author: McMurray, Senior Appellate Judge.

text:
    A00A1037.
    KRAMER v. KROGER COMPANY, INC. et al.
    (534 SE2d 446)
   McMurray, Senior Appellate Judge.

Alicia Rechelle Kramer, formerly an employee of Kroger Company, Inc. (“Kroger”), filed this action against Kroger and two of its employees, store manager Chuck Rogers and assistant manager Brian Rouse, alleging she was wrongfully forced to resign after being falsely accused of theft. Kramer also asserted claims of libel, slander, and intentional infliction of emotional distress. Summary judgment was granted to defendants on all claims except slander against Rouse. Kramer appeals. Held:

1. Kramer, proceeding pro se, contends that genuine issues of fact remain on her claim that Kroger wrongfully forced her to resign.

We do not agree.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684).

Viewed in a light most favorable to Kramer, the evidence shows that Kroger hired her as a cashier in December 1996. Kramer became a floor supervisor in February 1997. Her duties included supervising the cashiers and supplying them with change from the cash drawer, which Kramer maintained.

Kramer deposed that in May, she suggested to Rogers and Rouse that the store should enlarge its kosher foods section. Kramer averred that Rouse responded: “send them over to the Townlake Kroger because that’s where all the Jews lived with their money.” Rouse “thought it was humorous.” Kramer was not amused. She informed Rouse that she was Jewish. He walked away. Kramer deposed that Rouse became more abrupt in his dealings with her after this encounter and refused to respond to her requests for assistance during peak business hours. Kramer also testified that Rouse reassigned clerks to perform duties different from the tasks she had assigned them to perform and then complained when the tasks were not complete. Rouse denied the allegations.

Kramer’s next encounter with management, in mid-June, involved her recommendation to a member of management that a certain African-American cashier be trained as a floor supervisor because of her demonstrated proficiency. The supervisor stated the cashier “wasn’t going to be there very long [because] they didn’t want any of her kind around making top pay.” Kramer deposed that she asked Rouse for his thoughts about the cashier and he “called her [the cashier] an uppity ni — r,” stated they intended to “get rid of her,” and noted “they already had their token ni — r.” Kramer did not report this incident to anyone “at that time.” The cashier’s employment was in fact terminated.

The incident upon which this action is premised happened on July 29, 1997, when $300 was reported missing from a cash register. Kramer’s initials had been placed on the missing “cash drop.” When she reported for work on July 31, Rogers suspended Kramer indefinitely pending an investigation. This information was placed in her personnel file in the form of a “constructive advice record.”

The investigation revealed that another employee had signed Kramer’s initials to the cash register tape in question after being misinformed that Kramer had received the cash drop. Kroger then offered to reinstate Kramer at her former salary, pay her lost wages, apologize, and reprimand Rouse, who had made disparaging remarks about her (see Division 2 (a), infra). However, Kroger wished to reassign Kramer to the position of grocery clerk.

Initially, Kramer agreed to return to work. However, upon discovering that she would be required to sign a waiver and release and that her reassignment would be permanent, Kramer told Rogers she “could not work for a company that was devious and deceitful. . . .”

Having filed a grievance under the collective bargaining agreement negotiated with Kroger by the United Food & Commercial Workers Union, Local 1996, Kramer contacted her Union representative, Hardin. On September 15, 1997, Kramer, Hardin, and Rogers executed a letter stating in pertinent part:

In response to the Company’s offer to reinstate Ms. Kramer to her former position, with back-pay . . . Ms. Kramer has requested to resign from her position with The Kroger Co.
The Company agrees to the following:
1. Ms. Kramer will receive a one-time payment of $1,040.00 less legal deductions.
2. The Company accepts Ms. Kramer’s resignation from her position. . . .

“In Georgia one cannot state a claim for wrongful termination when it is undisputed that the employment was terminated incident to resignation. [Cits.] This is true even if the employee resigned under pressure. . . .” Clark v. Chick-Fil-A, 214 Ga. App. 758, 759 (1) (449 SE2d 313).

As the letter agreement reflects, it is undisputed that Kramer chose to resign; she was not terminated. However, Kramer alleges she executed the resignation letter “under false pretenses.” She asserts Kroger and its employees forced her to resign by wrongfully suspending her, making malicious statements about her, and attempting to force her to sign a release. Kramer also contends she was accused of stealing in retaliation for her complaint to Rogers that Kroger’s termination of the African-American cashier was racially motivated. Therefore, Kramer contends that the question of her resignation’s voluntariness is a jury issue.

One may not void a contract on grounds of duress merely because he entered into it with reluctance, the contract is very disadvantageous to him, the bargaining power of the parties was unequal or there was some unfairness in the negotiations preceding the agreement.

(Citation and punctuation omitted.) Tidwell v. Critz, 248 Ga. 201, 204 (1) (282 SE2d 104).

In the case sub judice, it is uncontroverted that Kroger offered Kramer a position at the same salary she earned prior to her suspension. She chose to resign and settle her Union grievance instead. Kramer’s allegations of coercion are insufficient, as a matter of law, to raise a jury question as to whether her resignation was voluntary. Accordingly, summary judgment was properly granted against Kramer on her claim for wrongful termination.

2. In two enumerations of error, Kramer contends that the trial court erred in granting summary judgment on her defamation claims against Kroger. We disagree.

(a) We first address Kramer’s slander claims. Kramer alleges that Rouse told co-employees that she was a thief and did drugs. As noted above, the trial court found that a jury question exists as to whether Rouse slandered Kramer.

Kramer asserts that Kroger can be held liable for Rouse’s allegedly slanderous statements. The law is contrary to her position.

The doctrine of respondeat superior does not apply in slander cases, and a corporation is not liable for the slanderous utterances of an agent acting within the scope of his employment, unless it affirmatively appears that the agent was expressly directed or authorized to slander the plaintiff.

Lepard v. Robb, 201 Ga. App. 41, 42 (1) (410 SE2d 160).

Kramer offered no evidence to indicate that Kroger directed or authorized Rouse to make the statements in question. Kroger was properly granted summary judgment on this claim.

(b) Next, we address Kramer!s claim that Kroger libeled her by placing a report of the cash shortage in her personnel file.

Publication is an indispensable element of libel. OCGA § 51-5-1 (b). Under OCGA § 51-5-3, a libelous writing is published “as soon as it is communicated to any person other than the party libeled.” However, “the publication of allegedly defamatory information in the course of an employer’s investigation of an employee’s job performance, when made to persons in authority, is not ‘publication’ within the meaning of OCGA § 51-5-1 (b).” Luckey v. Gioia, 230 Ga. App. 431, 432 (1) (496 SE2d 539).

Therefore, the issue is whether the personnel report was communicated to persons other than those “in authority” at Kroger. “Here, the record is devoid of any evidence that the [report] was shown to anyone who did not, by virtue of his job, need to be informed of all the factors involved in the decision to [suspend Kramer].” Lepard v. Robb, supra at 43.

Finally, Kramer argues that Kroger placed the information in the report maliciously, knowing that she had not taken the missing $300.

Contrary to [appellant]’s assertion, the exception to the publication rule is not a conditional defense destroyed by proof of malice but, rather, an element of the tort of slander or libel. Whether the communication was made maliciously and with knowledge of falsity is immaterial when there has been no publication, for without publication there is no libel or slander.

Kurtz v. Williams, 188 Ga. App. 14, 16 (3) (371 SE2d 878).

Accordingly, summary judgment was properly granted on the libel claim.

3. No genuine issue of material fact remains on Kramer’s claim of intentional infliction of emotional distress.

(a) Regarding Kroger, Kramer alleges her credibility and integrity have been impugned by the investigation of the cash shortage, causing severe depression.

“[T]he burden which the plaintiff must meet in order to prevail in this cause of action is a stringent one.” Ingram v. JIK Realty Co., 199 Ga. App. 335, 336 (1) (404 SE2d 802) (1991). To prevail, a plaintiff must demonstrate that: (1) the conduct giving rise to the claim was intentional or reckless; (2) the conduct was extreme and outrageous; (3) the conduct caused emotional distress; and (4) the emotional distress was severe. Amstadter v. Liberty Healthcare Corp., 233 Ga. App. 240, 242-243 (2) (503 SE2d 877) (1998). The 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 community.” (Punctuation omitted.) Martin v. North American Van Lines, 226 Ga. App. 187, 190 (2) (c) (485 SE2d 815) (1997).

Frank v. Fleet Finance &c., 238 Ga. App. 316, 318 (518 SE2d 717).

Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law. [Cit.] If the evidence shows that reasonable persons might find the presence of extreme and outrageous conduct and resultingly severe emotional distress, the jury then must find the facts and make its own determination.

Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 706 (2) (409 SE2d 835).

We cannot say that reasonable persons would find Kroger’s conduct toward Kramer atrocious or utterly intolerable. The fact that Kramer’s initials appeared on the missing “cash drop” gave Kroger reasonable cause to suspend and investigate her. After realizing Kramer had not taken the money, Kroger offered to drop the suspension, apologize, pay her lost wages, and permit her to return to work. Kroger imposed two conditions upon its offer: Kramer would be required to accept a demotion to grocery clerk and to execute a waiver and release of all claims. She refused to accept these conditions and resigned instead. We cannot say that a demotion is reasonable as a matter of law. However, “[t]he personnel action taken by appellee was not such to shock the conscience or offend hardened sensibilities . . . ; nor did it constitute the kind of egregious conduct necessary to state a claim for intentional infliction of emotional distress.” (Citation omitted.) Floyd v. Chaffin, 201 Ga. App. 597, 600 (3) (411 SE2d 570).

(b) Contrary to Kramer’s assertions, the trial court’s discussion of the evidence on this issue was not improper comment; it was a proper exercise of the trial court’s duty to determine whether Kroger’s conduct rose to the required level of outrageousness and egregiousness.

(c) Regarding Rouse, Kramer claims the defamatory statements he allegedly uttered were so insulting and malicious as to constitute intentional infliction of emotional distress. Insofar as any such statements were directed to third parties,

Decided April 26, 2000

Reconsideration denied May 11, 2000

Alicia R. Kramer, pro se.

Wimberly & Lawson, Paul Oliver, for appellees.

“even malicious, wilful or wanton conduct will not warrant a recovery for the infliction of emotional distress if the conduct was not directed toward the plaintiff.” Ryckeley v. Callaway, 261 Ga. 828, 829 (412 SE2d 826) (1992). Defamatory remarks made to others or to the public in general are classic examples of conduct that, though harmful to the plaintiff, was directed toward the hearer of the statements, not to the plaintiff, and thus is not actionable as intentional infliction of emotional distress.

Lively v. McDaniel, 240 Ga. App. 132, 134 (2) (522 SE2d 711).

Kramer further alleges that prior to a meeting held at Kroger to discuss her Union grievance, she overheard Rouse tell others she could not be trusted with money. Even if such comments were directed toward Kramer, “[d]efamatory or derogatory remarks regarding one’s employment generally do not rise” to the level of “extreme and outrageous [conduct] (i.e., atrocious and utterly intolerable).” Id. Rouse’s alleged statement fails to meet the threshold of outrageousness.

Finally, while it is beyond question that the antiSemitic and racial slurs allegedly expressed by Rouse are vile, atrocious, and utterly intolerable in a civilized society, Kramer does not allege these comments caused her to suffer emotional distress. Accordingly, we are constrained to hold that no fact issue remains on this claim.

4. Any error committed by the trial court in rendering its order on defendants’ summary judgment motion prior to ruling on Kramer’s motion to compel discovery was harmless. The materials sought — a surveillance videotape, cash register tapes, and various accounting records — were relevant only to the issue of Kramer’s innocence in the matter of the missing money, which Kroger apparently conceded.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       The payment reflected Kramer’s lost wages.

       Kramer also alleges that Hardin assured her the agreement would not affect her right to sue Kroger. However, Kramer’s unhappiness with her Union representative cannot assist her in her claim against Kroger or its employees.

       Kramer apparently has filed a federal lawsuit alleging she was accused of stealing in retaliation for her opposition to the cashier’s termination.

       Accord Miller, Stevenson & Steinichen, Inc. v. Fayette County, 190 Ga. App. 777 (1) (380 SE2d 73).

        Bailey v. Horace Mann Ins. Co., 207 Ga. App. 633 (428 SE2d 604).

        Clark v. Chick-Fil-A, supra.

       See also Amstadter v. Liberty Healthcare Corp., 233 Ga. App. at 242-243 (2), supra (mere termination from employment does not constitute intentional infliction of emotional distress); compare Davis v. Copelan, 215 Ga. App. 754, 766 (6) (452 SE2d 194) (whether abusive, intimidating termination interviews constituted emotional distress held jury issue).


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A00A0290.
    GOOLSBY v. ESTATE OF WILLIAMS.
    (534 SE2d 559)
   Phipps, Judge.

Bobby Goolsby, Director of the Income Tax Division of the Georgia Department of Revenue, appeals the Clayton County Probate Court order denying his motion to quash a subpoena for the production of tax returns of Katrina V. Williams, deceased. The returns were subpoenaed for use in a probate court proceeding to determine the existence of a common law marriage. Because the probate court proceeding does not involve the integrity of the returns filed by Williams, OCGA § 48-7-60 (a), as interpreted by the Supreme Court of Georgia in Garrett v. State, prohibits Goolsby from producing those returns. Therefore, the court erred in denying the motion, and we reverse.

This case arose out of an application to appoint an administrator for Williams’s estate. Mack Lester claimed to be her common law husband and applied for appointment as administrator. Williams’s mother, as guardian of Williams’s minor children, disputed the claim and filed a caveat to the application. She then subpoenaed Goolsby to produce copies of Williams’s tax returns for 1995, 1996, and 1997 to show that Williams had filed as a single person. She planned to use the returns as evidence that no common law marriage existed between Lester and Williams.

Goolsby filed a motion to quash the subpoena, claiming that the information sought was confidential and protected from disclosure by OCGA § 48-7-60 (a), as interpreted in Garrett. The probate court denied Goolsby’s motion and held that Garrett did not extend to the disclosure of information regarding a taxpayer’s filing status.

Except in accordance with proper judicial order or as otherwise provided by law, it is unlawful for the commissioner, other officer, employee, or agent, or any former officer, employee, or agent to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any report or return required under the law of this state or any return or return information required by the Internal Revenue Code when the information or return is received from the Internal Revenue Service or submitted by the taxpayer as provided by the laws of this state.

The Supreme Court of Georgia has interpreted this language to mean that a “proper judicial order” may require employees of the Department of Revenue to produce tax returns and reports “only when such returns are directly in issue.” These types of statutes “ ‘do not authorize the release of tax information for use in any manner other than a case involving the integrity of the return itself as the main issue, and not merely as a collateral issue.’ ” The Supreme Court did not distinguish information regarding the taxpayer’s income from other legally required information or particulars appearing on the return.

Decided May 11, 2000.

Thurbert E. Baker, Attorney General, Daniel M. Formby, Deputy Attorney General, Warren R. Calvert, Senior Assistant Attorney General, Anthony J. Musto, Assistant Attorney General, for appellant.

Brown & Brown, George T. Brown, Jr., for appellee.

The Supreme Court determined that the strict language of OCGA § 48-7-60 and the penalty for violating it emphasize a clear policy favoring nondisclosure. Focusing on this policy, the court specifically rejected a balancing test weighing the need for evidence in a particular case against the interest in confidentiality.

The probate proceeding clearly does not involve the integrity of the returns filed by Williams. As a result, we are constrained by Garrett to hold that Goolsby’s motion to quash should have been granted.

Judgment reversed.

Johnson, C. J, and McMurray, Senior Appellate Judge, concur.

       243 Ga. 322, 324 (2) (253 SE2d 741) (1979).

       OCGA § 48-7-60 (a).

       (Emphasis omitted.) Garrett, supra at 327 (2).

       Id. at 326 (2), citing Op. Atty. Gen. 71-184, p. 253.

       OCGA § 48-7-61 (officer of the state who violates OCGA § 48-7-60 by divulging tax information is guilty of a misdemeanor and will be dismissed from office).

        Garrett, supra at 327.

       Id.


author: Ruffin, Judge.

text:
    A00A0294.
    JOHNSON v. THE STATE.
    (534 SE2d 563)
   Ruffin, Judge.

A jury found Ralph Johnson guilty of aggravated assault and possession of a firearm during the commission of a crime. Johnson appeals from the trial court’s denial of his motion for new trial. He contends that the trial court erred when it denied his motion for mistrial after the jury saw him in prison clothes. He also argues that he received ineffective assistance of counsel and that there was insufficient evidence to support the jury’s verdict. For reasons which follow, we affirm.

The record, viewed in a light most favorable to the jury’s verdict, shows that Johnson knocked on the door of Mark Woodruff’s home and asked Woodruff if Joyce Tucker was there. Woodruff told him that she was and let Johnson in. Johnson became agitated and went to the back of the trailer to find Tucker. Woodruff’s son, who was in his room, asked about the commotion. Woodruff went to his son’s room and, as he turned to leave, found Johnson pointing a gun at his head. Johnson pulled the trigger, but the gun misfired. Johnson then struck Woodruff with the gun and fired a round into the ceiling. Johnson threatened to kill Woodruff, Woodruff’s son and Tucker because he did not want to leave any witnesses. He then left the trailer dragging Tucker with him.

1. After jury selection, but before the presentation of evidence, Johnson’s counsel moved for a mistrial because Johnson was wearing blue prison garb with his name and a number printed on it. However, the trial court stated for the record that while Johnson’s clothes bore a name and number, the judge could not read or even see them. The court also stated that he could not read the writing on the back of Johnson’s uniform because it “blend[ed] in.” The record indicates that a very faded “State Prisoner” was printed on the back of Johnson’s jacket.

A criminal defendant has a right to appear before a jury in civilian clothes. But it is not error to try a defendant in prison garb which bears no distinctive markings or is not otherwise different from normal civilian attire. Moreover, the right to wear civilian clothing may be waived.

We are initially struck by the timing of Johnson’s motion for mistrial. If he wanted to be tried in civilian dress, he could have made a pretrial motion to delay the proceedings until he had obtained some acceptable clothes. Instead, Johnson waited until after the jury was impaneled to make this objection. The record indicates that Johnson was allowed to dress in civilian clothes after he complained about his prison clothing. The prosecutor offered to provide a jacket while Johnson’s suit was being brought to him. The first witness identified Johnson as wearing a black coat (as opposed to a blue prison jacket), and a subsequent witness identified him as wearing a tie. It is likely that the jury would not have seen Johnson’s prison garb had he asked for civilian clothes earlier. A defendant is not entitled to a mistrial if he waits until after the jury is impaneled to object to being tried in prison clothing. Johnson’s right to be tried in civilian clothing was waived until he asserted it. Therefore, the trial court properly denied Johnson’s motion for mistrial.

Even if Johnson had not waived objection to his exposure to the jury in his prison clothing, he was not denied a fair trial. Because the trial judge could not read the markings on Johnson’s uniform, from his elevated physical position, we have no reason to believe that the jury could identify the markings as prison insignia. Also, Johnson was not exposed to the jury in his prison clothing once the presentation of evidence began. In these circumstances, we cannot presume that the jury was unfairly tainted.

2. Johnson is not entitled to a new trial under Strickland v. Washington. Our Supreme Court has held that:

In order to establish that trial counsel’s performance was so defective as to require a new trial, [Johnson] must show that counsel’s performance was deficient and that the deficient performance so prejudiced [Johnson] that there is a reasonable likelihood that, absent counsel’s errors, the outcome of the trial would have been different. [Cit.]

There is a strong presumption that counsel’s conduct fell within a broad range of reasonable professional conduct.

Pretermitting whether trial counsel was deficient by not making a timely objection to Johnson’s appearance in court in his prison clothing, we cannot say that there is a reasonable chance that the outcome of the trial would have been different had counsel made a timely objection. As discussed in Division 1, we cannot presume the jury was unfairly tainted by Johnson’s clothing. Moreover, the evidence against Johnson was quite strong. Even Johnson admitted that he fired his gun in Woodruff’s home. The cartridge and shell casing that were recovered from the crime scene, along with the photographs of the bullet hole in the ceiling and Woodruff’s head injury, are consistent with Woodruff’s testimony. A disinterested witness testified that Johnson told her that he hit Woodruff with a gun. And Johnson’s own testimony did not exculpate him.

Johnson also claims counsel was deficient because he failed to challenge his allegedly illegal extradition from Alabama. Johnson does not support this argument with citation to the record, and we will not consider it.

Decided May 11, 2000.

Paul W. David, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

3. After a thorough review of the record, we find that a rational trier of fact could have found Johnson guilty beyond a reasonable doubt. Johnson’s final enumeration of error is therefore without merit.

Judgment affirmed.

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

        See Pike v. State, 169 Ga. App. 358, 359 (312 SE2d 808) (1983), rev’d on other grounds, State v. Pike, 253 Ga. 304 (320 SE2d 355) (1984).

       See Hayslip v. State, 154 Ga. App. 835 (1) (270 SE2d 61) (1980); Whittington v. State, 155 Ga. App. 667 (1) (272 SE2d 532) (1980).

       See Timmons v. State, 223 Ga. 450 (1) (156 SE2d 68) (1967).

       See Sharpe v. State, 119 Ga. App. 222 (166 SE2d 645) (1969).

       Id.; Wilkes v. State, 221 Ga. App. 390, 392-393 (2) (471 SE2d 332) (1996).

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Roberts v. State, 263 Ga. 807-808 (2) (439 SE2d 911) (1994).

       Id.

       Court of Appeals Rule 27 (c).

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


text:
    A00A0310.
    MATTOX v. YELLOW FREIGHT SYSTEMS, INC.
    (534 SE2d 561)
   Ruffin, Judge.

Raymond Mattox was terminated from his employment with Yellow Freight Systems, Inc. after Yellow Freight learned that he had been charged with a crime nine years earlier. The crime had been discharged under the First Offender Act. Mattox sued for wrongful discharge, and the trial court dismissed the action for failure to state a claim. He appeals. Because we conclude that Mattox’s dismissal does not give rise to a private cause of action, we affirm.

“A motion to dismiss may be granted only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of his claim.” Our review is de novo.

The legislature has established that employment for an indefinite period of time is employment at will. An at-will employee can be terminated for any reason and may not generally recover from the employer for wrongful discharge. The legislature has carved out certain statutory exceptions to the at-will employment doctrine, not applicable here. Some of these statutes grant the employee a civil remedy for an employer violation. For example, an employee may recover actual damages from an employer who penalizes the employee for attending a judicial proceeding in response to a court order. Other statutes proscribing employer conduct do not provide employees with an express cause of action.

OCGA § 42-8-63, which governs the employment status of first offenders, provides that:

Except as otherwise provided in this article, a discharge under this article is not a conviction of a crime under the laws of this state and may not be used to disqualify a person in any application for employment or appointment to office in either the public or private sector.

Mattox claims that Yellow Freight violated this provision and that such a violation allows him to recover for wrongful discharge.

We note that there is no statutory cause of action for violation of OCGA § 42-8-63, and Georgia courts have been unwilling to create judicial exceptions to the at-will employment doctrine. But in OCGA § 51-1-6 the legislature has provided that:

When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.

Thus we must address whether OCGA § 51-1-6 gives Mattox a cause of action if Yellow Freight dismissed him because of his “first offender” conviction. We hold that it does not.

Analysis of this question is controlled by Reilly v. Alcan Aluminum Corp. In that case, the Supreme Court held that OCGA § 51-1-6 does not give rise to a cognizable claim for breach of a legal duty where the duty breached was the violation of OCGA § 34-1-2, which prohibits age discrimination in employment. The Supreme Court reasoned that:

Because the inability of an at-will employee to sue in tort for wrongful discharge is a fundamental statutory rule governing employer-employee relations in Georgia; because the General Assembly did not specifically provide a civil action as a remedy when enacting Georgia’s age discrimination statute, although it has specified such remedies in other areas of employer-employee relations; and because the specific provisions of §§ 34-7-1 and 34-1-2 must control over the more general tort provisions of §§ 51-1-6 and 51-1-8, we conclude that the General Assembly did not intend for age discrimination to provide the basis for a tort of wrongful discharge in this State.

Decided May 11, 2000.

Motten, Fisher & Goldman, Vaughn W. Fisher, Jr., for appellant.

Fisher & Phillips, Michael C. Towers, Trisha M. Earls, Kayla D. May, for appellee.

The same reasoning applies here. Thus, violation of OCGA § 42-8-63 does not give rise to a private cause of action because the statute does not specify a civil remedy. We are mindful that OCGA § 42-8-63 does not provide for criminal penalties for its violation, as does OCGA § 34-1-2. But, given the unequivocal language in Reilly, we do not believe that this warrants a different result. Because Mattox cannot establish a cause of action under OCGA § 51-1-6, he cannot establish a cause of action for a violation of OCGA § 42-8-63. It follows that he cannot recover against Yellow Freight under any set of facts provable under his complaint. Accordingly, the trial court properly dismissed this action.

Judgment affirmed.

Andrews, R J., and Ellington, J., concur.

       OCGA §§ 42-8-60 through 42-8-65.

        Croxton v. MSC Holding, 227 Ga. App. 179, 180 (489 SE2d 77) (1997).

       Id.

       OCGA § 34-7-1.

        Reilly v. Alcan Aluminum Corp., 272 Ga. 279 (528 SE2d 238) (2000).

       See Borden v. Johnson, 196 Ga. App. 288, 289-290 (1) (395 SE2d 628) (1990).

       OCGA § 34-1-3.

       See OCGA § 18-4-7 (prohibiting the discharge of an employee because his earnings have been subject to garnishment for any one indebtedness).

       See Borden, supra at 289.

       Supra.

       Id. at 280-281.


text:
    A00A1148.
    McFADDEN v. THE STATE.
    (534 SE2d 566)
   McMurray, Senior Appellate Judge.

Defendant pleaded guilty to possession of cocaine, driving with a suspended license, no proof of insurance and failure to use safety belts and received nearly a four-year probated first offender sentence. He appeals from the superior court’s order resentencing him to ten years to serve following a resentencing hearing occasioned by the State’s discovery of a New Jersey felony conviction for possession of cocaine, rendering him ineligible for first offender treatment. In four enumerations of error, the defendant challenges the validity of his guilty plea and his sentencing under the First Offender Act. Held:

1. In his first enumeration of error, defendant contends that the superior court erred in accepting his guilty plea for its failure to establish on the record the factual basis underlying his conviction for possession of cocaine under Uniform Superior Court Rule (USCR) 33.9. In this regard, defendant argues that he denied owning the pipe containing traces of cocaine underlying the possession of cocaine charge against him in responding to questions put to him by the State’s attorney at his guilty plea hearing.

At the superior court’s request, however, the State’s attorney, in her place, stated that the charges in the case sub judice arose out of a Jonesboro traffic stop in which defendant and two passengers, Eugene Davis and a sleeping child, were pulled over for failure to wear seat belts upon leaving a parking lot. Although the defendant initially gave the arresting officer a false name, he admitted driving without a license. Further, the State’s, attorney stated that in addition to the pipe found on the floorboard of the passenger’s side of the vehicle, a second pipe containing suspected cocaine was discovered in a pat-down of Davis’ back pocket at the scene. Additionally, defendant responded affirmatively to the superior court’s questions seeking to determine whether he understood the nature of the charges against him; the maximum permissible punishment that could be imposed upon him for the charged offenses; and the rights he gave up upon pleading guilty, inclusive of the right to counsel. In response to other questions put to him by the superior court, the defendant stated that he was not under the influence of any drugs, medications, or intoxicants and, upon consultation with counsel, that he understood “the good side and the bad side” of the First Offender Act.

That the superior court chose to adduce the factual basis of defendant’s plea, in part, through the State’s attorney was not error. A trial court may satisfy itself as to the sufficiency of the factual basis of the plea by “questioning the defendant, the defense counsel (Roberts v. Greenway, 233 Ga. 473, 476 (211 SE2d 764)), or any other legitimate source available to the trial court that can furnish evidence that the constitutional rights of the defendant have been satisfied.”

Once the question of the validity of a guilty plea or nolo contendere plea has been raised, the burden is on the State to show that the plea was intelligently and voluntarily entered. The State may accomplish this end by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all the rights he was waiving and the possible consequences of his plea; or (2) fill a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.

Decided May 11, 2000.

Stanley W. Schoolcraft III, for appellant.

Robert E. Keller, District Attorney, Bonnie K. Smith, Lalaine A. Briones, Assistant District Attorneys, for appellee.

Under the facts of the case sub judice, we conclude that the defendant knowingly, voluntarily, and intelligently entered the instant guilty plea. Accordingly, this enumeration of error is without merit.

2. In his remaining enumerations of error, defendant contends that the superior court: (a) erred in failing to give him credit for time served while on probation as a first offender; (b) erred in failing to determine he was ineligible for first offender treatment upon reviewing his criminal history; and (c) erred in resentencing him as if he had been ineligible for sentencing as a first offender.

In conducting her inquiry as to the sufficiency of the factual basis for the plea, the superior court asked the defendant, “[H]ave you been convicted of any felony anywhere or anytime?” The defendant responded, “No.” The State’s attorney had no evidence to the contrary. Subsequently, evidence of a prior out-of-state felony conviction for a drug offense was discovered, establishing that defendant had defrauded the court in testifying that he had not previously been convicted of a felony. Inasmuch as defendant complains of error resulting from his own misconduct, waiver of any right to complain thereof on appeal results. Defendant’s claims of error as to his treatment as a first offender are therefore likewise without merit.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       USCR 33.9 requires a trial court to make a subjective determination that there is a factual basis for the plea to foreclose the potential that a person might plead guilty not knowing that his or her acts do not constitute the crime charged. King v. Hawkins, 266 Ga. 655-656 (469 SE2d 30).

        Germany v. State, 151 Ga. App. 866, 867 (261 SE2d 774), rev’d on other grounds, 245 Ga. 326, 328-329 (265 SE2d 13) (“[T]here is no procedural requirement that the judge personally make all the inquiries provided that they are made in [his or her] presence”).

       (Citations and punctuation omitted.) Cunningham v. State, 239 Ga. App. 889, 890 (1) (522 SE2d 480).

       Id. at 891, citing Bevil v. State, 220 Ga. App. 1, 3 (7) (b) (467 SE2d 586) and Johns v. State, 223 Ga. App. 553, 554 (2) (479 SE2d 388).


text:
    A00A1490.
    McGUIRE v. THE STATE.
    (534 SE2d 549)
   McMurray, Senior Appellate Judge.

Defendant James Lamar McGuire brings this appeal from his convictions by a Jasper County jury for voluntary manslaughter and possession of a firearm during the commission of a crime. The superior court sentenced defendant to 15 years to serve.

1. Defendant argues that the evidence was insufficient to support the verdict for manslaughter for the failure of the State to prove “the element of intentional killing.”

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.

Viewed in such light, the evidence shows that friends drove the victim home at about 9:30 p.m. in September 1997 after playing basketball and drinking together. As the victim arrived, he found his female friend putting his clothes out of the trailer he shared with her because of his involvement with another woman. Words were exchanged, and the victim’s female friend called the police. When the police told her they could not respond, the victim’s female friend called the defendant. The defendant told the victim to leave when he arrived, but the victim refused. Defendant went back to his trailer, returning three to four minutes later. Pushing, shoving, and more angry, loud words followed. One of defendant’s friends got between the defendant and the victim in an effort to separate them. A gun was fired, and the victim fell to the ground. Although no witness saw who held the gun at the time it was fired, there was testimony that the defendant was standing over the victim after the shot was fired looking shocked while holding a pistol in his right hand “begging” the victim to get up while pushing the victim’s hand with his foot.

Other evidence revealed that the defendant thereafter ran from the scene, returning eight to nine minutes later explaining, “The gun went off.” In the first of two custodial statements admitted at trial, the defendant stated, “I don’t own a gun. I don’t remember where the gun came from.” In the second such statement, the defendant recanted his earlier statement, admitting that he brought a gun to the crime scene intending to scare the victim but indicated it had gone off accidentally.

The forensic pathologist who performed the autopsy on the victim’s body testified that the victim died from a gunshot wound to the victim’s chest fired from a range of three to four inches.

A person commits voluntary manslaughter when he causes another person’s death under circumstances which would otherwise be murder and acts solely as a result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. OCGA § 16-5-2 (a). A person’s intent and whether [he] acted in the heat of passion with adequate provocation or with justification depend largely on the credibility of witnesses.

We conclude that it was for the jury to determine whether the defendant intentionally shot the victim and if the shooting was in the heat of passion or with justification. “A jury has unlimited discretion to accept or reject a defendant’s testimony as a whole, or to accept it in part and reject it in part.”

We conclude that the evidence is sufficient to support defendant’s conviction.

To support the verdict, circumstantial evidence must exclude only reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Under this rule, the state is not required to remove every possibility of innocence of the crime charged.

Though the defendant offered testimony that conflicted with the State’s witnesses, the evidence was sufficient to enable a rational trier of fact to find defendant guilty of voluntary manslaughter beyond a reasonable doubt within the meaning of Jackson v. Virginia.

2. The superior court did not err in permitting the State’s forensic pathologist to testify even though the pathologist’s name was not on the witness list the State provided the defendant before trial. “The witness list rule is designed to prevent a defendant from being surprised at trial by a witness that the defendant has not had an opportunity to interview. [Cit.]” Where, as here, the record shows that the State provided the defendant a copy of the pathologist’s autopsy report before trial, that the defendant declined the superior court’s offer of an opportunity to interview the pathologist before the pathologist testified at trial, seeking neither a continuance nor a mistrial, no harm or surprise is shown. Accordingly, this claim of error is without merit.

3. Defendant contends that the superior court erred in allowing certain pictures and a video into evidence in view of the State’s failure to produce these in discovery. We disagree.

Defendant did not elect to engage in reciprocal discovery. Defense counsel instead filed a Brady v. Maryland motion and served the State’s attorney with a notice to produce under OCGA § 24-10-26. Because the superior court concluded that the complained-of evidence was not exculpatory, the State’s attorney was under no duty to open her file for defense counsel. However, the evidence reveals that the State’s attorney nonetheless allowed defense counsel to copy her entire file, revealing the existence of the discovery sought before trial, though defense counsel did not ask to view it. Further, at trial the superior court required that the video be shown for the benefit of defense counsel out of the presence of the jury. Defense counsel did not request a continuance. “Absent proof of prejudice to the defense and bad faith by the State, the trial court is not required to exclude the evidence and may offer the defendant lesser relief, including a continuance, to review the unproduced discovery. [Cits.]” Under these circumstances, we conclude that the defendant has shown neither prejudice nor bad faith by the State in the case sub judice. Accordingly, the superior court did not err in declining to exclude the pictures and video of which defendant complains.

4. Defendant further contends that the superior court erred in providing the jury a verdict form which was misleading because it required the jury “to find the [defendant] guilty or not guilty of every offense and lesser included offenses [ ]” and employed the words “guilty” and “not guilty” on its face. The record reflects that the defendant consented to the verdict form the superior court used but objected to it as confusing in the context of the charge thereon. Assuming, without deciding, that the verdict form was misleading as alleged, defendant has failed to show any harm inuring to his detriment thereon as he is required to do.

The superior court pertinently instructed the jury: “[I]f you find the Defendant guilty of the offense charged or one of the lesser included offenses, then the other offenses would be marked not guilty. What you cannot do is find the Defendant guilty of more than one thing under one count. . . .” The court went on to charge the jury “if you find the Defendant guilty you can cross out the others. Anything that indicates what you have decided so that it is clear what you have decided as to each count.” While it is conceivable that the verdict form might have been misleading as defendant contends, there is no indication that it was in fact, as the jury followed the superior court’s instruction to the letter, finding the defendant guilty of voluntary manslaughter, crossing out all other options as to Counts 1 and 2. There was no request for recharge on this issue. Neither is there any indication that the jury perceived a preference in the superior court for a finding of guilty in that the verdict form consistently set out the word “guilty” before the words “not guilty.” Accordingly, this claim of error is likewise without merit.

5. In his final enumeration, defendant contends that the superior court erred in allowing the State’s attorney to argue for the maximum permissible punishment upon the ground that the defendant exercised his right to trial by jury in lieu of entering a negotiated guilty plea. Contrary to defendant’s claim of error by brief, the record shows that the State’s attorney argued for the imposition of the maximum permissible punishment on the basis of defendant’s lack of remorse as reflected by his failure to admit the crime of which he was convicted. In Isaacs v. State, the Supreme Court of Georgia pointed out that “the defendant’s remorse or lack thereof is a permissible area of inquiry during sentencing.” Error does not result upon allowing a jury to infer lack of remorse from the failure to admit guilt. Even were this not the case, the superior court is presumed to know the law. And inasmuch as the superior court sentenced defendant to less than the maximum permissible punishment, there is no indication of prejudice in any event. The superior court therefore properly allowed the State’s attorney to argue defendant’s lack of remorse in the case sub judice.

Decided May 11, 2000.

W. Dan Roberts, for appellant.

Fredric D. Bright, District Attorney, Shelley S. Tice, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       Defendant’s convictions came upon a three-count indictment for murder (Count 1), felony murder (Count 2), and possession of a firearm during the commission of a felony (Count 3).

        Swift v. State, 229 Ga. App. 772, 773 (1) (495 SE2d 109).

        Johnson v. State, 236 Ga. App. 61, 63 (1) (510 SE2d 918), citing Brown v. State, 225 Ga. App. 218, 219 (483 SE2d 633).

        Johnson v. State, 236 Ga. App. at 63 (1), supra, citing Wilson v. State, 214 Ga. App. 378, 380 (2) (447 SE2d 709).

       (Citations omitted.) Johnson v. State, 236 Ga. App. at 63 (1), supra.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560).

        Mize v. State, 269 Ga. 646, 653 (7) (501 SE2d 219).

       “[A] notice to produce cannot be used as a discovery tool to circumvent discovery reciprocity under the discovery act.” Farmer v. State, 222 Ga. App. 506, 509 (2) (474 SE2d 711).

       373 U. S. 83 (83 SC 1194, 10 LE2d 215).

        Farmer v. State, 222 Ga. App. at 508 (2), supra.

        Valentine v. State, 229 Ga. App. 791, 792 (3) (495 SE2d 116).

       Id.

        Adams v. State, 264 Ga. 71, 76 (8) (440 SE2d 639).

        Smith v. State, 249 Ga. 228, 232 (5) (290 SE2d 43) (better practice is to omit the words “guilty” and “not guilty” from court-submitted verdict form to foreclose potential that jury might infer predisposition in trial judge).

       The State’s attorney pertinently argued: “[Biased on the seriousness of this crime and the lack of the Defendant’s remorse in coming forward and freely and voluntarily admitting his guilt to this crime, that he be sentenced to the maximum amount allowed by law.”

        Isaacs v. State, 259 Ga. 717, 723 (9) (386 SE2d 316).

        High v. Zant, 250 Ga. 693, 701 (14) (300 SE2d 654); accord 18 USCS Appx § 3E.1 (admitting conduct comprising offense pertinent to determining sentence in federal sentencing).

        Cox v. City of Lawrenceville, 168 Ga. App. 119-120 (1) (308 SE2d 224) (“Absent a showing to the contrary, the proceedings in the trial court are presumed to have been conducted in a regular and legal manner. [Cit.]").

       A person may be sentenced to imprisonment for not less than one nor more than twenty years upon conviction for voluntary manslaughter. OCGA § 16-5-2 (b). Here the superior court sentenced the defendant to 15 years to serve.


author: McMURRAY, Senior Appellate Judge.

text:
    A00A0740.
    WACHOVIA BANK OF GEORGIA, N.A. v. REYNOLDS et al.
    (533 SE2d 743)
   McMURRAY, Senior Appellate Judge.

The evidence reflects that appellee-plaintiff Frances B. Reynolds purchased a certificate of deposit (“CD”) in the amount of $64,000 from a branch of the Wachovia Bank of Georgia, N.A. (“Wachovia” or “the bank”) for her younger brother, appellee-plaintiff Bernard S. Bailey, Jr., age 73, as his attorney-in-fact. In making the purchase, Reynolds did not provide Wachovia Bailey’s address and told the bank: “Everything pertaining to him comes to my address.” Wachovia’s service representative asked Reynolds if she had a power of attorney but did not request a copy of it. Wachovia, in turn, issued Reynolds an initial deposit receipt listing “Bernard S. Bailey, Jr. by Frances B. Reynolds, P.O.A.” as the bank’s customers. Thereafter, Wachovia opened Bailey’s CD account in his name alone and sent everything pertaining to the account to Bailey directly based on his existing customer profile as one of the bank’s credit card customers.

On the date his CD matured, Bailey presented his renewal notice to bank personnel at Wachovia and asked to withdraw his entire account in cash, explaining only that “[he had] a special reason [ ]” for the large withdrawal. After confirming his identity by photocopy of his driver’s license and that he was the owner of the funds, Wachovia honored his demand, giving him $66,722 in a white canvass bag and 14$ to put in his pocket. Several days later, Reynolds went to Wachovia to renew a CD which belonged to her. There she learned that Bailey had withdrawn his money. Later, when she confronted her brother about such withdrawal at his apartment, Bailey told her that he had asked a maintenance man to hide his money in the attic of his apartment, paying the man $20 to do so. Reynolds’ grandson, her son-in-law, and a detective subsequently searched the attic but found nothing.

Reynolds and Bailey filed a complaint for damages against Wachovia, later amended, alleging that Wachovia negligently established, handled, and redeemed Bailey’s CD. Prior to trial, the superior court denied Wachovia’s motion to dismiss upon the claim that Reynolds as attorney-in-fact for Bailey “is not the real party in interest and may not legally prosecute this action in her own name.” At trial, the superior court denied Wachovia’s motion for directed verdict and renewed motion for directed verdict. Wachovia appeals from the judgment on the jury’s verdict in the amount of $66,722.14, plus prejudgment interest and attorney fees. Held:

1. Wachovia enumerates that the superior court erred in denying its motions for directed verdict, contending that: (a) its duty of care extended to Bailey alone as its sole depositor-customer and the principal for whom Reynolds acted as agent in establishing his CD account; (b) Bailey’s damages resulted from an unforeseeable intervening criminal act of a third party foreclosing recovery against Wachovia; and (c) there was no evidence that Bailey was entitled to OCGA § 13-6-11 attorney fees for bad faith. We disagree.

(a) Cause of Action. This case illustrates the importance of attention to detail in following applicable business practices and procedures. While Wachovia focuses on the duties owed when the CD was withdrawn in asserting that its duty of care was to Bailey alone, it ignores the obligations and duties owed when Reynolds originally set up the CD.

[A]ny financial institution which receives money from its customer in exchange for certificate(s) of deposit has a duty to issue and/or change the certificate in a manner that complies with the wishes of the customer, so long as the wishes of the customer are not contrary to any applicable law, and that the financial institution may be liable to the customer or a third-party beneficiary for mishandling the transaction, including improperly advising the customer how the certificate should be established or changed to comply with the wishes of the customer.

Although Reynolds did not specify that Bailey was mentally incapacitated in opening his account at Wachovia, she nonetheless titled the account “Bernard S. Bailey, Jr. by Frances B. Reynolds P.O.A.” on the line denominated, “Customer Name(s),” on the initial deposit slip created when the account was opened. This constituted at least some evidence of Reynolds’ status as a bank customer to whom the bank owed a duty of care in addition to Bailey. Even were this not the case and pretermitting Wachovia’s arguments based on the law of agency, we conclude that where one acts for another by power of attorney suggesting possible incapacity or other special circumstance, as here, a bank’s customer must be deemed inclusive of the depositor and the attorney-in-fact who acts as the depositor/principal’s agent.

There also is evidence of record showing that Wachovia breached its duty to comply with the wishes of Bailey and Reynolds as bank customers under Tucker Fed. In particular, although there is evidence that Reynolds signed a signature card upon opening the account, Wachovia was unable to locate and produce such a card at trial, and its personnel never looked at the card before allowing Bailey to withdraw the large sum in cash. Additionally, Reynolds opened the account with a check representing her brother’s life savings signed by her as power of attorney and showing her address. Reynolds did not give her brother’s address and told the bank to send everything relating to the account to her address — this to ensure that Bailey, whose affairs had been managed by her husband as conservator until his death and which she thereafter managed under power of attorney, would be financially secure in the event of her death. Further, Wachovia’s Vice President and Private Banking Manager testified that normally Wachovia’s bank records would show that the account was opened by power of attorney and show the address as specifically requested. A banking expert agreed, testifying that Wachovia violated reasonable banking practices in a number of ways, among them, opening or titling the CD in violation of its own standard operating procedures. “A directed verdict is proper only ‘[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.’ OCGA § 9-11-50 (a).” Whether there is conflict in the evidence is a question which the court must determine viewing the evidence in the light most favorable to the party opposing the motion for directed verdict using an “any evidence” standard of review.

Based on the evidence in the record showing that Wachovia breached the duty it owed Bailey and Reynolds as customers under Tucker Fed., the superior court correctly denied Wachovia’s motions for directed verdict.

(b) Intervening Criminal Act. The superior court did not err in denying Wachovia’s motions for directed verdict on the ground that plaintiffs’ damages resulted from the unforeseeable intervening criminal act of a third party.

An intervening criminal act of a third party, without which the injury would not have occurred, will be treated as the proximate cause of the injury thus breaking the causal connection between the defendants’ negligence and the injury unless the criminal act was a reasonably foreseeable consequence of the defendants’ conduct.

To conclude that the intervening criminal act in the case sub judice was unforeseeable as a matter of law is not possible. Bailey’s CD account was established by power of attorney with special instructions indicating potential incapacity in the depositor. This was sufficient to constitute some evidence of Bailey’s vulnerability to criminal activity if not assisted in withdrawing or otherwise handling the funds deposited in his CD account.

(c) OCGA § 13-6-11 Attorney Fees. Neither did the superior court err in denying Wachovia’s motions for directed verdict as to attorney fees under OCGA § 13-6-11 for bad faith. Contrary to expert testimony as to reasonable banking practices, Wachovia opened Bailey’s CD account in his name alone not annotating its records to reflect that the account was established pursuant to a power of attorney or otherwise noting special circumstances. Further, the evidence reflected that Wachovia failed to maintain a signature card on the account. Additionally, although Reynolds directed that the bank direct all mailings pertaining to the account to her address, Wachovia sent the same to Bailey, not providing her copies thereof.

Decided April 12, 2000

Reconsideration denied May 12, 2000

Fulcher, Flagler, Reed, Hanks & Harper, James W. Purcell, David P. Dekle, for appellant.

Hull, Towill, Norman, Barrett & Salley, Shannon G. Lanier, David E. Hudson, for appellees.

Long, Aldridge & Norman, W. Stell Huie, amicus curiae.

2. Wachovia also enumerates that the superior court erred in failing to charge that an agent may not dispute his principal’s title under OCGA § 10-6-27 and that an agent has no right of action on contracts made for his principal under OCGA § 10-6-82.

The superior court properly declined to give these charges. In both instances, Wachovia failed to state the ground upon which it objected, thereby failing to preserve these claims of error on appeal. In light of our disposition of Division 1 (a), we need not address Wachovia’s claim that the failure to give its charges on agency, as requested, “materially harmed the defendant requiring reversal of the judgment below.”

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

       The jury returned a verdict totaling $95,598.34.

       (Citations omitted.) Tucker Fed. Sav. &c. Assn. v. Rawlins, 209 Ga. App. 649, 651 (1) (434 SE2d 94).

       Wachovia argues that the instructions Reynolds gave it as to Bailey’s CD account were immaterial in that “ ‘[n]otice to the agent of any matter connected with his agency shall be notice to the principal.’ OCGA § 10-6-58.” Wachovia further argues that it was obligated to deliver the funds in Bailey’s CD account on his demand under OCGA § 10-6-27 (“ ‘A principal may follow his money deposited by an agent in the latter’s name and recover the same wherever found, unless the rights of innocent third persons shall have intervened.’ OCGA § 10-6-27”).

       This is not inconsistent “within the law’s broad definition of‘customer.’ [OCGA § 11-4-104 (a) (5) (amended 1996)]....” 1977 Op. Atty. Gen. 77-16.

        Vickery Ins. Agency v. Chambers, 215 Ga. App. 48, 50 (449 SE2d 885).

        Dept. of Human Resources v. Thomas, 217 Ga. App. 174, 175 (1) (456 SE2d 724).

       (Citations and punctuation omitted.) Alexander v. Sportslife, 232 Ga. App. 538, 540 (2) (502 SE2d 280). See also Ballenger Paving Co. v. Gaines, 231 Ga. App. 565, 569 (1) (a) (499 SE2d 722) (“If the original negligent actor reasonably could have anticipated or foreseen the intervening act and its consequences, then the intervening act of negligence will not relieve the original actor from liability for the consequences resulting from the intervening act. That is a jury question.”) (citations and punctuation omitted).

       In particular, Reynolds was unequivocal in telling Wachovia: “Everything pertaining to him comes to my address.”

        Allstate Ins. Co. v. Justice, 229 Ga. App. 137, 140 (3) (493 SE2d 532).

       See id.


author: Smith, Presiding Judge.

text:
    A00A0077.
    ATTAWAY v. THE STATE.
    (534 SE2d 580)
   Smith, Presiding Judge.

Following his conviction by a Richmond County jury of burglary and rape, the trial court denied Keith Dewayn Attaway’s motion for a new trial, and he appeals. Attaway was 15 years old when he was questioned by police in connection with the crimes. His sole enumeration of error is that the trial court erred by admitting his written confession into evidence. After reviewing the totality of the circumstances under which the statement was made, we agree with the trial court that Attaway’s confession was voluntary and knowing, and we affirm.

Construed in favor of the verdict, the evidence shows that Attaway entered the victim’s dormitory room at the Medical College of Georgia, struggled with her, and raped her. Responding to the victim’s screams, an MCG police officer opened her dormitory door with a master key, pointed his gun at Attaway, and told him “to get up.” Attaway fled into the adjoining residential neighborhood with the police in close pursuit, and they found him hiding in a closet in one of the homes. After he was discovered, Attaway again attempted to flee but was subdued. Attaway was taken to MCG police headquarters and questioned.

The State presented evidence that before interviewing Attaway, the police told him that he had a right to an attorney and a right to remain silent and that any statement he made could and would be used against him in court. Attaway also signed a document describing his Miranda rights. At the Jackson-Denno hearing and before the jury, the State presented evidence that Attaway never expressed a wish to remain silent or obtain counsel and that he was not threatened or promised any hope of benefit or leniency. Attaway manually wrote and signed a statement which contained misspellings and was difficult to read but indicated, among other things, that Attaway had sexually penetrated the victim, that she had tried to pull her pants up after he pulled them off, and that she had told him to stop. About a half-hour elapsed while the police interviewed Attaway and he wrote his statement.

While it is true that Attaway gave his confession outside the presence of a family member, we have rejected a per se exclusionary rule for statements given in such situations. Nor does failure to adhere to the juvenile code in detaining a child render inadmissible any ensuing incriminating statements. See OCGA § 15-11-19; Lattimore v. State, 265 Ga. 102, 104 (2) (b) (454 SE2d 474) (1995). Attaway’s reliance on Manning v. State, 162 Ga. App. 494, 495 (2) (292 SE2d 95) (1982) to require the exclusion of his statement is misplaced. Manning is physical precedent only and is inconsistent with the decisions of our supreme court. See Lattimore, supra; Hanifa v. State, 269 Ga. 797, 805 (3) (505 SE2d 731) (1998). Instead, the question of whether a juvenile’s statement is admissible depends upon whether, under the totality of the circumstances, the juvenile made a voluntary and knowing waiver of his constitutional rights. Riley v. State, 237 Ga. 124, 128 (226 SE2d 922) (1976).

The factors a court considers include:

The age of the accused; the education of the accused; the knowledge of the accused as to the substance of the charge and nature of his rights to consult with an attorney; whether the accused was held incommunicado or allowed to consult with relatives or an attorney; whether the accused was interrogated before or after formal charges had been filed; methods used in interrogation; length of interrogation; whether accused refused to voluntarily give statements on prior occasions; and whether accused repudiated an extrajudicial statement at a later date. [Cit.]

Decided May 12, 2000.

(Punctuation omitted.) McKoon v. State, 266 Ga. 149, 150 (2) (465 SE2d 272) (1996).

Applying these factors to this case, we bear in mind that much of the evidence that supports the trial court’s ruling is dependent on the credibility of the witnesses before it. And “[credibility determinations by the trial court at a Jackson v. Denno hearing will not be disturbed unless clearly erroneous. [Cit.]” McKoon, supra, 266 Ga. at 151 (2). We recognize that Attaway made his statement outside the presence of a parent or guardian and that later at trial he testified that he made his statement under pressure. He also testified that he added portions to the statement at the suggestion of his questioners that indicated that intercourse with the victim was not consensual.

The record also shows that Attaway was 15 years old when he was questioned and was in the ninth grade. At this age, he appeared to be of sufficient maturity and intelligence to understand both the seriousness of the charges, and his Miranda rights. See Marshall v. State, 248 Ga. 227, 229 (3) (282 SE2d 301) (1981); Williams v. State, 238 Ga. 298, 301-302 (1) (232 SE2d 535) (1977). He was arrested minutes after the incident occurred and was interrogated soon afterward. It can be reasonably inferred that he knew at the time of questioning why he was detained by the police. And although Attaway was under arrest and was not free to go after he was taken into custody, evidence was presented that he was informed of his right against self-incrimination and to an attorney, and he signed a written form explaining those rights. Furthermore, Attaway was not questioned for an excessive time before he gave his statement. The State presented evidence that he was not threatened, and he did not resist questioning. While no family member was present during the police interview, the record does not show that Attaway asked or demanded that a parent or guardian be present. Also, Attaway did not repudiate his entire statement at trial. Balancing these circumstances surrounding the police interview with Attaway, we find that the trial court’s conclusion that Attaway made a knowing and voluntary statement was not clearly erroneous.

Judgment affirmed.

Pope, P. J, and Miller, J., concur.

Paul W. David, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.


text:
    A00A0168.
    SOLIS et al. v. LAMB.
    (534 SE2d 582)
   Smith, Presiding Judge.

This case involves the exclusive remedy provision of the Georgia Workers’ Compensation Act, OCGA § 34-9-11 (a). We granted interlocutory appeal in this case to consider the trial court’s denial of summary judgment to defendants Santy and Ty Solis, who were fellow employees of plaintiff Marcie Lamb at R & S Sports. Because the record demonstrates, through Lamb’s unwithdrawn admissions, that the injury alleged by Lamb occurred during the course and scope of her employment with R & S, the trial court erred in denying summary judgment on this ground. We therefore reverse.

Lamb brought this personal injury action against the Solises, contending that Ty Solis struck her on the arm and shoulder on several occasions, that Santy Solis condoned the behavior, and that Santy Solis verbally abused her. The Solises answered, denying the allegations, asserting the exclusivity provision of OCGA § 34-9-11 (a), and asserting a counterclaim against Lamb for amounts she allegedly owed for store merchandise. Shortly thereafter, the Solises served Lamb with requests for admission under OCGA § 9-11-36. Lamb has never responded to the requests, has never objected to the requests, and has never moved to withdraw her admissions.

The Solises then moved for summary judgment, relying in large part on Lamb’s admissions by failure to respond to their requests for admission. The trial court granted summary judgment in favor of the Solises on the issue of intentional infliction of emotional distress and the counterclaim but denied summary judgment on the issue of the exclusivity doctrine. This was error.

1. We first consider the question of Lamb’s admissions under OCGA § 9-11-36. “Any matter admitted under this Code section is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission.” OCGA § 9-11-36 (b). The Supreme Court of Georgia has made the consequences of failure to withdraw or amend such admissions very plain. “The language in OCGA § 9-11-36 (a) is clear, unambiguous, and unequivocal and means just what it says. One must comply strictly and literally with the terms of the statute upon the peril of having his response construed to be an admission.” (Citations and punctuation omitted.) G. H. Bass & Co. v. Fulton County Bd. of Tax Assessors, 268 Ga. 327, 331 (2) (486 SE2d 810) (1997). When, as here, a litigant relied below upon the legal effect of failure to respond to requests for admission and the nonresponding party did not move to withdraw admissions or

avail itself of any of the variety of responses available under OCGA § 9-11-36 and chose not to seek the liberal remedies afforded to parties under the statute to avoid the consequences of a failure to respond, we hold that the subject matter of [the] requests for admission stood admitted. [Cits.]

Id.

While admissions may be withdrawn under the liberal procedures outlined in Bass, unwithdrawn and unobjected-to admissions may not simply be ignored. Lamb has utterly failed to address this dispositive issue; she did not respond in the trial court despite the Solises’ repeated assertion of the exclusive remedy provision. The requests for admission therefore stand admitted, and the matters admitted are “conclusively established” within the meaning of OCGA § 9-11-36 (b).

2. We therefore must consider the Solises’ motion for summary judgment in light of Lamb’s unwithdrawn admissions.

Under OCGA § 34-9-11 (a), the Workers’ Compensation Act provides an exclusive remedy for injuries sustained by an employee during the course of employment resulting from the negligence of a coworker, as well as “to intentional torts committed by one worker against a co-worker, unless the tortious act was committed for personal reasons unrelated to the conduct of the employer’s business. [Cit.]” Webster v. Dodson, 240 Ga. App. 4, 6 (522 SE2d 487) (1999).

The exclusivity provision is the bedrock of the workers’ compensation system. The legislature has determined that it is the quid pro quo for workers receiving a guarantee of prompt benefits for work-related injuries without regard to fault or common-law defenses and without the delay inherent in tort litigation.

Decided May 12, 2000.

Gardner, Willis, Sweat & Goldsmith, Christopher T. Ross, for appellants.

Farkas & Ledford, Leonard Farkas, for appellee.

Doss v. Food Lion, 267 Ga. 312, 313 (2) (477 SE2d 577) (1996). Here, Lamb’s unwithdrawn admissions acknowledge that both she and the Solises were “acting during the course and scope of her employment at the time of the alleged events as stated in the complaint.” She also admitted that the Solises “did not act or refuse to act out of personal reasons directed against the plaintiff.” The injury complained of accordingly falls within the scope of the exclusivity provisions of OCGA § 34-9-11 (a), and the trial court erred in denying summary judgment to the Solises on this basis. See Webster, supra.

Judgment reversed.

Pope, P. J., and Miller, J., concur.

       “[CJlaims for intentional infliction of emotional distress are not precluded by the exclusivity provisions of the Workers’ Compensation Act. [Cit.]” Sam’s Wholesale Club v. Riley, 241 Ga. App. 693, 697 (3) (527 SE2d 293) (1999). But Lamb did not cross-appeal from that portion of the trial court’s ruling.

       Lamb has also failed to address this issue on appeal, despite the Solises’ extensive discussion in their brief of the legal effect of her admissions.


text:
    A00A0171.
    LOCKLEAR v. THE STATE.
    (534 SE2d 575)
   Smith, Presiding Judge.

A misdemeanor DUI sentence against David Leon Locklear was mistakenly entered and filed in the Superior Court of Barrow County. After the papers were filed, the court clerk forwarded Locklear’s driver’s license to the Department of Public Safety, which suspended it. Locklear now appeals the denial of his plea in bar based on double jeopardy. He claims that his continued prosecution for DUI puts him at risk of multiple punishment for the same offense. Because we find that Locklear was not punished within the meaning of the bar against double jeopardy, we affirm.

Locklear was arrested for DUI on February 17, 1997. Locklear’s counsel and the prosecutor negotiated a guilty plea, and the paperwork was prepared in advance. On February 5, 1998, Locklear appeared in court and, rather than enter the expected guilty plea, expressed dissatisfaction with his counsel, who was allowed to withdraw.

Locklear’s conviction papers were not retrieved from the court. They were mistakenly signed by a judge who was not assigned to his case and eventually filed with the clerk on March 10, 1998. On April 20, 1998, Locklear filed a motion to withdraw the erroneous guilty plea, and the trial judge ordered the conviction vacated and removed from the clerk’s files. Locklear does not contend that he paid any fines or performed any community service pursuant to the erroneous conviction.

The deputy court clerk, upon receiving Locklear’s conviction papers and in accordance with her normal procedures, forwarded Locklear’s driver’s license to the Department of Public Safety to be suspended. Locklear discovered the suspension through his insurer. Approximately two weeks after learning of the suspension,. Locklear was able to reinstate his license by attending DUI school and paying the $210 reinstatement fee.

“Double jeopardy protects against three types of abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.” (Citation and punctuation omitted.) Thompson v. State, 229 Ga. App. 526, 527 (494 SE2d 306) (1997). Locklear claims that he was punished when his license was suspended for DUI and'that subsequent prosecutions would subject him to multiple punishment for the same offense.

In analyzing this case, we have little authority that is factually analogous to the case at hand. The trial court found Smith v. State, 174 Ga. App. 647, 649 (2) (331 SE2d 14) (1985) and Thompson v. State, supra, to be controlling. But these decisions are not directly on point. In Smith, the court mistakenly made a docket entry forfeiting a cash bond, but the bond was never actually forfeited, and the defendant did not suffer any harm. Thompson is one of a line of cases holding that the administrative suspension of a driver’s license under OCGA § 40-5-67.1 is not punishment for purposes of double jeopardy. Locklear’s license, however, was ostensibly suspended pursuant to OCGA § 40-5-63, providing for mandatory license suspension following a DUI conviction. Authority such as Higdon v. Cooper, 247 Ga. 746 (279 SE2d 451) (1981), which holds that a defendant’s sentence may not be increased once the defendant begins serving it, is also inapplicable here. No court attempted to alter a preexisting sentence.

Locklear maintains that because he was harmed, double jeopardy attached. But Locklear was never convicted of DUI. His erroneous conviction was ordered expunged from the record as soon as it was brought to the court’s attention. None of the sanctions provided by the misdemeanor conviction were implemented. His license suspension was an ancillary result of the filing of the conviction papers. See OCGA § 40-5-63.

Because Locklear’s license was not properly suspended, nothing prevented him from having the suspension rescinded. To obtain relief from the suspension more expeditiously, Locklear may have chosen to treat it as valid and have it lifted by attending DUI classes and paying a $210 reinstatement fee. Nevertheless, even though Locklear himself treated his license suspension as lawful, his actions did not convert an accidental license suspension into a punishment flowing from a DUI conviction.

Decided May 12, 2000

William D. Healan III, for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

Locklear suffered harm, but more importantly from the standpoint of double jeopardy, he did not suffer from the prosecutorial power of the State. The prosecutor’s office was not responsible for the events leading to Locklear’s license suspension. As the United States Supreme Court stated in Green v. United States, 355 U. S. 184 (78 SC 221, 2 LE2d 199) (1957): “The underlying idea ... is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense.” Id. at 187. The issue of misuse of State power by repeatedly prosecuting or punishing a defendant for the same offense is not raised by the record before us. The trial court properly rejected Locklear’s plea in bar.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.


text:
    A00A1087.
    HAYES v. THE STATE.
    (534 SE2d 577)
   McMurray, Senior Appellate Judge.

Joseph Eugene Hayes was convicted in Haralson County of child molestation based on evidence that he fondled the breasts and vagina of his stepdaughter, a child under the age of 14 years. Hayes appeals from the denial of his motion for new trial, asserting five enumerations of error. Held:

1. Hayes contends the trial court erred in denying his motion for a directed verdict of acquittal on the ground that the State failed to prove the offenses were committed in Haralson County. We disagree.

Venue is a jurisdictional fact that the prosecution must prove beyond a reasonable doubt. Venue is a jury question, and the jury’s determination will not be set aside as long as there is any evidence to support it.

Hayes was charged by special presentment with committing acts of child molestation between January 1, 1992 and November 30, 1996. Viewed in the light most favorable to the verdict, the evidence shows that Hayes moved to Haralson County in October 1995 with bis wife, the victim, and a younger child. The victim, who was the State’s first witness, was questioned only with regard to acts that occurred in Haralson County after October 1995. The victim testified on direct examination that Hayes molested her “[firom the time we moved to Haralson County till [sic] about — like the week we moved out of his house.” On cross-examination the victim was asked:

Q. So what you told [the prosecutor] . . . when she asked you the question after July of 1992 . . . , you told her that you lived in Haralson County and that Gene Hayes fondled your breasts and touched your vagina, so that wasn’t exactly an accurate statement, was it?
A. He did do it after that time and while we were in Haralson County.
Q. Okay, but that was . . . only after you moved here in October 1995 is what I’m asking. Is that correct?
A. Yes.

This testimony supports the jury’s determination beyond a reasonable doubt that venue was proper in Haralson County. The trial court correctly denied Hayes’ motion for directed verdict.

2. Hayes next argues that the trial court erred in failing to limit the jury’s consideration of the indictment to any acts which occurred after October 1995. Hayes asserts that by reading the indictment to the jury, the trial court permitted the jury to convict him based on acts which allegedly took place outside the trial court’s jurisdiction. This contention is meritless. As we held in Division 1, no evidence was presented that Hayes molested the victim in any location other than Haralson County. Moreover, the charge correctly informed the jury that the indictment was not evidence and that Hayes could be convicted only for acts that he committed within the applicable statute of limitation.

3. In his third enumeration of error, Hayes alleges the trial court erroneously instructed the jury regarding its consideration of similar transaction evidence. We disagree.

The trial court instructed the jury in part as follows:

Before you may consider evidence of similar transactions for any purpose . . . you must be satisfied that this defendant is the same person to whom the evidence on similar transactions pertains. If you believe such has been proven, however, you are strictly limited in your consideration of the evidence on similar transactions as to the defendant’s state of mind, course of conduct and lustful disposition.

Hayes contends this language Jailed to convey the jury’s need to determine that Hayes committed th e similar transactions prior to its ability to consider the prior acts fo:’ any purpose. However, examining this charge in its entirety, we conclude that the jury was properly instructed, and we find no error.

4. Hayes next enumerates as error the denial of his motion for mistrial. The trial court had granted Hayes’ motion to exclude any reference to a polygraph administered to Hayes in 1988 in connection with the similar transaction.

Hayes’ ex-wife, Brenda Hayes, testified during the State’s casein-chief concerning the similar transaction. During. cross-examination, the witness was asked whether she discussed the incident with Hayes. The following transpired:

A. I don’t think I was able to catch him at that time. Every time I’d go to try to get child support he was gone or hid or something.
Q. So you’re saying you didn’t test — I mean talk to him at all at that time?
A. No, sir.
Q. But this matter never came to court?
A. No.
Q. He never was even arrested for it, was he?
A. I think he was picked up for a lie detector test.

Hayes then moved for a mistrial. The trial court denied the motion, concluding that a mistrial was not warranted because the witness had been attempting to respond to cross-examination “truthfully and completely.” Hayes did not request curative instructions, and none were offered.

[T]he offending reference to defendant’s polygraph came during . . . cross-examination and not during the State’s case-in-chief. Consequently, the State has not violated the grant of defendant’s motion in limine to exclude reference to the polygraph. Rather, error, if any, was self-induced and provides no basis for reversal.

Most significantly, the witness never mentioned the results of the polygraph.

Decided May 12, 2000

Thomas M. Witcher, James E. Hulsey, Jr., for appellant.

James R. Osborne, District Attorney, Laura L. Herrin, Assistant District Attorney, for appellee.

The mere fact that the jury was apprised that a lie detector test was taken is not necessarily prejudicial if no inference as to the result is raised. No such inference was raised here. And because the grant of a mistrial was not essential to preserve the right to a fair trial, we will not disturb the trial court’s exercise of its discretion.

5. Hayes lastly contends the trial court erred in denying his motion for new trial in light of newly discovered evidence that the victim told her stepcousin, Hayes’ niece, that the victim’s mother directed the victim to say Hayes “touched her and stuff.” “The standard for granting a new trial on the basis of newly discovered evidence is well established. ... [A] new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.”

In the case sub judice, the testimony of Hayes’ niece does not suggest that the victim was not molested. At best, the evidence might have been offered to impeach the victim’s credibility. Consequently, the trial court did not abuse its discretion in denying Hayes’ motion for new trial.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

        Graves v. State, 269 Ga. 772, 773 (1) (504 SE2d 679).

        Cox v. State, 241 Ga. App. 388, 392 (4) (526 SE2d 887).

       See generally Dumas v. State, 239 Ga. App. 210, 216-217 (4) (521 SE2d 108); Barnes v. State, 191 Ga. App. 424, 426 (2) (382 SE2d 164).

       (Citations and punctuation omitted.) Birdwell v. State, 229 Ga. App. 810, 811 (1) (494 SE2d 699).

       (Citations and punctuation omitted.) Lyons v. State, 271 Ga. 639, 642 (6) (522 SE2d 225).

       (Citations and punctuation omitted.) Timberlake v. State, 246 Ga. 488, 491 (271 SE2d 792).

       See Pendergrass v. State, 168 Ga. App. 190, 191 (3) (308 SE2d 585) (affidavits of witnesses who overheard defendant’s wife telling child molestation victim what to say in court did not authorize new trial).


author: Miller, Judge.

text:
    A00A0059.
    REEVES v. THE STATE.
    (534 SE2d 179)
   Miller, Judge.

Richard Hoyt Reeves was tried before a jury and found guilty of trafficking amphetamine. His amended motion for new trial was denied, and this appeal followed. He enumerates the sufficiency of the evidence and the failure of the trial court to instruct the jury on whether a witness for the State was an accomplice whose testimony-required corroboration. Viewed in the light most favorable to the jury’s verdict, the evidence showed the following.

Undercover Investigator Stidd made two purchases of methamphetamine from Peggy Sue Thomas and then arranged for Thomas to sell him four more ounces in exchange for $5,500. Thomas agreed to take Stidd to her supplier’s house. Stidd gave Thomas $5,500 cash in $50 and $100 bills from which Stidd had photocopied the serial numbers. Thomas had Stidd drive to a trailer with the letters “R R” and an upside-down horseshoe over the door. Stidd observed as Thomas approached the trailer door and was met by a white male dressed in a black t-shirt and blue jeans and sporting tattoos down both arms. At trial, Stidd identified the white male as defendant Reeves.

Thomas and Reeves entered the trailer, and when they next came back into Stidd’s view, Reeves was carrying a small cardboard box. Two minutes later, Thomas exited the trailer, entered Stidd’s vehicle, and gave Stidd the same cardboard box. Stidd opened the box and found a plastic bag containing a substance emitting a strong chemical odor which Stidd recognized as methamphetamine. Although Stidd had observed another man and a woman in the yard, he never saw either of them give any cardboard box to Thomas or Reeves.

Stidd and Thomas immediately departed. Two miles from the trailer, Stidd’s vehicle was detained as part of a prearranged arrest. At that time, Stidd introduced himself to Thomas as a law enforcement officer and arrested her for sale of methamphetamine. Thomas possessed six of the identified $50 bills Stidd had given her for the sale. In a custodial statement, Thomas told police she met Reeves at the front of Reeves’s trailer; that he was the one in the black t-shirt; that she gave him $5,200 of the $5,500 Stidd had given her; that Reeves went to the back of the trailer; and that Reeves returned with the cardboard box that she subsequently gave to Stidd.

Thomas had known Reeves since January 1997. On the night in question, she had no drugs on her person and no money but that which Stidd gave her. Thomas identified the “R R” trailer as where she met with Reeves. Inside the trailer, Reeves called Thomas to a back bedroom, where they were alone. There Thomas handed Reeves the money, and he gave her the cardboard box and $300 back. Thomas took the cardboard box directly out to Stidd without making any changes to the box and without adding or removing any drugs. Thomas was unable to make an in-court identification of defendant as the seller but denied that she ever purchased a car from him or received a receipt for any down payment on a car.

Later that day, when defendant was arrested, he had eight $100 bills in a hidden compartment of his wallet. These bills were identified as part of the original money Investigator Stidd gave to Thomas. Reeves also had a note from Thomas confirming the terms of the sale, the “5 for 4000 thing.” The arresting officer identified defendant in court as the man from Reeves’s trailer who had been under observation since Stidd and Thomas left.

Reeves testified in his own defense, admitting that Thomas had been to his trailer and had given him $800 but that this was a down payment for a car, as evidenced by a receipt drawn by his business partner. Reeves also testified that his partner, similarly attired, was in his trailer at all times when Thomas was present. But there is no evidence that this other man had tattoos on his arms such as Reeves displayed to the jury.

1. In two related enumerations, Reeves challenges the sufficiency of the evidence, arguing there is no proof of identity and no corroboration of the identification testimony of an accomplice (Thomas). We disagree.

(a) On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. An appellate court does not weigh the evidence or judge the credibility of the witnesses but only determines whether the evidence to convict is sufficient under the standard of Jackson v. Virginia. Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. So long as there is some competent evidence, even though contradicted, to support each element of the State’s case, the jury’s verdict will be upheld.

(b) There is no conflict in the evidence that when Thomas took Investigator Stidd to her amphetamine supplier’s home, they went to Reeves’s trailer. Stidd saw the tattooed Reeves greet Thomas at the door and moments later saw Reeves with a small cardboard box in his hand. Thomas’s custodial statement confirms that she received this box directly from Reeves. She left immediately and gave the box to Stidd, who immediately opened it and recognized the chemical odor of methamphetamine. Reeves possessed $800 in specially identified government money which Thomas gave Reeves in exchange for drugs, plus he had the note from Thomas. Thomas denied buying a car from Reeves. This evidence as to the identity of the seller is sufficient to support the jury’s verdict that Reeves is guilty, beyond a reasonable doubt, of trafficking amphetamine as alleged in the indictment.

(c) Reeves contends Thomas is an accomplice whose identification testimony was not corroborated under OCGA § 24-4-8. Under this Code section, testimony which concerns the identity of other participants must be corroborated by some means independent of the testimony of an accomplice. If the corroboration of the accomplice goes only to the history, without identifying the accused, it amounts to no corroboration at all. Nevertheless, slight evidence, which may be circumstantial, connecting the accused with the crime is sufficient corroboration.

The State presented corroborating evidence. First of all, Thomas is not the only witness placing Reeves at the scene with the box of methamphetamine in his hands. Investigator Stidd’s testimony corroborates Thomas’s on this point. Where two witnesses swear to the same state of facts, the circumstance that one is an accomplice does not render the evidence insufficient as uncorroborated under OCGA § 24-4-8. Second, Thomas’s identification of Reeves as the seller is amply and independently corroborated by the following circumstances: the locus (Reeves’s home) where Thomas brought Stidd to her seller; Stidd’s observation of Reeves with the box that contained the nearly four ounces of methamphetamine; the brief interval of time from Thomas receiving the box from Reeves to her giving the same container to Stidd; and Reeves’s possession of $800 in marked money and the Thomas note. This is sufficient independent corroboration under OCGA § 24-4-8 of Thomas’s evidence that Reeves is the seller. The enumeration of the general grounds is without merit.

2. Reeves also contends the trial court erred in failing to instruct the jury on whether Thomas was Reeves’s accomplice, in order to determine whether her testimony required corroboration. But for aught that appears of record, Reeves submitted no written request to charge on this point.

Since the State did not rely wholly on the testimony of an alleged accomplice to connect the accused to the offense, it was not incumbent upon the trial court to instruct the jury on corroboration in the absence of a timely written request.

Judgment affirmed.

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

Decided April 28, 2000

Reconsideration denied May 16, 2000

Thomas M. Strickland, for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

       Chemical analysis by the State Crime Lab identified the substance as 3.6 ounces of methamphetamine.

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

        Graham v. State, 236 Ga. App. 673, 675 (1) (512 SE2d 921) (1999).

        Cook v. State, 226 Ga. App. 113, 114 (1) (485 SE2d 595) (1997).

        Hill v. State, 236 Ga. 831, 833 (225 SE2d 281) (1976).

        Selvidge v. State, 252 Ga. 243, 246 (313 SE2d 84) (1984).

        Farley v. State, 210 Ga. App. 580 (436 SE2d 770) (1993), citing Wilson v. State, 51 Ga. App. 570 (1) (181 SE 134) (1935).

        Garvin v. State, 144 Ga. App. 396, 398 (4) (240 SE2d 925) (1977). Accord Robinson v. State, 84 Ga. 674, hn. 1 (11 SE 544) (1890).


text:
    A00A1012.
    FERGUSON v. DURON, INC.
    (534 SE2d 142)
   McMurray, Senior Appellate Judge.

Duron, Inc. sued John Ferguson d/b/a Ferguson & Son Painting to recover $13,811.01 due on an open account, $490.38 interest and $1,455.14 in attorney fees. Duron served Ferguson with interrogatories and requests for admission along with the complaint. Ferguson, proceeding pro se, filed an answer but failed to respond to discovery requests. Alleging Ferguson had admitted the debt, Duron moved for summary judgment, which was granted on May 21, 1999.

Ferguson then retained counsel, who discovered that Ferguson had never been served with the summary judgment motion. On that basis, Ferguson filed a motion for reconsideration. In an order dated August 25, 1999, the trial court granted Ferguson’s motion and provided Ferguson 33 days to respond to Duron’s motion for summary judgment. Ferguson filed no response, and on October 12, 1999, the trial court granted summary judgment to Duron. Ferguson appeals. Held:

Duron does not dispute that it has never served its motion for summary judgment upon Ferguson. OCGA § 9-11-5 (a) states that “every written motion . . . shall be served upon each of the parties.” OCGA § 9-11-56 (c) requires that a motion for summary judgment “shall be served at least 30 days before the time fixed for the hearing.” However, our inquiry does not end here. “ ‘[T]he trial court must ensure that the party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment.’ [Cits.]” Hodge v. SADA Enterprises, 217 Ga. App. 688, 690 (1) (458 SE2d 876).

In its order granting Ferguson’s motion for reconsideration, the trial court in the case sub judice gave Ferguson fair notice of, and an opportunity to respond to, Duron’s motion for summary judgment. A party with notice cannot rest on his laurels and simply await an adverse outcome, with the expectation that this Court will provide relief. Accordingly, we hold that the statutorily mandated service requirement was waived under the limited circumstances presented in this case.

After Ferguson was given notice and an opportunity to respond, the burden shifted to Ferguson to demonstrate why summary judgment should not be granted. This Ferguson failed to do. Duron’s requests for admission asked Ferguson to admit, inter alia, that he received the goods in question; that the balance owed was accurate; and that he was not entitled to any credits or set-offs. Having failed to respond to the requests, Ferguson admitted the debt.

“A matter admitted in response to requests for admission under OCGA § 9-11-36 is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission. In form and substance such an admission is generally regarded as a judicial admission rather than an evidentiary admission. Such a solemn admission in judicio is conclusive as a matter of law on the matter stated and cannot be contradicted by other evidence unless it is withdrawn or amended on formal motion.” (Punctuation omitted.) Britt v. West Coast Cycle, 198 Ga. App. 525, 526 (1) (402 SE2d 121) (1991).

McCoy v. West Bldg. Materials &c., 232 Ga. App. 620, 621 (502 SE2d 559). The record does not reveal any attempt by Ferguson to withdraw the admissions. Lack of service of Duron’s motion for summary judgment did not relieve Ferguson of the obligation to respond to Duron’s requests for admission.

Next, Ferguson’s answer does not set out a meritorious defense. Rather, it details Ferguson’s unsuccessful attempts to contact Duron’s counsel to obtain “copies of receipts” bearing Ferguson’s signature. The answer also states that upon receipt of the documents, Ferguson would “be more than glad to pay the balance.”

Further, Ferguson’s affidavit in support of his motion for reconsideration avers that he has a meritorious defense but sets forth no facts in support of this assertion. An affidavit devoid of such facts has been held insufficient for the purpose of opening a default judgment. Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828, 834-835 (4) (360 SE2d 280). Here too, it will not suffice to survive summary judgment.

Finally, although summary judgment cannot be granted by default, Pearson v. Small World Day Care Center, 234 Ga. App. 843, 844 (2) (a) (508 SE2d 200), the trial court’s order recites that Duron’s motion is granted because “the Court finds that, after consideration ... of the pleadings, motion, all other matters of record and the applicable and controlling law, . . . there are no disputes as to genuine issues of material fact. . . .” Thus, “we will not assume that summary judgment was granted in this case simply because [Ferguson] did not respond to [Duron’s] motion.” Id. at 845 (2) (a).

Decided April 20, 2000

Reconsideration denied May 16, 2000.

Douglas R. Daum, for appellant.

Andrew R. Bickwit, for appellee.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.