text:
    A92A2084.
    JOHNSON v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY et al. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY v. JOHNSON.
    A92A2085.
    (429 SE2d 285)
   Blackburn, Judge.

Allan B. Johnson, Jr., was employed by MARTA for 14 years, first as manager of procurement and then as director of contracts and procurement. He resigned his position in July 1989, following a determination by MARTA that his wife’s acceptance of a position with IBM in February 1989 created a conflict of interest which required debarment of any further contracts with IBM. Subsequently, Johnson commenced this action alleging breach of contract, promissory estoppel, misrepresentation, intentional infliction of emotional distress, and violation of equal protection and due process, against MARTA only; and tortious interference with contract, and public disclosure of private facts, against the members of the MARTA Board of Ethics.

The trial court granted summary judgment for the defendants on all counts, except for the claim for intentional infliction of emotional distress. However, a jury returned a verdict for MARTA on that claim when the matter proceeded to trial. Johnson now appeals from the judgment entered on that jury verdict, the grant of partial summary judgment for the defendants, and the denial of his own motion for summary judgment. In its cross-appeal, MARTA attacks the denial of summary judgment on the claim for intentional infliction of emotional distress.

The nature of Johnson’s employment with MARTA subjected him to compliance with MARTA’s Code of Ethics governing, inter alia, conflicts of interest. That Code prohibits MARTA from contracting with any business in which an employee has an interest. Under that Code, an employee is deemed to have an interest in transactions involving an immediate relative, including a spouse.

In February 1989, IBM offered Johnson’s wife a one-year position as an independent contractor to assist in development of demonstrations and orientation of prospective users of classroom computer systems. IBM was a major contractor with MARTA, and, although his wife’s hiring and responsibilities were unrelated to any transactions between MARTA and IBM, Johnson sought guidance from the MARTA Board of Ethics regarding the propriety of his future participation in any matters pertaining to computer systems, out of concern for the appearance of a conflict of interest. On March 6, 1989, that Board concluded that Johnson had an “interest” in his wife’s employment with IBM within the meaning of the Code of Ethics, and recommended debarment of further contracting with IBM. Johnson appeared before the Board seeking reconsideration, but the Board affirmed its earlier determination that a potential conflict existed.

Consequently, Johnson relieved himself of any further duties of the nature covered by the Code of Ethics, effective April 1, 1989, and used his accrued vacation time. Ultimately, on July 21, 1989, he resigned his position with MARTA. In his letter of resignation, Johnson expressed his belief that the opinion of the Board was an honest interpretation of the Code of Ethics, but protested MARTA’s change in position regarding whether a conflict of interest arises from the mere employment of an immediate relative with another company that does business with MARTA.

1. Johnson claims that until he reported his wife’s employment with IBM, MARTA’s applied policy had been that mere employment, with no management or ownership interest in the contractor, of an immediate relative of a MARTA employee did not present a conflict, so long as neither MARTA nor its employee assisted the relative in getting the job, and the relative was not involved with or compensated because of the contractor’s transaction with MARTA. He contends that he was advised of that policy upon his specific inquiry when he first became employed with MARTA, and that the policy constituted an integral term of his employment contract with MARTA. His claims for breach of contract, promissory estoppel, and misrepresentation are all based upon MARTA’s alleged application of a different policy with regard to his wife, which ultimately forced his resignation in order to prevent debarment of IBM from contracting with MARTA and to save his wife’s job.

It is undisputed that Johnson’s employment with MARTA was for an indefinite term, and for that reason was terminable at the will of the employer, with no resulting cause of action for breach of contract. OCGA § 34-7-1, generally; Borden v. Johnson, 196 Ga. App. 288 (395 SE2d 628) (1990); Murphine v. Hosp. Auth. of Floyd County, 151 Ga. App. 722 (261 SE2d 457) (1979). We recognize that Johnson’s action is not one for wrongful discharge, but instead seeks redress for MARTA’s alleged failure to honor the terms of his employment contract. However, the nature of Johnson’s employment with MARTA similarly disposes of his claims based on that theory.

Specifically, because Johnson’s employment was terminable at will, MARTA was authorized to alter the terms of his employment. Taylor v. AMISUB, Inc., 186 Ga. App. 834 (368 SE2d 791) (1988). The doctrine of promissory estoppel codified at OCGA § 13-3-44 (a) has no application to enforce executory promises pertaining to employment for an indefinite term. See Barker v. CTC Sales Corp., 199 Ga. App. 742 (406 SE2d 88) (1991). Also, any promises upon which Johnson may rely to show misrepresentation are unenforceable because his underlying employment contract, being terminable at will, was unenforceable. Taylor v. AMISUB, Inc., supra at 836. Accordingly, the trial court properly granted summary judgment for the defendants on Johnson’s claims for breach of contract, promissory estoppel, and misrepresentation.

In contending that MARTA’s earlier policy defining conflicts of interest was an enforceable term of his employment, Johnson misplaces his reliance upon Fulton-DeKalb Hosp. Auth. v. Metzger, 203 Ga. App. 595 (417 SE2d 163) (1992). In Metzger, at the time the employee at will was hired, the employer’s personnel handbook provided for payment of full salary in case of injury on the job, but subsequently the handbook was amended to reduce those benefits. This court found that the compensation terms contained in the original handbook remained in effect for the employee, in accordance with an established rule that an additional compensation plan offered by an employer and accepted by an employee constitutes a separate contract between them. Metzger thus involved enforcement of contracted-for compensation benefits, and does not stand for the proposition that an employer at will may not alter the terms of such employment.

2. When the MARTA Board of Directors adopted its Code of Ethics, it created a Board of Ethics charged with the responsibility of interpreting and implementing the Code. The nine members of the Board of Ethics were chosen from within the community, and generally were to serve three-year terms. (Three members were to be chosen from MARTA employees and the Board of Directors; three members were to be selected from bar associations in the metropolitan Atlanta area; two members were selected from the Atlanta and DeKalb chambers of commerce; and one member represented the Metropolitan Atlanta Rapid Transit Overview Committee.) Johnson contends that the Board of Ethics, in sharing its advisory opinions with the MARTA Board of Directors, tortiously interfered with his contract rights and made a wrongful public disclosure of private facts.

OCGA § 51-1-20 establishes immunity from civil liability for all persons serving “with or without compensation” on “any local governmental agency, board, authority, or entity ... for any act or any omission to act arising out of such service if such person was acting in good faith within the scope of his or her official actions and duties and unless the damage or injury was caused by the willful or wanton misconduct of such person.” The trial court found that the members of the MARTA Board of Ethics were entitled to the benefit of this statutory immunity, and we agree.

In this case, the Board of Ethics rendered its opinions concerning Johnson’s conflict of interest arising from his wife’s employment with a MARTA contractor, in response to Johnson’s request for guidance regarding the matter. Following its initial adverse opinion, the Board of Ethics entertained Johnson’s request for reconsideration and allowed him to appear before the Board to present his case. The Board of Ethics met with him for several hours, during which time Johnson, according to his own deposition, presented all the information he had concerning the issue. The only member of the Board of Ethics personally familiar with Johnson was Morris Dillard, the deputy general manager of MARTA at the time. The Code of Ethics provided that one of the general duties of the Board of Ethics was “to render advisory opinions with respect to the interpretation and application of [the Code of Ethics] to all persons who seek advice as to whether a particular course of conduct would constitute a violation of the standards imposed herein,” and the Board of Ethics customarily shared its opinions with MARTA management. There is no evidence whatsoever to refute the evidence of good faith and the absence of any wilful or wanton misconduct on the part of the Board of Ethics, and the trial court properly found the members of the Board of Ethics immune under OCGA § 51-1-20.

Johnson emphasizes that there was some evidence that the members of the Board of Ethics may not have been reappointed strictly according to the provisions for such contained in the Code of Ethics. Specifically, it appears that some members may have served beyond their designated terms of office without having been formally reappointed. It is undisputed, however, that the MARTA Board of Directors never chose to replace any such members. Contrary to Johnson’s contention, the fact that the MARTA Board of Directors, which created the Board of Ethics, may not have strictly followed its guidelines for appointment of members of the Board of Ethics, does not render the acts of those members outside the scope of their official duties.

Further, the members of the Board of Ethics could not be liable for tortious interference with Johnson’s contractual relations with MARTA, because liability for such arises “only when the interference is done by one who is a stranger to the contract.” Jet Air v. Nat. Union Fire Ins. Co., 189 Ga. App. 399, 403 (4) (375 SE2d 873) (1988). The Board of Ethics was charged with the duty of providing independent interpretation and implementation of the Code of Ethics, but the fact remains that it was established by the MARTA Board of Directors and in no way could be categorized as a “stranger” to MARTA and Johnson. Similarly, when the Board of Ethics shared with the Board of Directors its opinion regarding Johnson’s potential conflict of interest, no public disclosure of private facts occurred. Communications between top officers within MARTA, pertaining to the operations of MARTA, do not constitute a public disclosure. See Griggs v. K-Mart Corp., 175 Ga. App. 726 (334 SE2d 341) (1985).

3. Johnson contends that he was deprived of due process by the procedures employed by the Board of Ethics and the Board of Directors in concluding that his interest in his wife’s employment created a conflict of interest that required debarment of IBM. Specifically, he complains that he was never afforded notice and a hearing regarding his alleged violation of the Code of Ethics. However, because his employment was terminable at will, Johnson’s property interest in his continued employment with MARTA was insufficient to invoke procedural due process protection. Wofford v. Glynn Brunswick Mem. Hosp., 864 F2d 117 (11th Cir. 1989). His interest in his wife’s employment with a MARTA contractor would be even less entitled to such protection.

Johnson also claimed that in applying the Code of Ethics to his case, MARTA had used a different standard than with other covered MARTA employees who had family members employed by MARTA contractors, in violation of his right to equal protection of the law. The only specific example he relied upon in support of this contention involved a situation in which the sister of a member of the Board of Directors was hired as a secretary by an architectural firm that had done business with MARTA. In that case, the Board of Ethics had not debarred the architectural firm, with the proviso that the Board member not participate in any other decisions relating to that architectural firm. That situation, however, differed greatly from Johnson’s case, inasmuch as the Board member had no interest, direct or indirect, in the income his sister received from her employer. There is no constitutional requirement that “ ‘things which are different in fact or opinion ... be treated in law as though they [are] the same.’ ” Wallace v. State, 224 Ga. 255, 257 (161 SE2d 288) (1968). Accordingly, the trial court properly granted summary judgment for the defendants on this claim as well.

To some extent, Johnson attempts to support his claim by emphasizing the difference between the ethical requirements imposed upon him by MARTA and those provided in OCGA § 45-10-22, applicable to state agencies and persons holding a state office. However, since MARTA is not a state agency and Johnson did not hold a state office, OCGA § 45-10-22 is inapplicable.

4. Following the trial on Johnson’s claim for intentional infliction of emotional distress, the trial court gave comprehensive instructions to the jury without any objections by Johnson. During its deliberations, the jury posed several questions to the trial court, and in response to those questions, the court instructed the jury that the jurors must agree that MARTA’s conduct was either “intentional or reckless,” and that it was either “extreme and outrageous or so terrifying or so insulting as to naturally humiliate, embarrass or frighten the plaintiff.” Johnson’s contention that this instruction confused the jury regarding the alternative elements of the cause of action is without merit. The instruction constituted a correct statement of the law regarding intentional infliction of emotional distress, see Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227 (335 SE2d 445) (1985), and we find nothing confusing about it.

Decided March 3, 1993

Reconsideration denied March 17, 1993

Allan B. Johnson, Jr., pro se.

Pursley, Howell, Lowery & Meeks, Paul A. Howell, Jr., Bryan A. Vroon, for MARTA.

5. In Case No. A92A2085, MARTA cross-appeals from the denial of its motion for summary judgment on the claim for intentional infliction of emotional distress. Our affirmance of the favorable verdict for MARTA on that claim in Division 4 above renders unnecessary any further consideration of MARTA’s cross-appeal. Accordingly, the cross-appeal is dismissed.

Judgment in Case No. A92A2084 affirmed; Case No. A92A2085 dismissed. McMurray, P. J., and Cooper, J., concur.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A92A2110.
    WALKER v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    (429 SE2d 289)
   Johnson, Judge.

Richard D. Walker was involved in an automobile collision with Teresa Stiles, who was driving a vehicle owned by her father, Hardy Morrow. Walker filed a personal injury lawsuit against Stiles, Morrow, and Georgia Farm Bureau Mutual Insurance Company, Walker’s underinsured motorist carrier. Walker served a copy of the complaint on State Farm Mutual Automobile Insurance Company, the liability carrier for Stiles and Morrow. State Farm filed an answer on behalf of Stiles and Morrow. State Farm also filed a motion to dismiss or, in the alternative, for summary judgment as to Stiles and Morrow on the ground that the statute of limitation had expired and service of process had not been perfected upon them. After a hearing on the motion, the trial court granted summary judgment as to Stiles and Morrow. Georgia Farm Bureau then moved for summary judgment on the ground that any recovery against it, as the underinsured motorist carrier, was barred by the grant of summary judgment as to Stiles and Morrow. The trial court entered an order granting Georgia Farm Bureau summary judgment. Walker appeals.

1. Walker contends that the trial court erred in granting summary judgment to Stiles and Morrow.

Appellant argues that summary judgment was not proper because insufficient service of process is a matter in abatement and is thus properly raised in a motion to dismiss. “It is well established that summary judgment is appropriate only to matters relating to the merits of a proceeding and does not apply to matters in abatement. [Cit.]” McGregor v. Stachel, 200 Ga. App. 324 (408 SE2d 118) (1991). However, we cannot agree that the instant case presented the trial court only with a matter in abatement since, in addition to the motion to dismiss for lack of service, there was a motion for summary judgment based upon the expiration of the statute of limitation.

Summary judgment is an appropriate remedy when the issue, as in this case, concerns the expiration of the statute of limitation. Gaskins v. A. B. C. Drug Co., 183 Ga. App. 518, 520 (3) (359 SE2d 364) (1987). “Where service is made after the expiration of the applicable statute of limitation, the timely filing of the complaint tolls the statute only if the plaintiff shows that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible. A reasonable rule must be that in such case the trial judge should look at all the facts involved and ascertain whether the plaintiff was in any way guilty of laches. If he were, of course he would be barred, but if he acted in a reasonably diligent manner then he would not be. The determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.” (Citations and punctuation omitted.) McCrary v. Preferred Risk Mut. Ins. Co., 198 Ga. App. 727, 728-729 (402 SE2d 519) (1991).

The trial court did not abuse its discretion in finding that Walker was guilty of laches in failing to exercise due diligence in perfecting service on Stiles and Morrow. Walker did not file his complaint until one month prior to the expiration of the two-year statute of limitation. It is unclear from the record why Walker delayed filing his complaint until the statute of limitation had almost expired. Walker was unable to locate Stiles and Morrow prior to the expiration of the statute of limitation. He then waited until 40 days after the statute had expired to file a motion for service by publication. Along with that motion, Walker filed an affidavit of a private investigator who stated that he had been contacted by Walker’s attorney after the statute had expired and that he had been unable to locate Stiles and Morrow. Walker still has not perfected service on Stiles and Morrow, claiming that they have disappeared.

Decided March 3, 1993

Reconsideration denied March 17, 1993

Eichelberger & Perrotta, James A. Eichelberger, Joseph D. Perrotta, for appellant.

Fain, Major & Wiley, Donald M. Fain, G. Keith Richardson, for appellee.

Because we do not have a transcript of the hearing on the motion for summary judgment, we cannot determine what other evidence, if any, was before the trial court. Under these circumstances, we must presume that the court’s ruling was correctly based on all the evidence presented and that the court did not abuse its discretion in granting summary judgment to Stiles and Morrow. See Brown v. Bailey, 180 Ga. App. 555, 557-558 (1) (349 SE2d 792) (1986).

2. Because Stiles and Morrow were properly granted summary judgment, Walker’s claim that the court erred in granting summary judgment to Georgia Farm Bureau is without merit. “This court has interpreted the Uninsured Motorist Act to require, as a condition precedent to a suit against the insurance carrier, that the insured first sue and recover a judgment against the uninsured motorist, whether known, or unknown.” (Citations and punctuation omitted.) McCrary v. Preferred Risk Mut. Ins. Co., supra at 728. As Walker cannot recover a judgment against Stiles and Morrow, the court did not err in granting summary judgment to Georgia Farm Bureau.

Judgment affirmed. Pope, C. J., and Carley, P. J., concur.

       Walker complains that the court did not make a finding that he was not diligent because that issue, although raised in the motion for summary judgment filed prior to the court’s ruling, was not discussed at the hearing held on the motion. We do not have a transcript of that hearing. Even if the issue was not discussed at the hearing, there is no evidence in the record that the court did not make a finding as to Walker’s lack of diligence. Such a finding is implicit in the court’s grant of summary judgment to Stiles and Morrow.


author: McMurray, Presiding Judge.

text:
    A92A2155.
    KEMP et al. v. ROUSE-ATLANTA, INC. et al.
    (429 SE2d 264)
   McMurray, Presiding Judge.

Appellants Kenneth Bernard Kemp and Errol R. Manson filed an action for damages against the defendant-appellees for false arrest, false imprisonment, malicious prosecution, assault and battery, slander, and negligent hiring, retention and training. The trial court granted appellees’ motion for summary judgment as to all allegations, giving rise to this appeal.

On June 29, 1989, appellee Lawrence Sinclair was patrolling Underground Atlanta on the evening shift of his job as a security guard employed by appellee Rouse-Atlanta. He spotted appellants in a restricted area that was off limits to the public. Each of them was carrying a shopping bag labeled “B. Gallerie” which contained merchandise later identified by appellee Phillip Brock, the manager of B. Gallerie, as belonging to the shop. The retail business, incorporated in California as appellee B. Gallerie Group, Inc., was a tenant of appellees Underground Festival, Inc. and Underground Atlanta Joint Venture.

Sinclair approached appellants to find out what they were doing in the unauthorized area, and asked if they had sales receipts to show they had purchased the merchandise in the shopping bags. Appellants had no receipts, but claimed Manson worked for B. Gallerie and had been given permission to rummage in an area where the newly-opened shop was discarding merchandise; and that Manson had asked Kemp to help him remove the discarded merchandise. However, Manson was not working at the store at the time of the encounter. In his deposition and affidavit, Sinclair swore that he immediately radioed for backup assistance and had no further discussion with appellants until the backup arrived. At that time Sinclair stated he asked appellants to accompany him to the security substation for further investigation and they agreed; and that he did not make physical contact with either man. When they arrived at the security substation, Sinclair told appellants to be seated and left the room to contact B. Gallerie’s manager to identify the merchandise.

When Sinclair left to locate the store manager, Atlanta Police Officer Warren Meredith was present in the substation booking a suspected shoplifter. Meredith overheard one of the appellants tell the other he had found the merchandise in a garbage dumpster and intended to take it. Based upon this conversation Meredith concluded he had probable cause to arrest appellants for theft of lost or mislaid property. He placed appellants under arrest, charged and handcuffed them and, with the aid of several other Atlanta police officers, searched them. Sinclair did not assist in the arrest nor request that either appellant be arrested. Brock arrived after the arrest and identified the merchandise as belonging to B. Gallerie and missing from the stockroom. Based on this identification of the property and Brock’s decision to prosecute, appellants were also charged with receiving stolen property. They were tried only on that count. After hearing evidence, the trial court directed a verdict of acquittal on the sole ground that the State had failed to meet its burden of proving beyond a reasonable doubt that the property had been stolen from B. Gallerie, so there was insufficient evidence to convict appellants of theft by receiving stolen property. Held:

1. Appellants contend that in order to justify the grant of summary judgment in a negligence case, the movant must show by uncontroverted evidence that its acts in no way contributed to the proximate cause of the damage incurred; and that because they could have shown to a jury at trial that the reason for the false arrest was the inadequate and improper training received by Sinclair, their entire complaint should not have been dismissed. In answers to interrogatories concerning the basis for this contention, appellants claimed that Sinclair assaulted them, “improperly handled the situation by not allowing . . . Manson to identify himself,” and “falsely accused [appellants] of theft before investigating the situation v/hen a reasonable explanation was at hand.”

“The appropriate standard of care in a negligent hiring/retention action is whether the employer knew or should have known the employee was not suited for the particular employment. [Cits.]” Harvey Freeman & Sons, Inc. v. Stanley, 189 Ga. App. 256, 258 (2) (a) (375 SE2d 261) (1988) rev’d on other grounds in 259 Ga. 233 (378 SE2d 857) (1989). “An employer’s liability for negligent hiring or retention of an employee requires proof that the employer knew or should have known of the employee’s violent and criminal propensities, [cits.], and there was no evidence of such knowledge in this case.” Odom v. Hubeny, Inc., 179 Ga. App. 250, 252 (2) (345 SE2d 886) (1986). Moreover, “the training [Sinclair] was required by statute and agency regulations to receive was [not] designed to uncover the trainee’s latent character defects for purposes of placing the employer on notice that the trainee possessed violent or criminal propensities. Thus [Rouse-Atlanta’s] failure to provide that training does not avail appellants.” Kelley v. Baker Protective Svcs., 198 Ga. App. 378, 379-380 (401 SE2d 585) (1991). Appellants have pointed out no evidence in the record which would establish the existence of triable issues on the negligent hiring, training and retention of Sinclair by his employer, or that Rouse-Atlanta had actual or constructive knowledge of Sinclair’s propensity to commit the acts complained of.

2. Claiming that they were unlawfully stopped and detained by force, appellants assert that far from voluntarily accompanying Sinclair to the security substation, Manson was grabbed by the belt loops of his pants and Kemp was told not to move while Sinclair summoned two other Rouse security officers to help him take appellants there. They allege that from these actions they were made to feel they were under arrest and not at liberty to leave.

We have been referred to no portions of the record in which appellants submitted sworn evidence or testimony in this regard, but our search discloses that such facts were alleged in the pleadings and appeared in an answer to interrogatories filed by Manson’s attorney in response to appellees’ motion for summary judgment. The answer states that Sinclair bent Manson’s left arm behind his back and grabbed him by his trousers; and that Sinclair improperly handled the situation by not allowing Manson to identify himself and “falsely accused him of theft before investigating the situation when a reasonable explanation was at hand.” It appears from the transcript of the criminal trial that the verdict of acquittal was directed before either defendant testified, and no depositions or affidavits filed in the civil action presenting any sworn evidence to this effect are included in the record on appeal. However, Sinclair’s and Meredith’s testimony in the criminal trial and their affidavits supporting the motion for summary judgment were consistent that appellants were not physically restrained or threatened by Sinclair or any other Rouse security guards; and that they voluntarily chose to accompany Sinclair to the substation to continue the investigation, after which Meredith took charge.

“A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). See also Collins v. Byrd, 204 Ga. App. 893 (1), 894 (420 SE2d 785) (1992). Appellants did not specifically point out that their evidence of unlawful detention was contained in Manson’s answers to interrogatories, but it does appear in the record.

“The essential elements of the cause of action for false imprisonment are a detention of the person of another for any length of time, and the unlawfulness of that detention. OCGA § 51-7-20. A detention need not consist of physical restraint, but may arise out of ‘ “ ‘words, acts, gestures, or the like, which induce a reasonable apprehension that force will be used if plaintiff does not submit; and it is sufficient if they operate upon the will of the person threatened, and result in a reasonable fear of personal difficulty or personal injuries.’ (Cit.)” (Cits.)’ [Cit.]” Fields v. Kroger Co., 202 Ga. App. 475 (414 SE2d 703) (1992). “ ‘It is essential, however, that the restraint be against the plaintiff’s will; and if he agrees of his own free choice to surrender his freedom of motion, as by remaining in a room or accompanying the defendant voluntarily, to clear himself of suspicion or to accommodate the desires of another, rather than yielding to the constraint of a threat, then there is no imprisonment.’ [Cit.]” J. H. Harvey Co. v. Speight, 178 Ga. App. 812, 813 (344 SE2d 701) (1986).

“In addition, OCGA § 51-7-60 precludes a recovery for false imprisonment when it is shown that the owner or operator of a store reasonably believed the person detained was engaged in shoplifting. OCGA § 51-7-60 thus implicitly recognizes the right of a shop owner to protect himself from shoplifting by detaining a customer who has acted in a suspicious manner. Where a detention occurs its reasonableness is a jury question. However, ‘there is no issue for the jury where there is no detention.’ [Cit.]” Fields v. Kroger Co., 202 Ga. App. 475, supra at 475-476. Despite the additional protection against shoplifting afforded by OCGA § 51-7-60, since Manson’s answers set forth nonconclusory facts that would be admissible in evidence on motion for summary judgment, we conclude that there was sufficient evidence to give rise to a triable issue. See Gunnin v. Swat, Inc., 195 Ga. App. 344 (393 SE2d 700) (1990).

3. We conclude that the facts stated above also raise a triable issue as to whether Sinclair’s actions against Manson constituted an assault and battery as contemplated by OCGA § 51-1-13. “ ‘ “In the interest of one’s right of inviolability of one’s person, any unlawful touching is a physical injury to the person and is actionable (as a battery).” (Cits.)’ [Cits.]” Haile v. Pittman, 194 Ga. App. 105, 106 (3) (389 SE2d 564) (1989). “ ‘Where all the apparent circumstances, reasonably viewed, are such as to lead a person reasonably to apprehend a violent injury from the unlawful act of another, there is an assault.’ [Cit.] ‘Any act of physical violence (and the law will not draw a line between different degrees of violence), inflicted on the person of another, which is not necessary, is not privileged, and which constitutes a harmful or offensive contact, constitutes an assault and battery.’ [Cit.]” Greenfield v. Colonial Stores, 110 Ga. App. 572, 574-575 (1) (139 SE2d 403) (1964).

4. In regard to the claims of false arrest and malicious prosecution, the evidence is undisputed that Sinclair did not place appellants under arrest when he took them to the security substation for further investigation, but that they were arrested by Atlanta Police Officer Meredith who, after overhearing a conversation between appellants out of the presence of Sinclair, independently concluded that he had probable cause to do so. Likewise, no prosecution was initiated by Rouse or its security agents, but by Brock on behalf of B. Gallerie. Sinclair’s encounter with appellants was preliminary to their arrest and subsequent prosecution, and “[a]ppellees cannot be held liable for the actions of the on-duty policemen who formally arrested appellants. The on-duty policemen were not appellees’ agents. They were the official agents of the State.” Haile v. Pittman, 194 Ga. App. 105, supra at 107.

What facts and circumstances amount to probable cause is purely a question of law, and even assuming a jury question was presented on the issue of probable cause, appellants were also required to produce evidence of malice. Barber v. H & H Muller Enterprises, 197 Ga. App. 126, 129 (2) (b) (397 SE2d 563) (1990). “[T]he law does not presume malice or animus against an officer merely because in the discharge of his legal functions, he does an illegal act. [Cit.]” Pinkston v. City of Albany, 196 Ga. App. 43, 44 (1), 46 (395 SE2d 587) (1990). “Although not expressly provided by statute, the malice ‘ “ ‘contemplated by law in an action for malicious prosecution is the same as in an action for malicious arrest.’ ” ’ [Emphasis in opinion.] [Cits.] Malice in an action for malicious prosecution or malicious arrest consists ‘in personal spite or in a general disregard of the right consideration of mankind, directed by chance against the individual injured.’ [Cits.]” Barber v. H & H Muller Enterprises, 197 Ga. App. 126, supra at 130. “To have a cause of action and raise an issue of false arrest [or malicious prosecution under OCGA § 51-7-40], for a jury, plaintiff must at least show some evidence of the animus required by [OCGA] §§ 51-7-2 and 51-7-3. Therefore, even giving [appellants] the benefit of every doubt on [appellees’] motion for summary judgment . . . , we must conclude [they] still [have] not raised against any of the officers an issue of the actual spiteful type of malice and lack of probable cause that must be present to support an action for ‘false arrest’ [or malicious prosecution]. . . .” Pinkston v. City of Albany, 196 Ga. App. 43, supra at 46-47.

5. Appellants originally filed their action on April 4,1990, against Rouse-Atlanta d/b/a Rouse Security, Sinclair, Brock and B. Gallerie Group. They voluntarily dismissed the complaint on June 12, 1991, and refilled it on June 21, 1991, naming as additional defendants Underground Festival, Inc. and Underground Joint Venture. The alleged defamatory statements were made on June 29, 1989. “Therefore, pretermitting all other issues, it is clear that [appellants’ slander] action is barred by the one-year statute of limitation imposed by OCGA § 9-3-33.” Wiggins v. C. & S. Nat. Bank, 173 Ga. App. 761 (1) (328 SE2d 222) (1985).

Judgment affirmed in part and reversed in part. Cooper and Blackburn, JJ., concur.

On Motion for Reconsideration.

For the first time, in their motion for reconsideration, appellees point out that the responses to their interrogatories were signed only by appellants’ attorney, and were not answered under oath and signed by appellants personally as required by OCGA § 9-11-33 (a) (2). Thus, they contend this court’s reliance on appellants’ unverified responses to establish that a triable issue existed was inappropriate as a matter of law because the invalid responses were inadmissible as evidence. In Gregory v. King Plumbing, 127 Ga. App. 512, 513 (2) (194 SE2d 271) (1972), which appellees cite as authority, this court held that such an ineffectual attempt to respond did not constitute an answer, and therefore, under the circumstances there, “the trial judge did not abuse his discretion in finding that the defendant wilfully failed to answer interrogatories and in imposing the harsh sanctions of striking defendant’s answer and entering a default judgment.”

Decided February 24, 1993

Reconsideration denied March 17, 1993

Dwight L. Thomas, Avis F. Sanders, for appellants.

Alston & Bird, Russell W. Thorpe, Jeffery M. Brown, Renee M. Horn, for appellees.

If appellees had followed the proper pretrial procedures this defect could have been remedied. “OCGA § 9-11-37 provides two avenues by which sanctions may be imposed on a party for failure to permit discovery. Where some response is made, the propounding party may seek a court order compelling further answer pursuant to [OCGA] § 9-11-37 (a), and only the subsequent violation of such an order authorizes sanctions under [OCGA] § 9-11-37 (b). Alternatively, sanctions may be sought immediately for total failure to respond to discovery requests pursuant to [OCGA] § 9-11-37 (d) without necessity of first obtaining a court order compelling compliance. [Cit.]” Rivers v. Goodson, 184 Ga. App. 70, 71 (2), 72 (360 SE2d 740) (1987). An unverified response to interrogatories is not so evasive and incomplete as to be treated as a complete failure to answer. See Rivers v. Goodson, 184 Ga. App. 70, supra at 73. Therefore, a mere technical failure to comply with an order compelling discovery, or an inadequate discovery response after entry of such an order, does not justify the extreme sanction of default or dismissal of the complaint. See Johnson v. Lomas Mortgage, USA, 201 Ga. App. 562, 564 (3) (411 SE2d 731) (1991).

Having failed to seek compliance with these procedural rules, or sanctions of any kind, or even a ruling from the trial court on the admissibility of the facts alleged in these responses, appellees cannot now proclaim them inadmissible. Not only did appellees fail to properly raise an objection to the lack of verification of appellants’ interrogatory responses, they submitted their interrogatories and appellants’ responses to the trial court in support of their motion for summary judgment, and based their argument for grant of summary judgment on the unverified answers contained therein. “ ‘ “A party cannot ignore during a trial that which he thinks to be error or an injustice and take his chances on a favorable [outcome] and then complain later.” [Cit.]’ [Cit.]” Dept. of Transp. v. Harris, 201 Ga. App. 160 (1) (410 SE2d 360) (1991). Since issues never raised at trial will not be considered for the first time on appeal, Carruth v. Brown, 202 Ga. App. 656, 657 (415 SE2d 470) (1992), such issues certainly should not be considered for the first time on a motion to reconsider a ruling made on appeal.

Motion for reconsideration denied.


author: Carley, Presiding Judge.

text:
    A92A2340.
    CLARKE v. COTTON. CLARKE COMMUNICATIONS, INC. v. COTTON.
    A92A2341.
    (429 SE2d 291)
   Carley, Presiding Judge.

While under the influence of alcohol, appellant-defendant Robert Clarke crashed a vehicle that was owned by appellant-defendant Clarke Communications, Inc. into a vehicle that was being operated by appellee-plaintiff. Appellee brought suit, seeking to recover for the injuries that he sustained in the collision. The case was tried before a jury and a verdict awarding appellee compensatory and punitive damages was returned. The trial court entered judgment on the jury’s verdict and appellants filed motions for new trial. When their motions for new trial were denied, appellants filed separate notices of appeal but identical enumerations of error. The two appeals are hereby consolidated for disposition in this single opinion.

1. Appellants sought a new trial as to punitive damages, on the ground that the jury’s award of those damages was excessive. The trial court’s denial of appellants’ motion for new trial as to this issue is enumerated as error.

Appellants introduced evidence in mitigation of liability for punitive damages. Compare Cherry v. McCall, 23 Ga. 193, 194 (2) (1857). The jury, having heard this evidence in mitigation, was nevertheless authorized to return its award of punitive damages based upon Clarke’s conduct of driving while under the influence. Viau v. Fred Dean, Inc., 203 Ga. App. 801, 804 (4) (418 SE2d 604) (1992). “That this award appears to bear no rational relationship to the extent of [appellee’s] injury is of no consequence. ‘(Punitive damages) are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence.’ [Cit.] The concept of proportionality as a legal limitation on the amount of punitive damages applies, in Georgia, only when such damages are given to compensate for wounded feelings. A deterrence award is based on factors, for the most part, unrelated to the injury to any particular victim, and is limited only by the collective conscience of the jury. [Cits.]” (Emphasis in original.) Hospital Auth. of Gwinnett County v. Jones, 259 Ga. 759, 762 (2) (386 SE2d 120) (1989), judgment reinstated on remand, 261 Ga. 613 (409 SE2d 501) (1991).

“As a general rule, the size of the award for damages in a case such as this is left to the enlightened conscience of impartial jurors, subject to approval of the trial court. [Cit.] The appellate court will not disturb the award ‘ “absent an award so excessive or inadequate as to shock the judicial conscience.” ’ [Cits.]” Davis v. Glaze, 182 Ga. App. 18, 23 (13) (354 SE2d 845) (1987). “In the case before us, [appellants] moved for a new trial and specifically requested the trial court to review the punitive damages awarded. The trial court declined to set the award aside. We have reviewed the evidence presented in this case and hold, under the circumstances presented, the trial court did not abuse its discretion in refusing to overrule the jury’s punitive damage award.” Hospital Auth. of Gwinnett County v. Jones, 259 Ga., supra at 766 (5).

2. In its charge on punitive damages, the trial court quoted the applicable language of OCGA § 51-12-5.1 (b), to the effect that such damages could be awarded only if it was “proven by clear and convincing evidence that [appellants’] actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” Appellants had submitted requests to charge which purported to explicate the concept of “clear and convincing evidence.” The trial court’s failure to give these requested charges is enumerated as error.

It is the concept of “clear and convincing evidence” as enunciated in Santosky v. Kramer, 455 U. S. 745 (102 SC 1388, 71 LE2d 599) (1982) that is applicable in Georgia. See Blackburn v. Blackburn, 249 Ga. 689, 692 (2) (292 SE2d 821) (1982). Accordingly, “clear and convincing evidence” is considered in this state to be “an intermediate standard of proof. ...” Santosky v. Kramer, supra at 756 (II). It is a standard of proof which is greater than the preponderance of the evidence standard ordinarily employed in civil proceedings, but less than the reasonable doubt standard applicable in criminal proceedings. See Santosky v. Kramer, supra at 768 (IV).

Included among appellants’ requested instructions was one which set forth the correct principle that “clear and convincing evidence” constituted a greater standard of proof than the preponderance of the evidence standard. See Barber v. Perdue, 194 Ga. App. 287, 289 (390 SE2d 234) (1989). However, none of appellants’ requests also sets forth the correct principle that “clear and convincing evidence” was a lesser standard of proof than that of proof beyond a reasonable doubt. Indeed, appellants requested that the jury be instructed that “clear and convincing evidence” “is the same as proof to a reasonable certainty.” This is an erroneous statement of the law, since a jury instruction that “the minds of the jury must be satisfied to a reasonable certainty is equivalent to an instruction that they must be satisfied beyond a reasonable doubt. [Cits.]” (Emphasis supplied.) Hattaway v. Dickens, 163 Ga. 755 (2a) (137 SE 57) (1927). As the “clear and convincing evidence” standard is less than the reasonable doubt standard, it obviously was not error to refuse to give a charge which would be the equivalent of instructing the jury that appellee had the burden of proving appellants’ liability for punitive damages beyond a reasonable doubt.

Accordingly, the issue for resolution in the instant case becomes whether it is error for a trial court to refuse a requested instruction which would inform the jury only that “clear and convincing evidence” is a greater standard of proof than the preponderance of the evidence standard. Such an instruction would certainly not properly characterize “clear and convincing evidence” as being an intermediate standard of proof and would leave the jury without any guidance whatsoever as to the extent to which the “clear and convincing evidence” standard was greater than the preponderance of the evidence standard. Without instruction as to parameters, the jury might erroneously conclude that appellee was required to prove appellants’ liability for punitive damages beyond a reasonable doubt or by an even higher standard of proof. Although appellee was required to prove appellants’ liability for punitive damages by more than a preponderance of the evidence, he was certainly not required to prove their liability for those damages beyond a reasonable doubt or by evidence which was unequivocal or undisputed.

It necessarily follows that a requested instruction which would inform the jury only that the “clear and convincing evidence” appellee was required to adduce to recover punitive damages must be greater than a preponderance of the evidence would be argumentatively incomplete. “A refusal of a request to charge on a collateral issue which is incomplete within itself is not reversible error.” Bennett v. State, 67 Ga. App. 384 (2) (20 SE2d 193) (1942). “A request for instruction to the jury must be correct as a whole. It should be perfect in itself, or the court should refuse it. [Cits.]” Bridges v. Donalson, 165 Ga. 228, 233 (5) (140 SE 497) (1927). “ ‘The court may refuse requests which need qualifications, modification or restriction. It has been said that unless the charge ought to be given in the very terms in which requested, it should be refused altogether. The trial court is not under any obligation to rewrite an instruction which either party requests to be given.’ ” Tatum v. State, 57 Ga. App. 849, 853 (3) (197 SE 51) (1938). “It is not error to refuse to charge a request which is not in all respects abstractly correct, or which, if given in the exact language of the request would be misleading or confusing. Standing alone, [appellants’] request would seem to contain a correct principle of law but too broadly couched to make the refusal to give it exactly as requested reversible error.” Cutler-Hammer, Inc. v. Bell, 84 Ga. App. 316, 319 (2) (66 SE2d 345) (1951).

Judgments affirmed. Pope, C. J., and Johnson, J., concur.

Decided March 3, 1993

Reconsideration denied March 17, 1993

Lokey & Bowden, Peter K. Kintz, Totsy Nichols, for appellant.

Jones, Cork & Miller, John T. Mitchell, Jr., Brandon A. Oren, Thomas W. Joyce, for appellee.


author: Blackburn, Judge.

text:
    A92A2405, A92A2406.
    BROWN v. SOUTHERN AGGREGATES COMPANY; and vice versa.
    (429 SE2d 294)
   Blackburn, Judge.

Michael Brown sued Southern Aggregates Company for injuries he allegedly received as a result of Southern’s negligence. He appeals from a verdict in his favor in the amount of $85,000, contending that the size of the verdict was inadequate because of the trial court’s erroneous refusal to inform the jury of a prior settlement with another tortfeasor arising from the same facts, and because of a misleading jury charge on comparative negligence.

As a brakeman employed by the Central of Georgia Railroad Company, appellant was required to ride on the lead end of a cut of rock hopper cars into an unlit rock quarry owned by appellee. The railroad tracks made a loop into and out of the quarry. Rocks were brought by appellee’s employees to the center of the loop, requiring its dump trucks to cross the railroad tracks. Appellant was injured when one of appellee’s dump trucks was driven across the railroad tracks and collided with the train, crushing appellant between the truck and the train car on which he was riding.

1. Appellant’s lawsuit was originally filed against appellee and the Central of Georgia Railroad Company, but he settled with the railroad for $45,000. Appellant’s attorney requested the trial court to apprise the jury that a settlement had been reached with the railroad in the amount of $45,000. The trial court refused, electing instead to withhold the fact and amount of the settlement from the jury and reduce the amount of any damages awarded by the amount of the settlement. Appellant enumerates as error the trial court’s refusal to permit him to reveal this to the jury, contending it caused him to be unduly prejudiced when defense counsel pointed to an empty chair in the courtroom and argued that the railroad was the liable party in order to convince the jury that appellant had received a large settlement with the railroad.

We find no reversible error. The rule is that where the plaintiff has settled with one or more of the claimed tortfeasors and proceeds to trial against the remaining tortfeasor, any damages awarded at trial must be reduced by the amount of the settlement. Barnes v. Wall, 201 Ga. App. 228 (2) (411 SE2d 270) (1991). In the trial court’s discretion, “either the settlement amount may be disclosed to the jury and the jury instructed to consider that amount in awarding its verdict against the remaining party, or the amount of the settlement must be withheld from the jury and the jury instructed to disregard any dismissals from the action and anything they may have heard regarding settlement and return a verdict for the total amount due . . . as a result of the accident. If the latter option is elected, the court would then, of course, set off the amount of the settlement. . . .” King Cotton, Ltd. v. Powers, 190 Ga. App. 845, 849 (2) (380 SE2d 481) (1989).

Although no instruction was given the jury to disregard anything they heard about dismissals from the action or settlements, appellant suffered no harm as a settlement with the railroad was never mentioned to the jury. Appellant himself, through his counsel’s opening statement, told the jury that the railroad was originally sued but “[t]hey didn’t do anything wrong.” Not only did appellant fail to object when the trial court failed to inform the jury of the settlement and its amount, he made no objection to any reference by the appellee to the “empty chair” and thus “did nothing to cause the trial court to rule on this issue. A party cannot ignore what he deems as error, remain silent taking his chance on a favorable verdict, and then assert the error on appeal. [Cit.]” Fabe v. Floyd, 199 Ga. App. 322, 331 (3) (405 SE2d 265) (1991). Thus he acquiesced in any purported error in this regard and may not now complain that the ruling was in error. Blaxton v. Clemens, 202 Ga. App. 668 (2) (415 SE2d 304) (1992).

Insisting that he did not waive his pretrial objections to the court’s refusal to inform the jury of the settlement, appellant argues that no objection was necessary at trial after he had made repeated efforts to change the judge’s mind and was told that the issue had already been ruled on. For this reason, and to encourage settlement and compromise, he urges this court to allow the plaintiff to make the choice of which procedure to follow. However, that is not a function of this court. “Trial courts are invested with a wide discretion in regulating and controlling the business of the court. It will not be interfered with unless it appears that wrong or oppression resulted. [Cits.] There is no showing of abuse [here]. [Cit.]” Pirkle v. Hawley, 199 Ga. App. 371, 377 (9) (405 SE2d 71) (1991).

Nor is reversal required by appellant’s complaint that lack of information of the settlement allowed the jury to speculate he had received a large amount from the railroad, and thus unfairly prejudice him with a low verdict. “ ‘The general rule on appeal of an award of damages is that a jury’s award cannot be successfully attacked so as to warrant a new trial unless it is so flagrantly excessive or inadequate, in light of the evidence, as to create a clear implication of bias, prejudice, or gross mistake on the part of the jurors. (Cits.) Even though the evidence is such as to authorize a greater or lesser award than that actually made, the appellate court will not disturb it unless it is so flagrant as to “shock the conscience.” (Cits.) . . . Moreover, the trial court’s approval of the verdict creates a presumption of correctness that will not be disturbed absent compelling evidence. (Cits.)’ [Cit.]” Bales v. Shelton, 197 Ga. App. 522 (1) (399 SE2d 78) (1990); Lee v. Britt, 200 Ga. App. 1 (406 SE2d 535) (1991).

Decided March 3, 1993

Reconsideration denied March 17, 1993

Burge & Wettermark, Michael J. Warshauer, for appellant.

Jones, Cork & Miller, Carr G. Dodson, H. J. Strickland, Jr., for appellee.

As correctly pointed out by appellee, there was sufficient evidence of contributory negligence, pre-existing injury and malingering on the part of appellant to justify the size of the verdict reached by the jury here. “ ‘In the absence of legal error, an appellate court is without jurisdiction to interfere with a verdict supported by some evidence, even where the verdict may be against the preponderance of the evidence. (Cit.)’ [Cit.]” McCall v. MARTA, 192 Ga. App. 105, 106 (2) (384 SE2d 215) (1989); OCGA § 51-12-12.

2. The giving of a charge requested by appellee in regard to the negligence of appellant in failing to comply with his duty to warn all persons and vehicles in close proximity of the train or railroad crossing of the approach of the train on which he was riding likewise does not necessitate reversal. Since the subject of this charge concerned liability and not damages, and the jury found for appellant on the issue of liability, any error was rendered harmless by the jury verdict. Benson v. Tucker, 160 Ga. App. 217 (3) (286 SE2d 485) (1981). “ ‘(I)t has long been the rule that when a verdict has been returned in favor of the plaintiff, errors in the giving of the charge, in omissions from the charge or in the refusal of requests which go to the matter of liability only are harmless to the plaintiff and afford no ground for reversal at his instance. (Cits.)’ [Cit.]” Heath v. L. E. Schwartz &c., 199 Ga. App. 452, 453 (405 SE2d 290) (1991).

3. Cross-appellant indicated in its cross-appeal, Case No. A92A2406, that, in the event of affirmance of Case No. A92A2405, it wishes to withdraw such cross-appeal and it is accordingly dismissed.

Judgment affirmed in Case No. A92A2405. Case No. A92A2406 dismissed. McMurray, P. J., and Cooper, J., concur.


text:
    A92A2446.
    GORDON v. COLES.
    (429 SE2d 297)
   Carley, Presiding Judge.

On December 28, 1988, appellee-plaintiff underwent a surgical procedure which was performed by appellant-defendant. On December 27, 1990, appellee filed suit against appellant, seeking to recover damages for injuries allegedly incurred as the consequence of that procedure. On January 4, 1991, the return of service showed that appellant had moved from his home address. Thereafter, appellee’s counsel made an effort to locate appellant and, in April 1991, learned that appellant was then residing at a certain address in Mexico. No attempt was made to effectuate personal service on appellant at his Mexican address. Instead, appellee’s counsel sought to effectuate service upon appellant by publication. In May 1991, appellant returned to Georgia and resumed his medical practice. In November 1991, appellee’s counsel learned that appellant had returned to Georgia. On January 10, 1992, appellant was personally served.

In his answer, appellant raised the statute of limitations as one of his defenses and he subsequently moved for summary judgment based upon that defense. After conducting a hearing, the trial court denied appellant’s motion, but certified its order for immediate review. Appellant applied for an interlocutory appeal and the instant case results from the grant of his application.

“ ‘The principle of law controlling our decision in this case is well-settled: Where service is made after the expiration of the applicable statute of limitation [s], the timely filing of the complaint tolls the statute only if “the plaintiff shows that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible.” (Cit.) “A reasonable rule must be that in such case the trial judge should look at all the facts involved and ascertain whether the plaintiff was in any way guilty of laches. If he were, of course he would be barred, but if he acted in a reasonably diligent manner then he would not be.” (Cits.) The determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse. (Cit.)’ [Cits.]” Freemon v. Dubroca, 177 Ga. App. 745-746 (2) (341 SE2d 276) (1986). In the instant case, appellant was not personally served until more than a year after the applicable two-year statute of limitations had run. Accordingly, the issue for resolution is whether the trial court abused its discretion in finding that, despite this delay, appellee nevertheless exercised du< diligence in effectuating service upon appellant.

Decided March 4, 1993

Reconsideration denied March 17, 1993.

Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, Mark E. Robinson, for appellant.

Bruce K. Roberts, Alfred J. Turk III, for appellee.

In the exercise of its discretion, the trial court was authorized t( find that appellee exercised due diligence prior to April 1991, whei appellant’s Mexican address was discovered. Having discovered tha appellant was at that address, however, appellee then made no efforl to secure personal service. Appellant was clearly a “non-resident” foi purposes of our Long Arm Statute. OCGA § 9-10-90. As such, ht could have been personally served at his Mexican address. OCG.A § 9-10-94. Thus, as of April 1991, the statute of limitations began tc run anew. “ ‘[I]f process could be lawfully served on the defendant thus enabling the plaintiff to proceed with his action, the period of the defendant’s absence from the state is not to be excluded from the period of limitation, and the statute continues to run during the absence.’ [Cit.]” Smith v. Griggs, 164 Ga. App. 15, 17 (1) (296 SE2d 87) (1982). Rather than attempting to secure personal service upon appellant, appellee attempted service by publication. However, service by publication would not be an effective method “in any action for personal judgment for a tort against any person, resident or nonresident.” Barnes v. Continental Ins. Co., 231 Ga. 246, 247 (201 SE2d 150) (1973).

After attempting the ineffective service by publication, appellee did nothing to effectuate personal service upon appellant until it was learned in November 1991 that appellant had returned to Georgia. Thus, for a period of several months after April 1991, when personal service could have been secured, appellee exercised no diligence whatsoever. “It is true that the trial court has wide discretion in the dismissal of complaints for failure of the plaintiff to perfect service in a timely manner. [Cits.] However, appellee[’s] lassitude cannot be considered due diligence. We find, therefore, that the trial court’s determination constitutes an abuse of discretion which cannot be supported as a matter of law.” Abelt v. Nelson, 204 Ga. App. 501, 503-504 (419 SE2d 749) (1992). It follows that the trial court erred in denying appellant’s motion for summary judgment.

Judgment reversed. Pope, C. J., and Johnson, J., concur.


author: Andrews, Judge.

text:
    A92A1938.
    WHITEHEAD v. THE STATE.
    (429 SE2d 536)
   Andrews, Judge.

Whitehead entered a guilty plea to one count each of armed robjery and aggravated assault. He appeals from the sentence entered on hat plea on four grounds.

Whitehead and his co-defendant Holmes were arrested within me hour of the robbery and assault of Mr. and Mrs. Wicks while they vere staying at a local motel. Whitehead grabbed Mrs. Wicks and shoved her back into the motel room when she came out to get a book from the car. Holmes was brandishing a sawed-off shotgun and minted it at Mr. Wicks’ head as he relieved him of several $50 bills md traveler’s checks.

The Wicks notified the local police who spotted the two men in a car at another motel. When approached, a sawed-off shotgun was found in the car, a $50 bill was taken from each man’s pocket, and the Wicks’ room key was found lying on the seat of the car.

Whitehead made a statement to the officers that Holmes had the gun and took the money from the victims. Both defendants were identified by Mr. Wicks at the police station within an hour of the robbery.

Represented at trial by his appellate counsel, Whitehead entered his plea of guilty on March 2, 1992. The hearing on both defendants’ motions, including Whitehead’s motion to suppress evidence and statements, was held on February 21, 1992.

1. During the February hearing, the court orally denied the motions to suppress the physical evidence and statements made by the defendants and reserving ruling on the motions regarding the showup. Holmes had filed a motion to sever the two defendants and the State agreed to that severance due to problems under Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968).

The second enumeration alleges error in the granting of the motion to sever. The third enumeration alleges error in failing to enter a written order on the motion to sever.

No reservation of the right to appeal any of these rulings was made prior to entry of the guilty plea. “Although this court considers errors asserted after trial courts have permitted defendants to condition their guilty pleas on reserving the opportunity to appeal adverse rulings made prior to the plea [cit.], the general rule is that errors are not preserved because a guilty plea waives all defenses and objections, known and unknown. [Cits.] A valid guilty plea is treated as a confession of guilt and waives all defenses known and unknown.” Mims v. State, 201 Ga. App. 277, 278 (1) (410 SE2d 824) (1991).

2. The first and fourth enumerations address claimed errors in the sentence imposed and will be addressed.

Decided March 17, 1993.

James G. Tunison, Jr., for appellant.

H. Lamar Cole, District Attorney, J. David Miller, A. Scott Gunn, Assistant District Attorneys, for appellee.

During the sentencing hearing, the court orally announced th< sentence which included his direction that, upon being released fron custody on his 14 years to serve, Whitehead leave the Southern Judi cial Circuit and “not return at any time during the course of the tw( sentences.” When the written sentence was entered, it reflected four teen years to serve with the remaining six years of the twenty-yea: sentence to be “probated upon the following express conditions . . (16) [l]eave the area of the Southern Judicial Circuit . . . and do no1 return into said area at anytime.”

While no objection was made to this condition during the hearing or prior to appeal, it is now contended that banishment “forever” was an abuse of discretion. It is not necessary, however, to read the sentence that way. The language used is on all fours with that approved in Wyche v. State, 197 Ga. App. 148 (1) (397 SE2d 738) (1990). As stated there, “[i]nasmuch as the banishment is a condition of probation, it is obvious that the banishment is to be in effect only during defendant’s probation. [Cit.]” Id. See also State v. Collett, 232 Ga. 668 (208 SE2d 472) (1974); Parrish v. State, 182 Ga. App. 247, 248 (2) (355 SE2d 682) (1987).

Another condition of probation was that Whitehead “[p]ay a fine of $3,500, plus all required surcharges, as and when directed by Probation Officer.” (Emphasis supplied.) Here, although no objection was voiced below, Whitehead contends that imposition of a fine without having a hearing on his indigency violates OCGA § 42-8-34. Subsection (e) of that statute provides that “[t]he court may, in its discretion, require the payment of a fine or costs, or both, as a condition precedent to probation.” Since payment of the fine was not a condition precedent to the entry upon probation, there is no violation of that statute. Reid v. State, 204 Ga. App. 358, 362 (4) (419 SE2d 321) (1992).

Judgment affirmed. Birdsong, P. J., and Beasley, J., concur.


text:
    A92A2121.
    MOORE v. THE STATE.
    (429 SE2d 335)
   Andrews, Judge.

Moore appeals his judgment and conviction entered on the jury’s verdict for the aggravated assault of his estranged wife. We affirm.

Moore was charged in one count with aggravated assault, in that “on the 20th day of September . . . 1990” he did “make an assault upon the person of Janice Moore, with a certain object which when used offensively against a person is likely to or actually does result in serious bodily injury, to wit: by holding a pistol to the head of Janice Moore, and forcing her to take a large quantity of drugs. . . .”

Viewed in favor of the verdict, the evidence was that defendant and Mrs. Moore had been married over 20 years and had experienced marital difficulty repeatedly in the past. She had removed herself and her children from their home shortly before this incident. Also, Mrs. Moore had filed for divorce about two weeks before this incident and a hearing was scheduled on the matter shortly after the incident.

Mrs. Moore said that defendant came to visit the children where she was staying on September 18. Before lunchtime, as she was preparing to take her prescribed antibiotic for a bladder infection, defendant pulled a gun, held it to her head, and forced her to take the entire contents of that medicine bottle, filled only the day before, and a second bladder infection medicine. As a result of that, Mrs. Moore became nauseated and very shaky. She also wrote a suicide note on that day, due to defendant’s holding a gun on her.

Defendant stayed the night in her residence and the next morning took Mrs. Moore and the two children, Daniel aged 10, and Rose, who was younger, to the children’s school. Mrs. Moore was in the front passenger’s seat and when they drove up to the school, she jumped out and ran into the school while Daniel encouraged her to run. Daniel stated that he saw the gun handle in his father’s pocket on that occasion, and that he had seen the gun two or three times before. Mrs. Moore was pursued into the school by defendant who chased her twice around the area adjacent to the principal’s office before grabbing her by the shoulders and escorting her back outside to the car. The school music teacher witnessed the chase and said that defendant bodily picked her up and moved her out of the way to pursue Mrs. Moore. The maintenance man also saw the chase and attempted to help, but defendant pushed him aside and slammed a door in his face. The special education teacher also witnessed the chase and additionally received a phone call from defendant about 3:00 p.m. from the hospital. Defendant told her to keep the children there, their sister would pick them up. Further, he advised her that Mrs. Moore had taken a drug overdose before the kids were brought to school that morning and he was trying to get her to the doctor.

The two children remained at school where, after calming down, they went to their classes. About 2:00 p.m., the oldest daughter, aged 21, was called by defendant and told there was something wrong with her mother, she had passed out. The daughter drove to the restaurant parking lot where defendant was parked, moved her mother into her car and took her to the hospital where she was admitted shortly after 3:00 p.m., her stomach was pumped, and other measures were taken. She had consumed approximately 37 Xanax pills. She was released 36 hours later. Defendant testified that, while they had driven around the county from 8:30 a.m. until 2:30 p.m., he did not see her consume any Xanax and did not know what was wrong with her when he called the daughter. He denied having the gun with him, denied having made her take the pills, denied having seen her take them, denied having pushed either the music teacher or the maintenance man, and denied the statement to the special education teacher.

During her hospital stay, while still semi-conscious, Mrs. Moore told hospital personnel to keep defendant away from her and to get the children from him. She also said defendant told her she could take the Xanax pills or a bullet and she knew he had a gun.

1. Because the indictment charged the assault occurred on September 20 and the evidence showed that the Xanax incident occurred on the 19th, as well as the uncharged incident on the 18th involving the antibiotics, defendant first enumerates that he “may have possibly been convicted of an aggravated assault not charged,” and includes as his third enumeration that there was a fatal flaw between the allegata and probata. These will be considered together.

“ ‘In proving the time of the commission of an offense the State is not, as a general rule, restricted to proof of the date alleged in the indictment, but is permitted to prove its commission on any date within the statute of limitations.’ [Cits.]” Ledesma v. State, 251 Ga. 885 (1a) (311 SE2d 427) (1984). The date here was not alleged as “material” so as to require its proof with specificity. Id. The evidence proved an assault as charged within the applicable statute of limitation.

The allegations of the indictment and the proof presented at trial do not violate the fatal variance rule pursuant to DePalma v. State, 225 Ga. 465, 469 (3) (169 SE2d 801) (1969). There was no error. Partridge v. State, 187 Ga. App. 325, 327 (3) (370 SE2d 173) (1988); see also OCGA § 16-1-7 (b).

2. Having reserved his objections to the jury charge, defendant here complains of the charge given on the elements of aggravated assault, OCGA § 16-5-21 (a).

The charge given was the language of OCGA § 16-5-21 (a) (1) and (2), which included assault with intent to murder, to rape, or to rob, in addition to the assault with a deadly weapon. A charge in the exact language of the statute shows no error. Zilinmon v. State, 234 Ga. 535, 538 (6) (216 SE2d 830) (1975); Diaz v. State, 194 Ga. App. 577, 578 (1) (391 SE2d 140) (1990). This is true even though a part of the charge may be inapplicable under the facts. “Examining the charge in toto as we are required to do when determining whether charging error has occurred [cit.], we find that error did not occur.” Id. at 578 (2). Here, the jury was read the language of the indictment along with the statute and no fair risk of prejudice to defendant exists, it being highly probable the verdict was not the product of a misleading instruction. Id.

Decided March 17, 1993.

Kenneth D. Kondritzer, for appellant.

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

3. The fourth enumeration is that defendant “may have possibly been convicted by a verdict that was less than unanimous.” Pretermitting the issue of the lack of clarity of the enumeration, defendant has totally failed to show any such possibility by reference to the record before us. The enumeration presents nothing for our review. Polley v. State, 203 Ga. App. 825, 826 (1) (418 SE2d 107) (1992).

4. Finally, defendant contends that the court’s failure to give his requested charge on reckless conduct as a lesser included offense was error.

Here, defendant contended that Mrs. Moore had voluntarily attempted to commit suicide by taking the Xanax, although he contended he did not see or have any knowledge of it until after she did it. A charge on reckless conduct under the evidence here would have been inappropriate. Cooper v. State, 256 Ga. 631 (3) (352 SE2d 382) (1987); Riley v. State, 181 Ga. App. 667, 669 (3) (353 SE2d 598) (1987).

Judgment affirmed. Birdsong, P. J., and Beasley, J., concur.


author: Cooper, Judge.

text:
    A92A2175.
    PITTMAN v. THE STATE.
    (429 SE2d 337)
   Cooper, Judge.

Appellant was convicted of three counts of criminal trespass and appeals from the entry of judgment on the convictions and the denial of his motion for new trial.

On August 29,1991, appellant was charged with criminal trespass upon the premises of the Keystone Apartments in Jonesboro on July 28, 1991. The accusation was subsequently amended on January 23, 1992 and again on February 7, 1992 to change the date of the offense to July 27, 1991. On January 23, 1992, a second accusation was filed against appellant charging him with criminal trespass at the same apartment complex on August 2, 1991, and this accusation was amended later to change the date of the offense to August 3, 1991. On February 6, 1992, the State filed notice of its intent to introduce evidence of a similar transaction pursuant to Uniform Superior Court Rule (USCR) 31. Thereafter, on February 7, 1992, a third accusation was drawn, charging appellant with yet another criminal trespass at I the Keystone Apartments on February 1, 1992. Appellant was arraigned on April 10, 1992 and was convicted of all the charges after a jury trial on April 21, 1992. The trial court denied appellant’s motion for new trial and this appeal followed.

The evidence adduced at trial shows that appellant previously lived at the Keystone Apartments with his girl friend and that in an effort to prevent eviction and the penalties resulting from Section 8 eviction, they agreed to leave the premises in good condition. Instead, the couple moved out of their apartment, leaving the unit uninhabitable. On July 12, 1991, the couple returned to the complex and was asked by the apartment manager why they did not live up to their agreement. The two denied any responsibility for the condition of their apartment, and the manager advised appellant not to return to the property. Thereafter on July 27, 1991, August 3, 1991, and February 1, 1992, appellant was seen by tenants at the apartments. The State was permitted to introduce evidence of appellant’s 1989 conviction for criminal trespass as a similar transaction over appellant’s objection.

1. In his first enumeration of error, appellant contends the trial court erred in admitting his prior conviction because the State’s notice of its intent to introduce the conviction did not comply with USCR 31.1, having been filed in the midst of various amendments to the pleadings, the drawing of additional charges, and prior to his arraignment. Appellant argues that he was entitled to such notice after the arraignment. USCR 31.1 provides in pertinent part, “[njotices of the state’s intention to present evidence of similar transactions or occurrences . . . shall be given and filed at least ten days before trial. . . .” There is no requirement that such notice be filed after arraignment. Thus, the State’s notice regarding appellant’s 1989 conviction, filed over two months prior to trial, did comply with USCR 31.

Appellant also argues that the circumstances surrounding the 1989 conviction were not sufficiently similar to the crimes for which he was on trial and that the court erred in allowing evidence of the prior conviction to be introduced at trial before evidence of the current charges. However, the record reflects that no objections were made on these grounds at trial, and they will not be considered for the first time on appeal. McCullough v. State, 162 Ga. App. 866 (2) (293 SE2d 455) (1982).

2. Appellant also enumerates as error the admission of evidence of his general bad character. Appellant specifically complains about testimony which revealed that human waste was discovered in the apartment involved in the 1989 conviction and that shotgun shells were discovered in the glove compartment of a car associated with appellant after he was escorted from the apartment complex on February 1, 1992. “ ‘ “If evidence is relevant and material to an issue in (a) case, it is not inadmissible because it incidentally puts the defendant’s character in issue. (Cits.)” (Cit.)’ [Cit.]” Hechevarria v. State, 202 Ga. App. 502, 503 (2) (414 SE2d 723) (1992). The 1989 indictment, which was admitted at trial, alleged criminal damage to property, and appellant’s sentence for that conviction included $300 in restitution to the apartment complex; thus, the evidence was relevant to illustrate the circumstances surrounding the prior conviction and the similarities to the offenses for which he was on trial. The testimony regarding the shotgun shells related to other testimony which indicated that appellant’s possible motive for returning to the complex was to harass Delores Roberts, a tenant at the Keystone Apartments who also happened to be involved in the 1989 conviction.

Decided March 17, 1993.

Melinda S. Holloway, for appellant.

Keith C. Martin, Solicitor, Jackie N. Stanton, Assistant Solicitor, for appellee.

Appellant also complains about testimony elicited by the State from Delores Roberts that appellant had been harassing her daughters. The record shows that when appellant initially objected to this testimony, the trial court sustained appellant’s objection, excluding the testimony upon the condition that if appellant presented evidence that he had no reason to return to the complex, the State could introduce Roberts’ testimony in rebuttal. Appellant argues that he presented no such evidence, and therefore, the court erred in admitting Roberts’ testimony on rebuttal. However, appellant failed to object to the testimony on rebuttal. Thus, any error was not properly reserved for review on appeal. Pryor v. State, 198 Ga. App. 588 (2) (402 SE2d 338) (1991).

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


author: Birdsong, Presiding Judge.

text:
    A92A2214.
    MOORE v. THE STATE.
    (429 SE2d 340)
   Birdsong, Presiding Judge.

Willie Moore appeals his conviction for aggravated assault. The crime involved the slashing and beating assault of Moore’s girl friend, after Moore had waited for her outside her apartment for about seven hours. Appellant and the victim had quarrelled over her intention to take her long-time friend, a male beautician, to a wedding. After returning from the wedding at about 4:00 a.m., the victim was severely slashed with a razor or a knife on her buttocks, ankle, back and breast. These cuts were up to 20 centimeters long and were deep. The victim managed to flee to a bathroom and wedged the door shut; appellant tried to come into the bathroom but was finally ejected from the apartment by the victim’s friend. The victim did not know she was badly cut until she found herself sitting in a puddle of blood. On appeal, appellant enumerates three alleged errors. Held:

1. Appellant contends the trial court improperly admitted, as a similar transaction, evidence that appellant had murdered his wife or common-law wife in 1977 and was convicted of the crime. He contends the evidence had no similarities to this case because, e.g., the murder took place in another county and in another year, and upon his wife with whom he had children whereas this victim was only a casual lover; prior to killing his wife he had sat on a neighbor’s porch most of the day with a shotgun and announced he was going to kill his wife whereas he made no such announcement in this case; he killed his wife in her yard whereas this victim was assaulted in her apartment; and he killed his wife at about 6:15 p.m. whereas this victim was assaulted at about 4:00 a.m.

Such superficial “dissimilarities” do not destroy the basis for admitting this evidence as a similar transaction. There was evidence that appellant told the victim’s friend that she was his wife and appellant testified that he hoped to marry her. In each case, appellant stalked a woman with whom he was sexually and emotionally involved, obviously with the intent to do violent injury with a deadly weapon. That this victim was not murdered on account of her timely escape does not make this attack dissimilar. The length of time between the 1976 murder and this assault is not significant inasmuch as appellant was in prison for more than 13 years of the 14-year interim. Nor are the incidents dissimilar merely because the murder was committed with one type of deadly weapon while this assault was committed with another type of deadly weapon. The evidence of the murder of his wife was relevant as it tended to prove appellant’s disposition and bent of mind toward resolving disputes or troubled emotions by stalking and doing violent injury to his female partner. The trial court did not abuse its discretion in admitting this evidence under the standards for admitting evidence of similar transactions. See Williams v. State, 261 Ga. 640 (409 SE2d 649); Cridiso v. State, 200 Ga. App. 342 (2) (408 SE2d 153). Any issue as to whether the trial court made the proper findings of fact before admitting this evidence under Williams, supra (see Carter v. State, 205 Ga. App. 885, 886-887 (424 SE2d 81)), has been waived by failure to raise such issue on appeal. Hansen v. State, 205 Ga. App. 604, 607 (1) (423 SE2d 273). In any case, we will not reverse this verdict on such account because the evidence was properly admitted in fact.

2. Appellant claims he had ineffective assistance of trial counsel.

Appellant complains that counsel improperly refused curative instructions as to the victim’s statement that appellant wanted her to testify that someone else attacked her so he would not have to go “back to prison,” which appellant contends placed his character in evidence. However, evidence of his having been to prison for the murder of his wife was properly admitted, so a reference to appellant’s going “back to prison” is merely cumulative of evidence properly admitted, and harmless as a matter of fact. Moreover, appellant himself testified that he would not touch a razor or knife as he had spent 13V2 years in prison and had seen many people get killed.

Secondly, appellant contends counsel was ineffective for failing to ask for a mistrial when a detective testified that in her opinion appellant’s statement was voluntarily given, and when counsel’s objection that this went to the “ultimate issue” was overruled. We conclude, however, that if counsel had asked for a mistrial (Barksdale v. State, 161 Ga. App. 155, 158 (4) (291 SE2d 18)) he would not have been entitled to one. The detective’s opinion that appellant’s statement was voluntary was not prejudicial to appellant, for his statement was not an admission of guilt; it was to the same effect as his testimony at trial, which was that the victim’s friend was the one who assaulted her, and its substance was consistent with his defense.

Thirdly, appellant contends that there were “unanswered questions” about appellant’s health, that he suffers from an epileptic condition and had fallen during trial but his counsel failed to ask for a continuance or a mistrial. However, by order of the court, appellant was earlier taken to the hospital for examination and was released; the doctors deemed appellant fit for trial and released him from the hospital with medication. There is no indication that appellant’s ability to assist his counsel was impaired, and the trial court found that he was not impaired. Other evidence showed appellant seemed strong, alert and capable of expressing himself mentally and physically, except when he fell to the floor at a stressful moment at trial. The trial court allowed appellant every indulgence, including two continuances. We therefore do not find that trial counsel was constitutionally deficient for failing to ask for a third continuance or mistrial. In any case, we fail to see how appellant’s falling on the floor would have predisposed the jury against him on the question of his guilt of aggravated assault.

3. Appellant contends the trial court improperly shifted the burden of proof to appellant in its charge that the jury’s duty was to determine appellant’s “guilt or innocence.” We have held, however, that one accused of a crime “ ‘ “is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial. . . ’ Holbrook v. Flynn, 475 U. S. 560, 567 (106 SC 1340, 89 LE2d 525).” Mapp v. State, 197 Ga. App. 7 (397 SE2d 476). Moreover, the trial court fully charged the jury on the State’s burden to prove guilt beyond a reasonable doubt; read and considered as a whole, the charge was not error. See Williams v. State, 201 Ga. App. 384 (2) (411 SE2d 316). On its face, the charge refers to the jury’s duty to determine the defendant’s guilt or innocence, and not to who bears the burden of proof. This enumeration is without merit.

Decided March 17, 1993.

Michael Mears, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Jeffrey H. Brickman, Assistant District Attorneys, for appellee.

Judgment affirmed. Beasley, P. J., and Andrews, J., concur.


author: Pope, Chief Judge.

text:
    A92A2245.
    THARPE v. THE STATE.
    (429 SE2d 342)
   Pope, Chief Judge.

Defendant Charles Tharpe was convicted of the offense of sexual battery. OCGA § 16-6-22.1. He appeals the denial of his motion and amended motion for new trial.

1. We find no merit to defendant’s contention that OCGA § 15-12-125, which provides for a jury of six “[f]or the trial of misdemeanors in all courts,” is inapplicable to those cases in which the accused is on trial for a misdemeanor of a “high and aggravating nature.” In order to conclude the legislature intended for that section to be applicable to only certain misdemeanor crimes, then such limitation would have to be apparent from the face of the statute. It is not the function of this court to rewrite the laws enacted by our General Assembly.

2. Defendant contends the trial court improperly restricted his cross-examination of the victim in this case by disallowing certain questions concerning the victim’s testimony before the Grand Jury. Contrary to defendant’s contentions on appeal, the record shows the trial court allowed the defendant to question the victim about inconsistencies between her trial and Grand Jury testimony. Moreover, the trial court allowed the jury to hear a tape recording of the victim’s testimony before the Grand Jury thereby providing an additional opportunity for the jury to compare the testimony the victim gave in that proceeding with that given at trial. This enumeration is without merit.

3. It is abundantly clear from the record in this case that part of defendant’s trial strategy was to discredit the victim’s testimony by showing inconsistencies between her trial testimony and her pre-trial statements, including her testimony before the Grand Jury. The veracity of the victim was clearly at issue in this case and the State was thus entitled to introduce testimony concerning the prior consistent statements of the victim. Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985); see also Carroll v. State, 261 Ga. 553 (1) (408 SE2d 412) (1991). Defendant’s third enumeration is therefore without merit.

4. Defendant argues that the trial court abused its discretion because it did not allow the defendant to recall the victim after the State rested. “ ‘The conduct of the trial in this respect lies within the discretion of the trial judge, and in the absence of a showing of an abuse of the discretion, his actions must be affirmed.’ [Cit.] The transcript reveals no abuse in this case.” Mize v. State, 152 Ga. App. 190, 192-193 (4) (262 SE2d 492) (1979). Although the defendant posits in his brief to this court that he should have been allowed to recall the witness after the introduction of the tape of the Grand Jury proceedings “for the purpose of demonstrating to the jury the inconsistencies which would make her credibility suspect,” the record shows that the defendant’s request to recall the witness and the trial court’s denial of that request occurred before the tape was played. When the State objected to the witness being recalled, defendant responded that he was entitled to call the witness “unless there is some point of law which would prevent me from calling her for the specific purpose of laying a foundation for my part of the case.” The defendant did not renew his request to recall the witness for the purpose of additional cross-examination after the tape was played. Moreover, as noted above, the court previously allowed the defendant to cross-examine the witness about alleged inconsistencies between her Grand Jury and trial testimony and the jury was able, through the playing of the tape of the Grand Jury proceedings, to compare the victim’s testimony in both proceedings. Under the circumstances described herein, we find the trial court did not abuse its discretion by refusing to allow the defendant to recall the victim for additional testimony.

5. During closing argument to the jury the prosecutor improperly referred to the standard of reasonable doubt as “something defense lawyers use as some kind of mystical thing . . .” and argued to the jury that they could convict the defendant if they were “pretty certain” of his guilt. The defendant objected to these improper statements and the trial court overruled the objection and instructed the jury that what the lawyers said in argument was not the law, and that the court would instruct the jury concerning the applicable law. Defendant did not renew his objection, ask for additional curative instructions or move for a mistrial following these instructions. “It is well established that if [defendant] deemed the remedy inadequate, it was incumbent upon [him] to seek [additional] curative instructions or move for a mistrial, which [he] did not do.” Timberlake v. State, 200 Ga. App. 64, 65 (1) (406 SE2d 537) (1991). Consequently, we are without authority to address defendant’s fifth enumeration of error, inasmuch as defendant failed to take the necessary steps to preserve this issue for appellate consideration. See, e.g., Johnson v. State, 197 Ga. App. 384 (2) (398 SE2d 432) (1990); Livingston v. State, 193 Ga. App. 502 (1) (388 SE2d 406) (1989); Dorsey v. State, 188 Ga. App. 695 (2) (374 SE2d 102) (1988).

Decided March 17, 1993.

Thomas M. Jackson, for appellant.

Ralph M. Walke, District Attorney, L. Craig Fraser, Assistant District Attorney, for appellee.

6. Contrary to defendant’s final enumeration of error, the evidence adduced against him at trial was sufficient under the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed. Johnson, J., and Justice George H. Carley concur.