text:
    A00A1913.
    JOHNSON v. THE STATE.
    (546 SE2d 562)
   Phipps, Judge.

A Hall County jury convicted Terry Ramone Johnson of possession of cocaine. The trial court sentenced Johnson to eight years, two years to serve and six years on probation. On appeal, Johnson claims that (1) the evidence was insufficient to support his conviction, (2) the trial court erred in including a waiver of Fourth Amendment rights in the terms of probation, and (3) the trial court erred in refusing to grant him credit for time served. For reasons which follow, we affirm in part and reverse in part.

On February 16, 1999, Johnson was a front seat passenger in a car driven by Quincy Sanders. The car was parked on the shoulder of a road in Hall County. A Hall County deputy and a trainee drove toward Sanders’s car from the opposite direction. The deputy noticed a man standing beside the car. As the deputy’s patrol car approached, the man slapped Sanders’s car and stepped back. Sanders then drove onto the road and passed the patrol car.

The deputy recognized Sanders when he drove past. Because he knew that Sanders did not have a driver’s license, he turned the patrol car around and caught up with Sanders’s car. When the deputy approached to within a car’s length, the trainee turned on the blue lights. The deputy saw the passenger, Johnson, look back at the police car and sling an “object over his left shoulder into the backseat.”

After Sanders’s car stopped, Sanders and Johnson got out and began walking away. The deputy drew his weapon and told them to get back in the car, and they complied. The deputy arrested Sanders and Johnson and placed them in the patrol car. The deputy then inspected the backseat of Sanders’s car, where he saw a baby car seat, trash, and two plastic bags. One bag contained a powdered substance, and the other contained seven or eight of what the officer believed to be “rocks” of cocaine. Laboratory test results showed that one of the bags contained cocaine. The other bag was not tested.

1. In his first two claims of error, Johnson contends that the evidence of possession of cocaine was insufficient to prove his guilt as a matter of law and that the trial court erred in denying his motion for a directed verdict. In determining the sufficiency of the evidence, we consider whether the evidence, viewed in a light most favorable to the verdict, would have authorized a rational trier of fact to find Johnson guilty.

Johnson argues that the only direct evidence linking him with the cocaine is that he was a passenger in the vehicle in which cocaine was found. A finding of constructive possession requires more than spatial proximity between the contraband and the defendant. But if all occupants of a vehicle had equal access to contraband, they may be found in joint constructive possession. The facts here are distinguishable from Maxwell v. State, on which Johnson relies, because here the cocaine was clearly visible and not hidden. Moreover, because the deputy saw Johnson throwing an object over his left shoulder into the backseat of the car, and cocaine was found in plain view in the backseat, the jury was authorized to find that Johnson was in joint constructive possession of the cocaine.

2. As a condition of probation, the trial court ordered Johnson to waive his Fourth Amendment rights to be free from unreasonable search and seizure. The trial court informed Johnson of this waiver at sentencing in the presence of his attorney, who made no objection. Johnson argues that the trial court erred in including the waiver in the terms of probation because the waiver was imposed without his consent and was not pursuant to a negotiated plea.

We have upheld such a waiver of constitutional rights as a condition of probation as “at least impliedly consented to . . . as an acceptable alternative to prison.” Although in Fox v. State our Supreme Court found a defendant’s waiver of Fourth Amendment rights to be invalid, Fox is distinguishable. There, the trial court did not mention the waiver as a condition of probation during sentencing. Here, Johnson was informed of the waiver at sentencing in the presence of counsel, who did not object. We find that Johnson consented to the waiver and that it was a valid condition of his probation.

3. At sentencing, the trial court told Johnson, “You will be given no credit for any time served previously.” And on the sentencing sheet is written, “No credit for time served previously.” Johnson argues that he is nevertheless entitled to such credit, and we agree. “The clear policy behind OCGA §§ 17-10-9 through 17-10-12 is that time spent in incarceration under the authority of this state or a political subdivision thereof should count toward the time which a prisoner must serve.”

Although credit need not be given for prior incarceration related to another charge, the state does not argue that is the case here. The state’s argument is that, because a trial court need not reflect the consideration of time served in its sentence, the court does not err by stating that it is giving a defendant no credit for time served. But although the trial court need not mention credit for time served in its sentence, because the credit will be computed and applied by the presentence and post-sentence custodians, the trial court cannot take the credit away. In Diaz v. State, we ruled that, because a trial court is not responsible for computing a defendant’s credit for time served, a verbal statement by the trial court that a defendant will not be credited for time served does not require a reversal. But unlike Diaz, the trial court here included a prohibition against credit for time served on the written sentencing order. The post-sentence custodian should not be asked to comply with an order of the trial court which is inconsistent with the law. Accordingly, we direct the trial court to strike the words “No credit for time served previously” from Johnson’s sentence.

Decided March 6, 2001.

Leo E. Benton, Jr., for appellant.

Lydia J. Sartain, District Attorney, E. Paul Stanley, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

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

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Maxwell v. State, 238 Ga. App. 197, 198 (1) (518 SE2d 432) (1999).

        Lowe v. State, 223 Ga. App. 172, 173 (477 SE2d 341) (1996).

       238 Ga. App. 197.

       See Reed v. State, 244 Ga. App. 146 (534 SE2d 871) (2000).

        Luke v. State, 178 Ga. App. 614, 616 (2) (344 SE2d 452) (1986).

       272 Ga. 163, 164-165 (1) (527 SE2d 847) (2000).

        Spann v. Whitworth, 262 Ga. 21, 22 (1) (413 SE2d 713) (1992).

        Johnson v. State, 241 Ga. App. 369, 370 (526 SE2d 882) (1999).

        Turner v. State, 151 Ga. App. 631, 633-634 (3) (260 SE2d 756) (1979).

        Beeks v. State, 169 Ga. App. 499, 500 (2) (313 SE2d 760) (1984).

       245 Ga. App. 380 (537 SE2d 784) (2000).

       See Addo v. State, 212 Ga. App. 163 (1) (441 SE2d 486) (1994) (physical precedent only).


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A00A2146.
    HASH v. THE STATE.
    (546 SE2d 833)
   Phipps, Judge.

Thomas Hash appeals his convictions for aggravated assault, possession of a firearm during the commission of a crime, and disorderly conduct.* He contends that the trial court erred in denying his motions for mistrial and directed verdict and that the evidence was insufficient to support his convictions. We affirm because we find that the trial court properly denied the motions and that the evidence was sufficient.

Construing the evidence in the light most favorable to the verdict, the jury was authorized to find that the following occurred. On the night of November 29, 1998, Hash was at home with Patricia Suttler, his live-in girlfriend of 37 years, and their adult son. Hash and Suttler had been drinking alcohol. Their son was high on drugs. Hash went outside, and Suttler and their son heard gunshots. Apparently, Suttler believed that Hash had fired the shots. Fearing that Hash’s behavior would worsen if he continued to drink, Suttler hid liquor that Hash had placed in the refrigerator. After Hash returned, he noticed that the liquor was missing. He became upset and got a .25 caliber pistol. Then he held Suttler against the wall, put the pistol to the back of her head, and threatened that if she did not tell him where his liquor was, he would kill her.

Afterward, Suttler called 911. Before she could explain the situation, Hash took the phone from her and hung it up. The 911 operator called back, and Hash told the operator that the police would need a warrant to get on his property. The operator heard Suttler in the background saying that the police were needed.

Officer Charles Holcombe was dispatched to the scene. Suttler told him that Hash was drunk and had put a gun to her head and threatened to kill her. It appeared to Holcombe that Suttler was very upset and very frightened. After Hash had been placed in a police car, Suttler told Holcombe several times that she was afraid because Hash had threatened to kill her. She also stated that she was worried that Hash would come back and harm her once he was released from jail. Suttler gave Holcombe the loaded pistol that had been put to her head.

1. On appeal, the standard of review for denial of a motion for directed verdict is the same as that for determining the sufficiency of the evidence to support a conviction.

The issue ... is whether, based on the evidence presented, a rational finder of fact could have found the accused guilty of the charged offenses beyond a reasonable doubt. Leaving the resolution of conflicting or contradictory testimony and the credibility of the witnesses to the jury, we construe the evidence in favor of the jury’s verdicts. In this regard, even though a witness may recant on the stand, his prior inconsistent statements constitute substantive evidence on which the jury may rely.

Hash contends the evidence was insufficient because Suttler testified at trial that he did not put a gun to her head and that she called the police to break up a fight between him and their son. She testified that she fabricated allegations against Hash because their son was on probation and would face more serious consequences if arrested. Hash also argues that the evidence did not corroborate Suttler’s prior statement.

Despite these arguments, we find that the evidence was sufficient to support Hash’s convictions because the jury was authorized to rely upon Suttler’s prior statement in reaching its verdict, and therefore the court did not err in denying the motions for directed verdicts.

2. During jury voir dire, the prosecutor asked whether any members of the venire knew Hash or were acquainted with him. One potential juror responded, “I — I’m not sure, but I think his fam — face is familiar, working in admissions at Northwest. I don’t know if — but he looks very familiar.” Then, the prosecutor asked the prospective juror whether her possible acquaintance with Hash would affect her deliberations. She responded, “If I recalled that he had a strong repeat admission to Northwest for substance abuse, that would.”

After a bench conference, the court excused the prospective juror and asked the remaining members of the venire to raise their hands if any of them could not disregard what the excused juror had said. No hands were raised. Hash moved for mistrial, contending that the effect of the prospective juror’s comments had not been cured.

“A trial court has broad discretion in ruling on a motion for a mistrial, and this court will not disturb such ruling in the absence of a manifest abuse of that discretion which threatens the defendant’s right to a fair trial. [Cits.]” “The test to be applied is whether the remarks were inherently prejudicial and deprived defendant of his right to begin his trial with a jury free from even a suspicion of prejudgment or fixed opinion.”

We find examples of reversible error in the cases of Lingerfelt v. State, Moore u. State, and Sinyard v. State. In Lingerfelt, the defendant was on trial for burglary, rape, aggravated sodomy, and armed robbery. During voir dire, a prospective juror stated that he knew several persons who claimed the defendant was a peeping Tom. In Moore, the defendant was on trial for arson, and a prospective juror stated that he had worked with a man who said the defendant was a firebug. And in Sinyard, where the defendant was on trial for theft by conversion, a prospective juror responded to a voir dire question by stating that a friend of hers had been cheated by the defendant.

This case is clearly distinguishable from those cases. It is more analogous to cases like Sims v. State and Sexton v. State, where we did not find reversible error. In Sims, the defendant was on trial for armed robbery, and a venireman stated during voir dire that he had worked with kids who suffered from mental retardation, behavior problems, or drug abuse and that he thought he remembered the defendant’s face, though he was not sure. In Sexton, the defendant was on trial for aggravated assault, and a prospective juror stated during voir dire that the defendant looked like a drunk driver who had caused an accident at which she had rendered aid.

Given the uncertain nature of the prospective juror’s statements at issue, we find that they were not inherently prejudicial. Moreover, we disagree with Hash’s contention that the trial court’s curative measures were insufficient to eliminate any prejudice which might have been created by the statements. When the judge asked the remaining members of the jury panel if any of them could not disregard the statements, he implicitly instructed them to disregard the statements. By lack of an affirmative response to the trial court’s inquiry, the remaining veniremen indicated that they would not be affected by the statements.

Hash could have examined the prospective jurors further regarding any lingering effects of the statements. Moreover, although he complains that the court’s curative measures failed to include an instruction to the jury, he did not request a more adequate instruction. We find no manifest abuse of discretion in the trial court’s disposition of Hash’s motion for a mistrial.

However, we note that after a prospective juror has indicated during voir dire that he or she may be familiar with the defendant, the trial court should conduct follow-up questioning outside the hearing of other prospective jurors. Although the court failed to do so in this case, the comments by the prospective juror were not so prejudicial as to necessitate a mistrial.

Decided March 6, 2001

Ronald G. Shedd, for appellant.

Tambra P. Colston, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       For sentencing, the trial court merged the disorderly conduct and aggravated assault convictions.

        Jackson v. State, 236 Ga. App. 260 (511 SE2d 615) (1999).

       (Footnotes omitted.) Gunsby v. State, 248 Ga. App. 18 (1) (545 SE2d 56) (2001).

       See Gunsby, supra; Boyd v. State, 230 Ga. App. 314 (1) (497 SE2d 3) (1998); Gibbons v. State, 248 Ga. 858, 862-864 (286 SE2d 717) (1982).

        Weaver v. State, 178 Ga. App. 91, 93 (2) (341 SE2d 921) (1986).

       (Citations and punctuation omitted.) Sinyard v. State, 243 Ga. App. 218, 221 (2) (531 SE2d 140) (2000).

       147 Ga. App. 371, 372-374 (1) (249 SE2d 100) (1978).

       156 Ga. App. 92, 93 (274 SE2d 107) (1980).

       Supra, 243 Ga. App. at 221.

       226 Ga. App. 116, 117-118 (2) (486 SE2d 365) (1997).

       189 Ga. App. 331, 332 (1), (2) (375 SE2d 661) (1988).

       See Tubman v. State, 185 Ga. App. 731, 732 (1) (365 SE2d 879) (1988); Stone v. State, 170 Ga. App. 234, 235 (1) (316 SE2d 836) (1984).

       See Pruitt v. State, 176 Ga. App. 317, 318 (1) (335 SE2d 724) (1985).

       See id.

       See Worley v. State, 201 Ga. App. 704, 707-709 (3) (411 SE2d 760) (1991).


author: Ruffin, Judge.

text:
    A00A2434. A00A2435.
    FANN et al. v. MILLS et al. BARKER et al. v. MILLS et al.
    (546 SE2d 853)
   Ruffin, Judge.

After Dominique Mills purchased a house, she learned that it had termite damage and was prone to flooding. Mills then sued the following for fraud and negligent misrepresentation: Barbara Barker — the buyer’s agent; Margaret Ann Griffin — the seller’s agent; Wayne Fann — the broker for both agents; Wayne Fann, Inc. d/b/a Coldwell Banker-Wayne Fann Real Estate; and Kevin Willis — a workman who did repair work on the house prior to Mills’ purchase. The defendants moved for summary judgment, and the trial court denied their motions. In Case No. A00A2434, Fann, Griffin, and Wayne Fann, Inc. appeal, and in Case No. A00A2435, Barker and Willis appeal. As both cases involve the same operative facts, we have consolidated them on appeal. For reasons that follow, we affirm in part and reverse in part.

On motion for summary judgment, the movant must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in favor of the nonmovant, warrant judgment as a matter of law. So viewed, the record establishes that Marguerite Shenton decided to sell her home. In August 1994, she contacted her friend, Griffin, who was a real estate agent with Wayne Fann, Inc., to list the house for sale. On August 15, 1994, Shenton completed a seller’s disclosure form in which she noted that, in the past, the property had “drainage or flood problems” and that the city had installed a drain pipe and culvert to address the problem.

Shortly thereafter, Charles Mills saw that the Shenton home was for sale, and he contacted Barker, ánother agent for Wayne Fann, Inc., to act as a buyer’s agent. Barker showed Charles and Dominique Mills the house, and in the lowest level of the house, the three of them noticed water damage, including loose tiles in the playroom and a water stain across the wall of the laundry room. On a subsequent visit, Charles Mills also noticed a soggy doorjamb.

According to the Millses, Barker posited several theories for the source of the water damage, including a leaky sink and a blocked drain in the laundry room. Barker said that she would discover the source of the water damage. Mills alleges that Barker “came back [and] said that we had nothing to worry about. She had asked Margaret Ann Griffin. There was no water problem. There had never been a water problem in the house.”

On August 26, 1994, Dominique Mills signed a contract to purchase the house. The contract provided that Mills was entitled to receive the seller’s disclosure form, which Mills indicated she had not received. The contract also provided that the buyer had “the right and responsibility” to have the home inspected within ten days of the agreement date. At Barker’s urging, Mills had Steven Newell inspect the home. Newell’s report did not contain any findings with regard to termite damage. The report did, however, contain multiple references to water damage, including a reference to “[e]vidence of ongoing water penetration” in the crawl space. Although Charles Mills spoke with Newell, he did not inquire into the origin of the water damage.

Griffin hired Barker’s stepson, Willis, to make certain repairs to the house prior to closing. Charles Mills apparently told Barker that he wanted to be present when Willis opened a wall to make repairs in order to see if there was interior wall water damage. Willis, however, claims he never received any such message.

Charles Mills was not present when Willis performed the repair work. Willis testified that he only removed a two- to three-inch section along the bottom of the wall in order to replace a rotten baseboard. According to Charles Mills, after the wall had been repaired, he asked Willis if he had seen any damage, and Willis indicated that, following the repairs, “[everything was fine.”

Dominique Mills closed on the house on September 20, 1994, and she received a termite report from Albritton Pest Control that showed no termite damage. In late September or early October 1994, the basement of the house flooded following a heavy rainfall. At some point, Charles Mills had a portion of the wall removed, and he found “substantial interior wall rotting damage of a longstanding nature” behind the wall that Willis had repaired.

In 1996, Charles Mills was playing in the basement with one of his children, and a ball was thrown through one of the walls. In repairing the wall, the Millses discovered substantial termite damage. The Millses filed a lawsuit and, during the discovery process, learned that two termite reports had been completed at Griffin’s request. Although the Albritton Pest Control report showed no damage, the report prepared by Orkin showed evidence of termite activity. Dominique Mills contends that she was not given the Orkin report prior to closing. In August 1998, Dominique Mills filed this action, asserting that the defendants were liable for fraud and negligent misrepresentation.

1. Mills bases her fraud and negligent misrepresentation claims, in part, upon the defendants’ failure to inform her of the flooding or misrepresenting the cause of the water damage. However, Mills has no cause of action based upon any flood damage because she is amable to demonstrate justifiable reliance, which is an essential element of both fraud and negligent misrepresentation claims.

In her complaint, Mills contends that the defendants made “statements regarding the source of the visible water . . . with the intent to actively conceal from [her] the true origin, nature and extent of the damages.” Mills further alleges that, because of those statements, she was fraudulently induced to enter the contract for the purchase of the house. Upon discovering the alleged fraud, Mills had two choices: (1) she could rescind the contract and sue in tort to recover the purchase price and any additional damages; or (2) she could affirm the contract and sue for fraud. Mills chose to affirm the contract, and, “[i]n doing so, she is bound by the contract’s terms and is subject to any defenses which may be based on the contract.”

The contract in this case contained a merger clause, specifying that “[t]his Agreement constitutes the sole and entire agreement between the parties hereto. . . . No representation, promise, or inducement not included in this Agreement shall be binding upon any party hereto.” Accordingly, Mills is estopped from asserting reliance on any statements by any of the defendants regarding the cause of the water damage to the house.

Mills contends that the merger clause does , not bar her claims because any alleged misrepresentations and/or fraudulent statements were made after the contract was signed. We find this contention puzzling. In order to sustain a fraud claim, Mills must establish that the defendants’ statements or misrepresentations were made with the intent to induce her to act or refrain from acting. Upon signing the contract, Mills was bound by its terms,* which required her to purchase the house. Accordingly, upon signing the contract, Mills’ decision had been made, and we fail to see how any subsequent statements could have been made with an intent to induce her to act.

Moreover, assuming Mills could demonstrate that any statement about flooding was made with an intent to induce, she cannot establish justifiable reliance. “The law does not afford relief to one who suffers by not using the ordinary means of information, whether the neglect is due to indifference or credulity.” The undisputed evidence shows that Mills could have learned about the flooding problems by simply reading the seller’s disclosure statement. Despite the fact that Mills knew about the disclosure letter, she never requested it. Also, Mills hired Newell to inspect the home, and Newell’s report confirms the existence of water damage. Nevertheless, Mills never spoke with Newell to discuss either the cause or extent of the damage.

“One may fail to exercise due diligence as a matter of law.” Here, Mills clearly had the means to discover the cause of the water damage. In failing to avail herself of those means, she cannot now complain that she was somehow deceived by the defendants. Accordingly, Mills has no claim against any of the defendants for fraud or negligent misrepresentation based upon the flooding of the property or water damage.

As the only viable claim Mills had against Willis was based upon water damage, Willis is entitled to summary judgment. In her complaint, Mills asserts that Willis discovered latent termite damage while repairing the wall and that he conspired with Barker to conceal the damage. However, there simply is no evidence to support this assertion. Willis testified that he removed a two- to three-inch strip along the bottom of the laundry room wall, and he unequivocally denied seeing any termite damage in this area. And, although the Orkin report indicates that there were live termites in some wood in the crawl space, the report does not indicate that there was any termite damage to the house itself. Finally, in inspecting the home, Newell did not note any termite damage, and Willis testified that he made only those repairs noted on Newell’s inspection report. Accordingly, there is absolutely no evidence from which it can be inferred that Willis saw termite damage, much less that he conspired to conceal it.

“While fraud may be proved by slight circumstances, it must amount to more than mere speculation.” As Mills’ contention that Willis saw termite damage is based on mere speculation, Willis cannot be held liable on this basis. For the reasons discussed above, any claim predicated on flood damage is not viable, either. Thus, Willis is entitled to summary judgment.

2. To the extent that Mills bases her fraud and negligent misrepresentation claims upon the remaining defendants’ failure to provide the second termite letter, the merger clause does not bar such claims. A merger clause such as the one in the present case prevents a party from claiming reliance on a representation not contained in the contract. Accordingly, Mills is barred from asserting any alleged fraud or misrepresentation based on the flood damage because there is nothing in the contract regarding the cause of the flood damage. However, the contract does require the seller to supply a wood infestation report, which contains representations regarding termites. Thus, any representations in the report are a part of the contract, and a merger clause would not preclude a party from claiming reliance on such representations.

Mills alleges that the defendants knew of the existence of the unfavorable termite report and fraudulently concealed it. In all cases of fraud involving concealment of a material fact, there must be some evidence that the defendants had actual knowledge of the concealed fact. As fraud is inherently subtle, however, Mills may survive summary judgment if there is slight, circumstantial evidence of such knowledge. “[I]t is peculiarly the province of the jury to pass on these circumstances showing fraud.”

Here, the record shows that Griffin, as the seller’s agent, took it upon herself to procure a wood infestation report. The record further demonstrates that two wood infestation reports were obtained — the Albritton report, which showed no termite infestation, and the Orkin report, which showed suspected termite activity. According to Griffin, if the agency received a copy of a wood infestation report, the copy would be placed in a file. Evidently, Wayne Fann, Inc. received copies of both reports, as the company provided both reports to Mills during discovery. Griffin testified that documents pertaining to the sale of the house were kept in a master file that was accessible to everyone at Wayne Fann, Inc., including Barker and Fann. Thus, there is some circumstantial evidence from which it can be inferred that one or more of these defendants had actual knowledge of the existence of the Orkin report and chose not to divulge their knowledge to Mills. Accordingly, the trial court did not err in denying the defendants’ motions for summary judgment as to this aspect of Mills’ fraud and negligent misrepresentation claims.

Decided March 6, 2001.

J. Converse Bright, for appellants (case no. A00A2434).

Langdale, Vallotton, Linahan & Wetherington, William P. Langdale III, Willie J. Linahan, for appellants (case no. A00A2435).

Cannon & Meyer von Bremen, William E. Cannon, Jr., Walter F. Newsom, for appellees.

3. Mills also contends that Griffin, Barker, Fann, Inc., and Fann are liable for violating statutory duties imposed by OCGA §§ 10-6A-5 and 10-6A-7. We note, however, that the defendants did not raise this issue in their motions for summary judgment, and the trial court did not address it in its order. ‘Where a trial court does not rule on an issue, it remains outside the jurisdiction of this Court and we cannot consider it.”

Judgments affirmed in part and reversed in part.

Andrews, P. J., and Ellington, J., concur.

       The complaint was filed by both Mills and her husband, Charles Mills. As Mr. Mills was not a party to the contract, however, the trial court dismissed him from the suit, and he is not a party to this appeal.

       Mills also sued Donnie Albritton d/b/a Albritton Pest Control Company. As this defendant did not move for summary judgment, he is not a party to this appeal.

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

       Although, in his deposition testimony Charles Mills suggests that he spoke directly with Willis, in his affidavit, he avers that he told Barker that he wanted to be present, and he evidently relied upon her to relay the message.

       Evidently, this prior lawsuit was dismissed.

        Real Estate Intl. v. Buggay, 220 Ga. App. 449, 451-452 (2), (3) (469 SE2d 242) (1996).

        Hightower v. Century 21 Farish Realty, 214 Ga. App. 522, 523 (1) (448 SE2d 271) (1994).

       (Punctuation omitted.) ReMax North Atlanta v. Clark, 244 Ga. App. 890, 894 (537 SE2d 138) (2000).

       Id.

        Artzner v. A & A Exterminators, 242 Ga. App. 766, 769 (1) (531 SE2d 200) (2000).

       See Johnson v. Sackett, 256 Ga. 552, 554 (2) (350 SE2d 419) (1986) (seller bound by signature on contract).

       (Punctuation omitted.) A & A Exterminators, supra at 771.

       (Punctuation omitted.) Buggay, supra at 451 (2).

       Id.

       We note that Willis was not a party to the real estate contract, but that privity is not necessarily a requirement of a claim of fraudulent inducement. See Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680 (300 SE2d 503) (1983).

       The report does indicate some moisture damage.

       (Punctuation omitted.) Power v. Ga. Exterminators, 243 Ga. App. 355, 359 (1) (532 SE2d 475) (2000).

       See ReMax North Atlanta, supra.

       Id.

        Quill v. Newberry, 238 Ga. App. 184, 189 (1) (b) (518 SE2d 189) (1999).

       (Punctuation omitted.) Id.

       Although Griffin had no actual recollection of procuring the termite letter, she acknowledged that she normally would obtain such letter and her name is listed on both termite reports.

       (Punctuation omitted.) Johns v. Ridley, 245 Ga. App. 710, 716 (6) (537 SE2d 746) (2000).


author: Eldridge, Judge.

text:
    A01A0548.
    SCHAFER et al. v. WACHOVIA BANK OF GEORGIA, N.A.
    (546 SE2d 846)
   Eldridge, Judge.

This appeal raises the issues of whether a summons of process issued during a bankruptcy stay and served after the dismissal of the petition in bankruptcy by the sheriff was valid and whether the trial court should have granted summary judgment on liquidated damages against the debtors based upon unwithdrawn requests for admission. The defenses in abatement to the summons of process and service of process were waived, because the defendants failed to timely raise such dilatory defenses in abatement. Accordingly, the grant of summary judgment is affirmed as follows.

On December 12, 1996, Christopher C. and Renee S. Schafer were sued by Wachovia Bank of Georgia, N.A. on a written home equity line of credit agreement in the State Court of Fulton County. After the issue of process and attempted service, occasioned by the inability to serve the Schafers in Fulton County, Wachovia moved to transfer venue to Bartow County, and on April 14, 1997, the motion was granted. On June 2, 1997, the Schafers both filed for bankruptcy in the United States District Court for the Northern District of Georgia and listed “Wachovia Bankcard, R O. Box 15515, Wilmington, DE 19886-5515,” the wrong legal entity, and did not list Wachovia Bank of Georgia, N.A., the creditor-party. On July 13, 1997, the transfer of the pending action was completed to the Superior Court of Bartow County, and on July 17, 1997, the clerk of court issued a summons of process for the complaint without knowledge of the automatic stay effectuated by the bankruptcy proceeding. The sheriff failed in several attempts to serve the Schafers, and Wachovia supplied several different addresses during the pendency of the bankruptcy; on July 30, 1997, the Schafers were served with the complaint and request for admissions after the involuntary dismissal of the bankruptcy petition took place on July 28, 1997. Also on July 30, 1997, the dismissal was mailed to the Schafers. On August 1, 1997, the Schafers answered pro se and asserted the pending bankruptcy action as their only defense, without further answering the complaint. But on February 15, 2000, their counsel amended their answer and asserted other defenses, including a denial of the debt, but did not seek to withdraw the admissions made in the request to admit.

On December 27, 1999, Wachovia filed a motion for summary judgment. On March 7, 2000, the trial court granted summary judgment for Wachovia in the amount of $121,146.16. The Schafers appeal.

1. The Schafers contend that the summons of process and the service of process were invalid, because the summons of process was issued during the period of the bankruptcy stay.

(a) Wachovia was never scheduled as a creditor in the bankruptcy petition so that it never received notice of the stay and bankruptcy. 11 USC § 362 (a) (l). In any event, the reissuance of summons of process by the clerk constituted a ministerial act, which was not stayed. See Rexnord Holdings v. Bidermann, 21 F3d 522, 528 (2nd Cir. 1994); In re Knightsbridge Dev. Co., 884 F2d 145, 148 (4th Cir. 1989); Teachers Ins. &c. Assn. of America v. Butler, 58 Bankr. 1019, 1022 (S.D. N.Y. 1986). The Superior Court of Bartow County appropriately determined the reach and scope of the automatic stay in bankruptcy as not including the issuance of the summons of process. See In re Baldwin-United Corp. Litigation, 765 F2d 343 (2nd Cir. 1985); In re Sea Span Publications, 126 Bankr. 622, 625 (M.D. Fla. 1991).

A judgment rendered during the pendency of an automatic stay is void ab initio and is a nullity, because it constitutes the exercise of judicial discretion in violation of the automatic stay. See Jennings Enterprises v. Carte, 224 Ga. App. 538, 540 (1) (481 SE2d 541) (1997); see also Colden v. State of Ga., 244 Ga. App. 793, 794 (536 SE2d 820) (2000). However, in contrast, the reissuance of a summons of process constitutes a ministerial act of the clerk, which is not a final adjudication on the merits, as is a judgment, and can be attacked as a defense in abatement prior to the time to answer whenever the stay is lifted; thus, the summons of process so issued is voidable if timely raised. See generally Barnett Bank v. Trust Co. Bank, 178 Bankr. 570, 578 (S.D. Ga. 1995).

(b) “The issuance of a summons signed by the clerk is a necessary part of acquisition of jurisdiction. Service on the proposed defendant of an amendment to the petition cannot be considered service of the complaint where no summons issues.” (Citation omitted.) Diaz v. First Nat. Bank of Tucker, 144 Ga. App. 582, 583 (1) (241 SE2d 467) (1978). If the summons of process was voidable, because it was issued during the pendency of the automatic bankruptcy stay, then such plea in abatement had to be asserted in writing by an OCGA § 9-11-12 (b) (4) motion to dismiss raising “insufficiency of process” or by answer within the time to answer or such defense in abatement was waived as a matter of law. See generally OCGA § 9-11-12 (b) (4), (h) (1); Smith v. Smith, 248 Ga. 268 (1) (282 SE2d 324) (1981); White v. Johnson, 151 Ga. App. 345, 348 (1) (259 SE2d 731) (1979).

In this case, the Schafers did not raise this defense in abatement timely within 30 days of service and, thus, waived such defense. OCGA § 9-11-12 (h) (1). In the pre-Civil Practice Act procedure, a defective process made service void; however, failure to timely raise such objection to a void summons of process and the resulting service, also, constitutes a waiver by caselaw, while under the CPA such failure to timely raise such plea in abatement constituted a statutory waiver of such defense, which arises within 30 days of service unless the objection is properly raised. See OCGA § 9-11-12 (b) (4), (5), (h) (1); Gifford v. Jackson, 107 Ga. App. 44, 45 (129 SE2d 181) (1962). Here, the Schafers failed to properly and timely raise such defense in abatement. The CPA, as a matter of sound judicial economy, mandates that the defendant timely raise such issues of abatement, on the penalty of waiver, to avoid a waste of judicial time in the initial case’s dismissal with a subsequent refiling of the case upon involuntary dismissal on such grounds; if the trial court in this case had granted the dismissal, then Wachovia would have had the right to pay costs and refile the action. Not until the hearing on the motion for summary judgment in the winter of 2000, over 30 months late, did the defendants for the first time raise these dilatory motions, which illustrates why the CPA mandates timely assertion of such defenses in abatement to avoid such delay.

(c) The sheriff made a lawful and valid service of process against each Schafer individually after the bankruptcy petition was involuntarily dismissed and the automatic stay was terminated. There was nothing to prohibit the sheriff from making a valid service of process once the stay was lifted or ceased through the dismissal of the bankruptcy petition. In this case, the Schafers failed to timely raise the defense in abatement of “insufficiency of service of process” and, thus, waived such defense. OCGA § 9-11-12 (b) (5), (h) (1). The signed entry of service by the sheriff was prima facie evidence of service which the Schafers failed to rebut. See Oden v. Legacy Ford-Mercury, 222 Ga. App. 666, 667-668 (1) (476 SE2d 43) (1996).

2. The Schafers contend that there exist material issues of fact that prevent the trial court from entering summary judgment against them, because Christopher Schafer filed his affidavit alleging that a lesser amount was due and that he had not received credit for a payment. However, the request for admissions dated December 12, 1996, stated: “[defendants are currently indebted to Wachovia for a principal amount of Eighty-Three Thousand Three Hundred Fifty-Nine and 06/100 ($83,359.06) Dollars, plus interest and attorney’s fees,” and such admission went unanswered.

The Schafers never answered these requests for admissions or objected to the requests for admissions, and the requests for admissions stand admitted by operation of law. Thompson v. Berman, 147 Ga. App. 740 (1) (250 SE2d 190) (1978); Hammett v. Bailey, 147 Ga. App. 105, 106 (248 SE2d 180) (1978). That the requests for admissions stand admitted and unwithdrawn, the Schafers are prevented from contesting what they have admitted. See Britt v. West Coast Cycle, 198 Ga. App. 525, 526-527 (1) (402 SE2d 121) (1991); Piedmont Aviation v. Washington, 181 Ga. App. 730, 731 (2) (353 SE2d 847) (1987); Stone v. Lenox Enterprises, 176 Ga. App. 696, 697-698 (1) (337 SE2d 451) (1985). An admission in a request for admission is not a pleading, but is evidence that must be admitted before the trier of fact, unlike an admission in judicio made in pleadings; however, such admission cannot be contravened and is conclusive, absent the trial court’s grant of permission to withdraw the admission. Brooks v. Roley & Roley Engineers, 144 Ga. App. 101 (240 SE2d 596) (1977); Ross & Ross Auctioneers v. Testa, 96 Ga. App. 821, 825 (2) (101 SE2d 767) (1958); cf. OCGA § 24-3-30.

Decided March 6, 2001.

Freed & Bermen, Robert H. McKnight, Jr., for appellants.

McLain & Merritt, M. David Merritt, Thomas J. Melanson, for appellee.

An amended answer to the complaint withdraws any admission in judicio made previously in the answer; however, such amendment to the answer does not constitute a withdrawal of a request for admissions governed by different specific statutory procedure and scheme for withdrawal of an admission. See OCGA § 9-11-36 (b); U B. Vehicle Leasing v. Vision Intl., 224 Ga. App. 611 (1) (481 SE2d 597) (1997) (withdrawal of request for admissions); cf. OCGA §§ 9-11-15; 24-3-30; Wahnschaff v. Erdman, 232 Ga. App. 77 (502 SE2d 246) (1998) (withdrawal of admission in answer by simple amendment under OCGA § 9-11-15); Scott v. Jefferson, 174 Ga. App. 651, 652 (1) (331 SE2d 1) (1985) (admission made in pleadings). Therefore, any amendment to the Schafers’ answer failed to change the legal effect of their failure to answer the requests for admissions, unwithdrawn, and there exists no dispute as to material facts for jury determination. Thus, the grant of summary judgment should be affirmed. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

       Failure to set forth a creditor in the bankruptcy petition excludes such creditor from the bankruptcy action as a matter of law. Therefore, it follows that a creditor not listed in the bankruptcy petition and not subject to discharge in bankruptcy is not under the automatic stay, because they are outside the ambit of the bankruptcy petition. See In re Kristiniak, 208 Bankr. 132 (E.D. Pa. 1997).


author: Andrews, Presiding Judge.

text:
    A00A1778.
    LANE v. THE STATE.
    (545 SE2d 665)
   Andrews, Presiding Judge.

Boris Lane appeals from the judgment entered after a jury found him guilty of robbery, bringing several enumerations of error. For the reasons which follow, we affirm.

1. In his first enumeration of error, Lane argues the evidence was insufficient to support the verdict. Specifically, he claims there was no evidence that he participated in the robbery. We disagree.

Viewed in the light most favorable to the verdict, the evidence at trial was as follows.

The victim in this case, Holland, testified that he stopped at a convenience store on his way home from work at a little after 2:00 a.m. As he was walking into the store, he' saw four people, three men and a woman, up on a hill in back of the store. When Holland walked up to pay for his drink, one of the men, identified at trial as defendant Lane, approached him and asked if he wanted to buy a stereo. Holland said he did not want the stereo, and the man left the store.

As Holland was paying for his drink, he saw another man, identified at trial as co-defendant Pines, looking at him through the window. When Holland left the store, Pines and Lane were standing together outside the door. Lane then asked Holland if he had any rolling papers, and Holland replied that he did not smoke dope. Pines asked Holland for a cigarette, and Holland walked over to his truck to get his cigarettes.

Both men followed Holland to his truck, and as Holland leaned in to get the cigarettes, one of the men hit him in the face. Holland said he was pushed facedown onto the seat of the truck and while he was being hit someone took his wallet. He testified: “As I was getting hit, there was hands hitting me and hands all over my back side.” Holland said he could not see which one hit him, but Pines was in front of Lane as they walked around the truck. After taking the wallet, Pines and Lane ran off together.

Holland was bleeding and went back into the store and asked the clerk if he knew the men. The clerk said no and also refused to call 911 because “he didn’t see a thing.” Holland called 911 from a pay phone and when police arrived gave them a description of the two men.

One of the investigating officers testified that an ambulance came and Holland was treated at the scene. After giving officers a description of the two men who attacked him, Holland left to go home. The officers went back on patrol and after going one or two miles saw a car coming down the street with no headlights on. After stopping the car, the officers walked over and saw that the two men in the backseat, one of whom was lying down, matched the description Holland gave of his assailants.

The officers put the men in the back of the police car and called Holland to meet them at the convenience store where the crime occurred. Holland identified two of the three men, Pines and Lane, as the men who robbed him.

The evidence was sufficient to support the verdict.
On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the [defendant] no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Howard v. State, 261 Ga. 251, 252 (403 SE2d 204) [(1991)]; King v. State, 213 Ga. App. 268, 269 (444 SE2d 381) [(1994)].

Dolphus v. State, 218 Ga. App. 565, 566 (462 SE2d 453) (1995).

2. Next, Lane argues the trial court erred in denying him the right to open and conclude argument to the jury. Lane claims he did not introduce any evidence and, therefore, should have been allowed to open and conclude argument.

OCGA § 17-8-71 provides that the prosecuting attorney shall open and conclude argument to the jury unless the defendant introduces no evidence; in which case, defense counsel shall open and conclude argument after the evidence on the part of the State is closed. The State argued that defendants had presented evidence when defense counsel had Officer Robinson read a question and his answer from the transcript of a preliminary hearing. Counsel handed the officer a transcript from the hearing and asked him to read the following question and answer: “[Q:] What description did you give of Mr. Pines? [A:] I really can’t recall at this time.” Also, during that same cross-examination, Pines’s counsel asked Officer Robinson to read the following statement above his signature line in the police report: “The undersigned being duly sworn upon his or her oath discloses and states that the foregoing is true, correct, complete and legible, to the best of his or her knowledge and belief.”

The Supreme Court of Georgia recently addressed this issue in Smith v. State, 272 Ga. 874, 878 (536 SE2d 514) (2000). Smith established the following standards to determine whether a defendant has lost the right to open and close:

(1) If, under the guise of cross-examination, a defendant reads from the portions of a prior written statement of a witness that are not related to impeaching the witness, the defendant has effectively introduced evidence to the jury that should have been formally offered into evidence and the defendant therefore loses the right to open and close final arguments; (2) if a defendant reads only the portions of the prior written statement of a witness that are relevañt to impeaching the witness, the defendant has not introduced evidence and does not lose the right to open and close; and (3) if a defendant, in impeaching a witness with a prior inconsistent statement, voluntarily introduces the statement into evidence in order to make it a part of the record, the defendant has introduced evidence and has lost the right to open and close final arguments.

The facts in this case fall under Section (3) above. Defense counsel had the witness read the statement into evidence, and it was made part of the record. See also Aldridge v. State, 237 Ga. App. 209, 214-215 (515 SE2d 397) (1999) (defense counsel had witness read highlighted portions of arrest report into evidence and thereby lost opportunity to open and close). Accordingly, because the defense introduced evidence into the record, the trial court did not err in denying them the right to open and close. Smith, supra; Aldridge, supra.

3. Lane also claims the trial court erred in reading to the jury the definition of “aiding and abetting.” During deliberations, the jury sent out a note requesting the legal definition of “aiding and abetting.” In response, the court recharged the jury on “party to a crime” and read the following definition from Black’s Law Dictionary: “Now, I want to give you the Black’s Law Dictionary definition of aid and abet. That is[,] in part, ‘Help, assist or facilitate the commission of a crime, promote the accomplishment thereof, help in advancing or bringing it about.’ ” The trial court also stated that it would read the jury “what is not aiding and abetting.” The court then recharged on mere presence and mere association.

Lane argues on appeal that “by reading a definition to the jury that was not contemplated by the legislature,” the court permitted Lane to be convicted of a crime in a manner not authorized by Georgia law. He claims the jury was more likely to pay particular attention to the recharge and rely more heavily on those instructions than on the original charge.

Even assuming this to be true, there was no harm because the court also recharged on mere presence and mere association. Further, it is not error to define a term when the jury requests it. Green v. State, 240 Ga. App. 377, 380 (523 SE2d 581) (1999). Accord Silvers v. State, 245 Ga. App. 486 (538 SE2d 135) (2000). “It is the court’s duty to instruct on any point the jury requests and to do it in plain, clear language.” Green, supra at 380. Aiding and abetting was not defined in the charge, and the court did not abuse its discretion in providing the definition. Id.

4. Next, Lane claims the trial court erred in denying his motion to suppress because the arrest was without probable cause. Lane does not argue that the initial stop of the car was improper, nor does he argue there was not probable cause to arrest after the victim identified him and Pines. Rather, Lane argues that when he was detained in the back of the police car waiting for the victim to come and identify him, he was under arrest and at that time, there was not probable cause to arrest him. We disagree.

It took approximately 20 minutes for Holland to come back to the scene of the crime and identify Pines and Lane. During that time, Pines and Lane were put in the backseat of the patrol car. They were not handcuffed, but they were not able to leave the car.

Supreme Court holdings sculpt out, at least theoretically, three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause. Under the first tier, a police officer may approach an individual and ask a few questions without triggering Fourth Amendment scrutiny. The second tier occurs when the officer actually conducts a brief investigative Terry stop of the citizen. In this level, a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity. The third tier is an actual or de facto arrest which requires probable cause and involves restraint of one’s liberty.

(Citations and punctuation omitted.) Lewis v. State, 233 Ga. App. 560 (504 SE2d 732) (1998).

Lane claims that when officers placed him in the back of the police car, this was not a brief detention but an arrest and probable cause was needed. Lane cites Radowick v. State, 145 Ga. App. 231 (244 SE2d 346) (1978), in support of his contention that the 20-min-ute detention exceeded a brief stop. But, in Radowick, this Court concluded that where a detention exceeded 40 minutes, it was not a “brief” stop. Id. at 238-239.

Likewise, State v. Henderson, 215 Ga. App. 215, 217 (450 SE2d 288) (1994), is not on point. In Henderson, the stop of the car was not justified. But, the court acknowledged that a Terry stop involves a limited detention in order to identify the suspect, frisk him if necessary, and conduct limited questioning. Id. at 217. Here, the officers detained Pines and Lane for a limited time in order for the victim to identify them.

Decided February 19, 2001

Reconsideration denied March 7, 2001

Jacqueline J. Herring, for appellant.

Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

Further, 20 minutes has been held to constitute a “brief” seizure. Thomas v. Holt, 221 Ga. App. 345, 349 (471 SE2d 300) (1996). Thomas also noted that “[i]n United States v. Sharpe, [470 U. S. 675 (105 SC 1568, 84 LE2d 605) (1985),] the Supreme Court determined that a 20-minute detention of an automobile driver did not exceed the bounds of an investigative stop.” (Punctuation omitted.)

Accordingly, the brief detention of Pines and Lane for purposes of identification was not an arrest but an authorized Terry stop. The trial court did not err in denying Lane’s motion to suppress.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.


text:
    A00A1982.
    KEENUM v. THE STATE.
    (546 SE2d 288)
   Andrews, Presiding Judge.

Claude Kermit Keenum, Jr. appeals from the judgment entered after a bench trial finding him guilty of driving under the influence of drugs. We find no reversible error and affirm.

This case arose when police responded to a call from Keenum about drug activity at a certain address. When the officer arrived at the address given, she waited outside in the patrol car. After a few minutes, Keenum drove up, pulled over, and parked. He got out of his truck and walked over to the police car. Keenum told the officer that he had been in the house for four days, using cocaine, drinking vodka, and possibly using marijuana. He also said he was “messed up” and the people in the house were trying to kill him. The officer stated that Keenum’s behavior and speech were erratic and he smelled of alcohol. Based on this behavior and Keenum’s admissions, the officer arrested him for DUI.

After a bench trial, the court found Keenum guilty of violating OCGA § 40-6-391 (a) (6), driving while having a detectable level of cocaine in his system. This appeal followed.

1. In his first enumeration of error, Keenum claims he could not be convicted under OCGA § 40-6-391 (a) (6) because the Supreme Court of Georgia declared it unconstitutional in Love v. State, 271 Ga. 398 (517 SE2d 53) (1999). We disagree.

In Love,

it was determined that OCGA § 40-6-391 (a) (6) was unconstitutional as a denial of equal protection in that those whose marijuana use was legally sanctioned could not be convicted simply on the basis of the presence of marijuana metabolites in their bodily fluids, while those whose marijuana use was not legally sanctioned could be.

Ayers v. State, 272 Ga. 733 (534 SE2d 76) (2000).

There is nothing in Love, however, which states that the statute is unconstitutional when applied to those convicted of driving with a detectable level of cocaine in their system. Therefore, Love does not apply in this case.

2. Next, Keenum argues that even if Love addresses driving with only marijuana in the system, the statute should be unconstitutional when applied to cocaine because there are legal uses for cocaine. But, the testimony at trial was that although cocaine may be used as a topical anesthetic during some surgeries, it is not a prescription drug; therefore, although there could be instances where a driver was a “legal marijuana user,” see Love, supra at 402, there would never be an instance of a “legal cocaine user” so as to make the statute unconstitutional as a denial of equal protection. Further, there was no evidence that cocaine used in this manner would ever be detectable in the bloodstream. Accordingly, the trial court did not err in finding the statute constitutional with regard to cocaine.

3. Keenum also argues that although the officer read him the correct implied consent warning at the time of arrest, she omitted a phrase when she read it to him again at the hospital. After the officer read the correct implied consent warning, Keenum agreed to take a blood test. At the hospital, the arresting officer read the warning to Keenum again, although she did not have her card with the warning printed on it. The printed form Keenum signed at the hospital agreeing to take the tests and refusing additional tests at his own expense left out the last phrase of the warning: “and from qualified personnel of your own choosing.” Although the officer acknowledged that the form itself did not have the additional phrase, her testimony was, “I don’t recall reading it that way.”

In any event, there was no harmful error. Even if the officer omitted a phrase at the second reading, this does not negate or nullify the giving of the warning correctly. State v. Kirbabas, 232 Ga. App. 474, 479 (502 SE2d 314) (1998). Having correctly given the implied consent warning at the time of arrest, the officer was under no duty to give further warnings. Id.

4. Lastly, Keenum argues the trial court could not find him guilty beyond a reasonable doubt because there was another lab test performed which did not show any cocaine metabolites in his blood. Keenum’s expert testified that the Georgia crime lab sent Keenum’s blood sample to his lab and he reanalyzed it. He testified that he found no cocaine or cocaine metabolites in the sample. But, the evidence at trial also showed that the Georgia crime lab received the blood sample on November 24, 1997, and Keenum did not request a second test of the sample until July 20, 1998. Moreover, the first test tube was immediately sealed with wax after the blood was drawn, but, when the test tube was sent to the second laboratory, it no longer had a wax seal.

In a bench trial [,] the court sits as trier of fact and his findings shall not be set aside unless clearly erroneous. The clearly erroneous test is the same as the any evidence rule. Thus, an appellate court will not disturb fact findings of a trial court if there is any evidence to sustain them.

(Citations and punctuation omitted.) Womack v. State, 193 Ga. App. 186, 187 (387 SE2d 336) (1989).

On appeal, this Court does not weigh the evidence or determine the credibility of the witnesses, but looks only to determine if the evidence is sufficient such that a reasonable trier of fact could rationally have found proof of guilt beyond a reasonable doubt. Banks v. State, 185 Ga. App. 851, 853 (3) (366 SE2d 228) (1988). The court, in weighing the evidence, found the initial testing results were more reliable. As this finding was not clearly erroneous, it must be affirmed on appeal. Id. The evidence was sufficient for a rational trier of fact to find Keenum guilty of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided February 20, 2001

Reconsideration denied March 7,2001

Head, Thomas, Webb & Willis, William C. Head, for appellant.

Keith C. Martin, Solicitor, Evelyn P. Sandefur, Assistant Solicitor, for appellee.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

       OCGA § 40-6-391 (a) (6) provides:
      (a) A person shall not drive or be in actual physical control of any moving vehicle while: (6) Subject to the provisions of subsection (b) of this Code section, there is any amount of marijuana or a controlled substance, as defined in Code Section 16-13-21, present in the person’s blood or urine, or both, including the metabolites and derivatives of each or both without regard to whether or not any alcohol is present in the person’s breath or blood.
      Subsection (b) states:
      The fact that any person charged with violating this Code section is or has been legally entitled to use a drug shall not constitute a defense against any charge of violating this Code section; provided, however, that such person shall not be in violation of this Code section unless such person is rendered incapable of driving safely as a result of using a drug other than alcohol which such person is legally entitled to use.


author: Johnson, Presiding Judge.

text:
    A00A2527.
    GREEN v. PROFFITT et al.
    (545 SE2d 623)
   Johnson, Presiding Judge.

In 1994, John Green hired Paul and Marsha Proffitt to manage the Bermuda Run apartment complex in Statesboro. Green and the Proffitts entered into a contract which provides that the Proffitts will manage the property for ten years and be paid $3,000 per month. Paragraph 7 of the contract provides that at the end of the ten years, Green will convey a 25 percent ownership interest in the property to the Proffitts. Paragraph 10 of the agreement provides that if Green sells the property before the end of the ten-year term, the Proffitts will receive the greater of $100,000 or part of the sale proceeds equal to 25 percent of the portion of the contract term actually fulfilled. Paragraph 10 further states that it shall not be interpreted to give the Proffitts a vested interest in the property.

In 1996, the Proffitts’ management of the complex was terminated. The Proffitts sued Green for breach of contract, claiming that Green was going to sell the property and had fired them without cause in order to avoid paying them a portion of the sale proceeds as required by the contract. Green answered the complaint, and the case was tried before a jury. The jury found in favor of the Proffitts, awarding them $200,000, and the trial court entered judgment for the Proffitts in that amount. Green appeals from the judgment.

1. Green contends that the Proffitts failed to provide any evidence from which the jury could have properly calculated damages. The contention is without merit.

The damages recoverable for a breach of contract are those that arise naturally and according to the usual course of things from the breach. Here, the Proffitts claimed that Green planned to sell the property and fired them to avoid paying them their share of the sale proceeds as required by the contract. If in fact Green breached the contract for that purpose, then the damages arising from that breach are the Proffitts’ loss of their payment.

In his appeal Green challenges only the award of damages, not his liability. Thus, we must presume that the evidence at trial proved that Green breached the contract and is liable for the damages suffered by the Proffitts as a result of that breach. That is, we presume the evidence supports a finding that Green breached the contract in order to avoid paying the Proffitts their portion of the sale proceeds. Consequently, the only question for us is whether the evidence supports the jury’s award of $200,000 as the amount of the Proffitts’ damages.

In proving their loss, the Proffitts properly presented two experts who testified that they had appraised the property and that its market value at the time of trial was $12.5 million. Green himself testified that the property is appraised at more than $7 million, but he claimed that he also had more than a $7 million debt on the property.

Based on the evidence of the property value and the amount of alleged debt on the property, coupled with the contract language, the jury’s calculation of $200,000 as the amount of damages was within the range of evidence. For instance, the jury could have found that the property is worth $12.5 million and that it carries a debt of $7 million, so a sale would bring a profit of $5.5 million. The Proffitts completed eighteen months of the ten-year, or 120-month, contract term, which is fifteen percent of the term. So under paragraph 10 of the contract they are entitled to 15 percent of 25 percent of the $5.5 million sale proceeds, which amounts to $206,250.

The issue of damages is a matter for the jury, and a reviewing court should not interfere with the jury’s damages award unless it is so small or excessive that it justifies an inference of gross mistake or undue bias. Because the jury’s award is not so excessive as to justify an inference of gross mistake or bias, we will not interfere with it. The judgment of the trial court is therefore affirmed.

2. Due to our holding in Division 1, we need not address Green’s additional enumeration of error that the court erred in allowing the expert witnesses to testify about the present value of the property.

Decided February 15, 2001

Reconsideration denied March 7, 2001

King & Spalding, Benjamin F. Easterlin TV, Christopher L. Casey, for appellant.

Franklin, Taulbee, Rushing, Bunce & Brogdon, James B. Franklin, William K. McGowan, for appellees.

Judgment affirmed.

Ellington and Phipps, JJ, concur. Smith, P. J., not participating.

       The contract gave the following example of this provision: If the property were sold on September 1, 1999, which would be one-half of the term of the agreement, then the Proffitts would be entitled to one-half of 25 percent (i.e., 12.5 percent) of the net proceeds.

       OCGA § 13-6-2.

       See generally Felker v. Chipley, 246 Ga. App. 296 (540 SE2d 285) (2000); Speir v Krieger, 235 Ga. App. 392, 395 (509 SE2d 684) (1998).

       OCGA § 13-6-4.


text:
    A00A2107.
    SATTERFIELD v. THE STATE.
    (546 SE2d 859)
   Phipps, Judge.

Appealing his convictions for selling and trafficking in cocaine, Steven Satterfield argues that the trial court erred by refusing to give his requested jury instructions on the defense of involuntary servitude and by denying his motion for mistrial after the prosecutor improperly called his character into question. We find no error and affirm.

The evidence showed that, on April 2, 1996, Satterfield and his girlfriend, Crystal Davenport, met with two undercover police officers who were posing as marijuana dealers. Satterfield told the officers that he did not need any marijuana, but offered to sell them cocaine. The next day, the officers met Satterfield at a gas station and gave him $700. Satterfield left, then returned about an hour later and handed the officers a napkin filled with 12.5 grams of cocaine.

On April 23, two undercover agents met Davenport at the same gas station and gave her $2,800 to buy more cocaine from Satterfield. Davenport later returned to the gas station with Satterfield, who gave the agents a paper cup containing 52.5 grams of cocaine.

Satterfield was charged with selling cocaine on April 2 and trafficking in cocaine on April 23. At trial, he admitted participating in both sales. However, he testified that after arresting him, the police promised him that they would “make the case go away” if he would assist them in their undercover work by arranging drug buys with other sellers. According to Satterfield, he gave the police the name of his drug supplier and set up four or five undercover deals leading to the arrests of several other people. But ultimately, Satterfield said, the officers “just left me holding the bag” and did not follow through on their promise.

1. Satterfield’s sole defense at trial was that the State’s treatment of him violated the Thirteenth Amendment to the U. S. Constitution prohibiting involuntary servitude. According to Satterfield’s attorney, “[t]he defense was that [Satterfield] had been procured, illegally procured as an agent to work for the State involuntarily. . . . [I]t was a modified entrapment justification defense.” Satterfield submitted 13 requests to charge on principles of involuntary servitude, but the trial judge denied them all. He contends that the court was obligated to give the charges because they explained his only defense. We disagree.

Involuntary servitude is a constitutional violation, as well as a criminal offense. It is not a criminal defense. Thus, the trial court did not err in failing to give Satterfield’s requested charges on involuntary servitude.

It appears that Satterfield’s real defense was coercion, justification, or entrapment. However, as there was no evidence that the police forced, coerced, or entrapped Satterfield into selling drugs to them, the trial court did not err in failing to charge on those defenses either.

2. On direct examination, Satterfield testified that he assisted the police in several undercover drug deals. On cross-examination, the following exchange occurred:

PROSECUTOR: And you were able to do that because you were familiar with the drug business, weren’t you?
SATTERFIELD: I — not because I was familiar with it or I done it; because I went out and looked for the people.
PROSECUTOR: You indicated you thought your safety was in jeopardy .or your health was at jeopardy after these transactions, didn’t you?
SATTERFIELD: Yes.
PROSECUTOR: In fact you have been involved in drug transactions before, right?

At that point, Satterfield’s attorney objected and moved for a mistrial. The judge denied the motion for mistrial, but instructed the jury to disregard the prosecutor’s question. Satterfield claims that a mistrial was required because the prosecutor improperly placed his character in issue, in violation of OCGA § 24-9-20 (b). We disagree.

Decided March 7, 2001.

Justin J. Wyatt, for appellant.

Patrick H. Head, District Attorney, Maria B. Golick, Assistant District Attorney, for appellee.

Satterfield testified at length on direct examination that he arranged numerous drug buys for the police and that he was threatened and attacked by individuals who were arrested as a result of his aid. This testimony opened the door to the prosecutor’s questions about how he was able to arrange those drug buys and whether any danger he faced could have come from his involvement in other drug transactions. The prosecutor simply was exercising his right to cross-examine and impeach Satterfield on matters about which he had testified on direct.* **** The fact that the prosecutor incidentally may have raised questions about Satterfield’s character does not render the inquiry improper. In any event, the judge gave a prompt curative instruction after Satterfield’s attorney objected. Under the circumstances, the trial judge did not abuse his discretion in refusing to declare a mistrial.

Judgment affirmed.

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

       The officers denied making any such promise or having the authority to do so.

       U. S. Const., Amend. XIII; Ga. Const, of 1983, Art. I, Sec. I, Par. XXII.

       18 USC §§ 241, 1584; see generally United States v. Kozminski, 487 U. S. 931 (108 SC 2751, 101 LE2d 788) (1988).

       See Davis v. State, 169 Ga. App. 601, 602 (3) (314 SE2d 257) (1984) (no error to refuse to charge on sole defense where there is no evidence to support the defense); Strickland v. State, 221 Ga. App. 516, 519 (2) (471 SE2d 576) (1996) (same).

       The State asserts that Satterfield waived his right to seek a mistrial because his attorney did not object after the prosecutor’s first question about Satterfield’s familiarity with the drug business. Counsel’s short delay, however, did not constitute a waiver. Compare, e.g., Dye v. State, 177 Ga. App. 824, 825 (341 SE2d 314) (1986) (finding waiver where prosecutor asked multiple questions on allegedly improper subject before defense counsel moved for mistrial).

       See Middlebrooks v. State, 184 Ga. App. 791, 792 (1) (363 SE2d 39) (1987).

       See Mulkey v. State, 250 Ga. 444, 446 (3) (298 SE2d 487) (1983); Jones v. State, 257 Ga. 753, 759 (1) (c) (363 SE2d 529) (1988).

       See Hayes v. State, 193 Ga. App. 33, 34 (3) (387 SE2d 139) (1989).


text:
    A00A2350.
    KAISER v. TARA FORD, INC.
    (546 SE2d 861)
   Andrews, Presiding Judge.

Marc J. Kaiser appeals from the trial court’s grant of summary judgment to Tara Ford, Inc. d/b/a Allen Vigil’s Southlake Ford (Southlake) on his claims for malicious prosecution, intentional infliction of emotional distress, defamation, and failure to supervise and train employee Barbara Keller and a claim pursuant to OCGA § 51-1-6.

In reviewing a grant of summary judgment pursuant to the standards set out in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), this Court conducts a de novo review of the law and the evidence, Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997), giving the opposing party the benefit of all reasonable doubt and construing the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Clark v. Cauthen, 239 Ga. App. 226, 227 (1) (520 SE2d 477) (1999). If a defendant who does not bear the burden of proof at trial demonstrates that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case, the burden shifts to the nonmoving party to point out specific evidence giving rise to a triable issue. Lau’s Corp., supra.

So viewed, the evidence was that in 1994, the City of Pioneer Village, Kentucky, maintained a volunteer police force and Kaiser participated. The city had only two used police cars, about ten years old. Through donations, the city was able to purchase a new police interceptor Crown Victoria from Southlake, which was titled in the name of the city. Because the police force was volunteer, the city allowed individual police officers to purchase police cars which were then leased to the city for $1 a year so the city could assist in providing insurance.

Kaiser, who was appointed Chief of Police by Mayor Welker in late summer 1994, assisted in outfitting the new police car and knew it came from Southlake. Kaiser asked the mayor if the city would object if he purchased a similar vehicle, and Welker told him there was no problem, but the city could not pay for it.

Southlake first created a fleet department in 1989 to deal with commercial and government entities needing fleets of vehicles. Speckter, who set up the fleet department and was its first manager, greatly increased Southlake’s inventory of police cruisers in late 1991 and early 1992, to the extent that Southlake had to rent Atlanta Raceway for additional storage of the cars.

Keller began working in the fleet department in 1990. At that time, two different engine sizes were available in the police cruisers, the larger of which Keller understood could be sold only to government agencies, while the smaller engine could be sold to individuals. In fact, Ford Motor Company’s (Ford) policy manual, which Keller had never seen, provided that model P71 (the Police Interceptor)

is only available for sale to state or local governments including fire departments and railroad security agencies for use as an emergency vehicle. An emergency vehicle is used as a police vehicle or for other law enforcement purposes. Police Interceptor cars may not be sold or leased to an individual deputy or constable for registration in his or her name.

(Emphasis in original.)

During 1992 and 1993, Speckter and Keller apparently were selling these police cruisers to private entities and individuals in violation of this policy. All documents originating from Ford and maintained by Southlake would reflect only the government entity as owner of the vehicles sold to individuals. Speckter and Keller, however, would add the individuals’ names to the documents given to the purchasers for the purpose of titling the vehicles.

In early 1994, Speckter informed Keller that “absolutely none” of the police cruisers could be sold to any entity other than a government agency and no cars were to be sold to individuals.

In mid-1994, Keller dealt with Mayor Welker and sold the first police cruiser to the city. That car was properly titled in the city, pursuant to Ford’s policy and, apparently, the law of Kentucky. A month or two later, Keller was again contacted by Welker who inquired about a second car for one of his deputies. Keller advised the mayor that the car could be sold only to a governmental agency, and Welker told her he would have the deputy contact her. Kaiser called her a few days later and was told that there was another cruiser available. Kaiser understood that the car would be titled jointly in his name and that of the city.

Kaiser contacted his bank, and a loan was made to Kaiser and his wife. A cashier’s check was issued by the bank on October 8,1994, payable to Southlake and Kaiser. Because Kaiser was unable to go, his friend Condor flew to Atlanta with the cashier’s check to pick up the cruiser. When Keller received the check, she typed in “/City of Pioneer Village” after Kaiser’s name. She later signed “City of Pioneer Village” to the back of the check. On the Manufacturer’s Statement of Origin and the dealer’s invoice, which originally were made out with the city only as the purchaser, Keller typed in Kaiser’s name.

The car was taken to Kentucky by Condor and turned over to Kaiser, with the altered invoice, Manufacturer’s Statement of Origin, and copy of the check. The check, as altered by Keller, was returned to the bank and placed in Kaiser’s file where it and the altered title remained for a period of time, although the alterations were not noted by the bank. Although Keller had given Condor a copy of the cashier’s check to take back to Kaiser, it had been copied before the alteration in payee was made. Kaiser took the Manufacturer’s Statement of Origin to register the car in Kentucky. In order to do so, it was necessary that a Vehicle Transaction Report (VTR) be completed. Kaiser completed the buyer’s side of the VTR, reflecting himself and the city as buyers of the car.

In November 1994, an election in Pioneer Village resulted in five of six council members being replaced. As a result, one of the new council members filed a complaint with the Kentucky Attorney General’s Office regarding improper purchases by city officials, including the mayor, of surplus automobiles, including police vehicles, from the State for use by private citizens. An investigation was begun by the Auditor of Public Accounts in the spring of 1995. Because of a fatality involving one of the privately used surplus police cars, the auditor initiated a check of the title status of all Pioneer Village vehicles.

Kaiser’s car, although not surplus and not involved in that investigation, was on the list retrieved and became the subject of a criminal investigation by the Attorney General’s Special Investigations Division because it was jointly titled.

Attorney General’s Investigator McAuliffe was assigned to the investigation of the Kaiser purchase. Kaiser knew McAuliffe from prior joint city/state investigations. During one of these investigations, McAuliffe had asked Kaiser to allow the State to claim part credit for a drug deal in order to claim a portion of the federal “bonus.” Because this did not go well resulting in the loss of the bonus for the city and State, Kaiser wrote a letter of complaint to the Attorney General and there was resulting “bad blood” between Kaiser and McAuliffe.

In January 1995, McAuliffe arrived at Pioneer Village City Hall with a subpoena for the mayor’s records as part of the surplus property investigation. Because the subpoena had the wrong name on it, Kaiser did not comply with it at that time, further angering McAuliffe.

McAuliffe repeatedly interviewed Kaiser about the car, and Kaiser showed him all his documentation, including a copy of the cashier’s check made by Southlake, which did not reflect the alterations, only some bookkeeping notations made by Keller. In April 1995, McAuliffe then telephoned Keller at Southlake and asked if she had sold police cars to Pioneer City. He advised her that he had obtained the original cashier’s check from the bank and that it appeared it had been altered by the addition of “/City of Pioneer Village.” McAuliffe asked Keller if the check had been altered at the dealership, and she denied it. McAuliffe then faxed Keller a copy of the check and telephoned her again on June 29, 1995. He went over the same facts and asked again if the alteration occurred at Southlake, and Keller again denied it. At some point in 1995, after speaking to McAuliffe, Keller went to Nelson, who became fleet manager in 1994 after Speckter was fired, and told him that the Kaiser check had been altered while in the possession of Southlake and she had not told McAuliffe the truth about it. Nelson told her to “stay out of it” and not say anything else to anyone about the Kentucky matter. Nelson left Southlake on November 20, 1995. Burtner, who was assisting with the fleet department after Nelson’s departure, asked Keller if she had done anything improper in the Kaiser transaction, and she said no.

Southlake’s original file on the Kaiser transaction was requested for the investigation. The file was reviewed by Southlake’s business manager Herzberg and general manager Cason. Since the documents in Southlake’s files reflected only the city as the purchaser, no problem was noted and the file was forwarded to McAuliffe.

After McAuliffe concluded his investigation, the case was directly submitted to Commonwealth Attorney Mann of Bullitt County. On a direct submission, Mann made the decision whether to submit the matter to the grand jury and prepared any proposed indictment. Mann, based on McAuliffe’s investigation, prepared a four-count indictment against Kaiser for forging the check (Count 1); the certificate of origin (Count 2); the new car invoice (Count 3); and the VTR (Count 4). The only witness to appear before the grand jury was McAuliffe, and a true bill was returned on November 15, 1995.

Pursuant to a request by Mann’s office, on November 30, 1995, Southlake forwarded to him certified copies of the sales documents and exemplars from office typewriters. Pursuant to a document subpoena, Southlake later provided the original documents.

Kaiser’s trial was scheduled for October 1996, and, prior to that time, Mann telephoned Keller and asked her if she had added anything to the check, and she again denied it. She also denied it when asked by Southlake personnel. A witness subpoena, dated October 11, 1996, was served on Keller for her appearance two weeks later at trial, although Southlake had been unaware that a live witness, as opposed to documentation, was going to be needed. Southlake’s counsel advised Mann that the subpoena was not enforceable in Georgia. Pursuant to a personal request from Mann, however, Southlake and its counsel agreed to have Keller attend the trial.

While waiting in the witness room, Keller was asked by Kaiser’s counsel to give handwriting samples. Comparing these with the handwriting on the check, the expert concluded that Keller had signed “City of Pioneer Village” on the back. Confronted by Mann and Kaiser’s attorney, Keller admitted signing the check, but denied all of the other alterations. Pursuant to Mann’s request, the trial court dismissed the first three counts of the indictment. Because Kaiser acknowledged that he had filled out the VTR, Mann did not move to dismiss that count, but it was dismissed on Kaiser’s motion.

At no point during the investigation and trial did Keller say to McAuliffe or Mann or any representative of Southlake that Kaiser had altered the documents.

Upon returning from Kentucky on November 4,1996, Keller was called in by Cason and asked why she had lied to him. She said she knew she would be fired by Southlake for falsifying company records, and she was terminated that day.

Kaiser initially sued Southlake, Keller, and McAuliffe in Kentucky. In answering that suit, Keller again acknowledged forging the check, but again denied altering the other documents. Named as a co-defendant when the suit was refiled in Georgia (the present action), Keller acknowledged altering only the check and denied the other documents.

It was not until her affidavit of October 12, 1998,. that Keller acknowledged making all of the alterations.

All of Kaiser’s causes of action against Southlake, except that claiming failure to supervise and train Keller, seek to impose vicarious liability on Southlake for Keller’s acts pursuant to OCGA § 51-2-2. Before such liability can be imposed, there must be evidence of the commission of a tort by the employee sufficient to survive summary judgment.

1. Kaiser contends that there was sufficient evidence of Keller’s malicious prosecution of him to preclude summary judgment.

Because it is public policy to encourage citizens to bring to justice those who are apparently guilty, malicious prosecution suits are distrusted by the courts and an aggrieved party has an especially heavy burden. Zohoury v. Home Depot, 239 Ga. App. 454, 456 (1) (521 SE2d 389) (1999). In order to prevail, a plaintiff must show: (1) prosecution for a criminal offense instigated by defendant; (2) issuance of a valid warrant, accusation, indictment, or summons; (3) termination of the prosecution in favor of plaintiff; (4) malice; (5) want of probable cause; and (6) damage to plaintiff. OCGA § 51-7-40; Brooks v. H & H Creek, Inc., 223 Ga. App. 635, 636 (1) (478 SE2d 451) (1996).

(a) Inherent in this tort, as acknowledged by Kaiser in his brief, is that any prosecution must be instigated by the person sought to be held liable. Willis v. Brassell, 220 Ga. App. 348, 350 (1) (469 SE2d 733) (1996). The evidence here shows, without dispute, that the prosecution of Kaiser began, not with the provision of any information to Kentucky authorities by Keller, but by happenstance during the ongoing Kentucky investigation into abuse of surplus property. It was not until McAuliffe contacted Keller that she provided any information, and there is no evidence that she ever told anyone that Kaiser forged the documents, although she continued to deny that she had made any alterations until Kaiser’s trial.

“The law draws a fine line of demarcation between cases where a party directly or indirectly urges (the initiation of) criminal proceedings and cases where a party merely relays facts to (one) who then makes an independent decision to arrest or prosecute. In the former case there is potential liability for malicious prosecution; in the latter case there is not. It is clear, though, that initiation of the criminal action need not be expressly directed by the party to be held liable.” (Citation and punctuation omitted.) [Willis, supra] at 350-351 (1) (a). A person may be held liable for unduly influencing the decision to prosecute by providing information that is known to be false, misleading or materially incomplete. Id. at 351 (1) (a).

Brooks, supra at 636-637 (1) (a).

Keller did not provide information to McAuliffe which implicated Kaiser, but only denied that any alteration of the documents had occurred at Southlake. Kaiser argues that this created an inference that Kaiser had committed the forgery. “[H]owever, ‘an inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility. [Cits.]’ ” Shadburn v. Whitlow, 243 Ga. App. 555, 557 (533 SE2d 765) (2000).

(b) Even pretermitting the issue of instigation, however, Kaiser’s contention that summary judgment was improper is also defeated by consideration of the element of lack of probable cause.

Here, the return of the indictment by a grand jury investigating the alleged forgery is prima facie, but not conclusive, evidence of the existence of probable cause. Fleming v. U-Haul Co., 246 Ga. App. 681, 683 (2) (541 SE2d 681) (2000); see Zohoury, supra.

(c) Even assuming, without deciding, that there was no probable cause, summary judgment was properly granted because there was no showing of malice on the part of Keller in her actions.

“Malice consists of: (1) personal spite, or (2) ‘general disregard of the right consideration of mankind, directed by chance against the individual injured.’ OCGA § 51-7-2.” Desmond v. Troncalli Mitsubishi, 243 Ga. App. 71, 75 (2) (532 SE2d 463) (2000).

Here, the only contact between Keller and Kaiser was two telephone calls discussing the purchase of the car. While she denied to McAuliffe that the alterations were made at Southlake, her motive for doing that, as she stated, was fear of losing her job, which she did when the truth was revealed.

Therefore, Kaiser has failed to come forth with evidence creating an issue for trial as to malice, and summary judgment was proper on this ground. Compare Desmond, supra, with Brooks, supra.

2. Kaiser also enumerates the grant of summary judgment on his intentional infliction of emotional distress claim.

Such a claim requires establishment of the following elements: (1) the conduct must be intentional and reckless; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between the wrongful conduct and the emotional distress; and (4) the emotional distress must be severe. Hendrix v. Phillips, 207 Ga. App. 394, 395 (1) (428 SE2d 91) (1993).

Whether Keller’s alleged conduct was sufficiently extreme or outrageous was a question of law for the court. McClung Surveying v. Worl, 247 Ga. App. 322, 326 (3) (541 SE2d 703) (2000).

In order to rise to the requisite level of outrageousness, “(t)he defendant’s conduct must be so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” (Citation and punctuation omitted.) Frank v. Fleet Finance, 238 Ga. App. 316, 318 (518 SE2d 717) (1999).

Id.

As concluded in Division 1 (c), there was not sufficient evidence to create a factual issue as to malice. Neither was there enough to show the elements of intentional infliction of emotional distress. Even a showing of actual malice or that degree of aggravation which might entitle one to recover punitive damages for another tort will not suffice. Desmond, supra at 76 (4); Jarrard v. United Parcel Svc., 242 Ga. App. 58, 61 (529 SE2d 144) (2000); Odem v. Pace Academy, 235 Ga. App. 648, 655 (2) (510 SE2d 326) (1998).

Summary judgment was appropriate on this claim.

3. Kaiser also alleged defamation in that Keller “maliciously and falsely [made] both oral and written statements to investigators from the State of Kentucky and others accusing [him] of crimes that he did not commit.”

As set out above, there has been no showing that Keller made any statement to McAuliffe, prosecutor Mann, or anyone else that Kaiser had forged the documents. Again, an inference based on uncertain or speculative evidence or which merely raises a conjecture or possibility will not preclude summary judgment. Shadburn, supra.

Decided March 7, 2001

Brian B. Pastor, for appellant.

Byrne, Moore & Davis, A. L. Mullins, Jr., for appellee.

4. Kaiser’s contention that his claim that Southlake failed to properly train and supervise Keller should have survived summary judgment is without merit.

Although Georgia recognizes a cause of action for negligent hiring/retention, OCGA § 34-7-20, there is no evidence here that, when Keller was hired or prior to the revelation of the Kaiser forgery, there had been any indication to Southlake of any criminal propensities on her part. Kemp v. Rouse-Atlanta, Inc., 207 Ga. App. 876, 878 (1) (429 SE2d 264) (1993). Upon Keller’s acknowledgment of the forgery, she was not retained, but was in fact terminated. No cause of action has been supported, and summary judgment was proper. Id.

5. Kaiser also made a claim under OCGA § 51-1-6. That statute, however,

does not confer a separate cause of action in tort upon one who has suffered a breach of a legal or a private duty. OCGA § 51-1-6, standing alone, creates no cause of action. Rather, it simply authorizes the recovery of damages for the breach of a legal duty otherwise created. [Cit.]

Parris v. State Farm &c. Ins. Co., 229 Ga. App. 522, 524 (494 SE2d 244) (1997).

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

       Kaiser’s brief is in violation of Rule 27 (c) (1) of this Court because his arguments are not made in the order of the enumerations of error, making our analysis more difficult than normal.

       Several depositions contained in the record were received by this Court sealed and were opened here for our consideration. These depositions are properly considered to determine whether the facts of the case create an issue of material fact for determination below. Taylor v. Schander, 207 Ga. App. 627, 628 (2) (428 SE2d 806) (1993).

       The surplus property investigation resulted in a federal indictment of the mayor for mail fraud in 1997.


text:
    A01A0206.
    BUCHANAN v. THE STATE.
    (546 SE2d 869)
   Johnson, Presiding Judge.

Bernie Buchanan was hired to build six houses in Carrollton. The homebuyers all gave Buchanan money which he was supposed to pay to subcontractors working on the construction of the houses. Buchanan, however, did not pay the money to the subcontractors.

Buchanan was subsequently indicted under OCGA § 16-8-15 for six counts of conversion of the homebuyers’ payments for real property improvements. He pled guilty to all six counts, and thereafter the court held hearings to determine the amount of restitution. The court was presented with testimony from the homebuyers, depositions of the subcontractors, and documentary evidence.

After considering the evidence, the court ordered Buchanan to pay not only the amount of money that he had converted by failing to pay the subcontractors, but also the out-of-pocket expenses and the legal fees incurred by the homebuyers as a result of the conversions. Specifically, the court made the following findings as to each count of the indictment: Count 1, Buchanan converted $32,734, and the homebuyers’ additional expenses were $17,723; Count 2, Buchanan converted $46,361, and the homebuyers’ expenses were $31,747; Count 3, Buchanan converted $30,783, and the homebuyers’ expenses were $2,546; Count 4, Buchanan converted $70,914, and the homebuyers’ expenses were $22,305; Count 5, Buchanan converted $15,545; and Count 6, Buchanan converted $86,554, and the homebuyers’ expenses were $7,852.

The court specified in its order that the homebuyers’ expenses and legal fees were to be paid to them, while the converted monies were to be disbursed directly to the various subcontractors. The court identified the subcontractors by name and listed the exact amounts that each was to receive.

Buchanan appeals, challenging the restitution order. He admits that he owes money directly payable to the homebuyer victims. But he claims that the restitution order is improper in that it includes payments to victims not named in the indictments, i.e., the subcontractors. The claim is without merit, and we therefore affirm the convictions and the ordered restitution.

“The amount of restitution ordered may be equal to or less than, but not more than, the victim’s damages.” “‘Damages’ means all damages which a victim could recover against an offender in a civil action . . . based on the same act. . . for which the offender is sentenced, except punitive damages and damages for pain and suffering, mental anguish or loss of consortium.”

In the instant case, the homebuyers could recover in a civil action their money which Buchanan converted by failing to pay it to subcontractors. In fact, Buchanan admits in his appellate brief that he did not pay a number of subcontractors, and he makes no claim that he is not liable to the homebuyer victims for such converted money. Thus, the trial court properly included that converted money as part of the homebuyers’ damages awarded in the restitution order.

Decided March 7, 2001

Johnson, Word & Simmons, Gerald P. Word, for appellant.

Peter J. Skandalakis, District Attorney, Kevin W. Drummond, Assistant District Attorney, for appellee.

Contrary to Buchanan’s argument, this case is not controlled by the decision in Robinson v. State. In Robinson, we found that the trial court properly ordered the defendant to pay money to the victim of a theft, but improperly ordered the defendant to make further restitution to a bank for money taken from an account because there was no accusation or evidence relating to any theft from that account.

Unlike the defendant in Robinson, Buchanan is not being ordered to pay restitution for a crime he was not charged with and for which there is no evidence. Rather, he is being ordered to pay only the homebuyer victims’ damages as established by the evidence. But instead of ordering Buchanan to pay all of those damages directly to the victims, the court has simply ordered him to pay the converted money directly to the unpaid subcontractors. “Payments pursuant to an order for restitution shall be made to the clerk of the court or to any other person, for the benefit of the victim or victims, as the ordering authority shall order” The court in this case therefore had the authority to order that restitution for the converted money be made directly to the subcontractors for the benefit of the victims.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

       Buchanan was also indicted for one count of false swearing under OCGA § 16-10-71. The state, however, did not prosecute this charge.

       OCGA § 17-14-9.

       OCGA § 17-14-2 (2).

       See generally Felker v. Chipley, 246 Ga. App. 296-298 (1) (540 SE2d 285) (2000); Chen v. Tai, 232 Ga. App. 595, 597-599 (3) (502 SE2d 531) (1998).

       169 Ga. App. 763 (315 SE2d 277) (1984).

       Id.

       (Emphasis supplied.) OCGA § 17-14-14.

       See Crozier v. State, 233 Ga. App. 831, 833 (2) (506 SE2d 139) (1998) (no error in trial court’s order that restitution for victim’s unpaid medical bills be paid directly to medical service providers).