author: Pope, Presiding Judge.

text:
    A96A2490.
    BALA v. POWERS FERRY PSYCHOLOGICAL ASSOCIATES et al.
    (484 SE2d 302)
   Pope, Presiding Judge.

Kiran Bala sought psychological counseling for herself and her son from Powers Ferry Psychological Associates, which is alleged to be a partnership whose members include Steven Perlow and Abby L. Friedman. Bala and her son received counseling directly from Friedman, who is a licensed psychologist. Following this counseling, Bala brought a professional malpractice action, jointly and severally, against Powers Ferry and its alleged partners. She also sued Friedman individually. In her complaint, which was accompanied by an expert affidavit, Bala alleged that all of the defendants were liable to her based on Friedman’s disclosure of certain confidential information concerning Bala to an attorney who represented Bala’s former husband. Bala’s ex-husband later used this information against her during a custody hearing regarding their son.

After answering the complaint, Powers Ferry, Perlow and Friedman filed a motion to dismiss, or in the alternative for summary judgment. Following a hearing on the motion, the trial court dismissed Perlow from the case, finding that he had not been served properly. It then granted summary judgment to Powers Ferry and Friedman, ruling that the expert affidavit filed with the complaint was insufficient to meet the pleading requirements of OCGA § 9-11-9.1.

On appeal, Bala does not contest the dismissal of Perlow or Powers Ferry from the case. Instead, she claims only that the trial court erred in ruling that her expert affidavit was insufficient, and based solely thereon, granting summary judgment to Friedman. We agree and reverse Friedman’s dismissal from the case.

1. To begin, we note “that a failure to comply with the pleading requirements of OCGA § 9-11-9.1 would not authorize the grant of summary judgment. See Robinson v. Starr, 197 Ga. App. 440, 441 (2) (398 SE2d 714) (1990). However, we will address the merits of this appeal as if the trial court had dismissed [Bala’s] complaint rather than granted summary judgment [to Friedman].” Druckman v. Ethridge, 198 Ga. App. 321 (1) (401 SE2d 336) (1991).

2. In doing so, we also note that “[a] Section 9-11-9.1 affidavit should be construed most favorably to the plaintiff and all doubts should be resolved in plaintiff’s favor, even if an unfavorable construction of the affidavit may be possible.” (Citation omitted.) Gadd v. Wilson & Co. &c., 262 Ga. 234, 235 (416 SE2d 285) (1992). As such, we reject Friedman’s claim that the expert affidavit filed in this case was insufficient because it set forth an opinion only as to the violation of a professional ethical standard. While it is true that in this state the alleged violation of a professional ethical standard, “standing alone, cannot serve as a legal basis for a [professional] malpractice action,” see Davis v. Findley, 262 Ga. 612, 613 (422 SE2d 859) (1992); Allen v. Lefkoff, Duncan, Grimes & Dermer, P. C., 265 Ga. 374 (1) (453 SE2d 719) (1995), a review of the affidavit in a light most favorable to Bala demonstrates that Bala’s expert did not merely opine that Friedman’s disclosure of confidential information violated a professional ethical standard. To the contrary, the affidavit shows that after first outlining his professional qualifications and noting the material he had reviewed (including certain case files, Friedman’s deposition and the most recent volume of the Ethical Principles and Code of Conduct of the American Psychological Association), the expert set forth the conduct on Friedman’s part that allegedly constituted professional malpractice — the disclosure of certain confidential information. Then, after acknowledging that the Ethical Principles and Code of Conduct of the American Psychological Association contained certain standards that were applicable to the situation at hand, the expert specifically stated that “it is my opinion that Dr. Abby Friedman’s disclosure was a deviation from the standard of care of a psychologist as set forth by the Ethical Principles and Code of the American Psychological Association.” (Emphasis supplied.)

Decided March 7,1997

Reconsideration denied April 1,1997

H. Darrell Greene & Associates, Paul Shimek III, for appellant.

Given a liberal reading, as required, we conclude that this statement could be construed as expressing an opinion that Friedman’s disclosure of confidential information concerning Bala violated the standard of care governing all psychologists as memorialized by that profession’s ethical code of conduct. This is especially true in light of the fact that the Supreme Court of this state has recognized that professional ethical standards constitute evidence of a common law duty of care so long as they are intended to protect a person in the position of the alleged injured party or are specifically addressed to the particular harm suffered by that party, as is the case here. Allen, 265 Ga. at (2) (a)-(c). And given the above interpretation, it is clear that the affidavit meets the requirements of OCGA § 9-11-9.1 because it was provided by “an expert competent to testify” and “set forth specifically at least one negligent act or omission claimed to exist and the factual basis [therefor].” Id. Moreover, the affidavit fulfills the purpose behind OCGA § 9-11-9.1, which “is to reduce the number of frivolous malpractice suits being filed, [and] not to require a plaintiff to prove a prima facie case entitling him to recover[y] and capable of withstanding a motion for summary judgment. . . .” Druckman, 198 Ga. App. at 322 (3).

Accordingly, we conclude the trial court erred in ruling that the expert affidavit filed with Bala’s complaint against Friedman was insufficient and in dismissing Friedman from the case on that ground.

Judgment reversed.

Andrews, C. J., and Smith, J., concur.

Gorby & Reeves, Michael J Gorby, Martha D. Turner, for appellees.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A97A0452.
    PIGGLY WIGGLY SOUTHERN, INC. v. JAMES.
    (485 SE2d 223)
   Birdsong, Presiding Judge.

Appellant Piggly Wiggly Southern, Inc. appeals the order of the trial court denying it summary judgment in this slip and fall case filed by appellee/plaintiff Betty Jean James. Held:

Because it appears that appellee failed to adduce evidence from which a trier of fact could infer that appellant had superior knowledge of the claimed hazard, we conclude that the trial court erred in denying appellant’s motion for summary judgment. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

Appellee slipped and fell in a three-inch by five-inch puddle of reddish-colored ham juice, which was visible against the grocery store’s white floor.

At the time of the incident, the store was well lighted, and appellee had no trouble seeing. Appellee did not see the puddle because she was looking toward the milk department at the time of the incident; milk was the next item she was going to purchase. Voluntarily looking at merchandise or aisle signs displayed in a store does not constitute a distraction in a slip and fall case; one cannot claim the benefit of a self-induced distraction. Compare McIntyre v. Pic &c. Drug Co., 213 Ga. App. 58, 60 (3) (443 SE2d 874); Minor v. Super Discount Mkts., 211 Ga. App. 123 (438 SE2d 384); accord Moore v. Kroger Co., 221 Ga. App. 520, 522 (471 SE2d 916).

Further, appellee offered no reason to explain why she could not have seen the red liquid had she been looking where she was going. In fact, appellee testified she did not even look to see if a foreign object was on the floor after her fall. Rather, after her fall, store employees observed the reddish or pink substance on the floor where appellee had been. One employee testified, without refutation, that it looked as if appellee’s foot had gone through this reddish or pinkish liquid. Appellee was lying beside or over the liquid, and the employee could not see it until appellee was picked up from the floor. The meat manager who viewed the liquid was positive that it was ham juice. The store manager dust-mopped the area where appellee slipped only ten to fifteen minutes before the incident and stated that at that time the floor was clean and dry. Compare Mazur v. Food Giant, 183 Ga. App. 453 (1) (359 SE2d 178). An employee of the meat department stated that he had handed appellee a ham several minutes prior to her fall; at that time, the employee was about ten to twelve feet away from the place appellee fell; however, appellee was blocking his view of that portion of the floor.

To state a cause of action in a slip and fall case, appellee/plaintiff must adduce evidence showing (1) the defendant had actual or constructive knowledge of the foreign substance and (2) the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance. Alterman Foods v. Ligón, 246 Ga. 620, 623 (272 SE2d 327). In this latter regard, “ £[t]he customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.’ ” (Emphasis supplied.) Id. If a defendant discharges his burden, within the meaning of Lau’s Corp., supra, by pointing out by reference to the affidavits, depositions, and other documents in the record that there is an absence of evidence to support the non-moving party’s case, that is, by demonstrating that the evidence does not create a triable issue as to each of these essential elements, summary judgment for the defendant is appropriate. Compare Winn Dixie Stores v. Carroll, 212 Ga. App. 234 (441 SE2d 432).

In this case, appellant met its burden under Lau’s Corp. There is no evidence in the record that appellant had actual knowledge of the spill; in fact, the evidence of the recent dust-mopping of the aisle tends to negate the existence of any constructive knowledge on the part of appellant. Even assuming without deciding that the employee’s presence near the location of appellee’s fall gives rise to an inference of constructive knowledge, appellee has not gone forward to point to specific evidence giving rise to a triable issue regarding whether in the exercise of reasonable care for her own safety, appellee still would have been unable to learn of the presence of the foreign substance causing her fall. See Lau’s Corp., supra at 491, 495. “Even if we assume [appellant] had actual or constructive knowledge of the hazard, the store would still be entitled to summary judgment if [appellee] knew about the hazard or should have discovered and avoided it, unless [appellant store] somehow prevented her from discovering it.” (Emphasis supplied.) Moore, supra at 521. Since appellee could have discovered the foreign substance in the exercise of ordinary care, her constructive knowledge of the substance at least equals if not exceeds that of appellant. In this regard, we find no evidence in this record that appellant prevented appellee from discovering the substance. Appellee has failed to go forward to point to the existence of specific evidence from which a trier of fact could conclude that appellant had superior knowledge of the substance. Accordingly, we find that the trial court erred in denying appellant’s motion for summary judgment. Lau’s Corp., supra.

Decided March 14,1997

Reconsideration dismissed April 1,1997.

Jones, Cork & Miller, Timothy Harden HI, Wendell K. Howell, for appellant.

Divine, Dorough & Sizemore, Kermit S. Dorough, Jr., for appellee.

Judgment reversed.

Ruffin and Eldridge, JJ, concur.


author: Beasley, Judge.

text:
    A97A0077.
    BAKER v. THE STATE.
    (485 SE2d 548)
   Beasley, Judge.

Baker appeals his conviction and the denial of his motion for new trial, on the charges of terroristic threats and acts, OCGA § 16-11-37, and theft by taking, OCGA § 16-8-2.

1. Baker’s first enumeration of error challenges the sufficiency of the evidence as to terroristic threats. The evidence is viewed in the light most favorable to the verdict. Searcy v. State, 236 Ga. 789, 790 (225 SE2d 311) (1976).

Baker and Donna Mclntire had been separated for several months when Mclntire, a convenience store manager, returned home from work, parked her car beside her mobile home and went inside. She left $200 in cash belonging to the convenience store in a zippered bank bag hidden in a brown paper sack on the back seat of her locked car.

She heard a truck outside that she recognized as Baker’s because of its muffler noise. Baker began beating on her front door and threatened to kill her. She padlocked the door and ran to the bedroom to call 911. Baker began to beat on the door with the butt of a handgun and yelled, “Bitch, if I get in there, I’ll kill you.” He broke the back door window and entered. McIntyre threw down the telephone, jumped out the bedroom window and ran to a neighbor’s home.

Baker left the home through the front door, unlocked Mclntire’s car with a key he still had, and took the paper sack and bank bag filled with cash.

Responding to the 911 call, Deputy Hunnicutt arrived and found Baker with blood on his hands standing between his pickup truck and Mclntire’s car. He also found a handgun wrapped in a bloody plastic trash bag in the home and bullets lying on the floor. The gun cylinder was damaged by a bullet jammed in the chamber. The bloodstained paper sack and bank bag with the cash were on the front seat of Baker’s truck.

Baker was charged with and tried on a number of offenses but was convicted only of terroristic threats and theft by taking.

“A person commits the offense of a terroristic threat when he threatens to commit any crime of violence. ... No person shall be convicted under this subsection on the uncorroborated testimony of the party to whom the threat is communicated.” OCGA § 16-11-37 (a). Baker argues the State failed to meet the corroboration requirement since the only direct evidence of a threat was Mclntire’s testimony. But, “ £[a]s in rape cases, the quantum of corroboration need not in itself be sufficient to convict[. It] need only be that amount of independent evidence which tends to prove that the incident occurred as alleged. [Cit.] Slight circumstances may be sufficient. . . and the question of corroboration is one solely for the jury. . . .’ [Cit.]” Boone v. State, 155 Ga. App. 937, 939 (1) (274 SE2d 49) (1980). See also Martin v. State, 219 Ga. App. 277, 283 (10) (464 SE2d 872) (1995); Ellis v. State, 176 Ga. App. 384, 386 (3) (336 SE2d 281) (1985).

Mclntire’s neighbor testified that while he was sitting on his front porch, he saw a Toyota pickup truck come up the road and park in Mclntire’s driveway. Driver Baker “went to the front door in a rage, was screaming and hollering, beating on the front door,” making a noise “like metal against metal.” The neighbor heard Baker say, “Bitch, if I get in there, I’ll kill you.” He saw that when Baker could not get into the front door, he went to the back. He saw Mclntire jump out the bedroom window and run and Baker take the bag of money from Mclntire’s car and place it in his truck.

This account is completely consistent with Mclntire’s testimony and with evidence gathered at the crime scene. Her testimony was sufficiently corroborated to satisfy OCGA § 16-11-37 (a). Likewise, the standard of Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979), was met by ample evidence from which a rational trier of fact could determine Baker’s guilt beyond a reasonable doubt of terroristic threats. See Sampson v. State, 209 Ga. App. 213, 214-215 (1) (433 SE2d 136) (1993).

2. Baker challenges the court’s denial of his motion in limine to exclude testimony relating to the theft of a handgun Baker used in committing the offenses charged. He sought exclusion of the Trueloves’ testimony that they suspected him of burglarizing their home and removing the firearm. He argued that the source of the firearm was irrelevant to prove possession by a convicted felon or in the commission of a crime, OCGA §§ 16-11-106 and 16-11-131, which were charges for which he ultimately was not convicted. He also argued that the testimony would constitute evidence of a similar transaction of which he had no notice as required by Uniform Superior Court Rule 31.3.

Decided April 1,1997.

Kathleen J. Anderson, for appellant.

Timothy G. Madison, District Attorney, for appellee.

The State responded that the handgun found damaged at the scene bore a serial number matching that of a gun the Trueloves reported stolen. They would testify that Baker had borrowed it earlier, returned it, and saw one of them replace it in their gun cabinet. Two months later, they returned from a three-day trip and realized the weapon was missing, although they found no sign of forced entry. The State contended the testimony was relevant to link Baker with this particular handgun. In denying the motion, the court carefully instructed the prosecutor not to elicit testimony relating to a missing firearms report. Mr. Truelove testified accordingly.

Baker contends that even without an overt accusation that Baker took the weapon, it is the only inference that could be drawn and the testimony was irrelevant to the issue whether he in fact possessed a firearm on the day in question.

“Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.” OCGA § 24-2-1. Baker was charged with two firearm possession offenses. He argues that because neither statute requires proof of how the accused obtained the weapon, the only possible purpose was to put his character in evidence in violation of OCGA § 24-2-2. Although he was not convicted of either weapon charge the issue remains whether his character was impermissibly introduced.

“Any evidence is relevant which logically tends to prove or disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant.” Dudley v. State, 204 Ga. App. 327 (2) (419 SE2d 138) (1992). The evidence was probative of whether Baker was in possession of a particular handgun, the purpose for which it was offered. The court’s refusal to allow any testimony characterizing Baker’s conduct as criminal in his obtaining possession of the gun limited the testimony so as to inject his character only minimally. See Smith v. State, 181 Ga. App. 136, 137 (1) (351 SE2d 530) (1986). The motion was properly denied.

Judgment affirmed.

McMurray, P. J, and Smith, J., concur.


author: Johnson, Judge.

text:
    A97A0459.
    CLARK v. THE STATE.
    (485 SE2d 543)
   Johnson, Judge.

Willie James Clark was convicted of rape and child molestation involving an 11-year-old girl. He appeals the judgment entered on the jury’s verdict, asserting the trial court erred in denying his motion for a continuance and in granting the state’s motion in limine to exclude evidence that the victim had been molested by someone else. Neither of these asserted errors requires a reversal of Clark’s conviction.

1. Clark moved the trial court for a continuance in order to secure the appearance of a witness who was out-of-state on the day of trial. Clark suggested at a hearing on the motion for a continuance that the witness, one of the victim’s special education teachers, would testify that the victim “talks out, she lies, she attacks others verbally and physically, [and] forges papers.” This evidence would have been offered as rebuttal evidence in the event the state introduced evidence tending to bolster the victim’s credibility. In denying the motion for a continuance the trial judge noted that the proffered testimony consisted of specific prior acts which would be inadmissible and added that Clark had already been incarcerated for 15 months.

“ A motion for continuance based on absence of a witness is addressed to the sound discretion of the trial judge and an appellate court will not interfere unless it is clearly shown it has abused its discretion.’ [Cit.]” Jones v. State, 217 Ga. App. 722, 724 (3) (458 SE2d 894) (1995). Clark argues that the teacher’s testimony was material to Clark’s defense because she was aware of the victim’s reputation in the “classroom community.” The general rule is that character evidence is based on a witness’ reputation in the community at large. In Guest v. State, 201 Ga. App. 506, 508 (2) (411 SE2d 364) (1991), a teacher testified about a victim’s general reputation in a school community, but the testimony was introduced without objection. In Skiver v. State, 213 Ga. App. 424, 426 (2) (444 SE2d 836) (1994), this Court suggested that a family may not be a “community” for purposes of obtaining reputation for veracity. And in a special concurrence in Nelson v. State, 190 Ga. App. 142, 143 (378 SE2d 186) (1989), Judge Pope questioned the value of testimony regarding a witness’ reputation for truthfulness in the prison community. “Showing bad character by the method set out in OCGA § 24-9-84 necessarily presupposes a community which values the truth and naturally would note the deviation from the community standard in a member of the community who persisted in not telling the truth.” Id. We need not reach whether the evidence proffered by Clark would ultimately have been admissible in this instance but note that the standards of this “classroom community” comprised of students who have been removed from the general school population because they have been identified by professionals as having special educational needs may not be the community contemplated by OCGA § 24-9-84. Even had the teacher been available to testify, any testimony she may have given regarding the victim’s reputation for veracity in this “classroom community,” if admissible at all, would have had little probative value.

Decided April 1,1997.

Lloyd J. Matthews, for appellant.

Clark also argues the trial court abused its discretion in denying a continuance because the witness was under subpoena. See OCGA § 17-8-25. According to Clark’s brief, the teacher was served with a subpoena on or about April 10, 1995. The subpoena required her to be prepared to testify “from day to day, week to week.” This case went to trial on July 11, 1995. More commonly, the issue before this Court with regard to motions for continuance is whether a subpoena gives enough time to ensure the appearance of a witness, not the reverse. Here, the subpoena did not specify a date for trial, but obligated the witness to be ready to testify at any time in the indefinite future, a period which exceeded three months in this case. We cannot say the trial court abused its discretion in excusing the witness from the requirements of the subpoena and denying the motion for a continuance. See OCGA § 17-8-22; cf. Teat v. State, 181 Ga. App. 735 (353 SE2d 535) (1987) (defendant took continuous steps to ensure attendance of material witness at trial).

2. Clark also appeals from the trial court’s grant of the state’s motion in limine to exclude evidence that the victim had been molested by another man. Clark argues that the primary purpose for the introduction of the evidence was not to undermine the victim’s character, but to establish that the victim could have contracted the herpes virus from someone else. After hearing evidence from several witnesses for the state regarding the transmission of the herpes virus, the trial judge changed his ruling and allowed the defense to pursue whether the victim had been infected by someone other than Clark. Because the trial court reversed its initial ruling and allowed appellant’s counsel to cross-examine witnesses, including the victim, about molestation by someone other than Clark, the issue is moot and there is nothing for this Court to consider. See Anderson v. State, 178 Ga. App. 355 (1) (343 SE2d 411) (1986).

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.

Tommy K. Floyd, District Attorney, James L. Wright III, Mark S. Daniel, Assistant District Attorneys, for appellee.


author: Ruffin, Judge. Eldridge, Judge,

text:
    A97A0480.
    PARIAN LODGE, INC. v. DeKALB COUNTY et al.
    (485 SE2d 545)
   Ruffin, Judge.

This action involves Parian Lodge, Inc.’s complaint for refund of ad valorem taxes paid on certain property for the 1990 tax year. Th,e trial court granted DeKalb County’s motion to dismiss, and Parian Lodge appeals from this order. For reasons which follow, we affirm.

Parian Lodge admits that the facts of this case, except for the fair market value of the property on January 1, 1990, are uncontested. The record shows as follows. From January 1, 1990 until May 7, 1991, certain property located in DeKalb County (“the property”) was owned by a company known as the Lodge Investors. During this period, the property was encumbered by two security deeds, and Parian Lodge became the holder of at least one of the security deeds by virtue of assignment from the original lender.

In March 1990, Lodge Investors made á return of the property to the DeKalb County Tax Commissioner, claiming a fair market value of $5,000,000. The DeKalb County Board of Tax Assessors issued a notice in April 1990 reassessing the property a fair market value of $11,975,000. In July 1990, the Board of Tax Assessors revised the fair market value of the property to $9,354,000. Lodge Investors did not file any appeal or protest. Parian Lodge alleges it was never notified of the reassessment.

Parian Lodge foreclosed its security deed on the property and acquired the property for a bid price of $1,802,832.40 in May 1991. On June 27, 1991, Parian Lodge paid the taxes due for the year 1990 in the amount of $157,679.05.' There is no evidence in the record that Parian Lodge paid these taxes under protest.

In October 1991, the Board of Tax Assessors lowered the 1991 fair market value of the property to $3,825,590. On February 5,1993, Parian Lodge sent a letter to the DeKalb County Tax Commissioner claiming a refund for the 1990 tax year. Parian Lodge demanded a refund in the amount of $87,908.07, representing the difference between taxes actually paid on the 1990 fair market value of $9,354,400 and taxes which would have been owing on the 1991 fair market value of $3,825,590. The Tax Commissioner denied this refund claim, and Parian Lodge filed its action on May 17, 1993.

Following the Supreme Court’s decision in Gwinnett County Bd. of Tax Assessors v. Gwinnett I Ltd. Partnership, 265 Ga. 645 (458 SE2d 632) (1995), Parian Lodge amended its complaint to add a second count claiming inverse condemnation. Subsequently, DeKalb County filed a motion to dismiss, which was granted by the trial court.

1. Parian Lodge asserts the trial court erred in relying on Gwinnett and dismissing Count 1 of its complaint. In Gwinnett, the Court held that the refund procedure delineated in OCGA § 48-5-380 is limited to the correction of “errors of fact or law which have resulted in erroneous or illegal taxation.” Id. at 646-647. According to the Court, “[a] claim based on mere dissatisfaction with an assessment, or on an assertion that the assessors, although using correct procedures, did not take into account matters which the taxpayer believes should have been considered (e.g., different comparable sales for the purpose of establishing value), is not, however, one which asserts that an assessment is erroneous or illegal within the meaning of § 48-5-380.” Id. at 647.

Parian Lodge argues that Gwinnett is distinguishable on its facts or, alternatively, that this Court should overrule the decision in Gwinnett. We cannot, however, overrule Gwinnett because decisions of the Supreme Court are binding upon this Court. Therefore, we need address only Parian Lodge’s contention that the present case is not controlled by Gwinnett.

In Gwinnett, the complaining party purchased property in a 1990 foreclosure sale and paid the 1989 property taxes under protest. “Although the previous owner had not challenged the property tax assessment when it was made, [the new owner] filed a claim for a refund of almost half the tax it had paid, asserting that the 1989 assessment was illegal and erroneous because of improper valuation, lack of uniformity, and lack of equalization.” Id. at 645. In the present case, Parian Lodge purchased the subject property in a foreclosure sale in 1991 and paid the 1990 property taxes without any protest. In addition, as in Gwinnett, Parian Lodge filed a claim for refund, asserting “that the Taxpayer was assessed in 1990 at an assessed value greatly in excess of 40% of the fair market value of the Taxpayer’s property.” The complaint filed by Parian Lodge likewise indicated that the refund claim was based on an improper valuation.

Parian Lodge attempts to distinguish Gwinnett by arguing that its status as mortgagee and the holder of a security interest during the 1990 tax year separates it from the Gwinnett plaintiff. According to Parian Lodge, the Gwinnett plaintiff voluntarily purchased the property subject to the tax lien and voluntarily paid the tax liability. In contrast, Parian Lodge asserts it directly suffered an economic loss caused by the overvaluation and did not voluntarily pay the property taxes in this case because of its status as a holder of a security interest during the tax year in question.

We are not convinced that the factual distinction raised by Parian Lodge is sufficient to remove this case from the precedent established in Gwinnett. There is no indication in Gwinnett that the Supreme Court considered the status of the taxpayer as controlling the determination of a refund. As the Court noted in Gwinnett, “the determinative factor in deciding whether an action seeking a refund of ad valorem real property taxes may be maintained is not the general nature of the ground asserted, but the underlying facts supporting the asserted ground.” Id. at 647.

Viewing the record in the present case, it is apparent that Parian Lodge’s claim for a refund of taxes “is based not on any inaccuracy in the factual record or any illegality in the procedure used to reach an assessment, but on a disagreement with the amount of the assessment.” Id. Parian Lodge merely asserts that the 1991 assessed value established the fair market value of the property in 1990. “That being so, it is apparent from the record that [Parian Lodge’s] claim is not one cognizable as a refund action under [OCGA] § 48-5-380 and that the County was entitled to [a dismissal].” Id. Accordingly, the trial court did not err in granting DeKalb County’s motion to dismiss Count 1 of Parian Lodge’s amended complaint.

2. Parian Lodge further asserts that its constitutional rights were violated because OCGA § 48-5-306 provides no notice to first mortgagees of reassessment and it was never, therefore, in a position to be heard in an appeal under OCGA § 48-5-311. This appeal was originally filed in the Supreme Court, which transferred it to this Court after determining that the “appeal involves a tax assessment challenge and does not raise the constitutionality of a statute or ordinance. . . .” The Supreme Court has exclusive jurisdiction over appeals challenging the constitutionality of a statute. Ga. Const, of 1983, Art. VI, Sec. VI, Par. II (1). Thus, in the event Parian Lodge properly raised this constitutional issue, we have no jurisdiction to decide the issue. Accordingly, we will not address this enumeration.

3. In its second enumeration of error, Parian Lodge contends that Gwinnett established new law and is unconstitutional when applied retroactively. However, contrary to Parian Lodge’s argument, Gwinnett did not establish new law. Parian Lodge cites no case, and we can locate none, prior to Gwinnett which allowed a refund claim based upon mere dissatisfaction with the assessed value of the property. Thus, this enumeration lacks merit.

4. Finally, Parian Lodge contends that the trial court erred in dismissing Count 2 of its amended complaint, thereby holding that it had no claim for just compensation under the United States Constitution. Parian Lodge argues that its claim for just compensation was proper because its property rights were taken without either notice or an opportunity to be heard. However, Parian Lodge has failed to cite any authority permitting a taxpayer to file a cause of action for just compensation due to a tax assessment valuation dispute. No legal basis exists for Parian Lodge’s claim that its payment of the tax resulted in an unconstitutional taking of its property without just compensation. Accordingly, we find the trial court did not err in granting DeKalb County’s motion to dismiss Count 2 of Parian Lodge’s amended complaint.

Decided April 1,1997

Proctor, Felton & Chambers, Robert J. Proctor, for appellant.

Lisa F. Stuckey, for appellees.

Judgment affirmed.

Birdsong, P. J, concurs. Eldridge, J., concurs specially.

Eldridge, Judge,

concurring specially.

While concurring fully with what is said in all four divisions of the majority opinion, in regard to Division 2, appellant as the holder to a deed to secure debt is not treated as the taxpayer under OCGA § 48-5-9, because appellant was not in possession of the property although it must see that the taxes are paid to protect its interest in the property. Anderson v. Alexander, 179 Ga. 511, 512-513 (1) (176 SE 367) (1934); Real Estate Loan Co. v. Union City, 177 Ga. 55, 56 (2) (169 SE 301) (1933); Decatur County Bldg. &c. Assn. v. Thigpen, 173 Ga. 363, 364-366 (2)-(6) (160 SE 387) (1931). “While the public may treat property as belonging to one to whom it has been conveyed to secure a debt, yet the debtor in possession and receiving the use and benefit of the property is liable for the tax. This is the logical intent of [OCGA § 48-5-9].” Carroll v. Richards, 50 Ga. App. 272, 273 (1) (178 SE 178) (1934). Thus, under the existing statutory scheme appellant is not the taxpayer entitled to notice under OCGA § 48-5-306 or entitled to appeal under OCGA § 48-5-311, notwithstanding the consequences of taxes being assessed and levied upon the property.

The fallacy in appellant’s argument regarding notice and lack of remedy is that appellant under usual powers granted in the real estate note and the deed to secure debt could require that all taxes be escrowed and that the holder of the deed to secure debt make the return of property value in its own name under OCGA §§ 48-5-10 and 48-5-15 (a) and pay the taxes, which would entitle it as the taxpayer to receive the notice under OCGA § 48-5-306 and to appeal under OCGA § 48-5-311. Thus, appellant by its own action could protect its interest by receiving notice and acting accordingly; failure to act waives such rights.


author: Blackburn, Judge.

text:
    A96A2068.
    KOREY v. BELLSOUTH TELECOMMUNICATIONS, INC.
    (485 SE2d 498)
   Blackburn, Judge.

Harold Korey appeals from the trial court’s grant of summary judgment to BellSouth Telecommunications, Inc. (BellSouth) on Bell-South’s claim for amounts due on an account for telephone service, and from the trial court’s denial of Korey’s motion for summary judgment on such claim. Korey also appeals the trial court’s denial of his motion to add a counterclaim for violation of the Fair Business Practices Act.

On May 7, 1985, Korey opened an account for telephone service with BellSouth. BellSouth avers that the account was opened on behalf of an entity Korey identified as Atlanta Temps, Inc. Korey offered contradictory testimony regarding the opening of the account. In his answer, which was incorporated into his interrogatory responses, Korey stated that the entity that ordered and received the telephone services in dispute was Atlanta Personnel Services, Inc. d/b/a Atlanta Temps. Elsewhere in his interrogatory responses, Korey stated that the account was established for Atlanta Temps, Inc. In a later affidavit, however, Korey stated that he opened the account on behalf of Southern Supplemental Services, Inc., and then transferred the account into Atlanta Temps, Inc.’s name after the two companies merged business operations.

Neither Atlanta Temps, Inc. nor Atlanta Personnel Services, Inc. was in fact incorporated at the time the account was opened. Atlanta Temps, Inc. was subsequently incorporated on August 8, 1986, and Atlanta Personnel Services, Inc. was incorporated on April 19, 1989. Southern Supplemental Services, Inc. was a validly existing corporation at the time the account was opened. BellSouth provided telephone service and submitted bills to Atlanta Temps, Inc. for several years after the account was established. When telephone service was disconnected on July 20, 1992, BellSouth sued Korey for amounts due on the account.

1. BellSouth contends that Korey was personally liable because there was no validly existing corporation at the time he opened the account. If Korey had not contested BellSouth’s contention that he had established the account in the name of Atlanta Temps, Inc., then Korey would not be liable for the telephone charges at issue, as the account was terminable at will and such charges were incurred after the incorporation of Atlanta Temps, Inc. OCGA § 14-2-204 provides that “[a]ll persons purporting to act as or on behalf of a corporation, knowing there was no incorporation under this chapter, are jointly and severally liable for all liabilities created while so acting.” It does not necessarily render an individual liable for all of a corporation’s obligations, but merely those created prior to its actual incorporation. If the creditor believes it is dealing with a corporation, and such corporation is formed after the account was established, the individual is not liable under the statute for debts created after incorporation.

The key factors are the time of creation of the obligation and its terminability. An individual will remain liable even after incorporation for obligations which are created prior to incorporation and are not terminable at will.

If an individual enters into a ten-year lease on behalf of a corporation prior to its actual incorporation, the entire debt would have been created at the time the lease was executed, and the individual would remain personally liable for payments due under the lease notwithstanding the subsequent incorporation. See Wells v. Fay &c. Co., 143 Ga. 732 (85 SE 873) (1915) (individual signor liable on corporate notes executed prior to incorporation, notwithstanding that corporation subsequently undertook to make payments on notes). However, where obligations are terminable at will and the vendor deals with the corporation as a corporation after it has been properly formed, there is no liability on the part of the agent for post-incorporation debts incurred by such corporation. Thus, in this case, BellSouth would not ordinarily be entitled to recover from Korey because it had knowingly done business with Atlanta Temps, Inc. after it was created. See OCGA § 14-2-204.

However, Korey provided contradictory testimony regarding what entity he was acting on behalf of in opening the account, and he did not provide any explanation for the contradictions. Under Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986), such contradictory testimony must be construed against him on a motion for summary judgment. So construed, Korey was acting on behalf of the unincorporated Atlanta Personnel Services, Inc. when he opened the account. As Korey asserts that the telephone service in question was ordered by and provided to Atlanta Personnel Services, Inc., the subsequent incorporation of Atlanta Temps, Inc. cannot relieve Korey from personal liability. Although a company known as Atlanta Personnel Services, Inc. was incorporated several years after the account was established, and assumed the liabilities of Atlanta Temps, Inc., BellSouth was not advised that it was dealing with Atlanta Personnel Services, Inc. as a corporation.

In these circumstances, OCGA § 14-2-204 can impose personal liability on an individual who incurs obligations on behalf of a nonexistent corporation or one which has not been formally created at the time the obligations are created. See Weir v. Kirby Constr. Co., 213 Ga. App. 832 (446 SE2d 186) (1994). In construing OCGA § 14-2-204’s predecessor statute, OCGA § 14-2-23, which was very similar to the current statute, we previously held that, where an account is established on behalf of a non-existent corporation, and purchases are later made on the account by a subsequently formed corporation, the individual who established the account remains liable for such purchases if the creditor has not been advised that it is dealing with the newly formed corporation. See Jones v. Burlington Indus., 196 Ga. App. 834 (397 SE2d 174) (1990); see also Shea v. State Farm Fire &c. Co., 198 Ga. App. 790 (403 SE2d 81) (1991); Carnes v. Mobley’s Tire cfee. Svc., 134 Ga. App. 913 (216 SE2d 703) (1975).

Decided February 26,1997

Reconsideration denied April 2,1997

Mark P. Groves, for appellant.

Thus, Korey remains personally liable for the telephone service charges at issue. This case comes under the rule set forth in Jones, supra, and Korey remains personally liable for post-incorporation charges. In its order, the trial court also found that Korey had personally assumed all liabilities of Atlanta Temps, Inc. pursuant to a written Asset Purchase Agreement. This finding was erroneous, as the Asset Purchase Agreement clearly provided that such liabilities were being assumed by Atlanta Personnel Services, Inc. and not by Korey individually. However, since BellSouth was entitled to summary judgment for the reasons discussed above, the trial court’s order must be affirmed. Where the grant of summary judgment is right for any reason, it will be affirmed. See Smith v. Housing Auth. &c. of Athens, 212 Ga. App. 503, 504 (441 SE2d 847) (1994).

Accordingly, the trial court did not err in granting BellSouth’s motion for summary judgment and denying Korey’s motion for summary judgment.

2. Korey also appeals the trial court’s denial of his motion to add a counterclaim for violation of the Fair Business Practices Act. The decision whether to grant or deny a motion to add a counterclaim is within the discretion of the trial judge, although the court should be liberal in allowing such claims where no prejudice would result. Martin &c. Produce v. Lundy, 197 Ga. App. 38, 39 (2) (397 SE2d 461) (1990).

In the present case, the trial court did not abuse its discretion by denying Korey’s motion to add a counterclaim. Korey’s basis for his counterclaim was an affidavit submitted by BellSouth’s custodian of records and is not the basis for a violation of the Fair Business Practices Act. See OCGA § 10-1-390 et seq.

Judgment affirmed.

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

Strongwater & Cherniak, Leeza R. Cherniak, Jennifer R. Kiser, for appellee.


author: Ruffin, Judge.

text:
    A97A0035.
    MOORE v. THE STATE.
    (485 SE2d 552)
   Ruffin, Judge.

Dennis Moore was arrested for driving under the influence of alcohol (“DUI”), speeding and violating the open container law. He appeared at arraignment without the assistance of an attorney and tendered a plea of guilty to one count of driving under the influence of alcohol, one count of speeding, and one count of violating the open container law, and the State moved to nolle prosequi one count of speeding. Moore was sentenced immediately following a hearing on his plea. He subsequently filed a motion to withdraw his plea, which was denied by the trial court. Moore appeals the denial of the motion to withdraw his plea, alleging the trial court failed to comply with the Uniform Superior Court Rules and that the trial court erred in denying the motion to withdraw his plea. For reasons which follow, we affirm.

1. We find that the trial court properly complied with USCR 33.7, 33.8, 33.9 and 33.11 in accepting Moore’s guilty plea. These rules require the trial court to determine the voluntariness of the plea, inform the defendant of the nature of the charges, the rights he is waiving and the possible sentence on the charges, satisfy himself that there is a factual basis for the plea, and ensure there is a recording of the proceedings. It is clear from the record that the proceedings were recorded and that the trial court determined the voluntariness of Moore’s plea.

While the trial court did not mention during the plea hearing all of the rights Moore was waiving, this Court has previously determined that the trial court is authorized to accept the testimony given by Moore in his “Record of Defendant Prior to Entering a Plea.” See Romano v. State, 220 Ga. App. 322, 323 (3) (469 SE2d 726) (1996). However, the better practice is to discuss every essential right a defendant is waiving, on the record with that defendant. This preprinted form, signed by Moore prior to entering his plea, acknowledges that he understood he was waiving the right to a trial by jury, the presumption of innocence, the right to confront witnesses against him, the right to subpoena witnesses, the right to testify and to offer other evidence, the right to the assistance of counsel during trial, and the right not to incriminate himself. “[T]he question is not whether the trial court followed the letter of [USCR 33.8] but whether the record, as a whole, affirmatively shows [Moore’s] plea was knowing and voluntary. [Cit.]” Johns v. State, 223 Ga. App. 553, 554 (1) (479 SE2d 388) (1996). We find that the record as a whole does affirmatively show that Moore’s plea was knowing and voluntary.

In addition, the record reveals that the trial court heard the factual basis for the plea and determined that it was sufficient. This factual recitation came after Moore admitted that he was, in fact, guilty of the charges. “It is not necessary that a trial court affirmatively state on the record that it is satisfied that a factual basis for defendant’s guilty plea exists as long as there is evidence that the trial court is aware of the factual basis. [Cit.]” Jefferson v. State, 216 Ga. App. 442 (2) (454 SE2d 632) (1995).

2. In two separate enumerations of error, Moore asserts the trial court erred in denying the motion to withdraw his plea. We disagree. “The trial court’s ruling on a motion to withdraw a guilty plea filed after pronouncement of the sentence will not be disturbed on appeal absent an abuse of discretion. [Cit.]” Musgrove v. State, 195 Ga. App. 439 (393 SE2d 704) (1990). Initially, we note that contrary to Moore’s contention, this Court may consider the transcript of his guilty plea hearing. While the trial judge may not have had the actual transcript when he rendered his decision on Moore’s motion to withdraw his plea, he was the same trial judge who initially presided over the plea hearing, ascertained the voluntariness of Moore’s plea, and accepted the plea. Thus, unlike the cases cited by Moore, the transcript does not provide any new or additional evidence not considered by the trial judge in denying Moore’s motion to withdraw his plea.

A review of the transcript of the guilty plea hearing reveals that Moore knowingly and voluntarily entered his guilty plea. The trial court explained the offenses Moore was charged with committing, the maximum sentence for each offense, and that Moore would be giving up many valuable rights, including the right to a trial by jury and the assistance of counsel. Moore indicated he realized the consequences of pleading guilty and that he was freely and voluntarily entering his plea. In addition, in signing a document entitled “Record of Defendant Prior to Entering a Plea,” Moore acknowledged that he was not suffering from any mental or physical disabilities, that he had been advised of the various rights he would be waiving, that the plea was freely and voluntarily entered, and that he understood the consequences of entering the plea.

Moore’s reliance on Vanvelsor v. State, 162 Ga. App. 467 (291 SE2d 772) (1982), for the proposition that it is a manifest abuse of discretion for the trial court to fail to hold a hearing on the motion to withdraw his plea is misplaced. In Vanvelsor, the Court found an abuse of discretion because the trial court refused to even consider the presentence motion to withdraw the plea despite clear evidence that the trial court failed to ascertain whether the defendant knowingly waived the requisite constitutional rights. Id. at 470. In the present case, the record clearly indicates that Moore was aware that he was waiving the requisite constitutional rights, and the trial court did consider Moore’s motion to withdraw his plea and found that the plea was freely and voluntarily entered.

Moreover, “in examining the voluntariness of [Moore’s] plea, the determinative issue is whether the plea represents a voluntary and intelligent choice among the alternative courses of action available to [Moore]. That [Moore] would not have pleaded but for the desire to avoid . . . receiving a longer sentence is not the type of coercion which prevents a plea from being free and voluntary. [Cits.]” Beck v. State, 222 Ga. App. 168, 169 (473 SE2d 263) (1996). We find no abuse of discretion in the trial court’s denial of Moore’s motion to withdraw his plea of guilty to driving under the influence of alcohol and speeding.

3. Moore further raises questions concerning whether he was adequately informed of his right to counsel by the trial court and whether he was deprived of his right to counsel. Pretermitting whether the trial court erred by not adequately investigating Moore’s right to appointed counsel, the record shows that Moore was not sentenced to actual imprisonment and that, therefore, his conviction was not constitutionally invalid.

Moore pled guilty to three misdemeanor offenses: driving under the influence of alcohol, OCGA § 40-6-391, speeding, OCGA § 40-6-181, and violation of the open container law, OCGA § 40-6-253. Warren v. State, 197 Ga. App. 23, 25 (2) (397 SE2d 484) (1990); Ould v. State, 186 Ga. App. 55 (366 SE2d 392) (1988) (physical precedent only); OCGA § 17-10-3. As a result of his plea, Moore was sentenced to 12 months on probation, 48 hours of community service, ordered to pay a fine, and directed to submit to random alcohol and drug screens.

“Although the right to counsel extends to misdemeanor prosecutions where imprisonment may result (Argersinger v. Hamlin, 407 U. S. 25 (92 SC 2006, 32 LE2d 530) (1972)), our Supreme Court has interpreted Argersinger as requiring that a defendant in a misdemeanor criminal prosecution be entitled to counsel only where the defendant is sentenced to actual imprisonment. [Cits.]” Capelli v. State, 203 Ga. App. 79 (1) (416 SE2d 136) (1992). Since Moore’s sentence imposed fines and probation, but did not provide for imprisonment, his conviction is not constitutionally invalid because of the denial of assistance of counsel. Dotson v. State, 179 Ga. App. 233 (3), 234 (345 SE2d 871) (1986).

Moreover, Moore’s claim on appeal that the State coerced him into pleading guilty notwithstanding the fact that the State knew he had an attorney is not substantiated by the record. When questioned regarding the lawyer handling a pending DUI in a different county, Moore testified that he wanted to handle this case himself because he could no longer afford his attorney. Moreover, Moore initialed that portion of the “Record of Defendant Prior to Entering a Plea” acknowledging that he freely and voluntarily waived the benefit of counsel and chose to represent himself in the plea proceeding. Based on the substantial evidence that Moore’s plea was voluntary, we cannot find that the trial court abused its discretion in denying Moore’s motion to withdraw his plea on this ground.

Decided April 2,1997.

Monte K. Davis, for appellant.

Ralph T. Bowden, Jr., Solicitor, W. Cliff Howard, Michael A. Penn, Assistant Solicitors, for appellee.

Accordingly, we conclude that the trial court did not manifestly abuse its discretion in this case. Therefore, we affirm the trial court’s denial of Moore’s motion to withdraw his guilty plea.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.


text:
    A97A0539.
    JOHNSON v. THE STATE.
    (485 SE2d 551)
   Blackburn, Judge.

Eddie Lee Johnson, Jr., appeals his conviction by a jury of aggravated assault, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a felony. He contends that the trial court erred in denying his motion for directed verdict on all counts of the indictment based on the insufficiency of the evidence. We affirm the conviction.

On the afternoon of May 16, 1995, Johnson and some other individuals were gathered on a street corner drinking alcoholic beverages. Johnson was carrying a gun. The victim, Kerry Wilder, refused to let Johnson have a drink of his alcoholic beverage. Shortly thereafter, Johnson shot Wilder in the face, seriously injuring him. Wilder testified that no threats had been made by him or Johnson prior to the sudden shooting. Two other witnesses, Isaiah Gore and Larry Parker, confirmed Wilder’s testimony.

After fleeing the scene, Johnson told Oscar Sanford that he had shot a man in the mouth. Sanford testified that Johnson was holding a gun when he made this admission. Johnson was apprehended and charged shortly thereafter. At trial, he testified that an unidentified boy shot Wilder after Wilder sold the boy drugs.

“A directed verdict of acquittal is proper only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. OCGA § 17-9-1 (a). On appeal we must view the evidence in the light most favorable to the verdict, [Johnson] no longer enjoys the presumption of innocence, and we do not weigh the evidence nor judge the credibility of the witnesses. Further, we do not speculate which evidence the jury chose to believe or disbelieve.” (Citation and punctuation omitted.) Hyman v. State, 222 Ga. App. 419, 421 (1) (474 SE2d 243) (1996).

Decided April 2,1997.

Josephine B. Jones, for appellant.

Charles H. Weston, District Attorney, Thomas J. Matthews, Assistant District Attorney, Michael J. Bowers, Attorney General, for appellee.

“A conviction based on the offense of aggravated assault requires proof of two essential elements: (1) an assault, as defined in OCGA § 16-5-20, and (2) aggravation by use of a deadly weapon. The relevant [element] of assault under OCGA § 16-5-20 [is] an attempt to commit a violent injury to the person of another.” (Citation omitted.) Black v. State, 222 Ga. App. 80, 81 (1) (473 SE2d 186) (1996). Johnson committed a violent injury to Wilder by shooting him in the face with a handgun.

The conviction for possession of a firearm during the commission of a felony is supported by the same evidence as the conviction for aggravated assault. As aggravated assault is a felony, see OCGA § 16-5-21 (b), there was evidence that Johnson committed aggravated assault with a handgun. The parties stipulated to the jury that Johnson, who was convicted of murder in 1972, was a convicted felon.

The evidence was sufficient to find Johnson guilty under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and therefore the court did not err in failing to direct the verdict on any count.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


text:
    A97A0739.
    HARKNESS v. THE STATE.
    (485 SE2d 810)
   Blackburn, Judge.

Gregory Paul Harkness appeals his convictions of rape, burglary, and two counts of aggravated sodomy. On appeal, Harkness contends that the trial court committed several errors regarding evidence, testimony and jury selection, that the trial court should have granted his motion for directed verdict, and that his trial counsel was ineffective.

1. Harkness contends the trial court erred in denying his motion for directed verdict. The standard of review of the denial of a motion for directed verdict of acquittal is the “reasonable doubt” test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). West v. State, 218 Ga. App. 341, 342 (461 SE2d 300) (1995).

Viewed in the light most favorable to the verdict, the evidence introduced at trial indicated that Harkness and the victim had been previously married, but were divorced on May 17, 1994, almost six months prior to the acts in question. On November 4, 1994, the victim was awakened in her bed by a hand being placed over her mouth and a hand hitting her head. The victim was unable to see who was in the room with her, but she sensed it was Harkness. Harkness tied her hands behind her back, put a blindfold over her eyes, and cut her T-shirt off her body. The victim testified that her vagina was penetrated with the intruder’s penis, that the intruder’s penis came into direct contact with her mouth and anus, and that these acts were accomplished without her consent and against her will. She further testified that Harkness did not have permission to come into her house on November 4, 1994.

The victim testified that she thought the intruder was Harkness due to the intruder’s behavior that was consistent with behavior Harkness displayed during their marriage, to wit: the way the intruder popped her on the head; the intruder’s use of the fan to blow air across the bed during sexual acts; turning on the lights during sexual acts; the way the intruder checked her heart rate; and the way the intruder placed a pillow under her head when she could not breathe. The victim further testified that prior to trial Harkness offered her money if she would change her story.

Dennis Stewart testified that Harkness asked Stewart to provide him with a semen sample to give to the police for its investigation in this case. Harkness turned Stewart’s, semen sample over to the police as if it was his own semen sample. Tommy Chastain testified that Harkness asked him to make threatening phone calls to the victim, which he did. Harkness was present when the calls were made, and he told Chastain what to say. Harkness arranged for the police to wiretap his phone due to harassing phone calls he was receiving. Harkness then arranged for Chastain to call his home and admit to raping the victim.

Although Harkness did not admit to committing the crimes charged, he incriminated himself in his statement to police. Harkness stated, “[i]f I tell you, I know I’ll get twenty years, five to twenty, and I will not see my son, Joshua, for a long time. I cannot do that right now. . . . If I talk to Jane and Jane doesn’t want to prosecute me, the state will prosecute me. I know that. This is going to kill my mother and father. I do not need to go to jail right now.” In response to a question about what he did with the other part of the pillowcase used to tie the victim’s hands, Harkness replied that he could not remember what he did with it.

Based on the foregoing, we conclude that a rational trier of fact could have found Harkness guilty beyond a reasonable doubt of the crimes charged. See Jackson v. Virginia, supra. The trial court did not err in denying Harkness’s motion for directed verdict.

2. Harkness contends that his trial counsel was ineffective. However, Harkness failed to secure his trial counsel’s testimony at the motion for new trial. Although Harkness had a subpoena issued to secure his trial counsel’s attendance at the motion for new trial, he attempted to serve it by certified mail. Proof of service of a subpoena served in this manner requires the filing of the signed return receipt with the court, and same is not in the record. See OCGA § 24-10-23. Therefore, only those matters which relate to alleged errors made during the course of the trial as shown by the transcript can be reviewed. See Bowman v. State, 222 Ga. App. 893, 899 (6) (476 SE2d 608) (1996).

Harkness’s assertions of his trial counsel’s failure to interview certain witnesses cannot be reviewed without his trial counsel’s testimony or other proof of the conduct of trial counsel and the reasons therefor. See id. Additionally, Harkness’s contention that his trial counsel failed to consult an expert cannot be reviewed. Harkness’s remaining contentions regarding his trial counsel’s ineffective representation relate to his failure to file any motions or jury charges on Harkness’s behalf. However, Harkness neither shows what motions or charges should have been filed nor does he address what harm was caused by the lack of motions and jury charges. “To establish a claim of ineffective assistance at trial requiring reversal of a conviction, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense.” Lakes v. State, 266 Ga. 389 (2) (467 SE2d 566) (1996).

Harkness’s failure to show what prejudice was caused by his trial counsel’s failure to file motions or jury charges is fatal to his claim of ineffective assistance of counsel. The trial court correctly denied Harkness’s motion for new trial on this ground.

3. Harkness contends the trial court erred by allowing audio tapes to be sent out with the jurors for use during their deliberations.

The State concedes that it was error for the tapes to be sent out with the jury, but contends that there is no evidence that the jury actually played the tapes in the jury room. Under these facts, it would be presumed that the jury would have reviewed all the “evidence” in accordance with the trial court’s instructions, and this argument is without merit.

It is clear that the trial court erred in allowing the audio tapes to go out with the jury during their deliberations. “The jury should not be permitted to take with them for consideration in the jury room, depositions, dying declarations, confessions or written statements of the defendant, or other instruments of evidence depending for their value on the credibility of the maker. Such written testimony may have an unfair advantage over oral testimony by speaking to the jury more than once.” (Citation and punctuation omitted.) Elliott v. State, 168 Ga. App. 781, 786 (4) (310 SE2d 758) (1983). Similarly, audio recordings should not be allowed in the jury room for use during deliberations. Id. at 787.

“However, the question remains whether this act was harmful error requiring a reversal and a new trial. This court has adopted the highly probable test when determining if an error is harmless. If it is highly [probable] that the error did not contribute to the judgment then the error is harmless.” Owens v. State, 248 Ga. 629, 631 (284 SE2d 408) (1981).

Based on the strength of the evidence against Harkness, as discussed in Division 1 above, we conclude that the playing of the audio tapes in the jury room did not contribute to the verdict and was, therefore, harmless error.

4. Harkness contends that the trial court erred in allowing a juror to spend time alone. After deliberations had begun, the jury sent a note to the trial court which stated: “We have one juror who needs to be alone for about fifteen minutes. Is this possible?” The trial court informed the jury as follows: “There is a room outside your jury room, but before you come into the courtroom. The door is to the left as you come out of the jury room. The juror in question can go into this room for fifteen minutes. The foreman shall ensure that the time will not exceed fifteen minutes. However, during the time this juror is out of the presence of the other jurors, the remaining jurors cannot discuss this case.”

The rule in Georgia is that “where there has been an improper separation of the jury during the trial, the prisoner, if found guilty, is entitled to the benefit of the presumption that the irregularity has been hurtful to him; and the onus is upon the State to show, beyond a reasonable doubt, that the defendant has sustained no injury on account of the separation.” (Citation and punctuation omitted.) Richmond v. State, 210 Ga. 403, 404 (80 SE2d 178) (1954).

In the present case, the trial court went to great lengths to ensure that the separated juror would be alone and kept away from any outside influence. The juror was allowed to go into a room that contained only a chair, some equipment and a couple of blank chalk boards. The room was in the same area as the jury deliberation room, so that the juror was not allowed out in the open. Furthermore, prior to the juror’s separation, Harkness had no objection to the manner in which the juror was separated; he objected solely to the fact of the separation.

This case is controlled by Richmond, supra, where the Supreme Court of Georgia determined that no error occurred upon a jury member’s separation where there was no “opportunity for injury to the defendant.” (Emphasis in original.) Id. at 405 (1). The Court determined that “a mere trifling and immaterial irregularity in the conduct of a juror will not require the grant of a new trial.” Id. Therefore, the trial court did not err in denying Harkness’s motion for new trial on this ground.

5. Harkness enumerates as error the trial court’s refusal to excuse a potential juror for cause. During voir dire, a potential juror responded that her brother was in law enforcement in Rockdale, South Carolina. Thereafter the following colloquy took place: “Q. Would that affect your ability to be fair and impartial in this case? A. No. Q. You hesitated? A. I mean I have heard my brother, you know, tell stories about things that have happened to him as a police officer, but I’m not with him that often, since he is in South Carolina. Q. You don’t think you’d believe a police officer’s testimony over another witness just because he’s a police officer, do you? A. I would have to say honestly yes, I would. Q. So you’re saying that would affect your ability to be fair and impartial in this case, is that correct? A. As much as I wouldn’t want it to be, I think it would, knowing my brother as a police officer and hearing his side more than any other side, I think I would tend to believe.”

Whereupon Harkness’s counsel moved to disqualify the juror, and the trial court asked: “Ms. Ethelstone, my question is this: Your brother is a law enforcement officer, and you have stated that because of that you probably would be more inclined to believe law enforcement officers than others. Is that a correct statement of what you said?” “[A.] I think I would tend to. [Q.] Tend to, all right. [A.] Yeah. I can’t say positively I would. I guess I have heard more stories from a police officer than I have of any other criminal. I’ve never really talked to a criminal, and I’ve only heard the police officer’s side. [Q.] Right. All right now, the question I want to ask you is: Despite of what you have told me, and again, these are very difficult questions, but only you can answer them, and we need to know what your attitude about this particular matter is. Despite that, could you fairly consider all of the evidence that’s presented, coming from police officers as well as other witnesses — consider fairly all of the evidence and render an impartial verdict by applying the evidence to the Court’s charge, regardless of who the witnesses were? Do you understand that question? [A.] Yes, sir, I do. [Q.] What’s your answer to that? [A.] Yes, I could.”

Decided April 2,1997.

Bruce S. Harvey, David S. West, for appellant.

Michael H. Crawford, District Attorney, Earnest J. McCollum, Assistant District Attorney, for appellee.

“Before a juror can be disqualified for cause, it must be shown that an opinion held by the potential juror is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence.” Johnson v. State, 262 Ga. 652, 653 (2) (424 SE2d 271) (1993). In the present case, while the juror did express some concern over whether she would believe a police officer’s testimony more than someone else’s testimony, she did inform the judge that she could fairly consider all the evidence and render an impartial verdict. Therefore, while the better practice would be to excuse such a juror for cause, the facts here do not require such action. See id.

6. Harkness contends the trial court erred by allowing the admission of hearsay testimony. We cannot agree. The statements complained of either explained the officer’s conduct in the continuing investigation, see Teague v. State, 252 Ga. 534 (314 SE2d 910) (1984), or were prior statements made by witnesses present at trial, under oath, and subject to cross-examination. See Moak v. State, 222 Ga. App. 36, 41 (473 SE2d 576) (1996). The trial court did not err in admitting the statements over Harkness’s hearsay objections.

7. In his final enumeration of error, Harkness contends the trial court erred in allowing the State’s expert to testify to his opinion based upon matters not in evidence. Contrary to Harkness’s position, the State’s expert properly testified as to his opinion based upon the data gathered by another where he was the supervisor of the report maker and he checked the procedures for correctness. See Brown v. State, 206 Ga. App. 800 (427 SE2d 9) (1992). Therefore, the trial court did not err in denying Harkness’s motion for new trial based upon this ground.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


author: Eldridge, Judge.

text:
    A97A0806.
    SHERMAN v. THE STATE.
    (485 SE2d 557)
   Eldridge, Judge.

Appellant James Sherman was charged in a five-count indictment with the offenses of armed robbery (Count 1), possession of a firearm during the commission of certain felonies (Count 2), armed robbery (Count 3), possession of a firearm during the commission of certain felonies (Count 4), and possession of a firearm by a convicted felon (Count 5). Counts 1 and 2 arose out of the alleged armed robbery of a Smile Gas Station, Inc., and Counts 3 and 4 arose out of the alleged armed robbery at a Crown-Fast Fare, Inc. (“Crown-Fast Fare”) convenience store. Both armed robberies occurred on September 25, 1994, in Richmond County.

1. Appellant contends that the trial court erred in failing to direct a verdict because appellant’s identity as the perpetrator of the crimes in Counts 3 and 4 of the indictment had not been proven beyond a reasonable doubt.

“A directed verdict of acquittal is proper only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. OCGA § 17-9-1 (a). On appeal we must view the evidence in the light most favorable to the verdict, [Sherman] no longer enjoys the presumption of innocence, and we do not weigh the evidence nor judge the credibility of the witnesses. Further, we do not speculate which evidence the jury chose to believe or disbelieve.” (Citations and punctuation omitted.) Thompson v. State, 210 Ga. App. 655, 656 (436 SE2d 799) (1993).

In the case sub judice, the following evidence was shown. Dye, who was employed by the Crown-Fast Fare convenience store the night of the armed robbery and was the victim of such offense, gave the deputy sheriffs who responded to the call a description of the perpetrator. Dye described the perpetrator as being 5'10" or 5'11" tall and weighing 160 pounds; appellant’s height is approximately 6'1", and appellant weighs considerably more. However, Dye testified at trial that he stands on an eight-inch platform behind the counter and that it was hard to judge heights “when you’re looking down.”

Four days after the armed robbery of the Crown-Fast Fare convenience store, Dye was requested by the sheriff’s department to look at some mug books in order to try and identify the man who had robbed him at gunpoint. Dye was unable to pick out a photograph of the individual who had robbed him, but was able to pick out an individual who resembled the individual so closely “he could have been his brother.” Dye testified that he was aware at the time that the individual he had picked out was not the perpetrator of the crime, but only someone who looked very similar to the perpetrator.

On March 6, 1995, the sheriff’s department asked Dye,to view a photographic lineup in order to attempt to identify the perpetrator. Dye picked out two individuals who he thought could have been the perpetrator, one of whom was the appellant.

At trial, Dye was able to identify the appellant as the perpetrator of the crime with “99 percent certainty.” Dye further testified that the picture he was shown during the photographic lineup was not “that great a picture of him,” and that both the individuals he picked out “had a long face, and they both [were] about the right age and about the same build”; however, it was clear to Dye, with 99 percent certainty, that the appellant was the perpetrator when he actually saw the appellant in person. Further, Dye testified that he saw the perpetrator come in the door of the store and went up to meet him; that the perpetrator went back to the beverage cooler, got a Pepsi, and came back up to the cash register; that even though he only saw the perpetrator’s face briefly, the perpetrator was not wearing a mask and he had a clear view of his face. Dye then testified that, when he looked back up after he rang up the sale, the appellant had a gun pointed at him and directed him to open the register and lie down on the floor. Dye testified that after he lay down on the floor, the appellant took money from the register, as well as his wallet, and left the store.

Thus, the trial court did not err in denying appellant’s motion for directed verdict, as the evidence in the case sub judice is more than sufficient for a rational trier of fact to have found that appellant was, in fact, the perpetrator of Counts 3 and 4, and guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant next alleges that the trial court erred in denying appellant’s motion for new trial, based on the trial court’s denial of his motion in limine to disallow an in-court identification by Dye.

Appellant argues that because Dye was unable to accurately describe the perpetrator to the police and identify the appellant in a photographic lineup, any in-court identification would be analogous to a one-person pretrial lineup and would have to meet the criteria set forth in Pack v. State, 182 Ga. App. 618 (356 SE2d 557) (1987), which sets forth the test to determine if the pretrial identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification at trial. We disagree.

“Because pretrial identification procedures occur beyond the immediate supervision of the court, the likelihood of misidentification in such cases increases, and courts have required that pretrial identification procedures comport with certain minimum constitutional requirements in order to insure fairness.” (Citations and punctuation omitted.) Id. at 619. In order to ensure that such minimum constitutional requirements are met, the Supreme Court of the United States has established a two-part test. See Goswick v. State, 150 Ga. App. 279 (257 SE2d 303) (1979). Such two-prong test is to ensure that the victim of the crime has some independent basis for the in-court identification of the perpetrator other than a pretrial identification which was tainted in some fashion so as to make it impermissibly suggestive. However, in such analysis, the “taint” must come from the method used in the pretrial identification procedures.

Appellant has not suggested that there was any “taint” that would make the pretrial identification impermissibly suggestive, but has argued just the opposite, i.e., that the pretrial identification procedures were proper, and because the victim could not make a precise identification of the appellant as the perpetrator during these procedures, his in-court identification should somehow be declared “impermissibly suggestive.” This reverse logic is simply not the law of this state. See Neil v. Biggers, 409 U. S. 188, 189 (93 SC 375, 34 LE2d 401) (1972).

In-court identifications always occur as “one man” identifications. Any inconsistency in the victim’s in-court identification of the perpetrator and his pretrial identifications go only to the weight and credibility of his identification in court; such evidence is for the jury to weigh. Lowe v. State, 185 Ga. App. 606 (365 SE2d 479) (1988). Therefore, no error was committed by the trial court in allowing the victim to make an in-court identification of the appellant, and the “ ‘highly probable test,’ i.e., that it is highly probable that the error did not contribute to the judgment,” set forth in Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976) need not be reached.

3. In his final enumeration of error appellant alleges that the trial court erred in denying his amended motion for new trial which raised the issue of ineffective assistance of counsel. We disagree.

“A defendant bears the burden of establishing that his trial counsel’s performance was deficient and the deficiency prejudiced bis defense to the extent that there was a reasonable probability the result of the trial would have been different but for defense counsel’s unprofessional deficiencies. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590) (1987). The trial court’s finding of effectiveness must be upheld unless clearly erroneous. Powell v. State, 210 Ga. App. 409, 414 (6) (c) (437 SE2d 598) (1993). A reviewing court need not address both components of an ineffective assistance of counsel claim if the appellant makes an insufficient showing of one. Thompson v. State, 191 Ga. App. 906 (1) (383 SE2d 339) (1989).” Capers v. State, 220 Ga. App. 869, 871 (470 SE2d 887) (1996).

The only claim appellant sets forth as demonstrating ineffective assistance of counsel is his trial counsel’s statement when the trial court directed him to call his first witness; counsel stated, “[y]our Honor, Mr. Sherman, after hearing the evidence, has decided not to testify.” The appellant did not put up any evidence. Clearly, this was trial strategy on the part of counsel. Counsel’s statement consisted of a free extra argument to the jury, and implicit within such statement was the implication that the appellant was ready, could put up evidence, but chose not to do so, because the defense felt that the State had failed to prove the appellant’s guilt beyond a reasonable doubt. Such tactical choice was not so clearly erroneous as to be ineffective. Stewart v. State, 262 Ga. 894, 895 (2) (426 SE2d 367) (1993).

Decided April 2,1997.

Stanley C. House, for appellant.

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

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A97A0807.
    HASELRIG v. THE STATE.
    (485 SE2d 555)
   Blackburn, Judge.

Derricus Haselrig appeals his convictions of selling cocaine and selling cocaine within 1,000 feet of a housing project. On appeal Haselrig contends that the trial court erred in failing to grant his motion for continuance and that his trial counsel was ineffective.

1. Haselrig contends that the trial court erred in denying his motion for a continuance. Haselrig’s counsel attempted to object to the all white venire panel from which he was required to select a jury. However, OCGA § 15-12-162 requires that such a motion be in writing, and the trial court denied Haselrig’s motion.

After selecting jurors, the trial court recessed for lunch. Upon return from lunch, Haselrig’s counsel again objected to the composition of the jury panel. Haselrig’s counsel requested a continuance to prepare the motion, which the trial court also denied.

“A motion for continuance is addressed to the sound discretion of the trial court, and this court will not interfere unless it is clearly shown that the court abused its discretion. OCGA § 17-8-22.” (Citations and punctuation omitted.) Kennedy v. State, 217 Ga. App. 18 (1) (456 SE2d 288) (1995). We cannot say that the trial court abused its discretion, especially considering the timing of the lunch recess which would have provided counsel with the opportunity to write the required motion.

2. Haselrig argues for the first time on appeal that his trial counsel was ineffective. “In order to preserve the issue of trial counsel’s effectiveness for appellate review, a claim of ineffective assistance of counsel must be determined by means of an evidentiary hearing at the earliest practicable moment. Where the issue of ineffectiveness of counsel is raised for the first time on appeal, the case must be remanded to the trial court for an evidentiary hearing on the claim.” (Citations and punctuation omitted.) Id. at 19 (2). Accordingly, we remand this case to the trial court for such a hearing.

Decided April 2,1997.

Aldous D. McCrory, for appellant.

Stephen F. Lanier, District Attorney, Leigh E. Patterson, Assistant District Attorney, for appellee.

Case remanded with direction.

Pope, P. J., and Johnson, J., concur.


text:
    A95A0915, A95A0916.
    McCAUGHEY v. MURPHY; and vice versa.
    (485 SE2d 511)
   Johnson, Judge.

Joseph M. Murphy and Thomas K. McCaughey, two New York residents, formed Boxwood Associates (“Boxwood”), a Georgia limited partnership, in order to acquire, rehabilitate and operate the historic Lamar Building in Augusta, Georgia. After the venture failed, Murphy and McCaughey disputed who was responsible for certain debts. Murphy sued McCaughey to recover funds Murphy allegedly expended to fulfill partnership obligations which Murphy claimed that McCaughey, as general partner, had obligated McCaughey and the partnership to pay. Murphy’s lawsuit, as amended, sought damages totaling millions of dollars and asked for an accounting pursuant to OCGA § 14-8-22. McCaughey countercláimed against Murphy. The trial court then appointed an auditor to investigate all of the facts raised by the pleadings and the evidence and to make a report to the court pursuant to OCGA § 9-7-8.

The court-appointed auditor filed four separate reports and reviewed hundreds of pages of documents. The auditor ultimately determined that only Murphy was entitled to relief. He concluded that McCaughey was indebted to Murphy for 20 percent of the operating costs Murphy incurred after 1986. The auditor also determined that McCaughey was unjustly enriched at Murphy’s expense.

The record discloses the following. From Boxwood’s inception in late 1983 until October 7, 1987, McCaughey was the sole general partner, and Murphy and McCaughey were the only limited partners. During that time, McCaughey owned a fraction greater than a 50 percent interest in Boxwood, and Murphy owned the balance. On October 7, 1987, Murphy also became a general partner.

From the beginning, McCaughey and Murphy intended to finance the project with tax-exempt industrial revenue bonds and not their own funds. The first bonds were issued in December 1983 for $5.4 million. Bank of America required personal guarantees by both Murphy and McCaughey before it would release the bond proceeds.

• By mid-1986, the project was experiencing severe financial problems. In July 1986, James Troutman, the project manager, projected a $3.35 million shortfall in funds available for the renovation. According to McCaughey’s testimony, at this point he advised Murphy he would not be responsible for any future funding of the project and wanted out of the partnership. McCaughey asserted the reason that he remained as a partner, however, was to assist with another tax-exempt bond issue to meet the projected shortfall.

It is undisputed that McCaughey did not comply with the partnership provisions for resignation and withdrawal. Notwithstanding McCaughey’s claim that he remained as general partner to benefit Boxwood, the auditor determined that McCaughey remained as general partner in order to avail himself of approximately $200,000 in personal tax savings. Despite McCaughey’s purported reluctance to continue with the project, he remained Boxwood’s sole general partner incurring further obligations on its behalf. McCaughey continued to represent Boxwood and bound the partnership and himself and Murphy to complete the renovation even if funds from the bond proceeds were insufficient.

In December 1986, through Citibank, an additional $3.6 million in tax-exempt bonds were issued to finance the completion of the project. The repayment of these bonds was guaranteed by a Citibank letter of credit, which in turn was guaranteed by Murphy, McCaughey, and Wayside Associates, a New York limited partnership. Citibank required personal guarantees from McCaughey and Murphy. Both jointly and severally guaranteed any indebtedness to Citibank and guaranteed Boxwood’s obligations including the provision in the loan agreement requiring the project’s completion. The Citibank letter of credit was secured by collateral pledged by Murphy and McCaughey.

As Boxwood floundered, Murphy infused additional funds which went largely unmatched by McCaughey. In May 1987, Drexel, Burn-ham, Lambert Realty, Inc. (“DBLR”), a management company owned and controlled by Murphy, began funding the operation rather than Boxwood drawing down additional proceeds from the second bond issue. From January 1988 through June 1988, DBLR made advances to operate Boxwood. McCaughey claims DBLR did so without his permission. The auditor traced advances totaling $2,361,799 directly and indirectly to Murphy.

On April 21, 1988, Bank of America extended the letter of credit on the original $5.4 million bond issue with Murphy as the sole guarantor. After McCaughey refused to agree to renew as a guarantor, Bank of America consented to his release. The renovation and operation of the building proved unsuccessful. After the project collapsed, Boxwood defaulted on its obligations to the bond holders, and thus, to Bank of America and Citibank. Bank of America foreclosed on the Lamar Building in 1989 and reached a settlement with Murphy. Bank of America released Murphy from all liability except for one-half of any funds he recovered from McCaughey in his lawsuit and payment of $100,000. Citibank foreclosed on all assets held as security under its letter of credit, the $125,000 placed as security by McCaughey and about $1,100,000 of Murphy’s personal assets.

In his final report, the auditor determined that McCaughey owed Murphy more than half a million dollars. The trial court adopted the auditor’s findings then entered judgment against McCaughey, awarding Murphy $632,334. McCaughey directly appealed from the trial court’s judgment, and Murphy cross-appealed.

This Court dismissed McCaughey’s appeal and Murphy’s cross-appeal for failure to follow discretionary procedures. The Supreme Court reversed after it decided that the auditor’s report contained only factual findings thus making the judgment of the superior court directly appealable. McCaughey v. Murphy, 267 Ga. 64 (473 SE2d 762) (1996). We therefore reinstate both appeals for consideration on their merits. Held:

1. Dismissal orders previously entered are hereby vacated in both Case Nos. A95A0915 and A95A0916.

Case No. A95A0915

2. McCaughey’s sole enumeration of error is that the trial court erred in accepting the auditor’s report and entering judgment against him. McCaughey contends that the theories of liability stated by the auditor are contrary to the pleadings, not supported by any facts, and are invalid as a matter of law.

The threshold question is whether an auditor seeking to allocate responsibility between two partners is free to disregard the partnership agreement and award damages based on a percentage of ownership not provided by the partnership agreement. From Boxwood’s inception until October 7, 1987, McCaughey was the sole general partner and owned more than 50 percent of the partnership. The partnership documents required McCaughey and Murphy’s mutual agreement on the terms of a withdrawal by McCaughey or any reduction in McCaughey’s interest in Boxwood. Because the auditor assumed that the parties intended to reduce McCaughey’s partnership percentage at some future time, he arbitrarily reduced McCaughey’s interest from slightly more than the 50 percent the Boxwood agreement provided to a 20 percent interest. After reducing McCaughey’s partnership interest, the auditor correspondingly reduced McCaughey’s liability to 20 percent. Having assumed McCaughey was liable only for 20 percent of the project from 1986 to the time of foreclosure, the auditor calculated that McCaughey owed Murphy $632,334.

For different reasons, both Murphy and McCaughey contend this finding is wrong. Neither, however, claims that the partnership agreement is not valid and enforceable. We find that because the partnership agreement does not permit the unilateral withdrawal of a partner, there is no basis for the auditor’s conclusion that McCaughey could have withdrawn from the partnership whenever he desired. Similarly, McCaughey’s liability could not be altered without complying with the terms of the partnership agreement. When contracts are clear and unambiguous, they must be enforced according to their terms. Johnston v. Almand, 213 Ga. App. 553, 555 (2) (b) (445 SE2d 347) (1994); see Sayles v. Brown, 178 Ga. App. 755, 758 (1) (344 SE2d 539) (1986) (trial court not at liberty to revise a contract under the guise of construing it).

An auditor’s factual findings having the approval of a trial court must be affirmed if there is any evidence to support them. See Walls v. Savage, 243 Ga. 198, 199 (1) (253 SE2d 183) (1979). Here, the evidence fails to support the findings because the auditor erroneously assumed the partnership agreement did not control the parties’ relationship. Accordingly, the trial court’s judgment adopting the auditor’s findings must be reversed.

Case No. A95A0916

3. Murphy claims the trial court erred in failing to recognize his right of contribution against McCaughey, as co-guarantor for advances required by several agreements. The auditor found Boxwood had multiple obligations. In 1987, there were contractual obligations with Bank of America, Citibank, the local development authority, and McCrory Construction Company. According to the Citibank guaranty, Murphy, McCaughey and Wayside Associates, a New York limited partnership, were jointly and severally liable to the bank and were contractually obligated to ensure the project’s completion. Also, according to the “Building Review Agreement” between Bank of America and Boxwood signed in January 1985, the borrower agreed to provide funds from sources other than the bonds in the event that project costs exceeded bond proceeds. The auditor determined that both partners, “with fully [sic] knowledge, contributed cash, pledged personal assets and guaranteed debts of the partnership.” Plainly, based on several agreements, both Murphy and McCaughey were contractually obligated to complete the project and were both bound to provide the funds from sources other than the bonds if necessary. See generally Nannis Terpening & Assoc, v. Mark Smith Constr. Co., 171 Ga. App. Ill, 115 (1) (318 SE2d 89) (1984); compare Westminster Properties v. Atlanta Assoc., 250 Ga. 841, 842-843 (1) (301 SE2d 636) (1983).

McCaughey incorrectly claims that according to the terms of the partnership agreement, his consent was necessary in order for him to be obligated. As general partner, McCaughey was “jointly and severally liable for all debts, obligations, and liabilities of the partnership.” OCGA § 14-8-15 (a); see Kochis v. Mills, 233 Ga. 652 (212 SE2d 823) (1975). See also OCGA § 23-2-71. Even assuming Murphy lacked the authority to obligate McCaughey for particular loans Murphy made to the partnership, McCaughey, as general partner, already had personal liability for the obligations of the partnership to other entities. According to the Citibank documents, both partners had personal liability. The auditor found that Murphy and DBLR supplied funds “within the normal course of business and in compliance with partnership obligations.” The auditor determined that Murphy or DBLR advanced $2,361,799 to pay Boxwood’s obligations between May 28, 1987 and September 15, 1988.

Where several persons guaranty the same principal by one or more distinct instruments and one person pays more than an equal share of the sum, he may compel contribution from his co-guarantor under OCGA §§ 10-7-1 and 10-7-50; Dever v. Lee, 188 Ga. App. 483, 486 (3) (373 SE2d 224) (1988). The record clearly indicates Murphy paid substantially more than McCaughey when both were equally bound on the same instruments. Accordingly, we remand for a determination by the trial court of the amount of contribution McCaughey owes to Murphy for valid partnership obligations paid by Murphy pursuant to the Citibank obligations up to the date of foreclosure. We also remand for a determination by the trial court as to whether Murphy properly expended any other amounts on behalf of the partnership pursuant to partnership obligations and for which McCaughey was responsible as general partner or under any contractual agreement.

4. Based on the above holding, Murphy’s remaining enumerations are moot.

Dismissals vacated. Judgments reversed and cases remanded with direction.

Birdsong, P. J., and Smith, J., concur.

Decided March 6,1997

Reconsideration denied April 3,1997.

Hull, Towill, Norman & Barrett, David E. Hudson, for appellant.

Fulcher, Hagler, Reed, Hanks & Harper, James W. Purcell, Elizabeth McLeod, for appellee.