text:
    A96A2316.
    PROSSER v. GRANT.
    (479 SE2d 775)
   Birdsong, Presiding Judge.

This suit seeks damages for injuries sustained by appellant arising from an automobile collision with a vehicle driven by appellee. Appellant/plaintiff Samuel Prosser appeals from the order of the superior court granting appellee/defendant Rudy Alexander Grant’s motion to dismiss pursuant to OCGA § 9-11-41 (e). In granting the motion to dismiss, the trial court held that “no order was entered in this case within five (5) years from the date the same was filed and ... it has been more than six (6) months from the date the case would stand automatically dismissed.” Appellant’s sole enumeration is that the trial court erred by granting the motion to dismiss “as an ‘order’ was entered, by the judge, within five (5) years of the filing of the original complaint.”

Our review of the record confirms that, other than the trial court’s order dismissing this case, it contains no written order duly entered and filed. Moreover, the record contains the affidavit of the clerk of the superior court, dated January 29, 1996, who also personally reviewed this record, as custodian thereof, and attests that, although the complaint was filed in July 1990, there have been no court orders entered in this case since the date of filing and through the date of her affidavit. On February 2,1996, appellee filed a motion to dismiss pursuant to the provisions of OCGA § 9-11-41 (e); this motion was granted by an order filed on May 30, 1996. Held:

1. Appellant’s brief contains several assertions of fact not supported by the record. Factual representations in briefs but not supported by the record cannot be considered in the appellate process. Behar v. Aero Med Intl., 185 Ga. App. 845, 846 (1) (366 SE2d 223).

2. OCGA § 9-11-41 (e) provides: “Any action in which no written order is taken for a period of five years shall automatically stand dismissed, with costs to be taxed against the party plaintiff. For the purposes of this Code section, an order of continuance will be deemed an order. When an action is dismissed under this subsection, if the plaintiff recommences the action within six months following the dismissal then the renewed action shall stand upon the same footing, as to limitation, with the original action.” “ ‘This Act is mandatory. It places upon a plaintiff who wishes to avoid an automatic dismissal of his case by operation of law a duty to obtain a written order of continuance or other written order at some time during a five year period and to make sure the same is entered in the record.’ ” Norton v. Brady, 129 Ga. App. 753 (1) (201 SE2d 188). Dismissal cannot be avoided even by obtaining a written order signed by the trial court until such order is duly entered in the record by filing it with the clerk. Compare Republic Claims Svc. Co. v. Hoyal, 264 Ga. 127 (441 SE2d 755) (written order within meaning of automatic dismissal statute, OCGA § 9-2-60 (b), must be written, signed by the trial judge, and properly entered in the records of the trial court by filing with the clerk); Dept. of Transp. v. Tillett Bros. &c., 264 Ga. 219, 220 (443 SE2d 610); see Stone v. Green, 163 Ga. App. 18 (293 SE2d 506) and cases cited therein. The five-year rule of OCGA §§ 9-2-60 and 9-11-41 (e) “‘is mandatory and places squarely upon the plaintiff the duty to comply with the law and to obtain a written order of continuance or other written order at some time during a five year period and to make sure the same is entered in the record.’ ” Southern Bell Tel. &c. Co. v. Perry, 168 Ga. App. 387, 388 (308 SE2d 848). Appellant/plaintiff has failed to carry his burden in this case by making such a showing affirmatively by the record.

Appellant contends the five-year rule was not violated due to several actions by either the trial court or opposing counsel; however, none of these actions resulted in a written order being entered in the record of this case. Assuming arguendo that the trial court “told” the clerk of the superior court to remove this case from the court calendar and that it has not been placed back on the calendar since 1994, as “instructed” by the judge, such conduct does not constitute the entry of a “written order” within the meaning of the OCGA § 9-11-41

(e) five-year rule. Cf. Parkerson v. Indies Co., 148 Ga. App. 106 (251 SE2d 98) (letter assigning case to trial not an order); Ga. Power Co. v. Whitmire, 146 Ga. App. 29 (245 SE2d 324) (notation by judge as to continuance by agreement does not extend five-year period); Majors v. Lewis, 135 Ga. App. 420 (218 SE2d 130) (pretrial instructions bear-

ing judge’s printed signature but not entered is not an order). Further, “an order as contemplated by [the five-year rule of OCGA § 9-2-60 (b) or § 9-11-41 (e)] is an order entered by a court in response to a motion initiated by a party. Housekeeping orders entered on the court’s own motion, such as an order entered by the court removing a case from an active trial calendar because of its age or a pretrial calendar which contains a specific order directed at the attorneys and parties in all cases listed on such calendar, are not initiated by a party and would not toll the statute.” Dept. of Transp., supra at 221.

Appellant also argues, without citation of authority, that the superior court’s “bar docket” serves as an order within the meaning of OCGA § 9-11-41 (e). The bar docket does not meet the criterion of a written order for purposes of the five-year rule. Id.; compare Republic Claims Svc. Co., supra.

Defense counsel filed a formal request for leave of absence; however, the trial court did not enter a written order, pertaining to this matter, in the record of this case. Defense counsel’s formal request for leave of absence did not, standing alone, satisfy the five-year rule requirements for a written, signed and entered order. Compare West v. Dept. of Transp., 174 Ga. App. 603 (330 SE2d 803) (order granting leave of absence, but filed only in the minutes of the superior court and never entered in the record, was not a written order taken in the case for purposes of OCGA § 9-11-41 (e)) with Loftin v. Prudential &c. Ins. Co., 193 Ga. App. 514 (388 SE2d 525) (order granting leave of absence of defense counsel was written, signed, and duly entered); see Ga. Power Co., supra; Harris v. Moody, 144 Ga. App. 656 (242 SE2d 321) (agreement by counsel to continue did not extend five-year period). Moreover, we will not presume from a silent record that such a written and signed order was, in fact, issued and entered timely; such a holding would be tantamount to a presumption of error on the part of the trial court. An appellate court will not presume error from a silent record. Williams v. State, 219 Ga. App. 167, 169 (2) (464 SE2d 404). Additionally, while generally plaintiff need not initiate the process resulting in a written order being signed, he must “insure that [the] order is entered before five years elapse.” Loftin, supra at 515; see also Harris, supra. Appellant/plaintiff who failed to insure that an order granting defense counsel’s leave of absence was entered in the trial record cannot now complain as to its absence; a party cannot complain of a result his own acts or omissions procured or aided in causing (see Perryman v. Rosenbaum, 205 Ga. App. 784, 790 (423 SE2d 673)). Appellant’s various contentions in support of his single enumeration of error are without merit.

Decided December 11, 1996.

Dozier, Lee, Graham & Sikes, Cheryl A. Sikes, for appellant.

Spivey, Carlton & Edenfield, J. Franklin Edenfield, for appellee.

Judgment affirmed.

Beasley, C. J., and Blackburn, J., concur.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A96A1110.
    JEFFERSON v. THE STATE.
    (479 SE2d 406)
   Smith, Judge.

Kenneth Robert Jefferson appeals the denial of his motion for discharge and acquittal based on double jeopardy grounds. On January 22, 1994, two uniform traffic citations (UTCs) were issued against Jefferson, one charging violation of OCGA § 40-6-391 (a) (1) (DUI), and one charging violation of OCGA § 40-6-48 (failure to maintain lane). The charges proceeded to trial in the City Court of Atlanta. After the jury was impaneled and sworn the State proceeded on an accusation charging violation of former OCGA § 40-6-391 (a) (4) (driving under the combined influence of two or more specified substances) in addition to the charges contained on the UTCs. The accusation was not served on Jefferson prior to trial.

Jefferson announced that he was ready to proceed on the charges contained in the UTCs but objected to proceeding on the additional count because he did not have notice of it until trial. The State agreed that Jefferson was entitled to a copy of the accusation and a continuance but stated that a continuance could occur only if a mistrial were declared. The trial court also agreed that Jefferson was entitled to notice of the additional count and that he was entitled to a continuance. But the court declined to grant a continuance at the State’s urging and over Jefferson’s strenuous objection; instead, the court concluded that the appropriate procedure would be to declare a mistrial because a jury had been impaneled.

Jefferson’s case was again called for trial on June 23, 1994, approximately one month after the first one terminated in a mistrial. He filed a motion for discharge and acquittal on the basis that the trial court improperly terminated the prior trial, exposing him to double jeopardy. The trial court denied the motion, stating that it had terminated the first trial because “the best interest of justice would be served for all concerned if a mistrial was granted.” This conclusion appears to be based on the trial court’s findings that Jefferson “wanted more time to prepare to defend against the accusations” and that the jurors already impaneled were scheduled to be released on the day the first trial was to proceed.

A person may not be prosecuted for the same offenses as those in a prior prosecution if the former prosecution was improperly terminated after the jury was impaneled and sworn. OCGA § 16-1-8 (a) (2). A trial is improperly terminated if there was no manifest necessity for declaring a mistrial. See, e.g., Smith v. State, 263 Ga. 782, 783 (1) (439 SE2d 483) (1994). Manifest necessity exists only under “urgent circumstances.” Id. When determining whether such urgency is present, a trial court must scrupulously exercise its discretion in “weighing the defendant’s right to have his trial completed before the particular tribunal against the interest of the public in having fair trials designed to end in just judgments; and the decision must take into consideration all the surrounding circumstances.” (Citation and punctuation omitted.) Foody v. State, 205 Ga. App. 666 (423 SE2d 423) (1992). See also Stevens v. State, 215 Ga. App. 718, 719 (1) (452 SE2d 176) (1994). It “should give careful, deliberate, and studious consideration to whether the circumstances demand a mistrial, with a keen eye toward other, less drastic, alternatives, calling for a recess if necessary and feasible to guard against hasty mistakes. [Cit.]” Smith, supra, 263 Ga. at 783 (1). See also Stevens, Foody, supra.

Decided November 18, 1996

Reconsideration denied December 12, 1996.

Louise T. Hornsby, Solicitor, Marcelle A. Castillo, Assistant Solicitor, for appellee.

Unless manifest necessity demanded otherwise, once the jury was impaneled in Jefferson’s trial, “jeopardy attached, and he was entitled to be acquitted or convicted by that jury.” (Citations and punctuation omitted.) Smith, supra at 783 (1). As noted above, Jefferson vehemently objected to termination of the trial and requested that it proceed on the two counts of which he had knowledge. The trial court nonetheless almost immediately declared a mistrial after learning of the additional charge in the accusation. It did not consider proceeding on the other two counts, and it summarily found that continuing the trial would not be “practical.”

The trial court’s statement that Jefferson “wanted more time” to prepare suggests inaccurately that Jefferson acquiesced in the mistrial. Jefferson’s counsel never acquiesced; counsel made the comment only in response to the trial court’s question as to whether he intended to “properly prepare” for the additional count in the event a continuance or mistrial was granted. The trial court failed to consider less drastic alternatives, and nothing in the record shows that it factored into its decision Jefferson’s right to be tried before the sworn jury. It also failed to consider the surrounding circumstances, notably that Jefferson was served with a copy of the accusation after the jury was impaneled and sworn, even though he requested a copy three months before the trial.

The record indisputably shows that the trial court’s action was undertaken in circumstances that were not urgent and without regard to the State’s failure to inform Jefferson of the charges on which it intended to proceed. Moreover, the trial court gave no “consideration [to] alternative remedies which would have preserved [Jefferson’s] Valued right’ to proceed with the trial.” Foody, supra at 668. Consequently, Jefferson’s plea in bar was erroneously denied.

Judgment reversed.

Pope, P. J., and Andrews, J., concur.

       We note that OCGA § 40-6-391 was revised, effective July 1, 1996. Included in the revisions were the addition of new paragraph (4) and redesignation of former paragraphs (4) and (5).


author: Blackburn, Judge.

text:
    A96A1141.
    DENNIS et al. v. STATE OF GEORGIA.
    (479 SE2d 380)
   Blackburn, Judge.

Appellants contend that the trial court erroneously permitted forfeiture of their various interests in real and personal property pursuant to OCGA § 16-13-49 based on the insufficiency of their answer to the State’s forfeiture complaint.

Law enforcement officers arrested Alex Dennis after drugs and drug paraphernalia were found at his home. Subsequently, pursuant to OCGA § 16-13-49, the State brought an in rem action for forfeiture of, among other things, two parcels of real property, a doublewide mobile home, several vehicles, farm equipment, household furnishings, guns, and cash. The State’s complaint named Alex Dennis as the sole owner of the seized property. The State alleged that the property subject to forfeiture was “used, intended for use, or available for use to facilitate the sale and/or distribution of marijuana and cocaine in violation of the Georgia Controlled Substances Act or resulted from proceeds derived or realized therefrom, or were maintained by funds either realized therefrom or commingled with other funds realized therefrom.” See OCGA § 16-13-49 (d).

A timely, verified answer was filed by Alex Dennis, Sr., the party who had been arrested; his wife, Bessie Shoats; and his son, Alex Dennis, Jr. In their answer, the claimants specifically identified what property each claimed and asserted that they were all innocent owners pursuant to OCGA § 16-13-49 (e). The trial court granted the State’s motion to permit the forfeiture, determining that the claimants’ answer was insufficient because it failed to comply with the specific pleading requirements outlined in OCGA § 16-13-49 (o) (3). Specifically, the trial court determined that the claimants’ answer failed to provide the factual information required to support the claimants’ assertion of innocent ownership. This appeal ensued.

1. It is well established that the sufficiency of an answer to a forfeiture petition must be “judged in light of the specific statutory requirements.” State of Ga. v. Alford, 264 Ga. 243, 245 (2) (a) (444 SE2d 76) (1994). The statute expressly requires an answer to a forfeiture proceeding to contain certain factual information. OCGA § 16-13-49 (o) (3) (D) expressly requires an answer to include: (1) the date on which the property was obtained; (2) the identity of its transferor; and (3) the circumstances as to how the claimant acquired his interest in the property. OCGA § 16-13-49 (o) (3) (F) requires an answer to set forth “[a]ll essential facts” supporting a claimant’s position that the property in question is not subject to forfeiture.

With regard to the two parcels of real property seized by the State, Alex Dennis, Jr., claimed an interest in one and Alex Dennis, Sr., claimed an interest in the other. In its complaint, the State provided a detailed description of the parcels including where they were located and their recent history of ownership. The description included the names of each parcel’s immediate former owner and the dates the respective deeds were executed to the claimants. In their answer, Alex Dennis, Jr., and Alex Dennis, Sr., claimed that they were the sole owners of the two parcels; conditionally admitted that the State’s description of the two parcels was correct; and stated that they purchased their parcels with money earned from their employment. Because it contained information to support the Dennises’ claim of innocent ownership — the dates the elder Dennis and his son obtained their respective parcels, the names of the parties from whom they obtained their parcels, and general information as to how both were financially able to obtain the land — the answer, with regard to the two parcels, was sufficient. See Williams v. State of Ga., 222 Ga. App. 270 (474 SE2d 98) (1996). In light of the above, the decision of the trial court is reversed, and both Alex Dennis, Jr., and Alex Dennis, Sr., are entitled to a prompt hearing concerning their interests in their respective parcels of real property. OCGA § 16-13-49 (o) (5).

2. In addition to the parcel of property belonging to the elder Dennis, the State sought forfeiture of “all improvements, buildings, structures, fixtures, furnishings and appurtenances situated thereon and any and all contents therein.” In her answer, Bessie Shoats claimed to be the sole owner of certain household furnishings found within that parcel. Specifically, she made claim to “two lamps, dining room suite with six chairs, china cabinet and china, living room chair, loveseat, lounge chair, three end tables, coffee table, bedroom suite consisting of one bed, dresser, chest of drawers, two nightstands, all bathroom accessories, pots and pans, utensils, silverware, dishes, small appliances, curtains, what-nots, and one chest freezer.” She then swore that this property was purchased “with funds received as wages by virtue of her employment.” Shoats also claimed ownership in $57.05 worth of coinage found upon the property, stating that it had been “accumulated over a period of years.” The State asserts that Shoats’ answer was insufficient because she failed to comply with the requirements of OCGA § 16-13-49 (o) (3).

With regard to the furnishings, Shoats’ answer did fail to indicate when she acquired the items or the identity of their respective transferors. While OCGA § 16-13-49 (o) (3) (D) generally requires an answer to contain this information, we do not find that it is required under the specific circumstances of this case. The items described by Shoats are the type usually found in a home. We assume from the fact that the State did not specifically identify any of these items in its petition, that it did not find them to be of unusual origin or possessing any significant value. Household furnishings and effects such as those claimed by Shoats are generally accumulated over a long period of time, and it is not customary for owners to have detailed recollection or records regarding the purchase or ownership of such items. Accordingly, it casts an extraordinary hardship on an owner to supply such information in an answer to a forfeiture petition.

While we are mindful of the State’s argument that the pleading requirements in a forfeiture action are strict, they are not meant to be impossible. The legislative intent in enacting the forfeiture statute is not only to provide for the prompt disposition of seized property but also to “protect the interests of innocent property owners.” Alford, supra at 245 (2) (b). “The pleading requirement must be construed to implement that intent. Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981).” Williams, supra at 272. To construe OCGA § 16-13-49 (o) (3) to require a claimant whose entire complement of household furnishings has been seized to state the date he or she acquired each item and from whom it was acquired, simply in order to obtain an evidentiary hearing on whether forfeiture of that item is mandated, would fail to protect the interests of innocent property owners. In fact, its effect in many cases would be to eliminate such interests altogether by creating an insurmountable obstacle for innocent owners at the pleading stage. Accordingly, we find Shoats’ answer with regard to her household furnishings to be sufficient such that she is entitled to an evidentiary hearing to substantiate her claim of innocent ownership.

Based on this same reasoning, we find Shoats’ answer regarding her claim to $57.05 to be sufficient. Considering the insignificant amount of money she claims and the manner in which Shoats asserts that it was accumulated, we find her answer to be as comprehensive as the circumstances would permit. Therefore, she should receive an evidentiary hearing where her claim to the coinage may be fully investigated.

3. The claimants’ answer as it pertains to the remaining items listed in the State’s complaint — including but not limited to a doublewide mobile home, several automobiles, farm equipment, and guns — is insufficient. The claimants generally stated that they obtained these items with wages earned from their employment without providing any other information as to when or where the items were acquired. Alex Dennis, Sr., was somewhat more specific when outlining his interest in numerous automobiles, asserting that he had an “ongoing car repair business” and that the vehicles were abandoned by their owners after they left them with the elder Dennis to repair. However, he made no effort to identify the former owners of these automobiles or even approximate the dates when the vehicles were abandoned.

Decided November 13, 1996

Reconsideration denied December 12, 1996.

Donald W. Rogers, for appellants.

Fredric D. Bright, District Attorney, Alberto C. Martinez, Jr., Assistant District Attorney, Lance K. Hiltbrand, for appellee.

Unlike the furnishings and coinage discussed in Division 2 above, owners generally have specific recollection or records regarding their acquisition and/or ownership of the items in question. Accordingly, the pleading requirements of OCGA § 16-13-49 (o) (3) (D) do not create an impossible or unreasonable burden upon an innocent owner answering a forfeiture action. Accordingly, the trial court did not err in dismissing the claimants’ answer as it pertained to items other than those described in Divisions 1 and 2.

4. Claimants contend that the answer requirements of OCGA § 16-13-49 violate due process. This issue was not properly raised or preserved for appellate review. Claimants did not raise this argument in their answer, and their counsel merely mentioned the due process claim to the trial court during the course of a hearing. Claimants did not seek a ruling on their due process claim, and none was made. Accordingly, this enumeration is without merit. Parker v. State, 220 Ga. App. 303, 310 (7) (469 SE2d 410) (1996) (issues must be raised in and ruled upon by the trial court in order to be preserved for appellate review).

Judgment affirmed in part and reversed in part.

Beasley, C. J, and Birdsong, P. J, concur.

       Frances Simmons made a claim to approximately $3,000 listed in the forfeiture complaint, but she has abandoned her claim on appeal.

       The answer provides in pertinent part: “[a]ssuming that plaintiff has copied the property description correctly, claimants admit that portion of paragraph number one wherein the real property is described.”


text:
    A96A1463.
    EDWARDS v. THE STATE.
    (479 SE2d 754)
   Smith, Judge.

Richard Bernard Edwards was indicted on two counts each of burglary and aggravated assault arising out of the burglaries of two homes and assaults on their occupants. He was convicted on all four counts. Edwards’s motion for new trial as amended was denied, and he appeals.

1. Edwards contends the evidence was not sufficient to convict him of any of the crimes.

(a) Construed to support the verdict, evidence was presented that on December 7,1994, at about 7:00 a.m., while showering, one of the victims heard a noise and looked out of her open bathroom door into her bedroom. Her husband had just left for work. She saw a strange man she later identified as Edwards walk from her bedroom into the hallway. She screamed, and he “charged down the hallway toward the bathroom.” The victim closed the bathroom door and attempted to lock it, but Edwards struck the door, splintering the wood and knocking out the lock mechanism. He shoved the victim’s face, knocking her onto the vanity and then into the bathtub. As a result, she suffered bruises to her neck and back. He held her in the bathtub with his hand on her face and then moved it to her neck. The victim attempted to strike Edwards, and he removed his hand from her neck, ran through the house, and took her purse. While Edwards ran through the house, the victim ran outside and into her driveway. She saw Edwards run out her front door and toward her back yard.

The ensuing investigation revealed an open bedroom window -with the screen removed, a single glove inside the bathtub, and wet marks on the floor leading from the open window through the bedroom, and into the bathroom. Outside the window a five gallon bucket was overturned, and the items formerly atop the victim’s nightstand lay on the ground outside the window. The investigating officer opined, based on the victim’s description of the direction in which her assailant fled, that he fled in a westerly direction. Shortly after the incident, the victim examined two photographic lineups and positively identified Edwards as her assailant. She also identified Edwards at a lineup conducted at the Greensboro Police Department, and she positively identified him at trial. This evidence was sufficient to convict Edwards of aggravated assault and burglary on December 7 under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See, e.g., Palmer v. State, 219 Ga. App. 819, 820 (1) (467 SE2d 6) (1996); McClern v. State, 218 Ga. App. 720 (1) (463 SE2d 49) (1995).

(b) Evidence was also presented that three days earlier, on December 4, 1994, around 7:30 a.m., a different victim discovered a stranger standing in a bedroom in her residence shortly after her husband left for work. This victim lived about a block away from the victim described in Division 1 (a). She screamed, and he shoved her in her face, knocking her onto the floor, and then ran outside. She watched him flee in a westerly direction. Her wallet was taken from the house. She testified she thought a glove was used by her assailant because “that’s the way it felt on my face.” This victim never identified Edwards as her assailant, either before trial in photographic lineups or at trial. No fingerprints were found inside her residence. She stated that her assailant entered and exited her home through her back terrace door.

If the only evidence adduced by the State was the testimony of this victim, we might agree with Edwards that the evidence was insufficient to convict him of burglary and aggravated assault. No indication of the assailant’s identity would have been revealed and the evidence would have shown only that a burglary and aggravated assault occurred. However, the evidence as to the December 7 incident was relevant not only to implicate Edwards of burglary and assault on that date, but also to provide evidence of the identity of the December 4 assailant.

The testimony of both victims revealed several undisputed striking similarities between the incidents at their respective homes: (1) the incidents occurred three days apart, at approximately the same time of day, shortly after the victims’ husbands had left for work; (2) the assailant made unauthorized entries into both homes; (3) the assailant fled in the same direction “within degrees of a compass heading” after each assault; (4) the victims lived approximately a block away from one another; (5) the assailant shoved both victims in their faces causing them to fall; (6) a glove was used in both incidents; and (7) the victims’ purses were stolen or searched. The clear effect of these undisputed similarities was to reveal a common scheme, or modus operandi, in the nature of a pattern or signature. The positive evidence that Edwards committed the assault and robbery on December 7, in nature and method so similar to the December 4 incident, served as evidence that Edwards was the assailant on that date as well, despite the victim’s inability to identify him. Because this evidence of Edwards’s identity was adduced at trial, we find the evidence sufficient to convict him of aggravated assault on December 4, as well. See Shaw v. State, 211 Ga. App. 647, 648 (1) (440 SE2d 245) (1994).

2. Edwards contends the trial court erroneously denied his motion to suppress. A search warrant was executed at the home of Nerissa Jernigan, Edwards’s cousin, and a pair of K-Swiss tennis shoes was seized. Edwards contended below that sufficient probable cause did not exist for search of the premises. Evidence was presented at a hearing on the motion that only Jernigan and her three children resided at the apartment in December 1994 and that Edwards never lived with her. Jernigan did state that Edwards “used to come and visit.” The trial court denied the motion, ruling that Edwards did not have standing to challenge the search.

The trial court’s ruling was correct. Undisputed evidence was presented that Edwards never resided with Jernigan, was not present at her residence when the search occurred, and never claimed a “right of ownership or possession in the property seized.” Boatright v. State, 192 Ga. App. 112, 114 (3) (385 SE2d 298) (1989). In fact, he disavowed ownership of the shoes, denying that they belonged to him and testifying that he would never wear such shoes. Consequently, he did not have a “reasonable expectation of privacy in the premises searched” and did not have standing to challenge the search. Id. See also Rutherford v. State, 191 Ga. App. 505, 506 (382 SE2d 205) (1989).

We reject Edwards’s contention that he had standing because the affidavit on which the warrant was based recited that he lived with Jernigan. As pointed out by the State during the hearing on the motion to suppress, at the time the search warrant was executed, investigators had probable cause to believe that Edwards did live with Jernigan, and an affidavit was sworn to that effect. No evidence was produced refuting the sworn testimony of the affiant as to his belief regarding Edwards’s residence. Edwards’s own knowledge determined whether he had a reasonable expectation of privacy in property seized in Jernigan’s residence. The fact that Edwards never resided at Jernigan’s apartment — and not the belief of the investigators in the initial stages of the investigation — established the absence of such an expectation.

3. Edwards contends the trial court erroneously admitted certain photographs of him into evidence. The photographic arrays of several individuals, including Edwards, and photographs of the lineup viewed by one of the victims were admitted over Edwards’s objection. Edwards contended below that the photographs of himself erroneously implicated his character because markings on the backs of the photographs indicated they were booking photographs taken in conjunction with prior arrests and also because he was wearing jail garb — an orange jumpsuit. Some of the photographs also depicted handcuffs.

It is well settled that mug shots in and of themselves do not prejudice a defendant or implicate his character, if they are relevant to some issue in the case and if they do not identify the defendant as having a prior criminal record. See, e.g., Austin v. State, 174 Ga. App. 127 (329 SE2d 233) (1985); compare Stanley v. State, 250 Ga. 3, 4 (295 SE2d 315) (1982) and Webb v. State, 156 Ga. App. 623, 626 (7) (275 SE2d 707) (1980) (mug shots not relevant to the case because identity not an issue, and mug shots “could easily have given the jury the impression that the appellants had been in trouble with the law on some previous occasion”).

The State and the trial court took adequate steps to prevent the jury from observing that the photographs may have been taken in conjunction with previous arrests. The photographs were admitted to establish Edwards’s identity and were not described to the jury as mug shots from prior arrests but instead as “pictures of people similar to [Edwards’s] appearance.” No reference was made to any prior criminal record. The photographs were secured by staples inside folders so that the jury could not examine their reverse sides indicating that they were “booking” photos from previous arrests. Those photographs depicting handcuffs were cropped to remove the image of the handcuffs, and the photograph depicting the orange jumpsuit was cropped so that Edwards appeared to wear an orange shirt, rather than the jumpsuit. The photographs did not indicate that Edwards had committed any previous crime or had been arrested on other charges and hence did not implicate his character. See Austin v. State, supra; Dowdy v. State, 169 Ga. App. 14, 16 (4) (311 SE2d 184) (1983). The trial court did not err in admitting the photographs.

4. Edwards contends that the husband of one of the victims should have been sequestered for the duration of the trial. After the State rested, Edwards objected to the husband’s presence in the courtroom during presentation of the State’s case. He moved for mistrial below on this ground, among others.

It is true that parties have the right to have witnesses of another party examined out of the presence of each other. OCGA § 24-9-61. This rule does not, however, prohibit persons other than witnesses from observing the proceedings. See generally Stevens v. State, 247 Ga. 698, 702-703 (6) (278 SE2d 398) (1981), cert. denied, 463 U. S. 1213 (103 SC 3551, 77 LE2d 1398) (1983). Although the victim’s husband’s name appeared on the State’s witness list originally provided to Edwards, he was removed from the list and did not testify on the State’s behalf. This individual, not being a witness for the State, was not subject to the rule of sequestration. We note that after the State rested, the victim’s husband was placed under subpoena — by Edwards. At that time, he was sequestered. No violation of the rule of sequestration occurred, and the trial court did not err in denying Edwards’s motion for mistrial.

5. Edwards contends the trial court abused its discretion in allowing the jury to disperse for lunch during its deliberations. Edwards did not object to dispersal of the jury and therefore has waived this contention on appeal. Moreover, we have examined the record and have found no abuse of discretion. OCGA § 15-12-142 (a) provides that the trial court may allow the jury to disperse under appropriate instructions during deliberations. The trial court instructed the jurors not to discuss the case with anyone during their lunch recess, and the record does not indicate that any improper communications regarding the case occurred among the jurors. We find no merit in this contention.

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.

Decided September 11, 1996

Reconsideration denied December 12, 1996.

Robert E. Surrency, for appellant.

Fredric D. Bright, District Attorney, Vanessa Flournoy, Assistant District Attorney, for appellee.

On Motion for Reconsideration.

Edwards raises several arguments on motion for reconsideration. These arguments were considered in full by us prior to concluding that no basis for reversal exists. We write here only to clarify our conclusion that the evidence was sufficient to convict Edwards of burglary and aggravated assault at the residence discussed in Division 1 (b).

Edwards argues that the evidence did not reveal the requisite intent to rob the victim in the December 4 incident. In proving intent, however, it is not necessary that the State introduce evidence that the accused “expressed an intent to rob in so many words, or declared a purpose to carry the intent into effect, for the jury to arrive at the conclusion he so intended. The intention may be gathered from the circumstances of the case as proved. In seeking the motives of human conduct, inferences and deductions may properly be considered where they flow naturally from the facts proved.” (Citations and punctuation omitted.) Loumakis v. State, 179 Ga. App. 294, 296 (1) (346 SE2d 373) (1986). In addition to the similarities of the incidents against both victims in this case, evidence was presented that the wallet of the December 4 victim was taken from her purse. These circumstances, especially the fact that the victim’s wallet was taken, were sufficient to authorize a rational trier of fact to conclude that Edwards entered the victim’s house with the intent to rob. We find no merit in this contention.


author: Judge Harold R. Banke.

text:
    A96A1798.
    TIFTON MACHINE WORKS, INC. v. COLONY INSURANCE COMPANY.
    (480 SE2d 37)
   Judge Harold R. Banke.

After its employee damaged a client’s hydraulic press, Tifton Machine Works, Inc. (“TMW”) sought coverage from its insurer, Colony Insurance Company (“Colony”). Colony refused to pay, arguing that two exclusions in TMW’s policy precluded coverage. TMW then commenced this action, which the trial court resolved by granting Colony’s motion for summary judgment. On appeal, TMW challenges that disposition.

The facts are essentially undisputed. The record shows that TMW contracted to move a hydraulic press from one end of a client’s warehouse to another and install it for $1,360. TMW’s employees placed the press on rollers and maneuvered it to the new position using the client’s forklift. The press fell when one of TMW’s employees knocked it or its support with the forklift. The press sustained $23,246 in damage. Damage to the client’s forklift was covered by the policy at issue.

The policy insured “property damage” caused by an “occurrence,” which it defined as an “accident.” TMW specifically purchased a rider to cover the industrial installation of equipment and machinery. The policy simply listed this rider and did not specify its parameters. The two exclusions at issue state: “[t]his insurance does not apply to . . . [1] [p]ersonal property in the caret,] custody or control of the insured” and “[2] [t]hat particular part of any property that must be restored, repaired, or replaced because ‘your work’ was incorrectly performed on it.” Held:

1. Colony bore the burden of proof and persuasion to show that either of the exclusions applied. Reliance Ins. Co. v. Walker County, 208 Ga. App. 729, 731 (431 SE2d 700) (1993). In examining whether Colony met its burden, three rules of contract construction are applicable. First, all ambiguities in insurance contracts must be construed against the drafter, which is Colony. Isdoll v. Scottsdale Ins. Co., 219 Ga. App. 516, 518 (1) (466 SE2d 48) (1995). Genuine ambiguities arise “[w]henever the phrasing of an insurance policy is so confusing that an average person could not make out the boundaries of the coverage.” Id. Second, all exclusions from coverage sought to be invoked must be strictly construed. Richards v. Hanover Ins. Co., 250 Ga. 613, 615 (1) (299 SE2d 561) (1983). Third, insurance contracts are to be read in accordance with the reasonable expectations of the insureds, where possible. Id.

The “care, custody or control” language at issue is a term of art whose meaning varies depending on the underlying type of risk being insured. Royal Indem. Co. v. Smith, 121 Ga. App. 272, 274 (173 SE2d 738) (1970). The cases applying this language may be viewed on a continuum. In cases dealing with real property, courts have been reluctant to find care, custody or control in the hands of insureds who were hired to work on only a portion of a structure. Id. at 274. At the other end of the continuum, when there is a clear bailment of chattels, care, custody or control is nearly always found. Id.

Our courts also consider the purpose of the “care, custody or control” language, which in the instant case, as in so many borderline cases, is to avoid a guarantee of workmanship. Id. at 276; Annot., Scope of Clause Excluding from Contractor’s or Similar Liability Policy Damage to Property in Care, Custody or Control of Insured, 8 ALR4th 563, 570, § 2 [a]. While this is a “perfectly legitimate purpose for an ‘accident’ policy, . . . [we have rejected efforts] to extend the meaning of workmanship to any contact with property during the course of a job [because the result] is to virtually wipe out the primary coverage.” Royal, 121 Ga. App. at 276.

In our court’s most recent case interpreting the language at issue, the insured contracted to paint the exterior walls of a massive sewage treatment tank on which was attached a radial sweeper arm designed to move only clockwise in the tank’s interior. Id. at 273. The damage occurred when the insured moved the arm counterclockwise. Id. The dispositive question was whether the circumstances under which the damage occurred fell within the types of risk against which the exclusion was purposefully directed. Id. at 275-276; Annot., 8 ALR4th at 622. Reasoning that the exclusion was intended to protect the insurer from becoming a guarantor of the insured’s workmanship, the court analytically divided the structure at issue into component parts to find that the insured controlled only the tank, which it was hired to paint, and not the radial arm, which had nothing to do with the insured’s painting workmanship. Royal, 121 Ga. App. at 276. The Royal court theorized that the exclusion would have applied had the paint job “been so poor that the tank rusted within a few months and caused a structural collapse,” because workmanship rather than accident, would be involved. Id. at 276. It follows that Royal does not demand a finding that the exclusion applies.

Moreover, in purchasing the machine installation rider, TMW reasonably could have expected coverage on activities related to machine installation. Richards, 250 Ga. at 615 (1). Colony’s construction of the “care, custody or control” clause destroys the viability of the machine installation rider TMW purchased. How could an insured ever install a machine without taking control of it? The insurance policy itself includes no explanation of the parameters of the machine installation rider, and nothing in the policy or the rider limits coverage of machine installation to incidental damage. These facts undermine Colony’s contention that the rider, which cost nearly $1,000 each policy period, applied only to incidental damage. Under this theory, it follows that Colony accepted the premiums, but provided TMW with no coverage for actually installing machinery.

Admittedly, our Supreme Court recently referred to such a “care, custody or control” clause in isolation as “clear and unambiguous.” Park ‘N Go of Ga. v. United States Fidelity &c. Co., 266 Ga. 787, 791 (471 SE2d 500) (1996) (a bailment case with no conflicting rider). We reach a contrary conclusion, however, when reading this language in context with the machine installation rider. See Annot., 8 ALR4th at 570, § 2 [a] (“More frequently, however, it has been said that the exclusion is ambiguous or unambiguous depending upon the various factual circumstances presented in particular cases.”). Colony’s failure to satisfy its burden of drafting clear and precise language revealing the reach of the rider mandates reversal.

Decided November 21, 1996

Reconsideration denied December 12, 1996

Reinhardt, Whitley & Wilmot, George R. Reinhardt, Jr., Thomas B. McFarland, for appellant.

Perry & Walters, Jesse W. Walters, for appellee.

2. This same conclusion applies to a second clause in the policy which excludes from coverage “[t]hat particular part of any property that must be restored, repaired, or replaced because ‘your work’ was incorrectly performed on it.” The purpose of this exclusionary clause, like the “care, custody or control” clause, is to avoid a guarantee of workmanship. Glens Falls Ins. Co. v. Donmac Golf Shaping Co., 203 Ga. App. 508, 511 (3) (417 SE2d 197) (1992). This clause cannot be given effect without eviscerating the machine installation rider. The resulting ambiguity must be construed against Colony. Isdoll, 219 Ga. App. at 518.

Judgment reversed.

Pope, P. J., and Andrews, J., concur.


author: Eldridge, Judge.

text:
    A96A2192.
    HARDING et al. v. GEORGIA GENERAL INSURANCE COMPANY.
    (479 SE2d 410)
   Eldridge, Judge.

Appellants Jason Harding (“Jason”) and his mother, Linda Harding, challenge the trial court’s granting of appellee’s motion for summary judgment on a petition for declaratory judgment. Appellee, Georgia General Insurance Company, insured an automobile that was owned by the parents of 17-year-old Patrick Raymond (“Patrick”), who was driving the vehicle when he allegedly intentionally struck Jason following a verbal altercation, causing serious physical injuries.

An exclusionary provision in the insurance policy reads, “No person shall be considered an insured person if that person uses a vehicle without a reasonable belief of having permission to use the vehicle.” (Emphasis supplied.) Appellee asserts that Patrick did not have actual permission to drive his parents’ car, nor did he have any reasonable basis to believe that he had such permission, and that therefore, summary judgment relieving the insurance company is appropriate. We disagree.

The use of the term “reasonable belief” requires both a subjective and an objective analysis of the driver’s state of mind, i.e., whether the driver actually believed he had permission and the reasonableness of this belief. See Hurst v. Grange Mut. Cas. Co., 266 Ga. 712 (470 SE2d 659) (1996); see also Omni Ins. Co. v. Harps, 196 Ga. App. 340, 342 (396 SE2d 66) (1990), quoting Nationwide Mut. Ins. Co. v. Southern Trust Ins. Co., 174 Ga. App. 513, 514 (330 SE2d 443) (1985), overruled on other grounds, Hurst, supra at 717.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A [movant] may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of [the non-movant’s] case. ... If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Further, “the party opposing the motion is to be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence. . . . [T]he question before the [appellate] court is whether the allegations of the pleading have been pierced so that no genuine issue of material fact remains.” King v. Crain-Daly Volkswagen, 207 Ga. App. 583, 584-585 (428 SE2d 586) (1993); Duke Enterprises v. Espy, 140 Ga. App. 527 (231 SE2d 522) (1976). “A trial court’s conclusion that no genuine issue of material fact remains and that the party is entitled to judgment as a matter of law cannot be upheld merely on the basis that there was some evidence to support that conclusion, for there is no such thing as ‘any evidence’ or ‘some evidence’ that no genuine issues of material fact remain and that the party is entitled to judgment as a matter of law.” Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993); Hoffman v. Atlanta Gas Light Co., 206 Ga. App. 727 (426 SE2d 387) (1992).

Therefore, to prevail on a motion for summary judgment in the case sub judice, appellee must pierce appellants’ assertion that Patrick was an insured driver under the policy by demonstrating affirmatively that Patrick was excluded from coverage; appellee must prove either that Patrick actually believed he did not have permission or, if it concedes that Patrick mistakenly believed that he had such permission, that he had no reasonable basis for his belief. Once this is accomplished, the burden shifts to appellants, who must present evidence to rebut appellee’s assertions or suffer summary judgment.

On the issue of whether Patrick actually believed that he did not have permission to drive the car, appellee relies on Patrick’s statements, under oath, that he knew he did not have permission to drive his parents’ car on that day; it also points to statements by his parents that they had not given him permission to drive the Toyota. The parents’ assertions are irrelevant, however. The only issue is whether Patrick actually believed that he did not have permission to drive the car.

Since appellee has presented affirmative evidence that Patrick had such state of mind, the appellants had to rebut the evidence in order to survive summary judgment. This Court believes that appellants met this burden.

Appellants point to statements by Patrick and his mother which seem to indicate that, in some circumstances, she would give him permission to use the Toyota, and that Patrick may have believed that such circumstances existed at the time he borrowed the car. This evidence directly contradicts Patrick’s assertion that he believed at the time of the incident that he did not have permission to drive the car. When the testimony of a party/witness is directly contradictory, it will be construed against him, unless he can offer a reasonable explanation. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986); see also OCGA § 24-9-85. Since there is no evidence of such explanation, such contradictory evidence should have been construed against Patrick, and summary judgment should have been denied.

However, pretermitting whether Patrick’s testimony proves that he did, or did not, actually believe he had permission to use his mother’s vehicle, appellants have presented extensive impeachment evidence that contradicts Patrick’s testimony not only regarding what he told others about the use of the car but also as to the frequency of his use of the vehicle. Appellants point to Patrick’s assertion that he had never driven the Toyota before, and counter with affirmative evidence that, in fact, he previously had driven the car to work and to school on numerous occasions.

It would be difficult, if not impossible, for appellants to climb inside Patrick’s mind and affirmatively show with direct evidence what he did or did not believe at any specific time. Holding appellants to that standard would virtually ensure that they could not survive a motion for summary judgment.

In that regard, appellee’s sole evidence of Patrick’s actual state of mind is Patrick’s sworn statement. Thus, if this case went to trial, there would be a conflict between Patrick’s statement and other evidence showing that he frequently drove the car and the factfinder would be empowered to judge Patrick’s credibility as to prior statements that the vehicle was his or that he had use of the vehicle as well as the frequent use of the vehicle. OCGA § 24-9-82. “Where, on a motion for summary judgment, it appears that the credibility of a witness or witnesses upon whose testimony the grant of the summary judgment depends is at issue in the case, neither the trial court nor this court will resolve the matter or is concerned with the credibility but will leave this matter to the jury, rather than grant summary judgment based on the ‘uncontradicted’ area of the testimony of the witness, whose credibility is for the jury, and not for the trial judge or this court. . . . The success of an attempt to impeach a witness is always a jury question, as is the credibility of the witnesses where they contradict one another, or themselves.” (Citations and punctuation omitted.) Raven v. Dodd’s Auto Sales &c,, 117 Ga. App. 416, 421 (160 SE2d 633) (1968).

The impeachment evidence disproving Patrick’s statement about use and permission presented by appellants creates a material issue for the jury alone to decide, which is whether Patrick is telling the truth when he claims that he knew at the time of the incident that he did not have permission to use the car. Therefore, we hold that evidence which tends to disprove the statement of Patrick alone is sufficient to meet the nonmovant’s burden and survive summary judgment when a witness’ actual, subjective belief is a material element of a claim or defense, and the movant’s sole evidence of this element is testimony by that witness.

On the issue of whether Patrick mistakenly and unreasonably believed he had permission to drive the car, the facts presented establish the following: Patrick’s car was not working and was being repaired elsewhere; the only car accessible to Patrick was his parents’ Toyota Corolla; a stranded friend called Patrick and asked him to pick him up; Patrick had access to the Toyota keys, which were on the kitchen table, and took them while his mother was in the house; he borrowed the Toyota for about 35 minutes that afternoon; the mother did not treat the car as missing or stolen. Further, Patrick previously had been seen driving the Toyota to school and to work.

Decided November 27, 1996

Reconsideration denied December 12, 1996

Stokes & Klinger, Gregory M. Stokes, Stanford N. Klinger, for appellants.

Hertz & Link, Amy L. Stein, Houston D. Smith III, Crim & Bassler, Joseph M. Murphey, Mark A. Skibiel, for appellee.

Viewing the facts in the light most favorable to appellants, we hold that appellants have presented sufficient evidence to create a jury issue on whether it was objectively reasonable for Patrick to believe that he had permission to borrow the car.

This case can be distinguished from the holding in Samples v. Southern Guaranty Ins. Co. of Ga., 197 Ga. App. 258 (398 SE2d 220) (1990), where this Court found that it was unreasonable for a man to believe he had permission to drive a friend’s car simply because they had been friends for a long time. In the case sub judice, Patrick borrowed his parents’ car while living at home, after having driven the car in the past. He took the car keys from the kitchen while his mother was at home, and although she was aware that he had taken the car, she did not object or discipline him when he returned home. A jury could infer from these facts that, if Patrick mistakenly believed he had permission to drive the car, such belief was reasonable. Therefore, summary judgment should have been denied.

Judgment reversed.

Pope, P. J., and Smith, J., concur.

       In an unsigned sworn statement, Joseph Raymond, Patrick’s father, also asserts that Patrick did not have permission to drive the Toyota. However, this statement was not based on Mr. Raymond’s personal knowledge, contained inadmissible hearsay, and included no affirmative statement of competency. Therefore, it fails to meet the affidavit requirements of OCGA § 9-11-56 (e), and is not admissible evidence upon a consideration of a motion for summary judgment. Further, “ ‘[ejvidence offered on motion for summary judgment is held to the same standards of admissibility as evidence at trial, and evidence inadmissible at trial is generally inadmissible on motion for summary judgment. (Cits.)' ” E. H. Crump Co. v. Millar, 200 Ga. App. 598, 600-601 (409 SE2d 235) (1991) (quoting Biggs v. McDougall, 175 Ga. App. 87, 88 (1) (332 SE2d 381) (1985)).

       Although this statement was made by Patrick under oath, it fails to meet the affidavit requirements of OCGA § 9-11-56 (e). However, an inconsistent statement may be used to impeach Patrick under OCGA § 24-9-83.

       But cf. Cincinnati Ins. Co. v. Plummer, 213 Ga. App. 265, 267 (444 SE2d 378) (1994) (holding that “[a] reasonable belief [of] implied permission to take and drive another’s automobile will not be inferred merely from the existence of the parent-child relationship and from non-permissive access to a set of keys to that vehicle”), overruled on other grounds, Hurst, supra at 717.


author: Pope, Presiding Judge.

text:
    A96A1293.
    TOPOREK v. ZEPP.
    (479 SE2d 759)
   Pope, Presiding Judge.

Defendant Julian Toporek is an attorney. He appeals the denial of a motion for summary judgment he filed in a lawsuit brought against him by plaintiff Amy Zepp based on his alleged representation of plaintiff. Concluding that summary judgment was not appropriate in this case, we affirm.

Construed most favorably to plaintiff, the evidence shows that on May 17, 1972, plaintiff was injured by a Sears Roebuck & Company van. Plaintiff’s parents negotiated her claim against Sears with Sears’ insurer, Allstate Insurance Company. Allstate retained defendant to finalize the settlement. Plaintiff’s mother spoke to defendant after he was retained and understood that he represented Allstate. According to her affidavit, however, defendant assured her that he could represent both plaintiff and Allstate, and that it would be in plaintiff’s best interests to settle with Allstate. Defendant also allegedly told plaintiff’s mother that plaintiff did not need to hire her own attorney. Defendant then agreed to represent plaintiff before the court of ordinary in the settlement approval proceedings. He prepared a petition appointing plaintiff’s father as her guardian ad litem and then prepared a petition seeking approval of the settlement, which he signed as attorney for the petitioner.. There is evidence in the record that plaintiff’s parents paid defendant for his representation of plaintiff. The court of ordinary approved the settlement but has stated it would not have done so if it had known that defendant represented Allstate due to defendant’s conflict of interest in the matter.

On February 17,1988, plaintiff turned 18 years old. On February 1, 1992, she filed suit in Chatham County against defendant for legal malpractice, breach of fiduciary duty, fraud and bad faith based on defendant’s representation of her. She also sued Allstate for fraud and bad faith. Subsequently, she voluntarily dismissed the suit, and on June 2, 1992, refiled it in Allstate’s county of residence, Fulton County. Thereafter, defendant and Allstate filed motions to dismiss plaintiff’s lawsuit. The Fulton County Superior Court granted the motions.

In Zepp v. Toporek, 211 Ga. App. 169 (438 SE2d 636) (1993), this Court affirmed the dismissal of plaintiff’s claims against Allstate, concluding that the claims constituted an unauthorized collateral attack upon the judgment of the court of ordinary, and that any authorized direct action to set aside the judgment of that court was time barred under OCGA § 9-11-60 (f). As to defendant, after noting that OCGA § 9-11-60 (f) was not applicable to the claims against him, we held the trial court erred in addressing his motion to dismiss because venue vanished in Fulton County with Allstate’s dismissal. Consequently, we remanded the case and directed that it be transferred to Chatham County.

Once the case was transferred to Chatham County, defendant moved for summary judgment. The trial court denied his motion.

1. Defendant argues the trial court erred in denying his motion because plaintiff’s claims were barred by the doctrine of collateral estoppel. He contends that based on this Court’s holdings in cases such as Watts v. Lippitt, 171 Ga. App. 578, 579 (320 SE2d 581) (1984), the trial court erroneously determined that the doctrine was inapplicable because there was no identity between the parties or their privies in this case and plaintiff’s original action against Sears. We must disagree.

While it is true that in Watts we held that the privity requirement of collateral estoppel is confined to the party against whom the plea is asserted, in Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 867 (2) (463 SE2d 5) (1995), the Georgia Supreme Court held otherwise, stating that in order for collateral estoppel to bar a claim there must be “identity of the parties or their privies in both actions.” This Court is bound by the Waldroup holding and has in fact recently acknowledged and followed that decision. See Langton v. Dept. of Corrections, 220 Ga. App. 445, 446 (1) (469 SE2d 509) (1996). Accordingly, because there is no identity of parties or their privies in the instant case, the trial court correctly determined that plaintiff’s claims against defendant were not barred by the doctrine of collateral estoppel.

Additionally, even if identity of parties existed, collateral estoppel still would not bar plaintiff’s pending lawsuit because the issues involved in that suit were not litigated in the previous action against Sears. For collateral estoppel to apply, a party must have “had full opportunity to litigate the issue in question [during the prior action].” Watts, 171 Ga. App. at 579. Collateral estoppel will not bar consideration of an issue that has not actually been decided. Waldroup, 265 Ga. at 867. In the Sears’ action, the trial court evaluated only the adequacy of a proposed settlement based on the information placed before it, and not the adequacy or legitimacy of the legal representation provided to plaintiff. While there may be a correlation between the two, they are not the same issue.

2. Defendant also contends the trial court erred in concluding that the statute of limitation for torts found in OCGA § 9-3-33 did not bar plaintiff’s claims against him. Defendant bases this contention on the assertion that there was no attorney/client relationship between him and plaintiff, and thus, plaintiff’s claims must be considered ex delicto rather than ex contractu. We find no merit to this contention.

In this case, defendant acted as the attorney for plaintiff’s guardian ad litem. But in doing so, he clearly undertook to represent plaintiff’s interests. Plaintiff was the real party with the legal interest warranting representation. As the intended beneficiary of the relationship between her guardian ad litem and defendant, plaintiff also was in privity with defendant, despite her minority. See Reaugh v. Inner Harbour Hosp., 214 Ga. App. 259, 261 (3) (447 SE2d 617) (1994). In cases like this, to suggest that the guardian alone is the attorney’s client, and not the minor, is to ignore the guardian ad litem’s representative capacity and the minor’s direct interest.

Consequently, we conclude that when defendant undertook to consummate the settlement of plaintiff’s claim against Sears, defendant entered into an attorney/client relationship with plaintiff. Therefore, plaintiff had four years from the time she reached the age of 18 to file her ex contractu claims against defendant arising out of that relationship. See OCGA §§ 9-3-25; 9-3-90. She filed her claims approximately three years after reaching age 18.

Decided November 22, 1996

Reconsideration denied December 13, 1996

Beckmann & Pinson, Walter W. Ballew III, William R. Dekle, for appellant.

Middleton, Mixson, Orr & Adams, Richard H. Middleton, Jr., Lynda W. Orr, for appellee.

Judgment affirmed.

Andrews and Smith, JJ., concur.


text:
    A96A1388.
    THE STATE v. HOLMES.
    (479 SE2d 409)
   Pope, Presiding Judge.

Defendant Ray Holmes was arrested for driving under the influence of alcohol. He filed a motion to suppress and motion in limine seeking to exclude evidence that he had refused to take a State-administered breath test. Following a hearing on defendant’s motion, the trial court concluded that because Holmes was not given the required implied consent warnings at the time of his arrest, any evidence of his subsequent refusal to take the test must be excluded. The State appeals the trial court’s decision pursuant to OCGA § 5-7-1 (a) (4). Concluding that the trial court erred, we reverse.

While it is true that OCGA § 40-6-392 (a) (4) states that a DUI suspect be informed of his implied consent rights at the time of arrest, this Court and the Georgia Supreme Court have noted an exception to this requirement. A delay in informing the suspect is appropriate in “certain limited situations . . . where advising the accused at the moment of physical arrest would not enable the accused to make an intelligent choice concerning the state’s request and his right to undergo an independent test.” See Perano v. State, 250 Ga. 704, 707 (300 SE2d 668) (1983) (fracas between a defendant and the arresting officer at the time of arrest warranted delay in giving the defendant his implied consent rights); Martin v. State, 211 Ga. App. 561, 562 (440 SE2d 24) (1993) (five- to ten-minute delay justified when an arresting officer did not have a new implied consent card in her possession at the time of physical arrest); Hadden v. State, 180 Ga. App. 496, 497 (1) (349 SE2d 770) (1986) (delay warranted based on the fact the defendant was emotionally distraught at the time of his arrest); Lee v. State, 177 Ga. App. 8, 10-11 (338 SE2d 445) (1985) (short delay warranted based on a defendant’s physical condition at the site of his arrest). Based on the record evidence in this case, the above-mentioned exception clearly is applicable here.

Decided November 25, 1996

Reconsideration denied December 13, 1996

Charles M. Ferguson, District Attorney, Keith W. Day, Assistant District Attorney, for appellant.

T. Lee Bishop, Jr., for appellee.

Although Officer Shattles, who arrested defendant, did not specifically testify that defendant was incapable of making an intelligent choice at the time he took physical custody of defendant, the evidence dictates such a conclusion. After receiving a report from a motorist who had been run off the road by a commercial truck, Shattles located the truck in a parking lot. The truck was still running, and defendant was slumped over the wheel. Shattles knocked on the driver’s door to no avail. He then opened the door, and, noticing that defendant’s foot was still on the clutch, reached into the cab and turned off the engine. After being shaken several times, defendant finally awoke and stumbled out of the truck, almost falling. When asked for identification, defendant was slow to produce his driver’s license. Defendant was unstable and stood near Shattles’ patrol car so as not to fall. He also slurred his speech.

Clearly, defendant was not coherent at the scene of his physical arrest. Therefore, informing him of his implied consent rights at that precise time would not have allowed him to make an intelligent choice regarding those rights. Consequently, it was reasonable and appropriate for Shattles to delay reading defendant his implied consent rights for a short period. The delay, which lasted only five to ten minutes, was not excessive, and it allowed defendant to use a rest room to help relieve the nausea he was feeling. It also gave him the opportunity to regain his composure and faculties before being given the implied consent warning, which he has never indicated he failed to understand. Accordingly, because “the warning was given in close proximity to the arrest and its timing was warranted by the circumstancest, the] evidence of [defendant’s] refusal to submit to testing was admissible and [should not have been suppressed].” Lee, 177 Ga. App. at 11.

Judgment reversed.

Andrews and Smith, JJ., concur.


author: Ruffin, Judge.

text:
    A96A1032.
    BAKERY SERVICES, INC. v. THORNTON CHEVROLET, INC.
    (479 SE2d 363)
   Ruffin, Judge.

On September 22, 1988, Bakery Services, Inc. (“Bakery Services”), through its president, Russell Cook, purchased a used 1988 Chevrolet Suburban from Thornton Chevrolet, Inc. (“Thornton Chevrolet”). Bakery Services also purchased a General Motors Extended Warranty. Bakery Services drove the Suburban 48,000 miles over the next three and one-half years, but complained of numerous problems with the vehicle and took it to Thornton Chevrolet on six occasions for repairs. Bakery Services was not satisfied with the repairs performed by Thornton Chevrolet, and on May 26, 1992, it notified Thornton Chevrolet that it was revoking its acceptance of the Suburban. Thereafter, Bakery Services stopped making payments on the Suburban and the lienholder, General Motors Acceptance Corporation (“GMAC”), repossessed the vehicle. Bakery Services then filed this action against Thornton Chevrolet to recover the money it paid for the Suburban as well as its attorney fees. The jury returned a verdict in favor of Thornton Chevrolet. Bakery Services appeals, asserting as error the admission of certain testimony and the trial court’s charge to the jury. For reasons which follow, we affirm.

1. Bakery Services asserts the trial court erred in admitting hearsay testimony from one of Thornton Chevrolet’s witnesses, Daniel Longhurst. Longhurst’s fiancee purchased the Suburban at Atlanta Auto Auction after it was repossessed by GMAC. Longhurst, who races cars as a hobby, used the Suburban to tow a race trailer. During Bakery Service’s cross-examination of Longhurst, Bakery Service’s counsel questioned him extensively concerning problems he had with the Suburban and repairs he made to the vehicle. During recross-examination, the following exchange took place between Bakery Service’s counsel and Longhurst: “Q: Now, you don’t personally know what, if anything else, was done by Atlanta Auto Auction or GMAC or anybody else from the time the vehicle left Mr. Cook’s possession and got to Atlanta Auto Auction, do you, and you purchased it? A: All I know is that it has been looked over by some mechanics. There was some questions, I guess, between it and just word of mouth it had been looked at. And the dealers that — well, before we purchased it, we just asked if anybody knew anything about it and they said it had been looked over and given its blessings by GMAC and Thornton Chevrolet and Atlanta Auto Auction mechanics.” The trial court overruled Bakery Service’s objection based on unresponsiveness to Longhurst’s answer, finding that it was responsive to the question asked. We agree.

Counsel for Bakery Services asked Longhurst what he knew about prior service to the Suburban by Atlanta Auto Auction and GMAC. Longhurst answered by stating what he knew. Under these circumstances, “[w]e find no abuse of discretion in the trial court’s finding that [Longhurst’s] answer was responsive to [Bakery Service’s] counsel’s question.” Wells v. State, 212 Ga. App. 60, 63 (441 SE2d 460) (1994). Accordingly, the court did not err in overruling Bakery Service’s objection. Moreover, “a party will not be heard to complain of error induced by his own conduct.” (Citations and punctuation omitted.) Id. at 62 (1).

2. Bakery Services asserts the trial court erred in admitting hearsay testimony from John Thornton, the President of Thornton Chevrolet. During Bakery Service’s cross-examination of Thornton, counsel asked him what “Thornton Chevrolet’s policy was as to what its service advisors were supposed to tell customers regarding Thornton Chevrolet’s ability to fix vehicles.” In response to the question, Thornton explained that Thornton Chevrolet’s general policy is to “train our service advisors to discuss the problems they would experience with the vehicles and if we understood the problem . . . we fix them.” Counsel for Bakery Services then asked Thornton: “[d]id you call Mr. Cook to find out whether or not he was telling the truth about any of the problems he was alleging in his letter of March 23, 1992 in order to discuss it with him and to tell him that if you could fix it, you’d try to and that you’d let him know if you couldn’t fix it?” Thornton responded: “The discussion I had with [two other Thornton Chevrolet employees] would have been along those lines; yes, sir. We would have said if there had been anything outstanding that we could find to fix, that we would — we would, in fact, fix it.” The trial court then overruled Bakery Services’ objection to Thornton’s answer, finding that it was responsive to the question asked.

We first note that Thornton’s response was not necessarily hearsay. Thornton, the corporation’s president, merely stated that he had a conversation with two Thornton Chevrolet employees and that as a result of that conversation Thornton Chevrolet would have informed Cook that it would repair the Suburban. As is shown by Thornton’s earlier testimony, he used the term “we” when referring to Thornton Chevrolet and not necessarily specific individuals. As Thornton Chevrolet’s President, Thornton was a competent witness concerning the actions taken by the corporation. OCGA § 10-6-64. See also Long Tobacco &c. Co. v. Brannen, 99 Ga. App. 541, 545 (2) (109 SE2d 90) (1959).

Furthermore, “[w]e find no abuse of discretion in the trial court’s finding that [Thornton’s] answer was responsive to [Bakery Services’] counsel’s question.” Wells, supra at 63. In the preceding question, counsel for Bakery Services asked Thornton about the practices of Thornton Chevrolet, and he did not specify in the question at issue whether he was still inquiring about Thornton Chevrolet or Thornton individually. Accordingly, we find no error.

3. Bakery Services also asserts, with regard to the testimony at issue in Division 2, that the trial court erred in failing to give its requested charge on OCGA § 24-4-22. That statute provides that “[i]f a party has evidence in his power and within his reach by which he may repel a claim or charge against him but omits to produce it, or if he has more certain and satisfactory evidence in his power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against him is well founded; but this presumption may be rebutted.” Bakery Services contends that the charge should have been given because Thornton Chevrolet did not present testimony from any of its employees who contacted Cook regarding repairs, but instead relied on the inferior testimony from Thornton discussed in Division 2. We disagree that these circumstances required the court to give the charge at issue.

“ ‘[A] request to charge must embody a correct, applicable and complete statement of law, legal and perfect in form and adjusted to the pleadings and evidence; it must not be argumentative or seek an expression of opinion on the part of the court; and it must not be so phrased as to have tendency to confuse and mislead the jury or to becloud the issues in the case.’ [Cits.]” Shilliday v. Dunaway, 220 Ga. App. 406, 410 (7) (469 SE2d 485) (1996).

Although the requested charge was a correct statement of the law, “ ‘a party need not account for every witness who has knowledge of facts pertinent to his cause or defense ([cit.]). . . .” Meacham v. Barber, 183 Ga. App. 533, 539 (5) (359 SE2d 424) (1987). It is only “ ‘where the testimony of available witnesses is material to his cause or defense, [that] the witnesses must be produced or the inference will arise that their testimony would be unfavorable to the party who fails to produce them. (Cits.)’ ” (Emphasis in original.) Id.

In this case, although Bakery Services presented testimony showing that Thornton Chevrolet employees did not respond to two messages Cook left with the business, Bakery Services has not shown how the absent witnesses were material to Thornton Chevrolet’s defense. In its complaint, Bakery Services alleged that Thornton Chevrolet was liable for failing to properly repair the Suburban. Specifically, the complaint alleged that although Thornton Chevrolet attempted to repair the Suburban on numerous occasions, the problems were not remedied. Although the complaint also alleged that Thornton Chevrolet acted in bad faith, that allegation was based on Thornton Chevrolet’s failure to refund Bakery Services’ money. Bakery Services never alleged in its complaint or in the pretrial order that Thornton Chevrolet was liable for its refusal to repair the Suburban, and Cook even testified that “[i]n the time that [he] communicated with them . . . they never refused to work on it.” Accordingly, testimony from Thornton Chevrolet employees that they contacted Cook regarding repairs would not have been material to Thornton Chevrolet’s defense, and the requested charge was therefore not applicable. We find no error.

4. Bakery Services asserts the trial court erred in admitting testimony from Cook that contained a legal conclusion. The transcript shows that during Thornton Chevrolet’s cross-examination of Cook, counsel asked him why and when he stopped making payments to GMAC on the Suburban. Counsel for Thornton Chevrolet then asked if Cook still owed money to GMAC, and Cook responded that he did. The trial court overruled Bakery Services’ objection to the latter question, which was made on the ground that it called for a legal conclusion.

Although as a general rule a witness may not state a conclusion of law, the issue of “whether a question calls for a legal conclusion or principally a fact which incidentally involves a legal word or phrase, is within the sound discretion of the trial court. [Cits.]” Gage v. Tiffin Motor Homes, 153 Ga. App. 704, 707-708 (2) (266 SE2d 345) (1980). In this case, the trial court found that Thornton Chevrolet was not attempting to determine the legal consequences of any contract between GMAC and Bakery Services, but only whether Cook knew he owed money to GMAC when he withheld payments. Under these circumstances we conclude that the trial court did not abuse its discretion in overruling the objection.

Moreover, Cook’s testimony that money was owed to GMAC was merely cumulative of other testimony admitted without objection. That testimony showed that GMAC filed a lawsuit against Bakery Services because it stopped making payments, and that GMAC ultimately prevailed in that action and recovered possession of the Suburban from Bakery Services. Accordingly, because the jury was otherwise aware that Bakery Services owed money to GMAC, any error in admitting Cook’s testimony would have been harmless. See Jafari v. Simpson Organization, 214 Ga. App. 589 (2) (448 SE2d 493) (1994).

5. Bakery Services asserts the trial court erred by overruling its objection to Thornton Chevrolet’s comment during opening statements, which were not transcribed, that the Suburban was sold “as is.” We disagree.

“[T]he trial court has broad discretion to control the content of the opening statements of both parties. [Cit.]” Massey v. State, 263 Ga. 379, 381 (2) (434 SE2d 467) (1993). Because the transcript does not include Thornton Chevrolet’s opening statement, we cannot conclude that the trial court abused its discretion. “The burden is on the party alleging error to show it affirmatively by the record, and when the burden is not met, the judgment complained of is assumed to be correct and must be affirmed.” (Citations and punctuation omitted.) Sycamore Pellet Systems v. Southeastern Steam, 196 Ga. App. 717, 718 (2) (397 SE2d 6) (1990).

6. Bakery Services asserts the trial court erred in failing to give three of its requested charges concerning the effect of warranties, disclaimers and the seller’s failure to repair on the buyer’s right to revoke acceptance.

(a) Bakery Services asserts the trial court should have given its requested charge that a party has the right to revoke acceptance even when the seller has disclaimed warranties by selling the vehicle “as is” or with other disclaimers. “However, the charges given concerning [this matter] correctly stated the law and reflected the principles embodied in [Bakery Services’] request[ ]. The court’s failure to charge in the exact language requested was not error.” Martin v. Williams, 215 Ga. App. 649, 652 (4) (451 SE2d 822) (1994).

(b) Similarly, the trial court did not err by refusing to give Bakery Services’ requested charge that the seller’s unsuccessful repairs or refusal to repair a vehicle constitutes a breach of the repair warranties and makes the remedy of revocation of acceptance available. The transcript shows that the trial court’s charge covered these same principles in almost identical language. Id.

(c) Finally, Bakery Services asserts the trial court erred in failing to charge the jury that the remedy of revocation of acceptance is available even where the warranty is issued by the manufacturer. However, the court’s charge, without distinguishing between dealer and manufacturer issued warranties, informed the jury generally that the remedy of revocation is available even where the vehicle is sold with a repair warranty. Under these circumstances, we find no error. See Martin, supra.

7. Bakery Services asserts the trial court erred in failing to give its requested charge that the Uniform Commercial Code applied to the sale of a used vehicle. However, the transcript shows that the trial court charged the jury on the applicable provisions of the Uniform Commercial Code. Bakery Services has cited no authority showing that the court was required to inform the jury that the charged law was part of the Uniform Commercial Code. Furthermore, we do not see how Bakery Services could have been harmed by failure to give this charge. Accordingly, the trial court’s failure to give this charge was not error. See Martin, supra.

8. Bakery Services asserts the trial court erred in failing to give its requested charge that recited the language of OCGA § 24-4-23. That section provides that “[i]n the ordinary course of business, when good faith requires an answer, it is the duty of the party receiving a letter from another to answer within a reasonable time. Otherwise he is presumed to admit the propriety of the acts mentioned in the letter of his correspondent and to adopt them.” Bakery Services contends that the charge should have been given because the evidence showed that Thornton Chevrolet failed to respond to a letter listing problems with the Suburban and threatening suit if Thornton Chevrolet did not refund all payments or give Bakery Services a new Suburban. We disagree that the trial court erred in failing to give this charge.

Pretermitting whether the evidence in this case supported such charge, we find that the requested charge was an incomplete statement of law. “ ‘(T)he presumption arising from a failure to answer a letter is not a presumption of law, but one of fact, and subject to explanation. (Cits.)’ [Cit.]” Lyons Mfg. Co. v. Cedarbaum, 174 Ga. App. 218, 219 (1) (329 SE2d 559) (1985). The charge requested by Bakery Services was incomplete because it did “not include any clarification that the presumption stated was not one of law but of fact and subject to explanation; in other words that it was a rebuttable presumption.” Id. Accordingly, we find no error.

9. Bakery Services asserts the trial court erred in failing to give its requested charge that the question of whether the non-conformity substantially impairs the value of the vehicle as determined from the buyer’s perspective. However, Bakery Services cited no authority showing the requested language is the law in Georgia. See Shilliday, supra. Furthermore, the court’s charge to the jury was a correct statement of the law under OCGA § 11-2-608 and generally covered the same principles as stated in the requested charge. Under these circumstances, we find no error. See Martin, supra.

10. Bakery Services asserts the trial court erred in failing to give its requested charge that the timeliness of the buyer’s notice of revocation of acceptance is measured from the date the buyer discovered or should have discovered the ground for revocation. However, Bakery Services’ requested charge is an incomplete statement of the law under OCGA § 11-2-608 (2), which provides that “[rjevocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects.” (Emphasis supplied.) Furthermore, the court’s charge concerning this principle stated verbatim the language in OCGA § 11-2-608 (2). Accordingly, we find no error. See Shilliday, supra; Martin, supra.

11. Bakery Services asserts the trial court erred in failing to give its requested charge that “[a] substantial change in the condition of a vehicle is not caused by the mere fact that the continued use of the vehicle increases the mileage placed on the vehicle. A buyer is therefore not barred from revoking his acceptance of the vehicle merely because the mileage placed on the vehicle has increased.” Although we are aware of no Georgia cases which embrace this principle, other jurisdictions have held that, under the facts of the decided cases, jury questions remained concerning whether the buyer’s continued use of the vehicle barred revocation. See Allen v. Rouse Toyota Jeep, 398 SE2d 64 (N.C. App. 1990); Vista Chevrolet v. Lewis, 704 SW2d 363 (Tex. App. 1985).

We agree that in a proper case a court should give a requested charge concerning continued use and the remedy of revocation. However, the requested charge must be properly tailored to the evidence presented at trial. In some cases, the undisputed evidence may show that the owner was not justified in continuing to drive the vehicle. In such cases the jury could find that continuing to drive the vehicle, in itself, substantially changed the condition of the vehicle, thereby barring revocation. In cases such as the instant case, evidence may show that the owner was justified in continuing to drive the vehicle because the seller made assurances that the defect would be cured. In such cases, a charge addressing only the principle that the increased mileage does not bar revocation would be incomplete. Before such rule would apply, the jury would need to determine that the vehicle was defective and that the owner justifiably continued driving the vehicle after the seller made assurances that the defect would be cured. See Allen, supra.

Ultimately, it is for the jury to decide whether the increased mileage resulted in such a substantial change in the condition of the vehicle as would bar the buyer’s remedy of revocation. See Griffith v. Stovall Tire & Marine, 174 Ga. App. 137 (1) (329 SE2d 234) (1985). A complete and properly tailored request in this case would have included all these principles. See Shilliday, supra. The requested charge could have misled the jurors into believing they could not consider the fact that Bakery Services drove the Suburban for 48,000 miles, even if they determined that such continuous use was not justified by the facts. Accordingly, the court did not err in failing to give the requested charge. See id.

12. Bakery Services asserts the trial court erred in failing to give its requested charge that “[t]he seller’s liability for consequential damages is not limited to cases in which the seller fails to use due effort in good faith or to situations in which there was a conscious acceptance of an insurer’s liability on the seller’s part.” During the charge conference, when the trial judge asked counsel for Bakery Services about the charge, counsel informed the court that he requested the charge because Thornton Chevrolet “made arguments in various pleadings that they’re not — has made arguments to the effect of we’re not insured. So far, he didn’t make those arguments to the jury.” The trial judge responded “Okay[ ],” then proceeded to discuss Bakery Services’ next requested charge.

Decided November 5, 1996

Reconsideration denied December 16, 1996

Don C. Huprich, for appellant.

Howe & Dettmering, W. O’Neal Dettmering, Jr., for appellee.

We note first that Bakery Services has not shown that the portion of the charge regarding insurance was supported by the evidence, and counsel’s own statement to the trial court indicated that the charge was not in fact supported by the evidence. See Shilliday, supra. Similarly, Bakery Services’ response to the trial court, in essence, informed the court that the charge was not warranted under the circumstances at trial. Accordingly, we agree with Thornton Chevrolet that any error in failing to give this charge was induced by Bakery Services. See Teague v. York, 203 Ga. App. 24 (1) (416 SE2d 356) (1992).

Moreover, we find no merit in Bakery Services’ contention that without the charge the jury could have concluded that Thornton Chevrolet should not be liable because it attempted to repair the Suburban in good faith. The transcript shows that under the court’s charge the jury was informed that even if the seller unsuccessfully repaired the vehicle, the buyer could revoke his acceptance and recover damages. Under these circumstances, Bakery Services’ assertion is without merit. See Martin, supra.

13. Finally, Bakery Services asserts that the trial court erred in failing to give its requested charge that its attorney fees and expenses incurred in defending GMAC’s repossession action are incidental damages that could be awarded. Even if the evidence merited such charge, the court’s failure to give it was harmless. Because the jury returned a verdict finding Thornton Chevrolet was not liable, the court’s failure to charge on an issue of damages did not harm Bakery Services. See Hayden v. Sigari, 220 Ga. App. 6 (5) (467 SE2d 590) (1996).

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


text:
    A96A1964.
    DUNLAP v. MOODY et al.
    (479 SE2d 456)
   Ruffin, Judge.

This case arose after the death of Charles Etta Scott, who left a considerable estate but no will. William Dunlap claims to be the biological father of Charles Etta Scott. Appellees are Cleveland Moody, who claims to be Scott’s common-law husband, and Alice Stapleton, Scott’s aunt. Stapleton is related to the Kellers, who raised Scott. The trial court granted appellees’ motion for partial summary judgment, denying Dunlap’s heirship status. Dunlap appeals, and we affirm.

Dunlap admitted he was never married to Scott’s mother and claims Scott was an illegitimate child. Therefore, Dunlap must meet the requirements of OCGA § 53-4-5 or he is barred from inheriting from Scott’s estate. Pursuant to OCGA § 53-4-5 (b), fathers may inherit from illegitimate children in specifically defined circumstances: (a) if a court has entered an order legitimating the child, (b) if a court has entered an order establishing the paternity of the child, (c) if the father executed a sworn statement attesting to the parent-child relationship, (d) if the father signed the child’s birth certificate, or (e) if the presumption of paternity has been established by genetic testing, such as a blood test. Dunlap admitted that he did not legitimate Scott prior to her death and that no court ever entered an order establishing him as Scott’s father. He further admitted that he never had a blood test to determine whether.he was Scott’s father. However, Dunlap claims his name is on Scott’s birth certificate and that he executed at least two sworn statements attesting to the parent-child relationship.

1. According to Dunlap, he filed Scott’s birth certificate with his affidavit. However, the birth certificate he filed shows that Wallace Dunlap was the father and' Essie Bea D— (record is illegible) was the mother of a child named “Lúencia Dunlap.” The birth certificate further reflects that the child was legitimate. Dunlap claimed in his affidavit that he was at one time known as Wallace Dunlap and that Essie Bea Dawson was the biological mother of Scott, who was originally named “Lucinda Dunlap.” However, other than Dunlap’s self-serving, unsubstantiated assertions, there is no evidence in the record that this birth certificate is, in fact, Scott’s birth certificate. On the contrary, the birth certificate shows on its face that it belongs to a legitimate child born in wedlock named “Luencia.”

We find that the only birth certificate in the record for Scott is a delayed birth certificate issued in 1958. This birth certificate shows that Scott was the child of Charles and Gracie Keller. According to this birth certificate, which was signed and sworn to by Scott, her “Full Name at Time of Birth” was Charles Etta Keller. Dunlap’s name does not appear on the delayed birth certificate. Based on the record, we find that Dunlap has not met the requirements of OCGA § 53-4-5 (b) (1) (D).

2. Dunlap also argues that he has complied with OCGA § 53-4-5 (b) (1) (C), which provides that a father of an illegitimate child may inherit from the child if the father executed a sworn statement signed by him attesting to the parent-child relationship. Dunlap admitted that before Scott’s death, he never executed a sworn statement attesting to his parent-child relationship with Scott. However, he claims that his application for temporary letters of administration, dated August 17, 1995, and his application for permanent letters of administration, dated September 8,1995, qualify as the requisite sworn statements even though these statements were executed after Scott’s death. We disagree.

This case is analogous to a situation where the parent dies without legitimating his child. In such situation, “the child’s opportunity to inherit dies with the parents.” Prince v. Black, 256 Ga. 79, 80 (344 SE2d 411) (1986). It is well established that an illegitimate child may inherit from his or her father only if, during the father’s lifetime, (a) paternity was adjudicated, (b) the father signed the child’s birth certificate, (c) the father signed a sworn statement that he was the child’s father, or (d) there is clear and convincing evidence that the child is the father’s natural child and the father intended that the child share in his estate. OCGA § 53-4-4; Hill v. Newman, 254 Ga. 57 (1) (325 SE2d 767) (1985). We find that a father’s opportunity to inherit from his illegitimate child is similarly lost unless the requirements of OCGA § 53-4-5 (b) are met during the child’s lifetime. To rule otherwise would allow a father to sign a sworn statement years after the alleged illegitimate child’s death and defeat the finality of any estate transfers that have taken place. Additionally, such a ruling would not permit an illegitimate child, who is now dead, to dispute paternity. We, therefore, conclude that Dunlap’s sworn statements signed after Scott’s death do not comply with the requirements of OCGA § 53-4-5 (b)(1) (C).

3. Moreover, even if Dunlap could establish that he satisfied one of the categories of OCGA § 53-4-5 (b) (1), OCGA § 53-4-5 (b) (2) prohibits Dunlap from inheriting if it is established by a preponderance of the evidence that he “failed or refused to provide support for the child.” It is clear from the record that Dunlap did not provide any support for Scott. According to Dunlap, he knew when Scott was born, but did not attend the birth. Dunlap claims Scott’s natural mother gave Scott to the Kellers when she was six months old because she was financially unable to care for the child. He further admitted he was making a “pretty good” or “fair” living while Scott was a child and that he did not contribute to her care while Scott’s natural mother tried to care for her. According to Dunlap, he did not know the Kellers had Scott until she was two or three years old. He admitted he had no contact with Scott’s natural mother after Scott’s birth and no contact with Scott until she was at least two or three years old. He further admitted that he paid the Kellers no support for Scott and never spoke with the Kellers about raising Scott.

While Dunlap argues that he occasionally exchanged gifts with Scott, he acknowledged that he spent no more than $25 to $50 a year on Scott, and only gave her $50 when she was an adult. This Court has repeatedly held that occasional gifts do not constitute support. See Shepard v. Landers, 193 Ga. App. 392 (1) (388 SE2d 12) (1989). Based on the evidence, it is clear Dunlap failed to provide any support for Scott, and he is therefore precluded from inheriting from Scott’s estate pursuant to OCGA § 53-4-5 (b) (2).

Decided December 16, 1996.

E. Kontz Bennett, Jr., for appellant.

Thomas, Blacknall & Thomas, Willis H. Blacknall III, Joseph R. Johnson, Jr., Gibson & Spivey, Douglas L. Gibson, for appellees.

Accordingly, we conclude that the trial court did not err in denying Dunlap’s heirship status and granting partial summary judgment to appellees.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


author: Birdsong, Presiding Judge.

text:
    A96A1985.
    POPP v. THE STATE.
    (479 SE2d 459)
   Birdsong, Presiding Judge.

Damond Popp appeals his convictions of two counts of child molestation and two counts of enticing a child for indecent purposes. His sole enumeration of error contends the trial court erred by denying his motion for new trial because the evidence was insufficient to sustain the convictions. Held:

On appeal, we view the evidence in the light most favorable to the verdict, Popp no longer enjoys the presumption of innocence, and this Court determines the sufficiency of the evidence, but does not weigh the evidence or judge the credibility of the witnesses. Grant v. State, 195 Ga. App. 463 (393 SE2d 737). Although the many scientific tests conducted in this case failed to corroborate the victim’s testimony, none of the testimony from the State’s witnesses concerning the results of the tests, including the DNA test, showed that Popp could not be guilty. Consequently, the jury was left to decide whether to believe the victim or to believe Popp and the defense witnesses; the jury chose to believe the victim. Reviewing the evidence in the light most favorable to the jury’s verdict, we conclude that a rational trier of fact could have found the defendant guilty of child molestation and enticing a child for immoral purposes beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Crawford v. State, 245 Ga. 89, 90 (263 SE2d 131).

Judgment affirmed.

Beasley, C. J, and Blackburn, J., concur.

Decided December 16, 1996.

John W. Sherrer, Jr., for appellant.

C. Paul Bowden, District Attorney, Gary C. McCorvey, Assistant District Attorney, for appellee.