biased and false testimony of the deputy and the magistrate by page reference to the transcript; he has not identified on what basis he claims court records were falsified; he presents no legal argument other than bare contentions; and he presents no relevant citations of authority. This claim of error is abandoned. Court of Appeals Rule 27 (c) (2) and (3) (i); Elrod v. State, 195 Ga. App. 571 (394 SE2d 548) (1990).

7. Contrary to appellant’s claim of error, the failure to establish the exact value of the damage done to Walden’s property and the trial court’s failure to order restitution were not cause for a new trial. The evidence established the essential elements of the offense. OCGA § 16-7-21 (a); Matthews v. State, 224 Ga. App. 407 (481 SE2d 235) (1997).

8. Appellant claims as error the trial court’s failure to charge the jury that the exact amount of damage must be determined. As appellant failed to reserve objections to the jury charge, we will not consider this contention. Sims v. State, 266 Ga. 417, 418 (467 SE2d 574) (1996).

9. Appellant asserts that the trial court erred in refusing to grant a change of venue. Appellant failed to raise this issue at trial. (Further, appellant, again, offers no argument in support of a change of venue, cites no relevant authority in support thereof, and asserts only bare contentions.) “Failure to object in the trial court leaves nothing for this court to review on appeal. [Cits.]” (Punctuation omitted.) James v. Tyler, 215 Ga. App. 479, 480 (451 SE2d 506) (1994). Therefore, appellant failed to preserve this issue for consideration by this Court.

10. Appellant was sentenced to twelve months, six months to serve and six months probated, with a $1,000 fine. Such sentence was within the statutory limits provided for misdemeanor punishment, OCGA § 17-10-3 (a), and appellant’s complaint that the “punishment does not fit the crime” is meritless.

11. Appellant correctly claims that there is a fundamental right to a free transcript on appeal — for an indigent defendant. Stalling v. State, 231 Ga. 37 (200 SE2d 121) (1973); Hall v. State, 162 Ga. App. 713 (293 SE2d 862) (1982). Appellant has not claimed that he is indigent, and the evidence shows that appellant is not indigent. Thus, contrary to his contentions, appellant is not entitled to a free transcript. Further, appellant was tried on February 25, 1997; he was sentenced on February 28, 1997; his motion for new trial was denied on March 28, 1997; a notice of appeal was filed on March 31, 1997; and a transcript of the proceedings was filed on May 14, 1997. There was no error pursuant to OCGA § 17-8-5.

12. A February 25, 1997 prosecution for a crime that was alleged to occur seventeen months before, on August 9,1995, is not barred by the two-year (twenty-four months) statute of limitation for the prosecution of misdemeanor cases. OCGA § 17-3-1 (d).

Case No. A98A0073: Criminal Contempt

Appellant’s sole contention with regard to his conviction for criminal contempt of court is that he was not in contempt. Appellant claims that his conduct was not “intentional, wilful, or done to degrade”; appellant urges that he engaged in unseemly conduct because “I needed a recess to get my thoughts straight. I could not understand instructions from the court.” We find such contentions to be incredible. A review of the transcript shows that the trial court did everything in its power, short of contempt, to compel the appellant to behave. The characterization “soul of patience” comes to mind. Direct requests by the trial court, which were comprised of nothing more complicated than “don’t say that again,” were ignored by appellant; the trial court warned the appellant that he was in danger of being held in contempt. Appellant’s actions in court appeared retaliatory toward Walden for filing the charges against him and contemptuous of the trial court’s efforts to conduct the trial in a fair and orderly manner. We find under the circumstances that sufficient evidence exists from which to find appellant guilty of criminal contempt of court beyond a reasonable doubt. OCGA § 15-1-4; In re Irvin, 254 Ga. 251 (328 SE2d 215) (1985).

Decided February 27, 1998

Reconsideration denied March 10, 1998

Anthony J. Carter, pro se.

Steven L. Harris, Solicitor, for appellee.

Judgment affirmed.

McMurray, P. J., and Blackburn, J, concur.

       Appellant Carter had previously filed a civil suit against Walden for doing the same thing to appellant’s property.

       Moreover, the civil doctrines of “res judicata” and “collateral estoppel” have no real application to a criminal case. The proper, analogous bar in a criminal prosecution is under the principle of “double jeopardy,” which is clearly not applicable under the facts of this case.

       Testimony and photographic evidence placed the cost of the damage to Walden’s property between $280 and $500.

       As a note of interest, the trial court was forced to hold victim Lester Walden in criminal contempt, as well, for Walden’s continuous derogatory comments directed toward appellant during the length of the trial.

       Criminal contempt is that which involves some disrespectful or contumacious conduct toward the court. It involves action by the court to compel respect thereto, to vindicate its authority, and to enforce the lawful processes and actions of the court. Farmer v. Holton, 146 Ga. App. 102 (245 SE2d 457) (1978), overruled on other grounds, In re Crane, 253 Ga. 667 (324 SE2d 443) (1985).