text:
    A91A0189.
    WATSON v. THE STATE.
    (406 SE2d 509)
   Sognier, Chief Judge.

Felix Watson was convicted of aggravated assault, and he appeals.

Evidence was adduced at trial that Jeff Davis was driving his truck in Athens on the night of February 5, 1990 when he drove around a group of people, including appellant, who were standing in the street. After something hit the truck, Davis backed the truck and stopped. The jury was authorized to find that after words were exchanged, appellant reached into the passenger window of the truck with a gun and fired once, hitting Davis.

1. Appellant contends the trial court erred by denying his motion in limine regarding a portion of a videotaped interview of him by Athens Police Officer Horace Fedrick, in which Fedrick told appellant the police “had enough evidence” against appellant. The transcript reveals that appellant was informed at the beginning of the interview that a warrant for his arrest had been obtained. However, during the interview, after Fedrick explained to appellant that his information was based on conversations with other witnesses and that these witnesses would be testifying at the trial, appellant began arguing about how the police could prove he shot anybody, and stated, “You know to go ahead and get that warrant.” This led to Fedrick’s remark that “[w]hat we are telling you right here[ is] what this warrant states. If we didn’t believe we had enough evidence to say, hey, we have got it . . . [t]hat would be a different story.”

Reading the challenged statement in the context of the entire interview, the transcript of which we have carefully reviewed, we agree with the State that Fedrick was merely informing appellant, during a section of the interview in which appellant was challenging the adequacy of the police department’s information, that the police had accumulated sufficient evidence to obtain the arrest warrant, and that Fedrick was not stating his opinion as to the ultimate issue for the jury, i.e., that there was enough evidence to convict appellant of the charged crime. Thus, we do not agree with appellant that the admission of this portion of the videotape constituted an impermissible comment by Fedrick on his opinion of an ultimate fact in the case so as to bring the statement within the prohibition set forth in Fordham v. State, 254 Ga. 59 (4) (325 SE2d 755) (1985). Compare Carroll v. State, 185 Ga. App. 857, 858 (1) (366 SE2d 232) (1988) (witness improperly allowed to testify that appellant committed theft). Furthermore, the trial court carefully admonished the jury that “what other people had told [the officers] is hearsay and ... is not admitted into evidence and is not to be accepted by you as true, as evidence of the truth of what the officers say other people told them. It is admitted only to enable you to comprehend the questions that the officers asked and the responses that [appellant] made in response thereto. You bear that carefully in mind. . . . What [appellant] said is admissible. What the officers said other people had told them or they believed or they had discovered is hearsay and is inadmissible and cannot be considered by you as evidence of the truth of what other people told them or what they believed or what they had discovered.” Given the nature of the comment and the extensive curative instruction to the jury, we find no reversible error was committed by the introduction of the challenged statement.

2. Appellant contends the trial court erred by refusing to give his requested charge on the principle of accident. The trial court did charge the jury on self-defense as appellant requested. “The essence of the defense of accident is that the defendant’s act was not intentional. The defense of self-defense, on the other hand, admits the intentional commission of the act, but seeks to justify the act based on the legal excuse that the defendant acted from reasonable fear of immediate serious harm. The defenses of accident and self-defense are therefore inconsistent, and a defendant generally is not entitled to a charge on both. [Cits.]” Culbreath v. State, 258 Ga. 373, 376 (4) (369 SE2d 29) (1988). Regardless of the reason why appellant drew his weapon, the discharge of the weapon inside the truck was the result of either an intentional or an unintentional act by appellant, and we find no error in the trial court’s refusal to give appellant’s requested charges on both accident and self-defense. The facts in the case sub judice clearly distinguish it from Henderson v. State, 153 Ga. App. 801, 806 (7) (266 SE2d 522) (1980), cited by appellant, in which giving charges on both self-defense and accident was appropriate because there was some evidence that after the defendant therein took a gun from the victim during an argument, the victim was shot when the gun fired after the defendant tripped or fell.

Decided May 31, 1991.

Kathleen J. Anderson, for appellant.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.

3. We find no error in the trial court’s refusal to give appellant’s requested charge on the lesser included offense of pointing a gun at another. As clarified by the Supreme Court in Rhodes v. State, 257 Ga. 368 (359 SE2d 670) (1987), OCGA § 16-11-102 (misdemeanor pointing of a firearm) applies only where the victim is not placed in reasonable apprehension of immediate violent injury by the pointing of the firearm (e.g., when the victim is unaware a weapon has been pointed at him or her), since otherwise the act of pointing a firearm at a person comes within the definition of aggravated assault, OCGA §§ 16-5-20 (a) (2) and 21 (a) (2). Given the victim’s testimony and appellant’s own statement that he drew his firearm in response to the violence of the confrontation between the victim and him, no evidence was adduced to authorize the giving of the requested charge. See generally Jones v. State, 196 Ga. App. 877, 878 (397 SE2d 303) (1990).

Judgment affirmed.

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


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A91A0203.
    FOREMAN v. CITY OF COLLEGE PARK.
    (406 SE2d 261)
   Cooper, Judge.

Appellant was convicted in a bench trial in College Park Municipal Court of public drunkenness and appealed his conviction by writ of certiorari to Fulton Superior Court. The superior court overruled and dismissed the petition finding substantial evidence to support the conviction. We granted appellant’s application for discretionary appeal to consider his contentions that the conviction was contrary to the evidence and the trial court failed to consider all the evidence.

The evidence adduced at trial reveals that an anonymous call to the police reported that someone, possibly drunk, was urinating on the side of a road. Responding to the call, an officer observed appellant staggering on the sidewalk, and before he had an opportunity to ask appellant any questions, appellant said, “What are you f — ing with me for?” The officer testified that appellant’s pants were unzipped, he appeared confused and unsteady on his feet, and there was a strong odor of alcohol on his breath and clothing. Appellant was arrested and taken to jail; however, no sobriety test was administered. During his booking at the jail, appellant informed officials that he was diabetic and had already taken his prescribed quantity of insulin for the day. Two days following his arrest, appellant was released from jail and was transported by ambulance to the hospital. He was admitted to intensive care in severe diabetic coma. In his own defense, appellant testified only that he had not been drinking the evening of his arrest. Appellant also introduced a medical record of his hospitalization which he contends was not considered by the court because immediately after admitting the document, without reading the report, the trial court found appellant guilty and imposed a fine.

Decided May 31, 1991.

Sonja L. Salo, for appellant.

George L. Barron, Jr., Glaze, Fincher, & Bray, George E. Glaze

1. Appellant enumerates the general grounds. OCGA § 5-4-12 (b) provides that “the scope of superior court review in certiorari cases shall include a determination ‘as to whether the judgment or ruling below was sustained by substantial evidence.’ ” Smith v. Elder, 174 Ga. App. 316 (1) (329 SE2d 511) (1985). After reviewing the evidence adduced at trial, it is apparent that there was substantial evidence to support appellant’s conviction of public drunkenness beyond a reasonable doubt.

2. Appellant sought via the medical record to establish that at the time of his arrest he was suffering from insulin shock and was not intoxicated. He contends the trial court erred in failing to consider the medical record. A review of the trial transcript reveals that when appellant’s counsel attempted to introduce the medical record, the trial court properly instructed counsel that a foundation needed to be laid prior to its introduction (see Dennis v. Adcock, 138 Ga. App. 425 (2) (226 SE2d 292) (1976)); however, after several unsuccessful attempts to explain the necessity of a foundation to counsel, the court admitted the document. The medical record indicated that at the time of his release from jail, two days after his arrest, appellant was in a severe diabetic coma, but appellant offered no evidence to demonstrate the relevance of his condition at that time to his condition at the time of his arrest. In our view, the trial court’s failure to consider the medical record did not negate its adjudication of appellant’s guilt beyond a reasonable doubt, based on the direct evidence provided by the arresting officer of appellant’s condition at the relevant time — at his arrest, or the superior court’s determination that the judgment was supported by substantial evidence; therefore, the superior court did not err in overruling and dismissing appellant’s writ.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.

Laurel E. Henderson, for appellee.


text:
    A91A0374.
    GRICE v. THE STATE.
    (406 SE2d 262)
   Cooper, Judge.

Appellant was convicted by a jury of theft by taking and appeals the denial of his motion for new trial, raising five enumerations of error.

1. “ ‘Defense counsel has concluded his arguments as to [certain of the] enumeration [s] of error by stating the trial court’s action violated [appellant’s] rights under certain designated sections of the United States and Georgia Constitutions. It behooves counsel appearing before this court to recognize that rote repetition of constitutional provisions is totally ineffective in raising a constitutional issue for this court’s determination. A constitutional issue cannot be considered when asserted for the first time on appeal but must be clearly raised in the trial court and distinctly ruled upon there. Contentions regarding a constitutional issue which were not made below are thus not passed upon here.’ [Cit.]” Martin v. State, 195 Ga. App. 548 (1) (394 SE2d 551) (1990).

2. Appellant first enumerates as error the admission into evidence of the testimony of two employees of the jewelry store as to the retail price of the diamond ring stolen from the store. Appellant contends that where the property taken is a unique object such as a work of art, antique or diamond ring, the valuation of the stolen item should be accomplished only by expert testimony. We disagree. Retail value or price is the standard to be used in establishing value in theft by taking from retail establishments. Brown v. State, 143 Ga. App. 678 (1) (239 SE2d 556) (1977). See also Bryan v. State, 148 Ga. App. 428 (2) (251 SE2d 338) (1978). Moreover, this court has previously held that “[o]ne need not be an expert or dealer in the article but may testify as to value if he has an opportunity to form a correct opinion. [Cits.]” Ragsdale v. State, 170 Ga. App. 448, 449 (317 SE2d 288) (1984). In the case sub judice, both of the witnesses were employees of the jewelry store familiar with the stolen diamond ring, and therefore competent to testify as to its value. Appellant had an opportunity to cross-examine the witnesses and to present contrary evidence of value, if he had wanted to do so. Accordingly, this enumeration of error is without merit.

3. Appellant enumerates as error, the admission into evidence of an exhibit evidencing that the jewelry store paid $1,175 for the diamond ring. Appellant correctly cites from Brown v. State at 679, that ‘retail value or price is the standard to be used in theft by taking cases from retail establishments and where once established the wholesale price is not relevant.” However, “the rule that cost price is not probative evidence of market value is ameliorated by the allowance of proof of price at purchase as a circumstance from which value may be inferred.” Ragsdale, supra at 449. In the present case witnesses testified that the retail price of the diamond ring at the time it was stolen was $1,496, and an exhibit was offered into evidence which indicated that the jewelry store paid $1,175 for the ring. Although the wholesale cost of the ring may not have had probative value under Brown v. State, any error was harmless error, as the higher retail value of the ring had already been properly established by the evidence. See Young v. State, 144 Ga. App. 712 (2) (242 SE2d 351) (1978).

4. Appellant enumerates as error the trial court’s denial of his motion for directed verdict on the basis that the State failed to prove the value of the ring to be in excess of $500. The value of a stolen item is relevant only for the purpose of distinguishing between a misdemeanor and a felony. Dotson v. State, 144 Ga. App. 113 (2) (240 SE2d 238) (1977). “If there is ‘any evidence’ that the property which is the subject of theft is of ‘some value’ the conviction can be sustained. [Cit.]” Bryan v. State, supra at 429, 430. In the present case, there is no question that the State established value. Thus, it was not error for the trial court to deny appellant’s motion for directed verdict.

5. In his fourth enumeration of error, appellant argues that the trial court’s charge on flight was unconstitutionally burden-shifting. We disagree. The jury charge on flight given by the trial court was neither burden-shifting, nor violative of appellant’s constitutional rights. Terrell v. State, 258 Ga. 722 (2) (373 SE2d 751) (1988); Sweet v. State, 196 Ga. App. 451 (2) (396 SE2d 82) (1990).

6. In his fifth enumeration of error, appellant argues that the trial court erred in failing to instruct the jury on how to determine value. The transcript reveals that following the charge to the jury, the trial court asked for objections to the jury charges. Appellant’s counsel objected only to the charge on flight. “ ‘If the trial court asks whether or not there are any objections to the charge, counsel must either state his objections or reserve his right to object on motion for new trial or on appeal.’ [Cit.] An appellant cannot elect to object at trial to some j of the charges and reserve his right to object to additional charges later. ... ‘In the absence of an objection to the alleged improper charge or reservation of the right to object, the asserted error is waived.’ [Cits.]” Laster v. State, 196 Ga. App. 854, 855 (397 SE2d 191) (1990). Moreover, appellant did not request a charge on value. I “ ‘(T)his court has held that where there has been no written request I to charge, failure to give the charge is not error. [Cits.]’ [Cits.]” Lamb I v. State, 196 Ga. App. 665 (3) (396 SE2d 497) (1990). Appellant’s acquiescence to the jury charges as given, precludes him from objecting to the omission of a charge on determining value on appeal.

Decided May 31, 1991.

Jackson & Schiavone, G. Terry Jackson, Mark E. Smith, for appellant.

Spencer Lawton, Jr., District Attorney, David E. Langford, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


author: Banke, Presiding Judge.

text:
    A91A0438.
    BRACEY v. KING.
    (406 SE2d 265)
   Banke, Presiding Judge.

The appellant brought this action against the appellee seeking to recover for alleged flooding damage to her property caused by the downstream obstruction of a creek. The case is before us on appeal from the grant of the appellee’s motion for summary judgment.

On March 30, 1988, the appellee and his brother sold the appellant a vacant lot in a subdivision which they were developing. The lot was traversed by a natural stream, and the appellant acknowledged at the time of the purchase that a portion of the property was in a flood plain. Subsequent to the purchase, she observed that water was backing up onto the lot as the result of one or more dams which had been constructed downstream by beavers, on property still owned by the appellee and his brother. The appellant complained about this to the appellee’s brother and to the real estate broker who had handled the sale, and the appellee’s brother responded by having a backhoe brought in to destroy the dams; however, within a month the beavers had rebuilt them. Again the appellee’s brother had a backhoe brought in to destroy the dams, but again the beavers prevailed. The appellant does not allege that she or any of her agents have been denied permission to enter upon the property of the appellee and his brother to remove the dams. The trial court granted the appellee’s motion for summary judgment based on a conclusion that the dams constituted a natural obstruction which the appellee was under no legal obligation to remove. Held:

1. “The owner of land through which nonnavigable watercourses flow is entitled to have the water in such streams come to his land in fits natural and usual flow, subject only to such detention or diminution as may be caused by a reasonable use of it by other riparian proprietors. The diverting of the stream in whole or in part from its natural and usual flow, or the obstructing thereof so as to impede its course or cause it to overflow or injure the land through which it flows . . . shall constitute a trespass upon the property.” OCGA § 51-9-7. However, “a landowner is not liable for the diversion [or obstruction] of surface water unless he diverts [or obstructs] the natural flow of water by ‘artificial means.’ ” Kiel v. Johnson, 179 Ga. App. 43, 44 (2) (345 SE2d 131) (1986). Accord Brown v. Tomlinson, 246 Ga. 513, 514 (272 SE2d 258) (1980).

The trial court clearly was correct in its conclusion that a beaver dam is naturally created as opposed to an artificially created obstruction. Cf. Dawson v. Wade, 257 Ga. 552 (361 SE2d 181) (1987). The appellant argues that the appellee and his brother nevertheless became responsible for the dams by “allowing them] to exist for the length of time it took to damage appellant’s lot and decrease its value.” This contention is, however, completely contrary to established precedent.

“[A] riparian owner is not to be held responsible for the effects of the forces of nature, . . . and he owes no duty either to a lower or to an upper riparian owner to remove [natural] obstructions, so as to release water thereby caused to be backed over the land of an upper riparian owner; and therefore a failure to do so, even after notice, does not subject such owner to an action ex delicto for damages. It is true that a riparian owner is not to be allowed to ‘co-operate with, augment, or accelerate’ [cit.] the forces of nature to the injury of another riparian owner, and that because of an existing easement resting in the plaintiff upon adjoining lands to have the water flow as to natural quantity from his land [cit.] the defendant ‘would as to such naturally arising obstructions be bound ... to permit the plaintiff to enter upon his (defendant’s) land after due notice, and at her (his) own expense . . . clear away such naturally arising obstructions from the channels’ [cit.]; and where the defendant refused to permit the plaintiff at his own expense to remove the obstruction an action for damages would lie, as was held in Parrish v. Parrish, 21 Ga. App. 275 (94 SE 315) [1917]. However, ... no duty rest[s] on [the defendant] to remove the obstruction. . . .” (Emphasis from original.) Cole v. Bradford, 52 Ga. App. 854, 855 (184 SE 901) (1936). Were the law| otherwise, then the distinction between natural and artificial obstructions would be completely illusory.

There is no suggestion in this case that the appellee and/or his I brother imported the offending beavers onto their property, trained them to build the dams, or in any way assisted or encouraged them in this activity. Rather, the evidence indicates without dispute that thel appellee and his brother were not even aware of the existence of the dams until the appellant complained about them. Accordingly, thel trial court did not err in granting the appellee’s motion for summaryl judgment.

Decided May 31, 1991.

Loftiss, Van Heiningen & Ward, J. Patrick Ward, for appellant.

William U. Norwood III, for appellee.

2. Finding no basis upon which a reversal of the trial court’s judgment could reasonably have been anticipated, we hereby assess a $300 penalty against the appellant pursuant to Rule 26 (b) of this court for filing a frivolous appeal. Upon the return of the remittitur from this court, the lower court is hereby ordered to enter judgment against the appellant and in favor of the appellee in this amount.

Judgment affirmed with direction.

Carley and Beasley, JJ., concur.


author: Birdsong, Presiding Judge.

text:
    A91A0496.
    DANIEL et al. v. SAFEWAY INSURANCE COMPANY.
    (406 SE2d 266)
   Birdsong, Presiding Judge.

Jason C. Daniel, Henry E. Daniel, Jr., and Soccer United, Inc., appeal from the grant of summary judgment to Safeway Insurance Company in a declaratory judgment action about an exclusion in Safeway’s insurance policy.

Jason Clary, a passenger in a car driven by Jason C. Daniel and owned by Henry E. Daniel, Jr., was injured in a collision with a car driven by Neal B. Miller and owned by R. L. Miller. At the time of the collision, Jason Daniel, an employee of Soccer United, was taking Jason Clary to the Soccer United soccer camp where Jason Clary was a camper.

In January 1989, Jason Clary filed suit against Soccer United and the drivers and owners of both cars for the damages incurred as a result of the collision. The complaint alleged causes of action against both drivers for their negligence and against both owners under the family purpose doctrine. The complaint also alleged that Soccer United was liable for the actions of its agent, Jason Daniel, who was acting within the scope of his employment.

The lawsuit was reported to Safeway and in accordance with the policy it provided a defense to the Daniels by retaining counsel who filed an answer and participated in discovery. Safeway did not provide a reservation of rights letter or non-waiver agreement before doing so. In June 1989, the parties took the depositions of Jason Clary’s parents. They testified that in addition to other fees for the soccer camp, they paid a $35 fee to Soccer United so that Jason would be transported to and from soccer camp. The depositions do not show, however, that Jason Daniel received any of the transportation fee.

In April 1990, Safeway filed this declaratory judgment action based on a provision in the policy excluding coverage arising from “ownership or operation of a vehicle while it is being used to carry persons or property for a fee.” Subsequently, Safeway moved for summary judgment contending that the exclusion was applicable to this incident. Thereafter, Jason Clary, the Millers, the Daniels, and Soccer United responded to Safeway’s motion and also filed their own motion for summary judgment which contended that Safeway was es-topped from asserting the exclusion because Safeway assumed the defense of the action without a reservation of rights or a non-waiver agreement and because the exclusion is ambiguous and inapplicable to the facts of the litigation.

Although Safeway responded neither to the defendants’ motion for summary judgment nor to the response to its motion, the trial court granted Safeway’s motion and denied the motion by Soccer United, Jason Clary, the Daniels, and the Millers. The Daniels and Soccer United now appeal. Held:

1. Regardless whether the exclusion in the Safeway policy may be enforced generally, the record before us shows summary judgment was improperly granted to Safeway because the response to its motion showed a question of material fact remained. An insurer may waive or may be estopped from enforcing even valid policy exclusions by failing to assert them in a timely manner. State Farm &c. Ins. Co. v. Wright, 137 Ga. App. 819 (224 SE2d 796). The record, particularly Jason Daniel’s affidavit stating that Safeway assumed the defense without a reservation of rights or a non-waiver agreement, shows an issue exists in this case concerning the application of the doctrines of waiver or estoppel.

The record shows information at some point came to Safeway’s knowledge that the exclusion might be applicable, but it may not have taken measures to reserve its rights under the policy. Although the record does not show when Safeway received this information, it does show that the complaint contained information showing that Jason Daniel was within the scope of his employment at the time of the collision and the Clarys’ depositions showed that they paid a transportation fee for their son. As the movant, Safeway had the burden of showing that it was entitled to the relief it sought. Further, the evidence must be construed in favor of the respondents to Safeway’s motion and they must be given the benefit of all inferences and reasonable doubts. OCGA § 9-11-56 (c); Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843). Therefore, we must deem that the information upon which the exclusion is being asserted came to Safeway at least shortly after the Clarys’ depositions. As the exclusion was not asserted for ten months thereafter, a question of fact exists whether Safeway is estopped from asserting the exclusion and thus the grant of summary judgment was not authorized.

2. Regarding the allegation that the Daniels and Soccer United’s motion for summary judgment was erroneously denied, the record shows that Safeway provided a defense in this action without a reservation of rights or a non-waiver agreement and that Safeway relied upon the Clarys’ depositions taken some ten months before it attempted to assert the exclusion. In this analysis, however, Safeway and not the Daniels and Soccer United are entitled to a favorable construction of the evidence and all reasonable doubts.

Knowledge by the insurance company of information under which the exclusion might be invoked is an essential ingredient to asserting the doctrine of waiver. Prescott’s Altama Datsun v. Monarch Ins. Co., 253 Ga. 317 (319 SE2d 445). Thus, construing the evidence in Safeway’s favor, the allegation in the complaint regarding Jason Daniel’s acting within the scope of his employment does not require the construction that he was receiving a transportation fee for his services. Further, as the evidence of record does not show when Safeway received information supporting application of the exclusion, if we give Safeway the benefit of all reasonable doubts we must conclude that an issue exists on whether it acted promptly in asserting its rights. Therefore, we cannot say that estoppel or waiver must be applied. Moreover, estoppel usually is an issue of fact. Tally v. Atlanta Nat. &c. Trust, 146 Ga. App. 585, 589 (246 SE2d 700). Thus, affording Safeway its rights as a respondent to the motion for summary judgment (OCGA § 9-11-56 (c)); Moore v. Goldome Credit Corp., supra), the record does not suggest that the trial court erred by denying summary judgment to Soccer United and the Daniels.

3. Because of the state of the record on whether Jason Daniel received the transportation charge paid by the Clarys, we cannot address the applicability of the policy exclusion under the facts of this case. Although the pleadings in support of the Daniels’ motion for summary judgment state that certain events occurred, this is not sufficient for these purposes. “[A] brief in support of a motion for summary judgment is not proper evidence upon which summary judgment can be granted.” Lynch v. Ga. Power Co., 180 Ga. App. 178, 179 (348 SE2d 719). Accordingly, the trial court did not err by refusing to hold the exclusion ambiguous as a matter of law under the facts of the case.

Judgment reversed.

Pope and Cooper, JJ., concur.

Decided May 31, 1991.

Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, Wayne D. McGrew III, Todd M. Yates, for appellants.

F. Earl Wiggers, Jr., James A. Goldstein, for appellee.


text:
    A91A0616.
    TURNER v. THE STATE.
    (406 SE2d 512)
   Banke, Presiding Judge.

Turner appeals his convictions of armed robbery, kidnapping, possession of a firearm during the commission of a felony, and rape. Held:

1. The appellant contends that the trial court erred in allowing him to represent himself at trial, without first apprising him fully of the dangers of proceeding pro se. The public defender had been representing the appellant for several months prior to trial, but on the day of the trial the appellant told the court that he was dissatisfied with the public defender and desired another attorney. The trial judge informed the appellant that he did not consider this request to be timely under the circumstances and that the trial would proceed. While acceding to the appellant’s expressed preference to represent himself rather than be represented by the public defender, the trial judge instructed the public defender to sit at his table and provide him with such assistance during the trial as he might desire. The public defender did so and was an active participant in the appellant’s defense.

There is no Sixth Amendment guarantee of a “ ‘meaningful relationship’ between an accused and his counsel.” Morris v. Slappy, 461 U. S. 1, 14 (103 SC 1610, 75 LE2d 610) (1983). “[A] criminal defendant will not be permitted to use the discharge of counsel and employment or appointment of another as a dilatory tactic in postponing or avoiding trial of the issue. [Cit.] [While] all criminal defendants have a constitutional right to be defended by counsel of their own choosing whenever such counsel may reasonably be secured!,] ... an indigent criminal defendant does not have an absolute right to discharge one court-appointed counsel and have another substituted in his place. A request of this sort addresses itself to the sound discretion of the trial court.” (Indentation omitted.) Williams v. State, 169 Ga. App. 812, 815 (315 SE2d 42) (1984). Under the circumstances of this case, we hold that “the trial court did not abuse its discretion in requiring the trial to proceed with appointed counsel giving such assistance as was possible. . . .” Id.

2. The appellant contends that his character was improperly placed in issue by a GBI agent’s “unresponsive” statement revealing that other criminal charges had at one time been pending against him (the appellant) in Pickens County. The agent was being cross-examined by the appellant at the time as to whether he had previously told the appellant while interviewing him in Pickens County that his fingerprints had been lifted from the scene of the offenses for which he was on trial in Habersham County. The agent responded that he did not recall having told the appellant that; and the appellant then asked him the following question: “All right, didn’t your — are you sure you didn’t tell [me] that we have . . . your fingerprints off a door handle of the Cape Cod Inn, and you will be took (sic) to Habersham County to stand trial for these charges?” The witness replied as follows: “I informed you that you were being arrested for the charges. I informed you that when you . . . made clear your charges in Pickens County you would be brought to Habersham County, but I do not remember telling you distinctly that we had your fingerprints.”

We do not consider this answer unresponsive to the line of questioning being pursued by the appellant. The appellant had already asked the agent whether the agent had previously told him that his prints had been lifted from the inn, and the agent had responded that he did not recall having said that. The appellant then questioned him further about what was said during the interview in question, and the agent simply told him. The trial judge was authorized to conclude under these circumstances, that the agent’s response was “consistent with the line of questioning pursued by the defense. . . Fields v. State, 176 Ga. App. 122, 123 (335 SE2d 466) (1985). Furthermore, in the context of the other evidence introduced during the trial of the case, we consider the statement at issue to have been harmless. See generally Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976).

3. The appellant contends that the trial court erred in allowing a deputy sheriff to reveal to the jury certain incriminating statements which he (the appellant) had made while being transported to the Habersham County Jail from a state facility. The deputy testified that as they were en route to the jail, he asked the appellant what he was charged with and that the appellant responded by saying, “[Y]ou know what they’ve got me charged with.” The deputy testified that he denied any such knowledge and that they then began talking “about some of the people in the jail being afraid of [the appellant].” He stated that following a brief lull in the conversation, the appellant began complaining to him about his lawyer and that he responded by telling the appellant, “[T]alk to your lawyer . . . the lawyer will treat you right. . . .” The deputy testified that following another lull in the conversation, the appellant leaned forward, said, “[Y]ou seem to be the guy I can talk to,” and then proceeded to give an account of his actions on the night of the events alleged in the indictment.

Decided May 31, 1991.

Neil A. Smith, for appellant.

Michael H. Crawford, District Attorney, E. Jay McCollum, Assistant District Attorney, for appellee.

“ ‘ “(I) nter rogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.’ Rhode Island v. Innis, 446 U. S. 291, 301 (100 SC 1682, 64 LE2d 297) (1980). In the present case, it does not appear as a matter of law from the evidence that the deputy knew or should have known that his responsive statement was reasonably likely to elicit an incriminating response from the appellant. This was a question of fact to be resolved by the trial court; and we cannot say that the trial court abused its discretion, under the circumstances, in concluding that no interrogation had occurred. It follows that the court did not err in allowing the testimony.” Davis v. State, 191 Ga. App. 566, 568 (4) (382 SE2d 396) (1989). Accord Holland v. State, 190 Ga. App. 169, 170 (378 SE2d 513) (1989).

4. The appellant complains that the state’s attorney improperly commented on his failure to testify by making the following statements during closing arguments: “The [appellant] through his cross-examination tried to insinuate certain things, ladies and gentlemen. Any insinuation by any attorney or the defendant in this case is not evidence. The question that you ask a witness is not evidence. He’s tried to insinuate a lot of things. . . . There’s not been one bit of evidence to rebut [the state’s evidence]. There’s not been one bit of evidence to rebut that it was [the appellant] that did that other than his insinuations by his questioning. . . .” We hold that these statements would not necessarily and naturally be construed by the jury as a comment on the appellant’s failure to testify. Rather, they would more likely be construed as a permissible argument “that the defense did not present evidence to refute the state’s case or to rebut the veracity of the state’s witnesses.” Lowe v. State, 253 Ga. 308, 310 (319 SE2d 834) (1984). In any event, the appellant waived the right to assert these statements as error on appeal by failing to object to them at trial. Epps v. State, 168 Ga. App. 79, 81 (4) (308 SE2d 234) (1983).

Judgment affirmed.

Carley and Beasley, JJ., concur.


author: Sognier, Chief Judge.

text:
    A91A0671.
    BLACKSHEAR v. THE STATE.
    (406 SE2d 269)
   Sognier, Chief Judge.

Carl Blackshear was convicted of three counts of aggravated assault, and he appeals.

1. Appellant contends the weight of the evidence does not support his conviction. “[0]n appeal, this court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cit.]” Dearmore v. State, 196 Ga. App. 865, 866 (1) (397 SE2d 200) (1990). Construed to support the verdict, evidence showed that after appellant had an argument on the afternoon of April 20, 1990 with his aunt, Cleasie Blackshear, he visited his uncle, Robert Tor-rence, who owned a Bryco .380 calibre automatic handgun. About 11:45 p.m. that same day, at least three bullets were fired into the kitchen of Cleasie Blackshear’s mobile home, where her relatives, Primus Simmons III, James Simmons, and Larry Simmons, were talking. Primus Simmons was hit in the abdomen by one of the bullets. One bullet was found on the floor and a second bullet was extracted from the wall by Larry Simmons. Expert testimony was presented that the bullets recovered from the Blackshear home were fired from Torrence’s gun. Lloyd Gibbs, the Wilkinson County sheriff, testified that based on information from people at the scene of the shooting and from the Twiggs County Sheriff’s Office, he and several deputies found appellant at his sister’s home less than two hours after the shooting. Appellant was in possession of Torrence’s gun and threatened to shoot Gibbs, who attempted, without success, to persuade appellant to put down the gun. Torrence testified that he was on his way to report that his gun was missing when, seeing police vehicles at his niece’s home, he stopped and persuaded appellant to surrender the weapon. Even after the weapon was retrieved, appellant struggled with the police officers who were trying to take him into custody.

Appellant testified that upon seeing a friend enter Cleasie Black-shear’s home, he walked up to speak to the friend, whereupon Black-shear ran outside and started shouting at and threatening appellant. Appellant left and went to Torrence’s house, where he stated he got the gun in order to defend himself. He testified that knowing his aunt was on her porch, he fired the gun six times outside into the air in order to scare her so she would not bother him. He stated that when Sheriff Gibbs arrived at appellant’s sister’s home, Gibbs approached appellant with a drawn pistol. Appellant testified that the .380 was in his pocket and that he placed it on the couch, denying that he had threatened the officer.

We find that a rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the three counts of aggravated assault under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Terry v. State, 195 Ga. App. 505 (1) (394 SE2d 132) (1990).

Decided May 31, 1991.

Waddell, Emerson, George & Buice, Hulane E. George, for appellant.

Joseph H. Briley, District Attorney, Fredric D. Bright, Assistant District Attorney, for appellee.

2. Appellant contends the trial court erred by denying his motion to exclude testimony by Sheriff Gibbs and other witnesses regarding the confrontation between appellant and the police leading up to appellant’s arrest because it showed crimes for which appellant was not charged in the Wilkinson County indictment. Appellant asserts in his brief that criminal charges stemming from this confrontation were pending in Twiggs County at the time of his trial. “ ‘It is well settled that all of the circumstances connected with an accused’s arrest . . . are admissible as evidence at trial, even those that establish the commission of another criminal offense.’ [Cit.]” Jimerson v. State, 163 Ga. App. 54 (1) (293 SE2d 513) (1982). Furthermore, we note that the challenged evidence showed that less than two hours after the shooting appellant was found in possession of the gun that fired the bullets that struck Blackshear’s home and hit Primus Simmons, and that appellant was in a violent and confrontational mood. Accordingly, the evidence was admissible under the balancing test set forth in Bixby v. State, 234 Ga. 812, 813-814 (1) (218 SE2d 609) (1975). See Jimerson, supra at 54-55 (1). We find no error in the admission of this evidence. See King v. State, 163 Ga. 313, 317-318 (1) (136 SE 154) (1926).

Judgment affirmed.

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


text:
    A91A0703.
    DICK ‘N DALE SYSTEMS, INC. et al. v. DANWIL INTERNATIONAL TRADING COMPANY et al.
    (406 SE2d 270)
   Birdsong, Presiding Judge.

Danwil International Trading Company (Danwil) and Khalid Abdulrahyman Al Saleh (Saleh) contracted with Dick ‘N Dale Systems, Inc., to purchase irrigation systems for Saleh in Saudi Arabia, and paid $354,000 including shipping costs. After the goods arrived, the purchasers notified Richard Friedlander, principal of Dick ‘N Dale, that inter alia there were multiple deficiencies in the parts received. According to the evidence, Dick ‘N Dale and Friedlander refused to remedy the situation and did not answer Danwil’s and Saleh’s complaints of breach of warranty, and Friedlander refused to go to Saudi Arabia at Danwil’s expense.

Decided May 31, 1991.

Danwil and Saleh sued Dick ‘N Dale for breach of contract and breach of warranty, contending also that Dick ‘N Dale was a “shell corporation” through which Friedlander routinely transferred personal moneys, so as to pierce the corporate veil. The jury returned a verdict against Dick ‘N Dale and Friedlander for $60,000. Dick ‘N Dale and Friedlander appeal, complaining they were entitled to a directed verdict for plaintiffs’ failure to prove the proper measure of damages for breach of warranty pursuant to OCGA § 11-2-714 (2); and that plaintiffs’ evidence of damages was insufficient to allow the jury to reach a verdict without guesswork and speculation. Held,'.

On appeal of a jury verdict and judgment, the party alleging error has the burden to show error affirmatively by the record, and when the burden is not met, the judgment is assumed to be correct and must be affirmed. Sycamore Pellet Systems v. Southeastern Steam, 196 Ga. App. 717, 718 (397 SE2d 6). A directed verdict is authorized only where there is no conflict in the evidence, and the evidence and all reasonable deductions therefrom demand a certain verdict (OCGA § 9-11-50 (a)); when the jury has rendered a verdict and a complaint on appeal is addressed to the sufficiency of the evidence, the appellate court does not weigh the evidence but only determines whether there is any evidence to support the verdict. Bridges v. Schier, 195 Ga. App. 583, 584 (1) (394 SE2d 408).

Plaintiffs did not frame their suit or their proof merely on grounds of breach of warranty, but pleaded breach of contract as well, and were therefore not restricted to the requirements of OCGA § 11-2-714 (2) as to proof of damages in cases of breach of warranty in commercial transactions. On appeal, appellants do not suggest or demonstrate that plaintiffs had no right to prove damages as for breach of contract including costs of repair, transportation, storage, and other expenses arising out of appellant’s breach of contract (OCGA § 13-6-2); and appellants have not shown affirmatively by the record that the plaintiffs’ evidence does not support at least one of the other theories of recovery in the case, specifically, breach of contract. Plaintiffs produced ample and detailed evidence, not of a speculative nature, to support the jury’s award of $60,000 in damages. Turner v. Connor, 192 Ga. App. 348 (385 SE2d 19). Accordingly, the verdict and judgment are affirmed.

Judgment affirmed.

Pope and Cooper, JJ., concur.

Moore & Chambless, C. Saxby Chambless, for appellants.

Langley & Lee, C. Richard Langley, for appellees.


text:
    A91A0291.
    CARVER v. THE STATE.
    (406 SE2d 236)
   Birdsong, Presiding Judge.

Daniel Brantley Carver appeals his conviction for speeding in violation of OCGA § 40-6-181, being charged with driving 76 mph in a 65 mph speed zone on January 27, 1990. He contends his conviction must be reversed because it is strongly against the weight of the evidence; and it is contrary to law because the trial court misapplied Wiggins v. State, 249 Ga. 302 (290 SE2d 427), by ruling there was no requirement that a state patrolman’s vehicle in which a radar speed detection device was being operated be visible to approaching motorists for a distance of at least 500 feet. He further contends the trial court erred by ruling the prosecution did not have to prove the state patrolman’s radar was not being operated on a hill and there was no requirement to mark the area in which the radar was being operated with signs stating that speeds were being monitored by speed detection devices. Held:

In Wiggins v. State, supra at 304-305, the Supreme Court held in Division 1 that it was permissible for the legislature to establish different criteria for issuing citations, based upon radar speed detectors, for county and municipal officers and for state officers. In Division 2 the court ascertained “the conditions which the General Assembly has imposed upon the admissibility of evidence of speed gained by a state law enforcement officer through use of a radar speed detection device,” and then listed the elements which must be established before evidence of speed gained by use of the speed detection device would be admissible, including the requirement that the vehicle in which the radar was operated be visible to approaching motorists for 500 feet.

It is important to note, however, that the conditions for admissibility stated in Wiggins were those imposed by the General Assembly at that time, and that the conditions were not established by the Supreme Court itself. It is also important to note that between the Supreme Court’s decision in Wiggins in 1982 and January 27, 1990, when Carver was issued a citation for speeding, the General Assembly changed the conditions for admissibility for citations issued by state officers by making the requirement that the vehicle be visible to approaching motorists for at least 500 feet applicable only to “county, municipal, college, or university law enforcement officers.” OCGA § 40-14-7. Therefore, the trial court did not err by finding that the fifth element for admissibility stated in Wiggins no longer applies to state law enforcement officers.

Decided May 13, 1991

Rehearing denied June 3, 1991

Daniel Carver, pro se.

J. Clayton Burke, Jr., Solicitor, for appellee.

In the same manner, the trial court did not err by not requiring the prosecution to prove that the radar was not operated on a hill or that radar warning signs were posted. These requirements also do not apply to the state patrol. OCGA §§ 40-14-6; 40-14-9.

Accordingly, as the prosecution satisfied the existing statutory elements for admissibility of the state patrolman’s testimony concerning the radar results, this testimony was properly admitted and was sufficient to authorize Carver’s conviction for speeding, notwithstanding Mrs. Carver’s testimony to the contrary. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A0575.
    CARTER v. THE STATE.
    (406 SE2d 238)
   Birdsong, Presiding Judge.

Charlie Carter was convicted of two counts of robbery by force, arising out of separate incidents on August 16 and August 18, 1989. In each incident, an elderly man looking for or purchasing a load of watermelons at the Cordele State Farmers’ Market was accosted and robbed by a person who assisted or offered to assist the victim in finding or loading the watermelons. In the August 16 incident, the robber went with the victim, Tillman, in Tillman’s truck, ostensibly to show him a patch of large watermelons on a farm nearby; instead, the robber assaulted Tillman and took his money and his truck, leaving him in the swamp. In the August 18 incident, the robber helped load watermelons onto the truck of an elderly man, Jennings, and then asked for a ride, which Jennings refused; but when Jennings drove out of the gate of the Farmers’ Market, the robber jumped in Jennings’ truck, attacked him, and took his money. Appellant was described by Jennings as wearing a cap with “MCM” embossed upon it; appellant had such a cap when he was arrested at the Sunrise Motel, which is about a block from the Cordele Farmers’ Market. Each victim identified appellant as the person who robbed him.

On appeal, Carter complains of the admission of a prior conviction as a “similar transaction,” and of the trial court’s allowing the victim of that other offense to testify; and appellant contends the evidence generally is insufficient to support the verdict. Held:

1. The trial court did not err in admitting in evidence the conviction of appellant for the offense of theft by taking, arising from his theft of money in July of 1988, from the truck of an elderly victim, Mrs. Cox, after offering to help her load watermelons onto her truck and asking her where her husband was. “Although the [three] occurrences were not identical, there were sufficient similarities to authorize the trial court to admit the testimony. Bloodworth v. State, 233 Ga. 589 (3) (212 SE2d 774) (1975).” Mauldin v. State, 239 Ga. 739 (239 SE2d 5), followed in Brown v. State, 250 Ga. 66, 73 (295 SE2d 727). The evidence was relevant to the offenses charged in this case to show “ ‘identity, motive, plan, scheme, bent of mind and course of conduct.’ ” Harris v. State, 196 Ga. App. 796, 797 (4) (397 SE2d 68).

2. Appellant was not entitled to mistrial on account of the trial court having allowed Mrs. Cox and her granddaughter to testify in this trial to that similar transaction. The record shows that on March 2, 1990, prior to trial on May 28, 1990, the State served notice to appellant of its intent to present evidence of this similar act, in compliance with Superior Court Rules 31.1 and 31.3.

We find no merit in appellant’s complaint that he was not given timely notice of the State’s intent to use Mrs. Cox and her granddaughter as witnesses, in response to his demand for a list of witnesses. OCGA § 17-7-110 does not require the State to give the defendant a list of witnesses ten days prior to arraignment, as appellant contends pro se by way of supplemental brief. The record shows the State did not intend to call Mrs. Cox and her granddaughter, but when appellant at trial objected to admission of his record of conviction for the offense against Mrs. Cox, the State obtained a continuance in order to call Mrs. Cox and her granddaughter in support of its use of that offense as a “similar transaction.” The elderly lady lived in Florida, and that night she commenced a 12-hour drive with her granddaughter to Cordele to testify at this trial the next day. They arrived in the afternoon on the second day of trial. The transcript is silent whether appellant accepted the trial court’s offer to let him interview these witnesses before they testified; therefore, he has failed to demonstrate he was denied access to the witnesses. Felker v. State, 252 Ga. 351 (314 SE2d 621), cert. den. 469 U. S. 873 (105 SC 229, 83 LE2d 158); see State v. McBride, 258 Ga. 321 (368 SE2d 758); Johnson v. State, 171 Ga. App. 91 (318 SE2d 799). In any case, the State properly notified him of its intent to introduce this prior offense in evidence; appellant had notice of the possibility they might be called to support the admission of the conviction, if he objected to it.

3. The evidence was sufficient to enable a reasonable trier of fact to convict appellant of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided May 16, 1991

Rehearing denied June 3, 1991

John W. Sherrer, Jr., for appellant.

Charlie Carter, pro se.

John C. Pridgen, District Attorney, James E. Turk, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A0193.
    GIVENS v. THE STATE.
    (406 SE2d 272)
   Birdsong, Presiding Judge.

Jeffrey Lynn Givens appeals his conviction for aggravated assault, found upon an indictment alleging that he “did unlawfully make an assault upon the person of Shawn Campbell with a knife, a deadly weapon, by stabbing the said Shawn Campbell in the side during a fight. ...” Appellant enumerates two errors below. Held:

1. Appellant contends the trial court erred in refusing his timely request to give a jury charge on the lesser included offense of battery. We find no error. The offense of battery is not necessarily a lesser included offense of aggravated assault. See Tuggle v. State, 145 Ga. App. 603, 604 (244 SE2d 131); accord Mathis v. State, 184 Ga. App. 455, 458 (361 SE2d 856). Although the element of physical or bodily harm is a requisite for battery (see OCGA § 16-5-23.1), where the physical or bodily harm is committed with a deadly weapon, simple battery is not a lesser included offense. Powell v. State, 140 Ga. App. 36 (230 SE2d 90). An issue of lesser included offense may arise in a case where the use of a deadly weapon is not necessarily alleged and proved (see Tuggle, supra), or where the character of the weapon is in question (see, e.g., Haun v. State, 189 Ga. App. 884 (377 SE2d 878)). However, where the indictment alleges assault with a deadly weapon and the evidence shows that an assault was committed with a deadly weapon, as in this case, aggravated assault is proved beyond a reasonable doubt, and the evidence does not support a finding that the defendant committed a battery. Therefore, the trial court was not required to charge the jury on battery as a lesser included offense. See State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550). Compare Haun v. State, supra at 884. See also Doss v. State, 166 Ga. App. 361, 362 (304 SE2d 484).

In this case, appellant did not make a specific written request to charge on a lesser included offense of battery, but merely requested “lesser offense” from the Suggested Pattern Jury Instructions. This was insufficient to constitute a specific written request to charge as to battery, and it was not error for the trial court to fail to charge as to battery (see Morrow v. State, 155 Ga. App. 574 (271 SE2d 707)).

Decided June 3, 1991.

David C. Butler, for appellant.

Thomas J. Charron, District Attorney, Nancy I. Jordan, Assistant District Attorney, for appellee.

According to the standard in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), the evidence was sufficient to enable a rational trier of fact to conclude that if appellant committed any offense, he committed aggravated assault, as charged. Powell, supra; see also Shields v. State, 162 Ga. App. 388 (291 SE2d 448).

2. The trial court did not err in charging the jury on the issue of flight. The evidence that appellant did not remain at the scene (Lindsey v. State, 196 Ga. App. 67 (2) (395 SE2d 328)) raised the issue whether in all the circumstances his act of leaving was due to consciousness of guilt or was attributable to some other cause. See Alexander v. State, 180 Ga. App. 640 (1) (350 SE2d 284). If there is any evidence of flight, however slight, the issue is properly put before the jury. Fredericks v. State, 172 Ga. App. 379, 380 (323 SE2d 265).

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A0655.
    SERCO COMPANY v. CHOICE BUMPER, INC.
    (406 SE2d 276)
   Sognier, Chief Judge.

The Serco Company brought suit against T. C. B. Distributing, Inc., The Choice Bumper, Inc., and Jerry E. Jurden on an account, and subsequently moved for summary judgment against all defendants. The trial court granted the motion as to T. C. B. Distributing and Jurden but denied it as to The Choice Bumper. In Case No. A91A0654, Jurden appealed from the grant of summary judgment to Serco. Serco filed a cross-appeal from the denial of its motion for summary judgment against The Choice Bumper, which we denominated as Case No. A91A0655. Jurden subsequently withdrew his appeal in Case No. A91A0654, leaving only Serco’s cross-appeal pending before this court.

Although under OCGA § 5-6-48 (e), a cross-appeal may survive the dismissal of the main appeal, “this is true only where the cross-appeal can stand on its own merit.” Jones Roofing & Constr. Co. v. Roberts, 179 Ga. App. 169, 170 (345 SE2d 683) (1986). In Southeast Ceramics v. Klem, 246 Ga. 294 (1) (271 SE2d 199) (1980), the Supreme Court held that the denial of a motion for summary judgment, although not a final order and thus not directly appealable under OCGA § 5-6-34 (a), may be appealed without application for interlocutory review when it is enumerated as part of an appeal from a directly appealable order or judgment. When an appeal from the denial of a summary judgment motion is filed as a cross-appeal, appellate jurisdiction over the cross-appeal necessarily arises from the court’s jurisdiction over the main appeal from the directly appealable order, and thus the cross-appeal “ ‘must derive its life from the main appeal.’ [Cit.]” Jones Roofing, supra. In the case at bar, since the main appeal from the directly appealable order was withdrawn in its entirety, and Serco filed no application under OCGA § 5-6-34 (a) for interlocutory review of the denial of its summary judgment motion, we have no independent jurisdiction for the cross-appeal, see Hutchison v. Nat. Svcs. Indus., 191 Ga. App. 885, 886 (3) (383 SE2d 212) (1989), and accordingly it must be dismissed. Id.; see Jones Roofing, supra.

Decided June 3, 1991.

Kidd & Vaughan, Gwenn D. Holland, Jill I. Seligman, for appellant.

Mackay, Cordes, Daniel, King & Hudson, T. Emory Daniel, Jr., David L. G. King, Jr., for appellee.

Appeal dismissed.

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


text:
    A91A0659.
    AMERICAN MOTORISTS INSURANCE COMPANY v. KING SHRIMP COMPANY.
    (406 SE2d 273)
   Birdsong, Presiding Judge.

In this subrogation case, King Shrimp Company filed suit against L. H. Day, Day Trucking Company and Day Trucking Company’s insurer, American Motorists Insurance Company (American Motorists) to recover for loss of a cargo of seafood which was being transported in May 1985, by Day Trucking. Ultimately, King Shrimp’s insurer, National Agra Underwriters Insurance Company, paid King Shrimp’s loss. The complaint alleges that “plaintiff has duly presented its claim to the defendant [American Motorists] and . . . the said defendant has failed or refused to honor the plaintiff’s claim. ...” American Motorists answered and by counterclaim sought a declaration of non-liability based on terms and conditions in the policy. L. H. Day and Day Trucking Company went into default.

The case was heard by the judge sitting alone. In open court, King Shrimp added as a plaintiff its cargo insurer, National Agra. Also in open court, defendant American Motorists dismissed without prejudice its counterclaim which sought a declaration of nonliability based on terms and conditions in the policy, but announced itself ready to respond to the issue of damages. Plaintiffs protested, saying they were in court to determine liability and would offer proof on the point, and that if American Motorists removed the issue of liability by dismissing its counterclaim, it could not later raise it. The trial proceeded. Plaintiffs offered, as to damages, the invoices of King Shrimp’s costs of the goods and an accounting for salvage value. The trial court gave judgment against all defendants for $53,602.69 actual damages, $14,822.84 interest and $22,808.51 attorney fees. Held:

1. American Motorists contends the only issue which was decided or could be decided was the amount of damages, and that its dismissal of its counterclaim for a declaration of nonliability based on terms and conditions of the policy removed the question of liability from this trial. Appellant contends further that plaintiffs apparently sought to file a direct action against it by authority of OCGA § 46-7-12 (e), but failed to allege and prove that the Public Service Commission had approved the insurance policy, citing McClendon Trucking Co. v. Williams, 183 Ga. App. 508 (359 SE2d 351).

Plaintiffs were required to “allege and prove” that appellant’s policy was approved by the PSC (see Carolina Cas. Ins. Co. v. Davalos, 154 Ga. App. 776, 778 (269 SE2d 897)), but plaintiffs could have amended their complaint or even alleged and proven the facts at trial. See OCGA § 9-11-15 (a), (b). Appellant has not contended that plaintiffs’ failure to allege the approval of the PSC of appellant’s policy is a nonamendable defect which entitles it to a dismissal.

If the carrier’s insurance policy is approved by the PSC in accordance with OCGA § 46-7-12, the policy is in the nature of a substitute surety bond (id., (d) and (e); McClendon, supra) and the insurer is absolutely liable for any loss occasioned by its insured, “ ‘ “any provisions in the policy, or in any rider attached thereto, to the contrary notwithstanding.” ’ ” Id. at 509; St. Paul Fire &c. Ins. Co. v. Fleet Transp. Co., 116 Ga. App. 606, 609 (158 SE2d 476). The suit against the insurer is on a contract of which plaintiff is a third-party beneficiary under the law (McClendon, supra at 509); the policy creates a direct and primary “absolute” liability of the insurer (Carolina Cas. Ins. Co., supra at 778) regardless whether its insured breached the conditions of the policy. Seawheels, Inc. v. Bankers &c. Ins. Co., 175 Ga. App. 528 (333 SE2d 650).

Thus, appellant would not have been entitled to a declaration of nonliability based on terms and conditions in the policy. By filing a direct action against the insurer, plaintiffs raised directly the question of “liability.” Although plaintiffs were required to allege and prove that a policy of indemnity insurance was given by appellant in lieu of bond (OCGA § 46-7-12 (c) and (e)), which policy had been approved by the PSC, appellant made no defense to the complaint on this point, but instead purported to raise the question of its liability by way of counterclaim. By pretending to remove the issue of liability by dismissing its counterclaim, appellant prevented plaintiffs from making their proof of liability as they offered to do. If appellant deemed it had a valid defense to liability based on a defect in the plaintiffs’ allegations with reference to § 46-7-12, its filing of a redundant “counterclaim” for a declaration of nonliability was merely an obfuscatory technique, particularly since it asserted nonliability based on terms and conditions in the policy instead of on grounds that plaintiffs had not alleged and proved the policy was approved by the PSC. Assuming appellant thought plaintiffs’ failure to allege and prove that fact is an absolute defense, as appellant asserts on appeal, appellant should have made a defense on that basis instead of leading the court and plaintiffs to proceed on the assumption the plaintiffs could not offer the proper allegation and proof of liability at trial because appellant had dismissed its “counterclaim.”

Having confused the proceedings by this technique of a “dismissal” of the issue of liability, appellant denied plaintiffs the opportunity to prove their case. We cannot affirm the judgment as to liability because of absence of proof that appellants’ policy was registered with the PSC, but we decline to reverse it because this lack of proof is the result of appellant’s failure to make a proper defense in its pleadings and of its dismissal of its specious and redundant “counterclaim” seeking a declaration of nonliability based on terms and conditions in the policy. The case is remanded to the trial court to assume its posture at the time of trial, for the plaintiffs to amend their pleadings and prove their case according to OCGA § 46-7-12 and the rules of civil procedure.

2. Appellant complains that the proof of damages was wholly insufficient to support an award, inasmuch as plaintiffs did not prove “market value” of the goods damaged. These arguments are without merit. Plaintiffs’ evidence of damage was based directly on invoices showing King Shrimp’s costs on the items damaged ($76,775.76), minus the salvage value, which was $23,173.07. In Reynolds Aluminum &c. Co. v. Southeastern Freight Lines, 106 Ga. App. 656, 657 (127 SE2d 877), we said the correct measure of damages for loss of goods by carriers is “the difference between the value of the property at the time and place of delivery in an uninjured condition and its value in the depreciated condition in which it was delivered.” This is a general rule and is consistent with the general rule as to damage to property, including real property. “The only exception [to this rule] is when there is a more definite, equitable and accurate way by which the damage may be determined.” Mercer v. J & M Transp. Co., 103 Ga. App. 141, 143 (118 SE2d 716). King Shrimp’s cost of the goods is a definite and accurate measure of King Shrimp’s loss; it does not include a profit to King Shrimp, as would “the market value at the time and place of delivery,” so appellant can hardly complain that it is not equitable. If we vacate this judgment as to damages, plaintiffs would be within their rights in a remand of the case to present the “market value at the time and place of delivery” as being what King Shrimp would have sold it to the deliveree for, which would no doubt include a profit; the damages would be greater. The valuation given is not patently unreasonable or illegal; there is no evidence in the case to show the valuation of the plaintiffs was unreasonable, so it cannot be said the judgment was without evidence. See Southeast Consultants v. O’Pry, 199 Ga. App. 125 (404 SE2d 299) (1991); Deavers v. Standridge, 144 Ga. App. 673, 676 (242 SE2d 331).

Decided June 3, 1991.

Kennedy, Lewis, Smart & Brannon, Charles W. Brannon, Jr., for appellant.

Hudson, Galloway & Vaughan, J. Scott Vaughan, for appellee.

3. We find no error in the award of attorney fees to plaintiffs. Plaintiffs’ attorney testified the fee to his client (the insurer) was a standard one-third contingency fee. Obviously this fee would be paid by the client. It is immaterial to the entitlement to attorney fees that the client was an insurer in subrogation.

Judgment as to damages affirmed; judgment as to liability vacated and remanded for proceedings consistent herewith.

Pope and Cooper, JJ., concur.


text:
    A91A0117.
    DUGGER v. MILLER BREWING COMPANY.
    (406 SE2d 484)
   Cooper, Judge.

Appellant, who suffered burns and other injuries while attempting to repair a flang valve on a steam line in the course of his employment, made claim for and was awarded workers’ compensation benefits for his medical expenses and lost wages pursuant to OCGA § 34-9-1 et seq. Appellant then brought suit against appellee in the Superior Court of Dougherty County seeking additional compensatory and punitive damages for his injuries. Appellee filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted, contending that the Georgia Workers’ Compensation Act provided appellant his sole remedy for his injuries. Appellant now appeals from the order of the trial court granting appellee’s motion.

1. “It is well settled [under Georgia law] that when an injury arises out of and in the course of employment, the employee’s sole remedy is against the employer, pursuant to OCGA § 34-9-11.” Labelle v. Lister, 192 Ga. App. 464 (1) (385 SE2d 118) (1989). Appellant contends, however, that the exclusive remedy provision of the Georgia Workers’ Compensation Act is not applicable in the instant case because federal law has preempted the exclusivity provision of OCGA § 34-9-11. Specifically, appellant claims that appellee breached its contractual duty to provide a safe work environment for its employees as set forth in a collective bargaining agreement entered into between appellee and the International Association of Machinists & Aerospace Workers Local Lodge 2699, a union of which appellant is a member (the “Collective Bargaining Agreement”). Since actions brought to enforce provisions contained in collective bargaining agreements are governed by federal law, appellant contends that this case “represents the classic conflict between Federal and State law,” which should result in the exclusive remedy provisions of the Georgia Workers’ Compensation Act being preempted by federal labor law, permitting appellant to bring a separate and distinct action against appellee outside the scope of the Workers’ Compensation Act.

It is undisputed that appellant’s injuries arose out of and in the course of his employment and were compensable injuries under the Georgia Workers’ Compensation Act. Moreover, appellant does not contend the Georgia Workers’ Compensation Act is preempted in its entirety by federal law, rather it is appellant’s contention that federal law preempts only OCGA § 34-9-11, the exclusivity provision of the Act. Compare Murphy v. ARA Svcs., 164 Ga. App. 859 (298 SE2d 528) (1982); Cox v. Brazo, 165 Ga. App. 888 (303 SE2d 71) (1983) cited by appellant, where the plaintiffs’ common-law claims for sexual assault were allowed by this court because the injuries sustained by the plaintiffs were held not to be compensable injuries under the Workers’ Compensation Act (OCGA § 34-9-1 (4) excludes injuries caused by the wilful acts of third persons). The issue to be determined in the present case is whether having pursued his rights under the Georgia Workers’ Compensation Act, appellant is now entitled to bring a separate and distinct action against appellee for damages.

“[W]hether a certain state action is pre-empted by federal law is one of congressional intent.” Allis-Chalmers Corp. v. Lueck, 471 U. S. 202, 208 (105 SC 1904, 85 LE2d 206) (1985). In those instances where Congress does not state explicitly whether and to what extent it intends to preempt state law, “courts sustain a local regulation ‘unless it conflicts with federal law or would frustrate the federal scheme, or unless the courts discern from the totality of the circumstances that Congress sought to occupy the field to the exclusion of the States.’ [Cit.]” Id. at 209. The National Labor Relations Act, specifically 29 USCA §§ 157 and 158 relied upon by appellant, controls the right of employees to picket and engage in collective bargaining and prohibits unfair labor practices. The Act does not create or address methods of redress for workers’ accidents or create a cause of action for work-related injuries. Although § 301 of the Labor Management Relations Act (29 USCA § 185) also relied upon by appellant, creates a cause of action for the violation of provisions of a collective bargaining agreement, “not every dispute concerning employment, or tangentially involving a provision of a collective-bargaining agreement, is pre-empted by § 301 or other provisions of the federal labor law.” Id. at 211. “In extending the pre-emptive effect of § 301 beyond suits for breach of contract, it would be inconsistent with congressional intent under that section to pre-empt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract.” Id. at 212. Thus, the Supreme Court has established the following test for determining whether a state cause of action should be preempted under § 301: “[S]tate-law rights and obligations that do not exist independently of private agreements, and that as a result can be waived or altered by agreement of private parties, are pre-empted by [collective bargaining] agreements.” Id. at 213. The question to determine, then, is whether appellant’s claim against appellee is sufficiently independent of the Collective Bargaining Agreement to withstand the preemptive force of § 301.

Although the Collective Bargaining Agreement was not made a part of the record of this case, appellant excerpted the following language in his brief upon which he relies to establish the basis for his claim under § 301:

ARTICLE I, SECTION 3. The Company and the Union agrees with the objective of achieving the highest level of employee performance and efficiency consistent with safety, economy of operation, quality and quantity of output, sanitation, cleanliness of plant, and protection of property, and will not take, authorize or condone any action which interferes with the attainment of such objectives.

ARTICLE XV, SECTION 1. It is the policy of the Company to take reasonable precautions to protect the safety and health of its employees, and to require its employees to work safely. The Company, in furtherance of this policy, will regularly establish safety rules governing the employees and the operations of the plant as circumstances require.

. Under Georgia statutory and common law, an employer owes a duty to his employee to furnish a reasonably safe place to work and to exercise ordinary care and diligence to keep it safe. See, e.g., OCGA § 34-7-20; Owensby v. Jones, 109 Ga. App. 398 (1) (136 SE2d 451) (1964). The only remedy available to an injured employee for an employer’s breach of duty to provide a safe work place, are the rights and remedies provided for under the Georgia Workers’ Compensation Act. Pappas v. Hill-Staton Engineers, 183 Ga. App. 258, 260 (358 SE2d 625) (1987). The provisions of the Collective Bargaining Agreement relied upon by appellant, do not establish or create an independent legal duty or obligation on the part of appellee not already existing under Georgia law. Therefore, any liability on the part of appellee for personal injuries suffered by appellant due to the breach of any duty which may be set forth in the Collective Bargaining Agreement must be remedied pursuant to the provisions of the Georgia Workers’ Compensation Act. Sams v. United Food &c. Union, 835 F2d 848, 850 (11th Cir. 1988). To hold otherwise, would allow employers and labor unions to use collective bargaining agreements to exempt themselves from what is nonnegotiable under Georgia law.

It is noted by this court, that even if appellant’s claim of federal preemption were valid, the proper forum for any action brought by a plaintiff under § 301 of the Labor Management Relations Act is federal district court. Allis-Chalmers Corp. v. Lueck, supra at 220; Sams v. United Food &c. Union, supra at 850.

2. Appellant also contends that he may bring a separate action against appellee independent of the exclusivity provisions of the Georgia Workers’ Compensation Act, because appellee concealed work place hazards in violation of OCGA § 34-7-20. We disagree.

“It is well settled that the Georgia Workers’ Compensation Act precludes recovery of additional damages for willful or intentional acts of the employer so long as the injury arises out of and in the course of employment. [Cits.] ‘In some jurisdictions, exceptions to this general rule are expressly provided by statute. . . . The Georgia Workers’ Compensation Act makes no statutory exception to the exclusive remedy provision.’ [Cit.]” Superb Carpet Mills v. Thomason, 183 Ga. App. 554, 556 (359 SE2d 370) (1987). Moreover, OCGA § 34-7-20 does not provide any such exception. “[T]he exclusive remedy provision of the workers’ compensation laws relieves the employer not only of common law liability but also of statutory liability under state and federal statutes.” Pappas v. Hill-Staton Engineers, supra at 260.

Relying on Johns-Manville Prods. Corp. v. Contra Costa Superior Court, 612 P2d 948 (Cal. 1980), appellant argues that Georgia should adopt the “dual capacity doctrine” which exists in a small number of states. This doctrine has already been rejected by this court. See Porter v. Beloit Corp., 194 Ga. App. 591 (2) (391 SE2d 430 (1990). “We decline appellants’ invitation to adopt the dual capacity doctrine insofar as it removes employer immunity where claims, such as those in this case, are predicated upon a mere separate relationship or theory of liability. Any such claim against an actual or statutory employer ... is not an action against a ‘third-party tortfeasor’ which avoids the immunity provided under OCGA § 34-9-11.” Id. at 593. Therefore, we hold that this enumeration of error is without merit.

Decided May 7, 1991

Rehearing denied June 4, 1991

Morris & Webster, Craig A. Webster, for appellant.

Langley & Lee, C. Richard Langley, L. Clayton Smith, Jr., for appellee.

Judgment affirmed.

Pope, J., concurs. Birdsong, P. J., concurs in the judgment only.


author: Pope, Judge.

text:
    A91A0156.
    RUCKER v. THE STATE.
    (406 SE2d 277)
   Pope, Judge.

Defendant Allen Rucker, Jr., was indicted for the offenses of trafficking in cocaine and possession of marijuana. We granted defendant’s petition for interlocutory appeal of the denial of his motion to suppress the evidence of contraband discovered in a warrantless search of his automobile.

At the suppression hearing the arresting officer testified that previous to the day defendant was arrested he received information from a confidential informant that defendant was selling drugs at several apartment complexes in the area. On the day of the arrest the informant told him defendant was due to make a delivery that day at the apartment complex where he was arrested. Defendant was described only as a black male, but a tag number and model description was given for the car. No evidence was presented concerning the basis of the informant’s knowledge; in fact, the officer did not ask the informant how he had acquired the information. As to the informant’s reliability, the officer testified he had dealt with the informant in the past on several occasions which had led to convictions, but he could not recall the number of occasions or the dates except to say it was between the years 1986 and 1990.

On the day of the arrest, the vehicle in question was observed “moving from one point to another” for about an hour and after officers waited for defendant in the parking lot of the named apartment complex for about two hours, defendant drove up. The arresting officer asked defendant to step out of the vehicle and, without any further investigation, a search was conducted during which the officer discovered cocaine under the seat of the car and marijuana in defendant’s pocket. The officer admitted the contraband was not in plain view and that the search was not conducted incident to arrest; rather, defendant was arrested only after the contraband was discovered.

The issue is whether the officer had probable cause to conduct a warrantless search of defendant’s automobile. The only basis for the search was the information supplied by the informant and the fact that the authorities had observed defendant “moving from one point to another” prior to being stopped. “The sufficiency of information obtained from an informant is not to be judged by any rigid test. Generally, probable cause is determined by the ‘totality of the circumstances’ surrounding (1) the basis of the informant’s knowledge and (2) the informants’ veracity or reliability. Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983). ‘(A) deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.’ Id. at 233.” McKinney v. State, 184 Ga. App. 607, 608-609 (1) (362 SE2d 65) (1987). Here, unlike McKinney, it is questionable, at best, whether the deficiency in the basis of the informant’s knowledge was adequately compensated by the informant’s previous record of reliability. Even if the informant was reliable, where no evidence is presented at the suppression hearing to show “ ‘that the police officer knew how the informant received the information or else had such detailed information that he knew it to be more than mere rumor or suspicion,’ ” then the information was insufficient to establish probable cause for a search. State v. Wells, 153 Ga. App. 308, 309 (265 SE2d 111) (1980) (quoting Love v. State, 144 Ga. App. 728, 735 (242 SE2d 278) (1978)), overruled on other grounds, Parker v. State, 161 Ga. App. 37 (288 SE2d 852) (1982).

Corroboration of the details of a tip by the personal observation of the investigating officers may be another index of the tip’s reliability. McKinney, supra. In this case, the only “details” of the tip which were corroborated by the personal observation of the investigating officers were that the defendant moved about to unspecified locations on the day in question and eventually ended up at the apartment complex where the informant stated he would be supplying drugs. However, the evidence showed that defendant’s automobile had been observed on at least one previous occasion parked for a long period of time at the complex, suggesting that he may have been living there. Because the evidence showed insufficient corroboration of the details of the tip and insufficient evidence to establish the reliability of the informant, the evidence in this case, unlike that in McKinney, did not establish probable cause for a warrantless search. Cf. Williams v. State, 173 Ga. App. 207 (1) (325 SE2d 783) (1984) (where the tip involved sufficient details which were corroborated by observation plus defendant was seen leaving one of the locations identified by the tipster carrying a small paper bag which he placed in the glove compartment of the car). We cannot say here that “any deficiency in the basis of the informant’s knowledge was . . . adequately compensated by the totality of the attendant circumstances.” Whatley v. State, 196 Ga. App. 73, 77 (4) (395 SE2d 582) (1990).

Decided June 4, 1991.

James T. Barfield III, for appellant.

Lewis R. Slaton, District Attorney, Alfred D. Dixon, Joseph J. Drolet, Rebecca A. Keel, Assistant District Attorneys, for appellee.

The tip provided the officer with sufficient articulable facts to make an investigatory stop of the defendant. Grounds for a warrant-less search may arise during an investigative stop. See Anthony v. State, 197 Ga. App. 297 (1) (398 SE2d 580) (1990); Jones v. State, 195 Ga. App. 868 (2) (395 SE2d 69) (1990); Evans v. State, 162 Ga. App. 78 (290 SE2d 176) (1982); Stiggers v. State, 151 Ga. App. 546 (1) (260 SE2d 413) (1979). However, once the defendant was stopped, the officer conducted no investigation or questioning of the suspect but immediately commenced the search. Consequently, unlike the facts in the cases cited above, the search was not proper because it was not based upon probable cause which arose during an investigative stop.

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A0381.
    BROWN v. THE STATE.
    (406 SE2d 516)
   Pope, Judge.

Defendant Carlton Brown was convicted of armed robbery and appeals. Held-.

1. Defendant asserts for the first time on appeal that his trial counsel was ineffective. The record shows defendant’s trial counsel filed a motion for out-of-time appeal which was granted on April 6, 1989. Trial counsel filed the notice of appeal on April 11, 1989.

Because appellate counsel was retained during the pendency of the appeal, we must remand the case to the trial court for a hearing and entry of appropriate findings of fact on the issue of ineffective assistance of trial counsel. See Smith v. State, 255 Ga. 654, 656 (3) (341 SE2d 5) (1986); Weems v. State, 196 Ga. App. 429 (3) (395 SE2d 863) (1990); Hutton v. State, 192 Ga. App. 239, 241 (5) (384 SE2d 446) (1989); cf. Ponder v. State, 260 Ga. 840 (400 SE2d 922) (1991) (which states the procedure to be followed when permission to file an out-of-time appeal is granted and appellate counsel is appointed prior to the filing of the notice of appeal). If defendant prevails on this issue, he will be entitled to a new trial. If he does not, he has a right to appeal that order within 30 days after it is entered. See Ponder v. State, 199 Ga. App. 630 (_ SE2d _) (1991), enforcing Ponder v. State, 260 Ga. 840 (400 SE2d 922) (1991).

Decided June 4, 1991.

Michael J. Classens, for appellant.

J. Lane Johnston, District Attorney, Jack B. Williamson, Jr., Assistant District Attorney, for appellee.

2. Defendant next contends the trial court erred in conducting the trial in his absence. The record shows defendant, who was present when the jury was selected and sworn, failed to return to court on the first day of trial. Both the trial judge and defendant’s attorney had instructed defendant, who was free on bond, to return to court for the trial. Defendant’s attorney, who could not account for defendant’s whereabouts, requested a continuance which the trial court denied.

Defendant appeared at the sentencing phase of the proceedings and testified that the evening before trial he had taken some medication because he was suffering from flu-like symptoms. Defendant further testified that this medication, which he obtained from a friend, caused him to sleep until late in the afternoon of the day of trial. Defendant stated that when he found out the next morning that he had been found guilty he decided to go into seclusion to get his thoughts together, but later voluntarily turned himself in to authorities.

“This case is factually indistinguishable from Byrd v. Ricketts, 233 Ga. 779 (213 SE2d 610) (1975), in which it was held that ‘(c)onfrontation rights are personal to the accused and are waived when the accused is free on bail and voluntarily absents himself from trial. (Cits.)’ Id. at 780. Pollard v. State, 175 Ga. App. 269 (333 SE2d 152) (1985), ... is distinguishable from the case sub judice in that the defendant therein voluntarily absented himself prior to trial before jeopardy attached. We find no error in the trial court’s denial of the motion for continuance.” Edwards v. State, 188 Ga. App. 667, 670 (5) (374 SE2d 97) (1988).

Judgment affirmed and case remanded with direction.

Birdsong, P. J., and Cooper, J., concur.


author: Carley, Judge.

text:
    A91A0499.
    SMITH et al. v. FIRST NATIONAL BANK OF ATLANTA.
    (406 SE2d 519)
    Decided June 4, 1991.

      Finn, Cunningham & Hurtt, R. Scott Cunningham, for appellants.

      McCamy, Phillips, Tuggle, Rollins & Fordham, C. Lee Daniel III, for appellee.
   Carley, Judge.

Appellant-defendants executed a guaranty agreement which was under seal and which provided, in relevant part, that it had been executed in “consideration of the sum of FIVE DOLLARS ($5.00) and other valuable considerations. . . .” When appellee-plaintiff brought suit on the agreement, appellants answered and asserted, among their other defenses, “that they [had] received no consideration in exchange [there]for. . . .” After discovery, cross-motions for summary judgment were filed. The trial court denied appellants’ motion and granted summary judgment in favor of appellee. Appellants appeal from that order.

“[H]ere, where the contract is under seal, thus raising a presumption of consideration, [cit.], and a monetary amount is recited as consideration, the contract is valid notwithstanding the fact that [appellants were] not actually [paid] that amount. [Cit.]” Warthen v. Moore, 258 Ga. 198, 199-200 (1) (366 SE2d 666) (1988). The mere “fact that a recited cash consideration of a contract was not actually paid does not invalidate such contract. It creates an obligation to pay that sum, which can be enforced by the other party. [Cits.]” Nelson v. Woods, 205 Ga. 295, 296 (2) (53 SE2d 227) (1949). Accordingly, it is immaterial to appellants’ liability that the agreement under seal did not itself recite their receipt of the stated cash consideration of $5 or that they did not actually receive that amount as consideration for their execution of the agreement. It follows that the trial court correctly denied appellants’ motion for summary judgment and correctly granted summary judgment in favor of appellee.

Judgments affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    A91A0588.
    In the Interest of C. F., a child.
    (406 SE2d 279)
   Sognier, Chief Judge.

Grace Blackwell filed a petition in the Juvenile Court of Haber-sham County seeking permanent custody of C. F., her deceased daughter’s child. C. F.’s father and paternal grandparents filed a joint answer. We granted Blackwell’s discretionary appeal from the Juvenile Court’s denial of her petition and award of permanent legal custody of C. F. to the paternal grandparents.

The record reveals that Habersham County DFCS obtained temporary custody of C. F., who was then 13 months old and living in Blackwell’s home, in July 1989 when her mother was killed in a train accident. At the time of her mother’s death, C. F.’s father was in jail awaiting trial on charges of manufacturing marijuana. Although DFCS was awarded legal custody, the agency continued physical custody in Blackwell. In December 1989, Blackwell filed this petition in the juvenile court seeking temporary and permanent legal custody. In his answer, the father recognized the possibility that the court might find him unfit to be awarded custody of his daughter, and executed an affidavit stating that he had no objection to the court awarding permanent legal custody of C. F. to his natural parents, with whom he was then living. After the hearing held on the petition, the father and paternal grandparents filed an amendment to their answer withdrawing the father as a correspondent to the petition; alleging that the father no longer lived with his parents; and including an affidavit from the father surrendering his parental rights to C. F. in favor of his parents. Without further hearing, the trial court issued its order awarding the paternal grandparents permanent legal custody of C. F., finding that as a matter of law the paternal grandparents were entitled to custody by virtue of their son’s “assignment [of custody] to them.”

1. Blackwell contends the order is void because the juvenile court lacked subject matter jurisdiction. We agree and reverse.

In the Interest of C. C., 193 Ga. App. 120, 121 (1) (387 SE2d 46) (1989) controls this appeal. Here, as in C. C., there was no order of the superior court transferring the issue of custody so as to meet the requirements of OCGA § 15-11-5 (c) for juvenile court jurisdiction. Further, since DFCS admitted that both grandparental homes were suitable as placements for C. F., the record shows clearly that the child was not deprived so as to confer jurisdiction under OCGA § 15-11-5 (a) (1) (C). Accordingly, as in C. C., supra, “we agree with appellant that the proceedings were initiated in the wrong court, and that the juvenile court lacked original jurisdiction over the petition for permanent custody.” The fact that the wrong forum was chosen by appellant in this case changes nothing, as subject matter jurisdiction is not amenable to waiver. OCGA § 15-1-2; see generally Nicholson v. State, 261 Ga. 197 (403 SE2d 42) (1991).

2. Our holding in Division 1, supra, renders unnecessary consideration of appellant’s remaining enumerations of error.

Decided June 4, 1991.

Carey, Deal, Jarrard & Walker, Mary R. Carden, for appellant.

T. Andrew Dowdy, for appellee.

Ronald Fowler, pro se.

Judgment reversed.

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


text:
    A91A0605.
    TURNER v. KITCHINGS.
    (406 SE2d 280)
   Carley, Judge.

Alleging a claim for legal malpractice, appellant-plaintiff filed suit against appellee-defendant. Appellee answered and subsequently moved for summary judgment, relying upon his own affidavit wherein he averred that his “degree of care and diligence in the handling of the case for [appellant] was that degree of care and skill customarily employed by attorneys under the same conditions and like surrounding circumstances.” After conducting a hearing, the trial court granted summary judgment in favor of appellee and appellant appeals from that order.

Appellee’s own affidavit was sufficient to shift the evidentiary burden to appellant and, if insufficiently opposed, it authorized the grant of summary judgment in appellee’s favor. See Kellos v. Sawilowsky, 254 Ga. 4 (325 SE2d 757) (1985). In opposition to appel-lee’s motion, appellant relied entirely upon the expert affidavit that had been attached to his complaint. However, an affidavit which satisfies the pleading requirements of OCGA § 9-11-9.1 will not necessarily satisfy the evidentiary requirements of OCGA § 9-11-56. Unlike OCGA § 9-11-56, “[n]othing in the affidavit requirements in OCGA § 9-11-9.1 demands that the standard of care be set forth, that a plaintiff’s expert state he is familiar with the appropriate standard of care, or that the affiant detail the manner in which the defendant deviated from that standard.” 0-1 Doctors Memorial Holding Co. v. Moore, 190 Ga. App. 286, 287 (1) (378 SE2d 708) (1989). Assuming, without deciding, that the expert affidavit that was attached to appellant’s complaint was sufficient to satisfy the pleading requirements of OCGA § 9-11-9.1, it was not otherwise sufficient to satisfy the above-noted evi-dentiary requirements of OCGA § 9-11-56. “[A] malpractice plaintiff as respondent on summary judgment cannot prevail on the motion, where the defendant by the content of his expert affidavit has carried his burden of proof, merely by presenting a conclusory opinion that the defendant was negligent or failed to adhere to professional standards of conduct without stating the parameters of such conduct and the particulars of the defendant’s deviation therefrom. . . .” 0-1 Doctors Memorial Holding Co. v. Moore, supra at 287 (1). Since, in opposing appellee’s motion, appellant did not meet his burden, it follows that the trial court correctly granted summary judgment in favor of appellee. See generally Humphrey v. Alvarado, 185 Ga. App. 486, 487 (2) (364 SE2d 618) (1988); Loving v. Nash, 182 Ga. App. 253, 255 (1) (355 SE2d 448) (1987).

Decided June 4, 1991.

John V. Lloyd, for appellant.

Richard D. Phillips, for appellee.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    A91A0647.
    A91A0648, A91A0649.
    FULTON v. PILON. PILON v. BURROUGHS; and vice versa.
    (406 SE2d 517)
   Carley, Judge.

The facts, insofar as they are relevant to the resolution of these appeals, are as follows: After entering into a contract with Robert Pilon, Roscoe Burroughs paid him the sum of $6,000. Thereafter, Jessie Lee Fulton brought suit against Burroughs and Pilón. In her complaint, Fulton alleged that Burroughs had defrauded her of the $6,000 that he had paid to Pilón and that Pilón “knew or should have known” of Burroughs’ fraud. After answers to Fulton’s complaint were filed, Burroughs filed a cross-claim against Pilón with regard to their contract. Following discovery, Pilón moved for summary judgment on Fulton’s main claim and cross-motions for summary judgment were filed by Burroughs and Pilón on the cross-claim. The trial court granted summary judgment in favor of Pilón on the main claim and, in Case Number A91A0647, Fulton appeals from that order. The trial court denied both motions for summary judgment on the cross-claim and, in Case Numbers A91A0648 and A91A0649, Burroughs and Pilón have filed cross-appeals from that order.

Case No. A91A0647

1. “Where parties conspire to defraud the plaintiff or make a wilful misrepresentation of material fact to induce the plaintiff to act to his injury, an action for deceit will lie. [Cit.]” Hines v. Wilson, 164 Ga. 888 (2a) (139 SE 802) (1927). “Where several persons conspire to defraud another, one or all of the wrongdoers may be sued, ‘proof of the conspiracy renders the act of one in deceiving and defrauding the injured party the act of all,’ and an implied or constructive trust may be set up as to the subject-matter of the fraud and conspiracy. [Cit.]” Grant v. Hart, 192 Ga. 153, 156 (5) (14 SE2d 860) (1941). “All persons aiding and assisting trustees of any character, with a knowledge of their misconduct, in misapplying assets, are directly accountable to the persons injured.” Atlanta Trust Co. v. Nat. Bondholders Corp., 188 Ga. 761 (3) (4 SE2d 644) (1939).

In support of his motion for summary judgment, Pilón produced evidence showing that he had not conspired with Burroughs to defraud Fulton of her money and that he had received the $6,000 only in the belief that Burroughs was tendering his own money as contractual consideration. In opposition, Fulton produced nothing to the contrary and no evidence was adduced which would authorize a finding that Pilón was otherwise vicariously liable for Burroughs’ alleged fraud. It follows, therefore, that the trial court correctly granted summary judgment in favor of Pilón on Fulton’s main claim. Under the evidence of record, Fulton has a potentially viable claim for fraud only as against Burroughs and that claim remains pending in the trial court.

Case Nos. A91A0648 and A91A0649

2. Although the grant of summary judgment in favor of Pilon on Fulton’s main claim is directly appealable pursuant to OCGA § 9-11-56 (h), the denials of the cross-motions for summary judgment on Burroughs’ contract cross-claim against Pilon are interlocutory orders which have not been certified for immediate review. However, “the denial of a motion for summary judgment can be appealed without application when it is tied to the appeal of an appealable order or judgment.” (Emphasis supplied.) Southeast Ceramics v. Klem, 246 Ga. 294-295 (1) (271 SE2d 199) (1980). Accordingly, Burroughs and Pilón can appeal if the denials of their motions for summary judgment on the cross-claim are “tied to” Fulton’s direct appeal.

Burroughs’ contract cross-claim against Pilón is entirely separate and distinct from the fraud claim asserted by Fulton in the main action. “The non-final [denials] of [the cross-motions for summary judgment on the cross-claim] will in no way affect the propriety of the trial court’s grant of [Pilon’s] motion for [summary] judgment on [Fulton’s main claim]. ‘Thus, the [non-final orders as to Burroughs and Pilon are] not “tied to the appeal of an appealable order or judgment.” [Cit.]’ [Cit.]” Rolleston v. Huie, 198 Ga. App. 49, 50 (1) (400 SE2d 349) (1990). Accordingly, there is no jurisdictional basis for an appellate review of the denials of the cross-motions for summary judgment and Burroughs’s and Pilon’s appeals must be dismissed.

Judgment affirmed in Case No. A91A0647. Appeals dismissed in Case Nos. A91A0648 and A91A0649.

Decided June 4, 1991.

James W. Smith, for Fulton.

Barbara J. Redman, for Burroughs.

Winburn, Lewis & Barrow, Gene Mac Winburn, John J. Barrow, for Pilón.

Banke, P. J., and Beasley, J., concur.