text:
    A99A0626, A99A0627.
    PARKS v. MULTIMEDIA TECHNOLOGIES, INC. et al.; and vice versa.
    (520 SE2d 517)
   Ruffin, Judge.

These cases are cross-appeals following the trial court’s decisions on motions for summary judgment. For reasons that follow, we affirm in part and reverse in part the rulings below.

Around 1991, Beverly Sigmond Parks conceived the idea of placing outdoor advertising on the roof of the MONY building at 1655 Peachtree Street in Atlanta. Parks met with a representative of JMB Investment Corporation (JMB), the owner of the building, to negotiate the right to use the space. In January 1992, Parks entered into an agreement with JMB granting him a six-month option to lease the rooftop for five years at a fixed price.

Parks approached Taz L. Anderson, Jr. in an effort to obtain support for the venture. Parks assigned to Signage Consultants, L.P., a partnership controlled by Anderson, an option to acquire a 50 percent interest in his MONY rooftop lease option. Parks and Anderson then formed a new entity, Signage Technology, Inc. (STI), whose shares were owned 50 percent by Parks and 50 percent by Anderson’s wife and children. Parks was President of STI, Anderson was Treasurer, and both served as directors. Parks and Anderson assigned to STI their respective rights to the MONY lease option, and STI entered into two leases with JMB for space on the roof of the MONY building, as well as office space inside the building. STI later entered into a third lease with JMB for advertising space on the north exterior wall of the MONY building.

Parks claims that, as part of their business arrangement, Anderson agreed to “provide the necessary start-up funds for the enterprise through the time that the [project] began to generate income.” Anderson disagrees, asserting that the parties’ only financing agreement is contained in a written contract dated January 10, 1992, under which Anderson agreed to pay “the normal expenses” to “secure a permit to erect” an advertising sign on the MONY roof. The contract specifies no further obligations on the part of Anderson. Over the next 11 months, however, Anderson invested almost $100,000 of his money in STI.

After securing the leases, Parks and Anderson began working to obtain permits, install a sign, and find advertisers. Anderson claims that Parks’ original idea for expanding existing signage on the rooftop was unworkable and that potential advertisers demanded a larger sign. Accordingly, Anderson hired architects to design a new concept for the MONY rooftop called the “Peachtree Spectacular,” a large, peach-shaped structure that sits atop a three-sided signboard. Anderson paid the architects with checks drawn on STI’s account. Because of the delay associated with implementing the new design, Anderson negotiated an amendment of the rooftop lease with JMB, under which STI would pay a monthly extension fee of $1,000 until it received a permit to build the new sign, at which point it would resume regular lease payments. In January 1993, the City of Atlanta awarded STI the requisite permits. In early February 1993, STI made a $1,000 rental payment to Jalex Investment & Development Corporation (Jalex), the manager of the MONY building. On February 18, 1993, Jalex notified STI that it was in default under the leases. No further payment was made. On March 4,1993, Jalex notified STI that the leases were terminated. The next day, JMB entered into new leases for space at the MONY building with Multimedia Technologies, Inc. (Multimedia), a corporation recently formed and controlled by Anderson. According to Parks, Multimedia went on to enter into lucrative advertising contracts for the MONY rooftop and north wall. Multimedia also arranged for the construction of a similar peach sign atop the IBEW building in Atlanta and is profiting from rental of that advertising space.

Parks asserts that Anderson embarked on a deliberate campaign to force him out of the enterprise. He claims that Anderson neither consulted him nor obtained his approval to develop the peach design, obtain the building permit for it, or hire the architects, as required by the STI shareholder agreement. Parks asserts that the development of the peach sign was unnecessary to attract advertisers. According to Parks, Anderson marketed STI’s MONY peach design for use on other buildings on behalf of Signage Consultants, Multimedia, and Taz L. Anderson Realty Company (Realty Company), another entity controlled by Anderson. Parks charges that Anderson induced the architects to copyright the drawings for the “Peachtree Spectacular” design in the name of Multimedia, rather than STI.

Parks further claims that Anderson “orchestrated a bogus default” of the MONY leases by deliberately failing to make sufficient payments, even though STI had the funds to do so. According to Parks, when he learned the leases were in default, he demanded to see STI’s corporate and financial records, but Anderson would not produce them. Parks claims that Anderson did not consult him about the default and did not notify him of the termination of the leases until March 10, 1993 — after Multimedia had already entered into new leases with JMB. Finally, Parks asserts that Multimedia’s use of the peach design on the MONY and IBEW buildings constitutes misappropriation of STI’s corporate resources.

Anderson’s version of events is quite different. He claims that he expended considerable resources to bring the MONY project to fruition and that Parks’ involvement was minimal. Anderson does not deny that he failed to seek Parks’ approval for changing the sign concept, hiring the architects, or getting the permits, but he contends that Parks was unavailable for consultation on important decisions. As to the rooftop and office space leases, Anderson asserts that Parks was obligated for half of the rent, but contributed nothing. Eventually, Anderson grew tired of paying Parks’ portion of the bill, so he allowed STI to slip into default on the leases. Anderson claims he promptly notified Parks of the default, but Parks did nothing. Anderson also insists that his arrangement with Parks was limited to developing signage at the MONY building, that he and Parks never discussed forming a business venture relative to any other location, and that both were free to pursue other business interests. Thus, Anderson denies that he or the entities controlled by him misappropriated assets of STI.

Finally, Anderson contends that after his business relationship with Parks soured, Parks made defamatory statements accusing Anderson of stealing STI’s corporate resources and engaging in other tortious behavior. According to Anderson, these statements resulted in a third party canceling two leases with Multimedia.

Anderson and Multimedia sued Parks for defamation and tor-tious interference with contract. Parks filed a multi-count amended counterclaim against Anderson, Multimedia, Signage Consultants, and the Realty Company. Among other allegations, Parks claimed that Anderson breached his fiduciary duties to STI and violated the STI shareholder agreement and that Anderson and the entities controlled by him — Multimedia, Signage Consultants, and the Realty Company (hereinafter “the Anderson parties”) — misappropriated STI’s corporate assets, converted those assets, defrauded Parks, and tortiously interfered with the MONY leases and STI’s ongoing business. Parks sought punitive and other damages and attorney fees.

Parks filed a motion for partial summary judgment on the defamation claim, and the Anderson parties filed a motion for summary judgment on the counts alleged in Parks’ counterclaim. In an order dated May 30, 1997, the trial court granted in part and denied in part both motions. As a result of the trial court’s order, part of the defamation claim remains in the case, as well as the counterclaims listed above to the extent they were asserted against Anderson.

Case No. A99A0627

1. The Anderson parties contend that the trial court erred in allowing Parks to file a late counterclaim. Parks filed his answer pro se, without a counterclaim. Two and one-half months later, after obtaining counsel, Parks filed an amended answer and counterclaim against Anderson and Multimedia. Thereafter, Parks sought leave of court to add the counterclaim, and Anderson and Multimedia moved to dismiss it. The trial court allowed the counterclaim, noting that Parks filed it within a short time after the answer and that Anderson and Multimedia had notice of it and were not prejudiced by the late filing.

Under OCGA § 9-11-13 (f), “[w]hen a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment.” The decision to grant or deny leave to amend is “ ‘totally within the trial court’s discretion,’ ” Kelly v. Pierce Roofing Co., 220 Ga. App. 391, 393 (3) (469 SE2d 469) (1996), and the court “should be liberal in allowing [amendment] where no prejudice would result.” Martin & Jones Produce v. Lundy, 197 Ga. App. 38, 39 (2) (397 SE2d 461) (1990). We find no abuse of discretion here. Id.

2. The Anderson parties sought summary judgment on Parks’ counterclaims for misappropriation and conversion of STI assets, breach of fiduciary duty, and tortious interference with contract, arguing that those claims are derivative of STI and that Parks lacks standing to pursue them directly. The trial court ruled that Parks has standing to pursue his counterclaims against Anderson individually, but does not have standing to pursue counterclaims against the Anderson-related business entities. Anderson enumerates as error the trial court’s failure to dismiss the claims against him for lack of standing. We conclude that the trial court did not err.

To prevail on a motion for summary judgment, “the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The moving party may carry this burden either by (1) presenting evidence negating an essential element of the nonmoving party’s claim, “i.e., affirmatively disproving the element with evidence which makes it impossible for the [nonmoving party] to prove the element at trial”; or (2) demonstrating an absence of evidence to support an essential element of the nonmoving party’s claim. Garrett v. Nations-Bank, NA. (South), 228 Ga. App. 114, 115 (491 SE2d 158) (1997). “If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp., supra. On appeal, we review de novo the trial court’s ruling on a motion for summary judgment, construing all facts and reasonable inferences therefrom in the light most favorable to the nonmovant. Durben v. American Materials, 232 Ga. App. 750 (503 SE2d 618) (1998).

As the trial court noted, the crux of Parks’ counterclaims against Anderson is that he misappropriated assets belonging to STI. Generally, a shareholder must bring an action alleging misappropriation of corporate assets in a derivative suit on behalf of the corporation. Thomas v. Dickson, 250 Ga. 772, 774 (301 SE2d 49) (1983); OCGA § 14-2-831 (a) (1) (C). The reasons for requiring a derivative suit are as follows:

1) it prevents a multiplicity of lawsuits by shareholders; 2) it protects corporate creditors by putting the proceeds of the recovery back in the corporation; 3) it protects the interests of all shareholders by increasing the value of their shares, instead of allowing a recovery by one shareholder to prejudice the rights of others not a party to the suit; and 4) it adequately compensates the injured shareholder by increasing the value of his shares.

Id. Also, a direct recovery should not be allowed “if there exists the possibility of prejudice to other interested parties, such as creditors or other shareholders.” Dunaway v. Parker, 215 Ga. App. 841, 845 (1) (453 SE2d 43) (1994). However, a shareholder may bring a direct action if the reasons for requiring a derivative suit are absent and if “prejudice is unlikely and the ‘realistic objectives’ of avoiding unfair access or distribution of corporate assets (committed or derived as a result of litigation) to one side over the other are more effectively accomplished via a direct action.” (Citation omitted.) Id. at 845-846; see also Thomas, supra.

Applying these principles, we agree with the trial court that Parks may maintain a direct action against Anderson for misappropriation of STI’s assets because the reasons for requiring a derivative action are absent here. First, STI is a closely held corporation whose only shareholders are Parks and members of Anderson’s immediate family. Nothing in the record suggests that Anderson’s family members have complained about his management of STI. Thus, “it is unlikely that other stockholder lawsuits will flow from the acts which form the basis of the case sub judice.” Dunaway, supra at 846 (noting that only other shareholders were defendant’s wife, children, and mother). Second, a derivative suit is not needed to protect creditors. Anderson suggests that Jalex and JMB could seek past due rent from STI. However, there is no evidence that Jalex and JMB have made a claim for such payments during the period of more than six years that has elapsed since the termination of the leases, or that any other creditors have come forward. Any concern about prejudice to creditors is entirely remote and speculative. See Thomas, supra at 775. Third, as in Thomas, the only injured shareholder in this case is Parks. Thus, there is no concern about prejudicing other shareholders by excluding them from participating in any recovery by Parks. Caswell v. Jordan, 184 Ga. App. 755, 758 (1) (362 SE2d 769) (1987). Finally, Parks would not be adequately compensated by an increase in the value of STI’s shares that could result from a derivative recovery because “in a closely held corporation, there is no ready market for [his] shares.” Thomas, supra. Accordingly, we affirm the trial court’s ruling that Parks has standing to pursue direct claims against Anderson for breach of fiduciary duty, misappropriation of corporate opportunities, conversion, and tortious interference.

3. In several enumerations of error, the Anderson parties challenge the trial court’s denial of their motion for summary judgment on the merits of specific counts of Parks’ counterclaim.

(a) First, the Anderson parties claim that the trial court should have granted their motions for summary judgment on Parks’ corporate misappropriation claim. We disagree as to the claims against Anderson. An officer or director of a corporation may be held liable for “[t]he appropriation, in violation of his duties, of any business opportunity of the corporation.” OCGA § 14-2-831 (a) (1) (C). Accordingly,

[i]f there is presented to a corporate officer or director a business opportunity which the corporation is financially able to undertake, is, from its nature, in the line of the corporation’s business and is of practical advantage to it, is one in which the corporation has an interest or a reasonable expectancy, and, by embracing the opportunity, the self-interest of the officer or director will be brought into conflict with that of his corporation, the law will not permit him to seize the opportunity for himself.

(Punctuation omitted; emphasis supplied.) Quinn v. Cardiovascular Physicians, P.C., 254 Ga. 216, 218 (3) (326 SE2d 460) (1985); see also Southeast Consultants v. McCrary Engineering Corp., 246 Ga. 503, 507-509 (2) (273 SE2d 112) (1980).

On appeal, Anderson does not contest that he took advantage of STI’s business opportunities. Rather, he claims that STI was not financially able to undertake those opportunities because it was insolvent. Anderson provides no citations to the record to support his argument, but simply asserts that STI was “insolvent.” Parks argues that at the time STI defaulted on the MONY leases, it had enough money in the bank to pay the rent, and that Anderson is to blame for any depletion of STI’s funds because he wrote checks on STI’s account totaling $59,693.59 in the weeks leading up to the default, knowing that the rent payment was due. Anderson responds that even if STI could have made the initial rent payment, the company lacked sufficient funds for ongoing viability.

There is no question that STI had some funds when it defaulted on the leases. However, the parties disagree as to the nature of STFs business opportunities, the resources STI needed to pursue them, and the reasons for the depletion of STFs funds. As the record is poorly developed on these points and Anderson provides no citation to support his factual contentions, we agree with the trial court that summary judgment on the merits of the corporate misappropriation claim is inappropriate. See Grove v. Sugar Hill Investment Assoc., 219 Ga. App. 781, 787 (4) (466 SE2d 901) (1995).

(b) Anderson asserts that he was entitled to summary judgment on Parks’ breach of fiduciary duty claim. We disagree. Georgia law requires that officers and directors discharge their duties with due care in a manner they believe in good faith to be in the best interests of the corporation. OCGA §§ 14-2-830 (a); 14-2-842 (a); Quinn, supra at 217-218 (2). “A fiduciary’s duty of good faith prohibits him from appropriating for himself the assets and property of the corporation, to the exclusion of minority shareholders.” Id. at 219 (4). Anderson argues that he did not violate any fiduciary duty by declining to advance personal funds to STI. As the trial court correctly observed, however, Parks’ claim is not limited to Anderson’s alleged failure to fund STI, and Anderson makes no other argument for summary judgment, nor does he provide any citation to the record. We therefore affirm the trial court’s denial of summary judgment on this, claim.

(c) Anderson maintains that the trial court erred in denying summary judgment on Parks’ claim that Anderson breached the STI shareholder agreement by “failing and refusing to make joint decisions on the management and operations of STI with Parks.” Anderson insists that joint decision making was impossible because Parks was unavailable throughout most of 1992. Anderson testified during his deposition that he could not reach Parks to discuss important matters. Anderson also testified, however, that Parks called him six to eight times a day from February through September 1992, and that Anderson finally instructed his secretary to tell Parks that he was out. This self-contradictory testimony must be construed against Anderson and precludes the entry of summary judgment in his favor. City Council of Augusta v. Booker, 229 Ga. App. 566, 567 (2) (494 SE2d 374) (1997).

(d) The Anderson parties claim error in the denial of their motion for summary judgment on Parks’ claim of converting corporate assets. They provide no citations to the record or to authority, and they make no argument other than to assert that “[t]he record contains no evidence of the conversion of any assets of the appellants,” which is simply a rephrasing of the enumeration of error. Conversion is the unauthorized assumption and exercise of ownership over the personalty of another, including a corporation, contrary to the owner’s rights. Pelletier v. Schultz, 157 Ga. App. 64, 65 (3) (a) (276 SE2d 118) (1981). Contrary to the assertions of the Anderson parties, the record does contain evidence that they converted assets of STI, including the MONY leases and the copyrights to the peach design, and that he used Multimedia, Signage Consultants, and the Realty Company to do so. The trial court therefore properly denied summary judgment on the conversion claim. Lau’s Corp., supra.

(e) The Anderson parties claim that the trial court should have granted summary judgment in their favor on Parks’ claim for fraud and deceit. The tort of fraud has five elements: (1) a false representation or omission of a material fact; (2) scienter; (3) intention to induce the party claiming fraud to act or refrain from acting; (4) justifiable reliance; and (5) damages. Klusack v. Ward, 234 Ga. App. 178, 179 (1) (507 SE2d 1) (1998); Smalls v. Blueprint Dev., 230 Ga. App. 556, 559 (1) (497 SE2d 54). To survive summary judgment, Parks was required to show some evidence as to each of these elements. Hanlon v. Thornton, 218 Ga. App. 500, 501 (1) (462 SE2d 154) (1995). The trial court denied summary judgment to Anderson on the ground that Parks was not required to identify an affirmative misrepresentation in order to prove fraud. We agree with the trial court. See KHD Deutz of America Corp. v. Utica Mut. Ins. Co., 220 Ga. App. 194, 197 (2) (469 SE2d 336) (1996) (“The absence of any affirmative misrepresentation does not indicate the absence of fraud; ‘the suppression of truth is as false and fraudulent as a wilful misrepresentation.’ ”).

Moreover, in their briefs to this Court, the Anderson parties provide no citations to the record and make no argument other than to assert that there was no evidence of fraud and that the complaint did not properly allege fraud. Each enumeration of error must be supported by specific references to the record, and unsupported enumerations may be treated as abandoned. Court of Appeals Rules 27 (c) (2) and (3) (i). Although the Anderson parties contend that there was no evidence of fraud, they must at least place their argument in some factual context, rather than simply asserting that there was a failure of proof. We will not cull the record looking for support for their argument, particularly in a case such as this where the record is quite voluminous. Rolleston v. Cherry, 226 Ga. App. 750, 753 (1) (b) (487 SE2d 354) (1997). Accordingly, we affirm the trial court’s denial of summary judgment on the fraud counterclaim.

(f) The Anderson parties assert that they should have been awarded summary judgment on Parks’ claim that they “tortiously interfered with the ongoing business relationships among” Parks, STI, Jalex and JMB. With the exception of the claim against Multimedia, we agree. A claim of tortious interference with business relations requires proof that the Anderson parties acted improperly, without privilege, and with intent to induce a third party or parties not to enter into or continue a business relationship with Parks, causing injury to Parks. Renden, Inc. v. Liberty Real Estate &c., 213 Ga. App. 333, 334 (2) (444 SE2d 814) (1994). “[I]n order for a defendant to be liable for tortious interference with contractual relations, [one] must be a stranger to both the contract and the business relationship giving rise to and underpinning the contract.” Atlanta Market Center Mgmt. Co. v. McLane, 269 Ga. 604, 609 (2) (503 SE2d 278) (1998). This principle also applies to claims asserting tortious interference with business relations. Id. at 609, n. 2. Anderson sought summary judgment on the ground that, as an officer and director of STI, he was not a stranger to STI’s MONY lease agreements. The trial court disagreed, finding an issue of fact as to whether Anderson “stepped outside his role as a corporate officer and interfered with [STI’s] contractual relations.”

Decisions of this Court have suggested that a corporate officer may be liable for interfering with a contract of the corporation if the officer disregarded the corporate entity or acted outside the scope of his agency or in derogation of the corporation. Energy Contractors v. Ga. Metal Systems &c., 186 Ga. App. 475, 478 (4) (367 SE2d 324) (1988); Barnwell v. Barnett & Co., 222 Ga. App. 694, 695 (1) (476 SE2d 1) (1996). Pretermitting whether Anderson was acting as an agent of STI when he took the actions alleged by Parks, it is clear that Anderson was not a stranger to the business relationship between STI and Jalex and JMB. Prior to engaging in the alleged tor-tious conduct, for example, Anderson negotiated with Jalex and JMB for a modification of the MONY lease agreements on behalf of STI. Mindful of the Supreme Court’s recent suggestion that we “reduce the number of entities against which a claim of tortious interference with contract may be maintained,” Atlanta Market, supra at 610, we conclude that Anderson was not a stranger to the business relationship at issue and therefore cannot be held liable for tortious interference with STI’s lease agreements. Thus, the trial court erred in denying summary judgment to Anderson.

Multimedia, however, was indisputably a stranger to the contracts and business relationship between STI and Jalex/JMB. Multimedia argues that any interference on its part was necessarily limited to the short period of time between its incorporation on February 16, 1993, and the termination of STI’s leases on March 4, 1993. Multimedia cites no authority for the proposition that tortious interference cannot be accomplished within a two-week period, however. Parks has presented sufficient evidence to raise a jury question as to whether Multimedia’s negotiation with Jalex and JMB of lease agreements for space at the MONY building tortiously interfered with STI’s contracts with Jalex and JMB. Accordingly, Multimedia is not entitled to summary judgment on this claim. See Phillips v. MacDougald, 219 Ga. App. 152, 154 (2) (b) (464 SE2d 390) (1995).

We agree with the Anderson parties, however, that Parks’ counterclaim contains no allegations of tortious interference with contract by Signage Consultants or the Realty Company. Summary judgment was therefore proper as to those entities. Bob v. Hardy, 222 Ga. App. 550, 551 (1) (474 SE2d 658) (1996) (“a grant of summary judgment must be affirmed if it is right for any reason”).

(g) Because some of Parks’ tort counterclaims remain in the case, the assertion by the Anderson parties that they are entitled to summary judgment on Parks’ claims for attorney fees and punitive damages is premature and without merit.

4. Count 2 of the complaint filed by Anderson and Multimedia alleges that Parks “falsely and maliciously accused Mr. Anderson of engaging in fraudulent activity and breaching contractual and fiduciary obligations to [Parks].” The facts on which this claim is based are as follows. In the fall of 1992, Anderson contacted Tom McGuire, then president of the International Brotherhood of Electrical Workers Local Union 613, about placing a peach advertising sign on top of the IBEW building. McGuire testified that he later spoke with Parks, who said he was part owner of the company that originated the idea for the peach signs and that Anderson had capitalized on the idea and left Parks out of it. McGuire testified that Parks said Anderson “stole his idea.” McGuire later clarified, however, that he could not remember any specific statements from the conversation and could not recall Parks using the word “stole.” During his deposition, Parks testified that he told McGuire, as well as the IBEW’s lawyer, “ [something to [the] effect” that Anderson “was acting illegally in regards to the corporation that he was an officer and a director in.”

The complaint does not allege special damages, but instead alleges slander per se under OCGA § 51-5-4 (a) (1) and (3). Parks sought summary judgment on this claim. The trial court denied Parks’ motion to the extent the claim was based on OCGA § 51-5-4 (a) (3), making charges calculated to injure another in his trade or profession. However, the trial court granted summary judgment to Parks to the extent the claim was based on OCGA § 51-5-4 (a) (1), imputing to another a crime punishable by law. Anderson and Multimedia contend that the trial court erred and that the jury should decide whether Parks’ statements imputed a crime to Anderson. We disagree.

To constitute slander per se under OCGA § 51-5-4 (a) (1), the words at issue must charge the commission of a specific crime punishable by law. See Hodges v. Tomberlin, 170 Ga. App. 842, 843 (1) (319 SE2d 11) (1984). “[W]here the plain import of the words spoken impute no criminal offense, they cannot have their meaning enlarged by innuendo.” Burrow v. K-Mart Corp., 166 Ga. App. 284, 286 (1) (304 SE2d 460) (1983). Even though Parks may have used the term “illegal,” his words did not accuse Anderson of committing any crime punishable by law. See Bullock v. Jeon, 226 Ga. App. 875, 877-878 (2) (487 SE2d 692) (1997) (term “m_-f_” did not amount to an accusation of incest). Rather, Parks’ words are simply accusations of unethical, tortious behavior and, as such, are not defamatory. Christian v. Ransom, 52 Ga. App. 218, 221 (183 SE 89) (1935) (“ ‘If merely fraud, dishonesty, immorality, or vice be imputed, no action lies without proof of special damage.’ ”). The trial court did not err.

Case No. A99A0626

5. Parks contends that the trial court erred in ruling that he lacks standing to pursue direct claims against Multimedia, Signage Consultants, and the Realty Company. We agree in part.

Anderson argues, and the trial court ruled, that there is no authority for permitting a shareholder to bring a direct action against an entity that is not an officer, director, or shareholder of the corporation. It is undisputed that Multimedia, Signage Consultants, and the Realty Company never held any of those positions with respect to STI. However, we see no reason to limit only to corporate officers, directors, and shareholders the rule allowing a shareholder in a closely held corporation to sue directly when the rationale for derivative actions is not present.

The Anderson parties cite no Georgia case holding that direct actions brought by shareholders against third parties are improper. Instead, they rely on Labovitz v. Washington Times Corp., 900 FSupp. 500, 504 (D. D.C. 1995), a decision from the federal district court in the District of Columbia which states that

Delaware case law strongly suggests that when the corporation is injured by a third party, the corporation’s directors are left to exercise their business judgment in deciding whether bringing suit is in the best interests of the corporation, and that the individual stockholders must rely on their directors to manage the firm.

(Citation omitted.) Labovitz, however, does not say categorically that shareholder direct actions against third parties are improper. Numerous other jurisdictions have recognized that

[a] shareholder may maintain an individual action against a third party for an injury that directly affects the shareholder, even if the corporation also has a cause of action arising from the same wrong, if the shareholder can show that the wrongdoer owed him a special duty or that the injury suffered by the shareholder is separate and distinct from the injury sustained by the other shareholders or the corporation itself.

Barger v. McCoy Hillard & Parks, 346 N. C. 650, 658-659 (488 SE2d 215) (1997); see also In re Granite Partners, L.P., 194 BR 318, 325 (Bkrptcy. SDNY 1996); Nowling v. Aero Svcs. Intl., 752 FSupp. 1304, 1314-1316 (E.D. La. 1990); Flynn v. Merrick, 881 F2d 446, 449 (7th Cir. 1989); Nicholson v. Ash, 800 P2d 1352, 1355 (Colo. App. 1990). This rule is in accord with Georgia cases, which have permitted shareholders to sue directly the officers and directors of the corporation where the shareholder suffered “a ‘special injury,’ i.e., an injury which is separate and distinct from that suffered by other shareholders.” Grace Bros., Ltd. v. Farley Indus., 264 Ga. 817, 819 (2) (450 SE2d 814) (1994).

We find no reason not to allow shareholder direct actions against third parties, particularly in a case such as this where the third parties are closely connected to an officer or director of the corporation. Multimedia, Signage Consultants, and the Realty Company are all controlled by Anderson and owned by him or his family. Parks alleges that Anderson used Multimedia, Signage Consultants, and the Realty Company to accomplish the ouster of Parks and conversion of STI’s assets and that Parks was the only STI shareholder injured by these activities because the other shareholders had a financial interest in the three business entities. Under these circumstances, Parks has alleged a “special injury” and is entitled to maintain a direct action against the Anderson business entities. We therefore reverse the trial court’s ruling on Parks’ claims of conversion and tortious interference with contract.

We find, however, that Parks may not sue the Anderson business entities for misappropriation of STI’s assets as a cause of action for misappropriation of a corporate business opportunity lies only against the officers or directors of the corporation. The obligation of officers and directors not to take for themselves opportunities that belong to the company “is but specie of the command that fiduciaries act with undivided loyalty, and is another manifestation of the requirement of utmost good faith.” Quinn, supra at 218. Multimedia, Signage Consultants, and the Realty Company were not officers or directors of STI and owed STI no fiduciary duty. Thus, they cannot be sued for misappropriating the business opportunities of STI.

6. Parks enumerates as error the trial court’s grant of a motion for protective order prohibiting Parks’ counsel from using in the litigation two statements and a deposition given by witness Denise Win-sett. In January 1995, counsel for Parks noticed the deposition of Winsett, a former employee of Jalex and JMB. At that time, neither Jalex nor JMB was a party to the litigation. Upon receiving the notice, Winsett called Parks’ attorney and told him that she could not appear on the noticed date. She also asked for his help on an unrelated legal matter, which he agreed to discuss with her. Winsett went to the attorney’s office the following week.

The events of that meeting are sharply disputed, as evidenced by the competing affidavits of Winsett and Parks’ attorney. Winsett claims that she agreed to meet the attorney only because he promised to assist her with an unrelated legal matter; that the bulk of the meeting was spent discussing the other matter; and that the attorney retained her papers and agreed to look into the matter. After that discussion, the attorney questioned Winsett about the dealings between Parks and her former employer. Although the attorney tape-recorded the interview, Winsett claims that he assured her that the taping was only for his convenience, that their conversation was “off the record,” and that her answers would never be used in any legal proceeding. According to Winsett, she agreed to speak only because “I thought I was talking to my own lawyer.”

The attorney, on the other hand, claims he told Winsett that a transcript of the interview would be used to prepare a witness statement for her signature, and he denies telling her the statement would not be used against her. While he admits that he discussed an unrelated legal matter with Winsett at the meeting, he denies misleading her about the purpose of the meeting or coercing her into coming. Another attorney for Parks submitted an affidavit stating that he had a follow-up conversation with Winsett in the summer of 1995, during which she spoke freely and voluntarily and agreed to sign a statement. No statement was ever prepared, however.

Winsett resumed employment with Jalex and JMB in August 1995. Jalex and JMB were brought into the litigation as counterclaim defendants in December 1995. Co-counsel for Parks deposed Winsett in 1996 and sought to use a transcript of the February 1995 interview to impeach her or refresh her recollection. Attorneys for the Anderson parties objected to the use of the transcript and later moved to disqualify Parks’ lawyers, arguing that they acted improperly in interviewing Winsett and using her statement. Attorneys for the Anderson parties also sought to prohibit the use of any discovery obtained from Winsett.

The trial court denied the motion to disqualify, finding that Parks’ counsel complied with the letter of rules governing the conduct of Georgia lawyers. However, the court found that the attorneys’ method of obtaining the discovery in question was “highly questionable” and therefore granted the protective order. Parks complains that the trial court failed to recite any specific factual basis for its finding of bad faith.

A trial court has discretion to enter protective orders controlling pre-trial discovery if “the court is satisfied by substantial evidence that bad faith or harassment motivates the discoverer’s action.” (Punctuation and emphasis omitted.) Osborne v. Bank of Delight, 173 Ga. App. 322, 324 (2) (326 SE2d 523) (1985); see also Deloitte Haskins & Sells v. Green, 187 Ga. App. 376, 379 (2) (370 SE2d 194) (1988). Here, the trial court was faced with competing affidavits describing the circumstances of Winsett’s February 1995 interview by Parks’ attorney. The trial court could have credited Winsett’s account over counsel’s, concluding that the attorney misrepresented his intentions with respect to the purpose of the interview and misused his new attorney-client relationship with Winsett to encourage her to speak freely about matters on which she might otherwise have chosen to remain silent. While counsel’s actions may not have contravened any specific rules of professional conduct, the evidence before the trial court nevertheless could have permitted a finding of bad faith justifying imposition of the protective order. We find no abuse of discretion.

Decided July 8, 1999

Reconsideration denied July 23, 1999

Swift, Currie, McGhee & Hiers, W. Ray Persons, Robert E. Jones, Adam R. Gaslowitz, for appellant.

Schreeder, Wheeler & Flint, David H. Flint, Mark W. Forsling, William W Gardner, for appellees.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Andrews, P. J., concur.

       Parks was using the name Systems Technology, Inc., a business entity he formed but never incorporated.

       Anderson serves as both the general partner and a limited partner of Signage Consultants, and he owns 97 percent of the business.

       The receipt of the building permit triggered STI’s normal obligations under the rooftop lease, but STI’s February payment was at the reduced rate.

       Anderson is the President of Multimedia, and his wife and children own the company’s stock.

       Anderson owns all the stock of the Realty Company and serves as its President.

       The amended counterclaim also alleged claims against Jalex, JMB, and a representative thereof. The trial court granted summary judgment to those parties, and Parks has not appealed that ruling.

       Parks later sought and obtained leave to further amend the counterclaim, adding new counterclaim defendants. These later amendments are not at issue on appeal.

       All of the Anderson parties sought summary judgment on all counts of Parks’ counterclaim. Since the trial court ruled that Parks lacked standing to sue the Anderson business entities, the trial court did not consider the other summary judgment arguments of those parties. On appeal, only Anderson, individually, has enumerated as error the trial court’s failure to grant summary judgment on the merits of various counts of Parks’ counterclaim. As the Anderson business entities have been dismissed, they have not joined in these enumerations of error and could not have done so. However, our decision infra that the trial court wrongly decided that Parks lacked standing to sue the Anderson business entities effectively brings those entities back into the case. Because those parties’ other arguments for summary judgment were fully briefed and submitted for the trial court’s consideration, and because we must affirm the trial court’s grant of summary judgment if it is right for any reason, we will consider the summary judgment arguments of the Anderson parties that were presented but not decided below.

       As discussed infra in Division 5, we conclude for other reasons that Parks may not bring a corporate misappropriation claim against Multimedia, Signage Consultants, and the Realty Company.

       In his reply brief, Anderson argues that Parks failed to present any evidence of reliance, an essential element of fraud. See Klusack v. Ward, supra. However, Anderson cannot raise this argument for the first time in a reply brief, and we therefore will not consider it on appeal. See Ga. Osteopathic Hosp. v. O’Neal, 198 Ga. App. 770, 780 (14) (403 SE2d 235) (1991).

       In fact, Labovitz goes on to recognize the “special injury” exception discussed below. Labovitz, supra at 504-505.

       When he served the notice, counsel for Parks did not know that Winsett no longer worked for Jalex and JMB, but she informed him of this fact during their first communication.

       According to the trial court’s order, the court also reviewed in camera the transcript of Winsett’s interview. Because Parks has not placed that transcript into the record, we must assume that it supports the trial court’s ruling. Griffin v. Travelers Ins. Co., 230 Ga. App. 665, 666 (497 SE2d 257) (1998).


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A99A1070.
    THE STATE v. McCABE.
    (519 SE2d 760)
   Judge Harold R. Banke.

The State appeals the trial court’s refusal to retroactively apply an amendment to the implied consent statute (OCGA § 40-5-67.1) which eliminated the requirement that the statutory language be read verbatim to a driver suspected of being impaired by drugs.

The underlying case arose on February 23, 1997, after Officer D. L. Nix observed John McCabe commit several traffic violations. Based on the officer’s observations of McCabe’s driving, McCabe’s unacceptable performance on several field sobriety tests, and McCabe’s admission that he had been drinking, Nix arrested McCabe for driving under the influence of alcohol. Nix then apprised McCabe of the implied consent rights using a Department of Public Safety form from April 1995.

Georgia law requires you to submit to a state administered test of your blood, breath, urine or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum of one year. Your refusal to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of zero point ten grams or more your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum of one year. After first submitting to the required state test, you’re entitled to an additional chemical test of your blood, breath, urine or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical test of your blood under the Implied Consent law?

McCabe consented to a blood test. After arriving at the jail, McCabe inquired, “[s]o if I take the blood test, it’s going to show all the beer I drank during the day?” The State test revealed a blood alcohol concentration of .20.

McCabe filed a motion in limine based on the officer’s alleged failure to timely, completely, and adequately inform him of the implied consent notice. The trial court embraced McCabe’s argument that the blood alcohol test results were inadmissible since the officer did not read the precise and literal provisions of OCGA § 40-5-67.1. Held:

The State contends that the amendment permitting substantial compliance with the notice provisions should be applied retroactively. On that basis, the State contests the exclusion of McCabe’s test result.

As a general rule, a reviewing court must apply the law as it exists at the time the court’s opinion is rendered rather than the law prevailing at the time of an arrest. State v. Martin, 266 Ga. 244, 245 (1) (466 SE2d 216) (1996). An amendment may be applied retroactively if the changes do not affect constitutional or substantive rights and if the legislature did not express a contrary intention. State v. Nolen, 234 Ga. App. 291, 292 (508 SE2d 733) (1998); see State v. Lev- ins, 234 Ga. App. 739, 740 (2) (507 SE2d 246) (1998) (physical precedent only). We have already determined that this amendment is procedural in nature and should be given retroactive application. State v. Sneddon, 235 Ga. App. 739, 740 (510 SE2d 566) (1998); State v. Moncrief, 234 Ga. App. 871, 872-873 (4) (508 SE2d 216) (1998).

Decided June 24, 1999

Reconsideration denied July 23, 1999.

Gwendolyn R. Keyes, Solicitor, Yolanda K. Johnson, Thomas E. Csider, Assistant Solicitors, for appellant.

William C. Head, for appellee.

Since the warning provided to McCabe did not recite the exact language of the statute, the question is whether the notice was in substantial compliance. McCabe points out the officer added the word “a”; changed “tests” to “test”; changed “purpose” to “purposes”; enunciated “0.10” as “zero point ten”; changed “you are” to “you’re”; and added the word “an.” Several of the grammatical variations at issue here were analyzed in State v. McGraw, 237 Ga. App. 345, 346-347 (514 SE2d 34) (1999). We found that the use of “test” instead of “tests,” and “State’s test” rather than “required state tests” did not substantially alter the warning. Id. at 346-347 (2) (a). Nor do we now find that by saying “zero point ten grams,” instead of “0.10,” that the officer, eviscerated the warning. Moreover, here, as in Rojas v. State, 235 Ga. App. 524, 527 (1) (509 SE2d 72) (1998), the fact that the warning did not advise McCabe that he could have additional “tests” performed is immaterial since McCabe did not opt to have any additional testing at all. Id.

In sum, the warning advised McCabe that: (1) State law required that he submit to State-administered testing; (2) his refusal to submit to testing would result in suspension of his driver’s license for a year and could be offered into evidence against him at trial; (3) test results of .10 grams or more could result in the suspension of his license for a year; and (4) after submitting to State testing, he was entitled to an additional chemical test of his choice at his own expense. See generally Morrissette v. State, 229 Ga. App. 420, 423 (2) (a) (494 SE2d 8) (1997). Because we find that warning at issue substantially complied with OCGA § 40-5-67.1 (b), we reverse. McGraw, 237 Ga. App. at 347.

Judgment reversed.

Blackburn, R J., and Barnes, J., concur.

       The amended implied consent statute provides: “[s]uch notice shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged.” OCGA § 40-5-67.1 (b) (3).


text:
    A99A1123.
    MENDOZA et al. v. PENNINGTON et al.
    (519 SE2d 715)
   Judge Harold R. Banke.

Gregory and Hortencia Mendoza sued attorney John Pennington and his law firm for negligent performance of duties in connection with a bankruptcy petition filed by Pennington on behalf of their wholly owned corporation known as Mendoza Development Corporation. Because the Mendozas failed to attach an expert affidavit to their complaint under OCGA § 9-11-9.1, the court dismissed the action. On appeal, the Mendozas contend that since they alleged only simple negligence against the defendants, an expert affidavit was unnecessary. Held:

1. In any action for professional malpractice, OCGA § 9-11-9.1 (a) requires that the plaintiff file with the complaint an expert affidavit setting forth a negligent act or omission. Failure to do so results in a dismissal with prejudice. ABE Engineering v. Griffin, Cochran &c., 212 Ga. App. 586 (443 SE2d 1) (1994). If the claim is not for professional malpractice but for simple negligence, then no affidavit is required, even though the action may be against a professional. Creel v. Cotton States Mut. Ins. Co., 260 Ga. 499, 500 (397 SE2d 294) (1990).

Whether an action alleges professional malpractice or simple negligence depends on whether the professional’s alleged negligence required the exercise of professional judgment and skill. Lutz v. Foran, 262 Ga. 819, 820 (2) (427 SE2d 248) (1993); CenTrust Mtg. Corp. v. Smith & Jenkins, PC., 220 Ga. App. 394, 396 (1) (469 SE2d 466) (1996). A professional negligence or malpractice action calls into question the conduct of the professional in his area of expertise. Thompson v. Long, 225 Ga. App. 719, 720 (3) (484 SE2d 666) (1997). Administrative, clerical, or routine acts demanding no special expertise fall in the realm of simple negligence. Lutz, 262 Ga. at 820 (2).

Attorneys performing legal services are performing professional services. Crawford v. Johnson, 227 Ga. App. 548, 551-552 (2) (a) (489 SE2d 552) (1997); CenTrust, 220 Ga. App. at 396 (1). An attorney representing a corporation in a bankruptcy proceeding is necessarily exercising professional or legal judgment, and a suit against him for actions or omissions as a legal representative in that legal proceeding is an action for professional malpractice. Richmond Leasing Co. v. Cooper, Cooper, Maioriello &c., 207 Ga. App. 623 (1) (428 SE2d 603) (1993).

We have carefully reviewed the Mendozas’ complaint to discern all allegations of negligence. All negligence alleged therein concerns Pennington’s advice given and actions taken or not taken as a legal representative in the filing and pursuance of the bankruptcy petition on behalf of the debtor corporation. Tellingly, the Mendozas conclude that these actions and omissions constituted a “failure to exercise legal judgment and failure to observe professional conduct and standards. . . .” The Mendozas are now hard put to describe these actions as simple negligence. Even if the attorney’s professional negligence is clear and palpable, it is still professional negligence, and a plaintiff is accordingly required to file an expert affidavit with the complaint. Richmond Leasing, 207 Ga. App. at 623 (1); see Housing Auth. of Savannah v. Greene, 259 Ga. 435, 436 (1) (383 SE2d 867) (1989); Collins v. Newman, 237 Ga. App. 861, 862 (2) (517 SE2d 100) (1999).

Decided June 22, 1999

Reconsideration denied July 23, 1999

J. Gregory Mendoza, pro se.

Hortencia A. Mendoza, pro se.

Troutman Sanders, Daniel S. Reinhardt, for appellees.

The trial court did not err in dismissing the complaint for failure to comply with OCGA § 9-11-9.1.

2. In a second enumeration of error the Mendozas contend they were third-party beneficiaries of the attorney-client employment contract between Mendoza Development Corporation and the defendants and thus could maintain a malpractice action against the defendants. This contention is somewhat spurious, as the trial court based its order of dismissal on the failure to file the expert affidavit, not on a lack of standing.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


author: McMurray, Presiding Judge.

text:
    A99A1014.
    SLEDGE v. THE STATE.
    (521 SE2d 212)
   McMurray, Presiding Judge.

After the denial of his motion to suppress cocaine discovered in the vehicle he was driving, defendant consented to a bench trial and was found guilty of a single count of trafficking in cocaine. He appeals from the judgment of conviction, contending the trial court erred in concluding a valid consent search occurred and further erred in concluding the police had probable cause of any suspicious activity to detain him.

Only the arresting officers testified at defendant’s suppression hearing. Viewed in the light most favorable to the trial court’s determination, their evidence authorized the following material facts: Uniformed Butts County Sheriff’s Deputy Mark C. Whitwell and his partner (and brother), Deputy Scott Whitwell, were on traffic patrol on Interstate 75 on May 21, 1998, when they observed a van driven by defendant. Defendant attempted to change lanes from the middle lane to the slow lane without the use of a turn signal. One quarter width of the vehicle went into the slow lane, causing the traffic around defendant to brake and slow in an effort to avoid him. Defendant then went into the left lane with approximately one quarter vehicle width and returned to the center lane. Concerned that defendant might be under the influence of something that would render defendant a less safe driver, the deputies initiated a traffic stop of defendant’s van. Deputy Scott Whitwell spoke with defendant at the driver’s window. When Deputy Scott Whitwell was asking for the driver’s license, defendant was “looking up at [Deputy Scott Whitwell], but. . . had extended his right arm down and was pushing a box away from him, . . . towards the van’s passenger seat.” It appeared to be a shoe box; something large enough to contain a weapon. Defendant was very nervous and apprehensive and was slow to identify the person to whom the vehicle was registered. While defendant searched for registration papers, Deputy Scott Whitwell informed Deputy Mark Whitwell that defendant was “hiding a box.” Deputy Mark Whitwell asked defendant for permission to search the box, because the deputy was worried due to the fact that defendant tried to hide the box, was nervous, and remained focused on the box. Defendant gave permission, saying “ “Yes, Sir,’ an affirmative reply that [Deputy Mark Whitwell] could search the box.” Defendant was not threatened and did not appear to be under the influence of alcohol or any other drug. Inside the box, Deputy Mark Whitwell found an opaque plastic bag, the contents of which, while unknown, did not seem threatening. But underneath this was a small, clear plastic bag containing suspected cocaine. Deputy Mark Whitwell signaled his partner, and Deputy Scott Whitwell put defendant “on the ground to his knees and cuffed him. . . .” According to the videotape of this traffic stop, less than three minutes elapsed between the initial encounter and defendant’s formal arrest. Held:

1. Defendant first contends the trial court erred in denying the motion to suppress because his consent to search the box containing suspected cocaine was the product of an illegal detention, relying on Rogers v. State, 206 Ga. App. 654, 657 (2) (426 SE2d 209). We disagree.

(a) In a consent search, the burden is on the State to demonstrate that the consent was voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact for the trial court to be determined from all the circumstances. Code v. State, 234 Ga. 90, 93 (III) (214 SE2d 873). Where, as here, the evidence is uncontradicted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474).

(b) The test to determine whether a temporary traffic stop has evolved into a custodial arrest is whether a reasonable person in the detainee’s position would have thought the detention would not be temporary. Sutton v. State, 223 Ga. App. 721, 722 (1) (478 SE2d 910), citing Berkemer v. McCarty, 468 U. S. 420 (104 SC 3138, 82 LE2d 317). In Rogers, this Court reversed the denial of a suppression motion, concluding “that when [the investigating officer] retained appellant’s license [while questioning him on matters unrelated to any possible traffic, parking, or loitering violations], the encounter matured into an investigative stop,” from which that defendant could not reasonably have believed himself free to leave, and so coerced his consent to search. 206 Ga. App. at 657-658 (2), supra.

In the case sub judice, the initial traffic stop of defendant’s vehicle was not pretextual but was authorized by the apparent violation of OCGA § 40-6-48, committed in the officers’ presence. State v. Holcomb, 219 Ga. App. 231, 232 (464 SE2d 651). Roadside questioning at a routine traffic stop does not, in and of itself, constitute custodial interrogation. Lebrun v. State,^ 255 Ga. 406, 407 (3) (339 SE2d 227). An officer conducting a routine traffic stop may request and examine a driver’s license and vehicle registration and run a computer check on the documents. Rogers v. State, 206 Ga. App. at 657 (1), supra. The fact that an officer retains a detainee’s license for a short period during the course of an investigation does not necessarily mean that detainee is in custody, even if, at that point, the detainee could have been arrested for some violation of state law. Crum v. State, 194 Ga. App. 271, 272 (390 SE2d 295). Here, Deputy Scott Whitwell had not yet completed the license check on defendant during the three-minute episode, before Deputy Mark Whitwell obtained consent to search the shoe box defendant had attempted to hide. A reasonable person not under the influence of any drug or intoxicant to the extent he was rendered a less safe driver would have thought the traffic stop for weaving across the roadway was only temporary. Sutton v. State, 223 Ga. App. at 724 (1), supra. Consequently, the trial court in the case sub judice correctly concluded under the totality of the circumstances that defendant’s consent was not the impermissible result of an unauthorized custodial detention.

2. Next, defendant contends the denial of his suppression motion was error because the officers had neither probable cause nor reasonable suspicion to search the box for contraband or weapons. But a valid consent to search eliminates the need for probable cause to support a warrant or for reasonable suspicion to conduct a limited search for weapons. McDaniel v. State, 227 Ga. App. 364, 366 (2) (489 SE2d 112); Boggs v. State, 194 Ga. App. 264 (390 SE2d 423). Thus assuming, but not deciding, the deputies did not harbor a reasonable suspicion that the shoe box defendant nervously kept eying contained either a weapon or contraband, his valid consent to examine that box rendered irrelevant the alleged absence of such probable cause or reasonable suspicion of wrongdoing.

Decided July 23, 1999.

Trauffer & Associates, Harry L. Trauffer, Lawrence J. Zimmerman, for appellant.

Tommy K. Floyd, District Attorney, Sandra A. Graves, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.


text:
    A99A1250.
    ACKERMAN v. FIRST NATIONAL BANK OF GRADY COUNTY.
    (521 SE2d 221)
   McMurray, Presiding Judge.

Plaintiff-appellee First National Bank of Grady County (“the Bank”) brought this action to enforce a promissory note in the principal amount of $29,398.75, signed by defendant-appellant Janet L. Ackerman, formerly known as Janet L. Clark. Defendant answered pro se, admitting she signed the note but denying the material allegations of breach. She also counterclaimed for $151,355 in revenues allegedly lost to her veterinary practice as a result of the Bank’s mismanagement of her accounts receivable.

The promissory note executed on August 25, 1996, recites it is for value received, that defendant’s date of birth is May 6, 1955, and that this is a renewal of a previous loan. The principal sum was $28,398.75 and the interest rate of “Prime as herein defined plus 2.000 percent per annum.” The Prime rate was stipulated as 9.250 percent as of the date of execution.

Plaintiff moved for (partial) summary judgment for the amount owing on the note on the basis of defendant’s admitted signature on this promissory note, which she executed after consultation with an attorney who represented defendant during her then-pending Chapter 7 bankruptcy proceeding. The Bank’s motion does not address defendant’s counterclaims. In opposition, defendant submitted her affidavit, wherein she deposed that the Bank had contracted to manage defendant’s business accounts receivable, which secured the loan; the value of the receivables transferred exceeded the value of the loan; but the Bank did not follow the agreed-upon collection processes, specifically failing to exercise due diligence to pursue “past due” accounts, rendering them uncollectible, while simultaneously alienating patients in defendant’s veterinary practice by pursuing as “past due” accounts that had been paid in full. Defendant also stated she was coerced into signing the reaffirmation note.

The trial court granted the Bank’s motion for summary judgment as to its main claim, awarding the Bank $33,942.34 as principal and interest, $5,091.35 in attorney fees, and costs. Pursuant to OCGA § 9-11-56 (h), defendant brings this direct appeal. Held:

1. Defendant first contends the trial court erred in granting the Bank’s motion for summary judgment as to her liability on the note, because her counterclaim exceeds her liability on that note.

The precise holding of Tipton v. Harden, 128 Ga. App. 517, 519 (2) (197 SE2d 746), relied upon by defendant, is that the existence of a counterclaim in excess of the amount demanded by the plaintiff is ample reason to deny a motion for summary judgment. But a trial court does not commit error per se by granting summary judgment in a case with a valid pending counterclaim. Mock v. Canterbury Realty Co., 152 Ga. App. 872, 879 (1) (264 SE2d 489) (whole court).

2. Next, defendant contends there are material issues of fact regarding the enforceability of the note. We disagree.

A claim of duress must be supported by acts of the opposing party which are wrongful or unlawful. Evans v. Merrill Lynch Business Financial Svcs., 213 Ga. App. 808, 810 (3) (446 SE2d 215). Economic distress does not constitute legal duress under the standard of OCGA § 13-5-6. Tidwell v. Critz, 248 Ga. 201, 203 (1) (282 SE2d 104); Hovendick v. Presidential Financial Corp., 230 Ga. App. 502, 505 (3) (497 SE2d 269).

Defendant’s conclusory allegation in her affidavit opposing summary judgment that she was coerced into signing the renewal note, reaffirming her debt to the Bank, does not recite any underlying facts supporting a finding of coercion or legal duress as would void the contract. The undisputed evidence is that defendant renewed only after consultation with her own attorney. Her own perception of the unequal bargaining power between herself and the Bank does not establish legal duress. Consequently, there is no genuine issue of material fact whether this promissory note can be enforced against defendant. The second and third enumerations are without merit.

3. The fourth enumeration contends summary judgment on the note is erroneous because the amount of damages caused by non-payment of that note remains in dispute. We do not agree.

The promissory note is enforceable in the face amount. Commonwealth Land Title Ins. Co. v. Miller, 195 Ga. App. 830, 833 (395 SE2d 243); Sadler v. Trust Co. Bank of South Ga., 178 Ga. App. 871, 873 (2) (344 SE2d 694). Any offset in this case reducing the recovery of that face amount of the promissory note is the subject (in part) of defendant’s pending counterclaim based upon the Bank’s alleged impairment of collateral, and the alleged breach of its fiduciary duty to manage the cash flow and receivables from defendant’s veterinary practice. Inasmuch as the trial court’s grant of partial summary judgment to the Bank does not purport to adjudicate defendant’s counterclaims or otherwise to be a final judgment, we find no error. Mock v. Canterbury Realty Co., 152 Ga. App. at 879 (1), supra.

Decided July 23, 1999.

Janet L. Ackerman, pro se.

Lehman & Cauley, Thomas L. Lehman, for appellee.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.


author: McMurray, Presiding Judge. Andrews, Presiding Judge,

text:
    A99A1326, A99A1327.
    In re ESTATE OF CHARLES A. GORDON (two cases).
    (521 SE2d 223)
   McMurray, Presiding Judge.

Cora B. C. Gordon (“the widow”) is Charles A. Gordon’s (“the decedent”) widow. She filed an appeal in Case No. A99A1326 from a probate court order directing her to turn over two end tables, two lamps and a coffee table to the decedent’s adult children, Charles L. Gordon and Serdalia Singleton (“the children”). This order was entered to enforce a settlement agreement providing the children with the decedent’s estate’s “Victorian Living Room furniture.” The widow also filed an appeal in Case No. A99A1327 from a separate order awarding the children $750 in attorney fees for having to seek enforcement of the settlement agreement. Held:

1. The widow has moved this Court to supplement the record on appeal through the inclusion of a transcript of the hearing on the children’s motion to enforce the settlement agreement, asserting that these “proceedings . . . were recorded but were not transcribed or made a part of the record in this case despite request [sic] the same in the Appeal to this Court.” The widow also seeks to supplement the record to include a March 6, 1998 order finding that she was not in contempt of court.

The burden is on the complaining party to have the record completed in the trial court in accordance with the provisions of OCGA § 5-6-41. See Massengale v. Moore, 194 Ga. App. 328 (1) (390 SE2d 439). Since the widow did not move in the trial court to have the hearing transcript prepared and filed in accordance with this Code section, there is no basis for granting the widow’s motion to supplement the record with a hearing transcript. Further, since the trial court’s clerk has certified transmittal of those portions of the record required by the widow’s notices of appeal, because the widow has not shown that the alleged March 6, 1998 contempt order is essential for review of the cases sub judice, and since our examination of the widow’s enumerations of error and briefs indicate that any such order is not essential for appellate review, the widow’s motion to supplement the record is hereby denied.

2. The children’s motions to dismiss these appeals and for frivolous appeal damages are hereby denied.

Case No. A99A1326

3. Citing the dissent in Thompson v. Pulte Home Corp., 209 Ga. App. 558, 559 (1) (434 SE2d 89), cert, denied, 209 Ga. App. 916, the widow contends the trial court inappropriately expanded the settlement agreement’s reference to “Victorian Living Room furniture” to include the decedent’s estate’s two end tables, two lamps and a coffee table.

In Thompson v. Pulte Home Corp., a majority of this Court affirmed a trial court’s finding concerning the amount of an unresolved per diem payment which was due to be paid to those appellants during the executory period of a settlement contract. This holding was based upon the trial court’s findings of fact. Id. at 560 (1). Although the settlement agreement at issue in the case sub judice does not specify what items of “Victorian Living Room furniture” were to go to the children, it appears our holding in Thompson v. Pulte Home Corp., 209 Ga. App. at 559 (1), supra, authorizes the trial court’s resolution of this omission and enforcement of its findings as part of the parties’ settlement agreement. The Supreme Court of Georgia’s holding in Bridges v. Bridges, 256 Ga. 348, 349 (1) (349 SE2d 172), which is cited by the dissent in Thompson v. Pulte Home Corp., 209 Ga. App. at 561, supra, appears to be distinguishable on the facts of that case.

Accordingly, since the widow failed to include, as part of the appellate record in the cases sub judice, a transcript of the hearing on the children’s motion to enforce the settlement agreement, we must assume the evidence authorized the trial court’s findings. Gary v. Weiner, 233 Ga. App. 284 (1) (503 SE2d 898). The trial court therefore did not err in finding that the settlement agreement’s reference to ‘Victorian Living Room furniture” included the decedent’s estate’s two end tables, two lamps and a coffee table.

Decided July 23,1999.

Wiseman, Blackburn & Futrell, James B. Blackburn, Jr., for appellant.

Sally L. Keller, for appellee.

4. The widow challenges the sufficiency of the evidence with regard to the trial court’s award of attorney fees. We must assume the trial court’s $750 attorney fee award was authorized in the absence of a transcript of the hearing on the children’s motion to enforce the settlement agreement and the evidence authorized the trial court’s findings. Gary v. Weiner, 233 Ga. App. 284 (1), supra.

5. The widow has abandoned her claim that the probate court had no authority to award attorney fees by failing to support this assertion with argument or citation of authority. Court of Appeals Rule 27 (c) (2); see Jett v. State of Ga., 230 Ga. App. 655, 656 (1) (498 SE2d 274).

Judgments affirmed.

Ruffin, J., concurs. Andrews, P. J., concurs specially.

Andrews, Presiding Judge,

concurring specially.

I concur with the majority’s conclusions in Divisions 1, 3, 4 and 5 and in the judgment. I write specially because I would grant appel-lees’ motion for sanctions for filing a frivolous appeal.

Under the facts of this case, Cora Gordon could have no reasonable basis for believing this appeal would result in a reversal of the trial court’s judgment. Therefore, pursuant to Court of Appeals Rule 15 (b), I would assess a frivolous appeal penalty of $1,000 against Gordon and her attorney and would order the trial court, on remitti-tur, to enter judgment in favor of appellees against Cora Gordon and her attorney, James B. Blackburn, Jr., in the amount of $1,000.


author: McMURRAY, Presiding Judge.

text:
    A99A1408.
    OSBORNE v. THE STATE.
    (521 SE2d 226)
   McMURRAY, Presiding Judge.

Defendant was indicted on one count of child molestation for sexual acts directed at L. T, the minor daughter of defendant’s female friend. A jury found him guilty as charged. His motion for new trial, as amended, was denied, and he now appeals. Held:

Viewed in the light most favorable to support the jury’s verdict, the evidence shows that L. T., then 14 years of age, ran away from home one day in April 1997. When L. T. returned home, her mother angrily ordered L. T. out of her apartment. Defendant, the mother’s male friend, saw L. T. walking away from the apartment and offered to drive L. T. to his apartment. L. T. accepted. When they got there, defendant told L. T. she needed a shower and he had to take L. T.’s clothes off himself, even though L. T. “thought she was so grown.” While L. T. showered, defendant “kept coming in there and stuff and . . . [defendant] didn’t have nothing on but his underwear.” After showering, L. T. got her bra back on, but defendant said “[she] didn’t need to put [her] clothes back on because they stink.” Defendant got her to his bed and “started doing all this kind of crazy stuff.” “He had her on [her] back and [she] couldn’t get up.” As she cried and screamed, defendant told her, “[S]top acting like a little bitch. . . .” Defendant showed L. T. his pubic hair and said, “[I]t was no gray hair because he’s not old and stuff like that.” Defendant told L. T. to “hug him with her legs wrapped around his back . . . with his underwear off.” Defendant “was feeling with his finger ... in [L. T.’s] vagina and telling her to keep this a secret and [she] need to do good in school and stuff like that.” L. T. went to the bathroom in tears, and defendant followed. There defendant “gave L. T. money to keep it quiet,” and as defendant was lifting L. T. to the bathroom counter top “hugging [her]” and “squeezing [her] butt[,]” L. T.’s mother arrived to take defendant to work. L. T. managed to get dressed but said nothing regarding what had occurred. L. T. testified that “[i]t was kind of hard to talk about so . . . [her mother] told [L. T.] to write it to her.” L. T. wrote her mother three letters, admitted in evidence without objection, describing the event and her feelings. On a visit to the apartment, L. T.’s father, who was estranged from her mother, found one of the letters. He then went to defendant’s apartment and, not finding him, called the police.

1. Defendant contends that his trial attorney was ineffective because he: (a) failed to object to the admission in evidence of L. T.’s letters accusing him of molesting her; (b) failed to object to such letters going out with the jury during deliberations; (c) failed to adequately investigate the facts and law of his case; and (d) failed to obtain the presence and testimony of witnesses necessary to his alibi defense. Although defendant requests we test his claims of ineffective assistance of counsel for prejudice cumulatively, “[Georgia] does not recognize the cumulative error rule.” Bridges v. State, 268 Ga. 700, 708 (9) (492 SE2d 877).

“(T)he proper standard to be employed in determining enumerations concerning ineffective assistance of counsel, whether based upon a claim of right arising under federal or state law, is the two-pronged test announced in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) ((1984)). First, appellant must show that counsel’s performance was deficient; second, he is required to show that he was prejudiced by counsel’s deficient performance. There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy. As to the second prong, the question is whether there exists a reasonable probability that, but for his counsel’s errors, the jury would have had a reasonable doubt regarding appellant’s guilt, that is, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Citations and punctuation omitted.) White v. State, 216 Ga. App. 583 (1) (455 SE2d 117) (1995).

Gomillion v. State, 236 Ga. App. 14, 16 (3) (512 SE2d 640).

As to each specification of alleged ineffectiveness, defendant has not established that his trial counsel’s performance was deficient under the standard of Strickland v. Washington, supra. Failing to object to L. T.’s letters to her mother and allowing them to go out with the jury during deliberations was not deficient but was sound trial strategy, because the letters were consistent with defendant’s defense, i.e., that the letters were fabrications written out of revenge for defendant’s refusal to give her $100 for “Freaknik.” Hughes v. State, 217 Ga. App. 766, 768 (2) (458 SE2d 911). The record does not support defendant’s claim trial counsel failed to investigate the facts and law of his case. Trial counsel testified he met with defendant on multiple occasions; he discussed the State’s discovery with defendant at length; he discussed potential witnesses with defendant but defendant had none; and, in coordination with defendant, he developed and executed the revenge defense used at trial. Certainly trial counsel is not deficient for failing to put on an alibi defense when, as here, defendant admitted being with L. T. on the date of the alleged offense. Asked on direct examination if he had molested L. T., defendant ambivalently replied, “No, no, no. Maybe I should have.” Asked if he had inserted a finger in L. T.’s vagina, defendant answered more firmly, “No, I didn’t.” Under these circumstances, the trial court did not err in overruling defendant’s motion for new trial on the special ground of ineffective assistance of counsel. Smith v. State, 256 Ga. 483 (351 SE2d 641); Esquivel v. State, 236 Ga. App. 325, 326 (512 SE2d 61).

2. Defendant also contends the trial court committed harmful error in telling the jury that trial counsel had been held in contempt of court outside their presence, arguing that this rendered him constructively ineffective as counsel. We disagree.

On cross-examination at trial, trial counsel asked L. T., “All right. I want to try to determine where you were on somewhere around the 11th of April of 1997 until about the 13th of April of 1997, were you in jail during that time?” The State’s attorney objected and asked that the jury be taken out. In the out-of-court hearing which followed, the trial court sustained the objection and held trial counsel in contempt, sentencing him to a $100 fine or five days in jail. When the trial resumed, the trial court instructed the jury, “Ladies and gentleman, I have sustained the objection of the last question asked and ruled there is no basis of fact for that question and held the lawyer in contempt. I ask for you to disregard that question entirely.” Although it is better for the trial court not to tell the jury that it found trial counsel in contempt of court at an out-of-court hearing, reversible error does not result where there is no prejudice to the defendant. Bryan v. State, 168 Ga. App. 711, 712 (3) (310 SE2d 533). Moreover, if a witness or party is held in contempt in the presence of the jury, reversible error does not result where the defendant does not move for mistrial, request cautionary instructions or otherwise indicate to the trial court that the jury was unduly influenced by such action. Roberts v. State, 208 Ga. App. 628, 629 (1) (431 SE2d 434). “A party may not acquiesce in actions by the trial court and later complain of that same conduct on appeal. See Davis v. State, 203 Ga. App. 315, 318 (6) (416 SE2d 789) (1992).” Id.

Here the contempt finding was made outside the presence of the jury. The trial court explained the finding of contempt to the jury saying only that there had been no basis in fact for the last question asked by trial counsel. The trial court gave a cautionary instruction directing the jury to disregard the question. Further, trial counsel neither moved for a mistrial nor asked for a curative instruction. Although trial counsel did take exception to the trial court’s ruling, he did not do so out of concern that the jury had been contaminated. Thus, under the facts of this case, there is no reversible error.

3. Defendant’s final enumeration urges the general grounds. “A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a).

“On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant (defendant here) no longer enjoys a presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Conflicts in the testimony of witnesses, including the State’s witnesses, [are] a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citations and punctuation omitted.) Turner v. State, 223 Ga. App. 448, 449 (1) (a) (477 SE2d 847).

Decided July 23, 1999

Steven E. Lister, for appellant.

Robert E. Keller, District Attorney, Nancy T. Bircher, Assistant District Attorney, for appellee.

Howard v. State, 227 Ga. App. 5, 8 (6) (a) (488 SE2d 489).

The testimony of a victim of child molestation or aggravated child molestation need not be corroborated; Turner v. State, 223 Ga. App. at 449 (1) (b), supra; Toles v. State, 202 Ga. App. 815 (1) (415 SE2d 531); Saunders v. State, 195 Ga. App. 810 (1) (395 SE2d 53); Fitzgerald v. State, 193 Ga. App. 76 (2) (386 SE2d 914). Nevertheless, L. T.’s testimony in the case sub judice was corroborated by the letters she wrote to her mother. The evidence was sufficient under the standard of Jackson v. Virginia, supra, to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of child molestation as alleged in the sole count of the indictment. Dent v. State, 220 Ga. App. 147 (1) (469 SE2d 311); Turner v. State, 223 Ga. App. 448, supra.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.


text:
    A99A1485.
    GOULD v. THE STATE.
    (521 SE2d 365)
   McMurray, Presiding Judge.

Defendant Sandey Damon Gould, also known as Sandy Gould and “Hardtime,” was tried before a jury and found guilty of armed robbery (Count 1) and criminal attempt to commit robbery (Count 2). His motion for new trial was denied, and this appeal followed. In his sole enumeration of error, defendant urges the general grounds. Held:

1. Viewed in a light most favorable to the jury’s verdicts, the evidence shows that on February 16, 1997, at about 5:00 p.m., Kevin Bride was sitting at a Savannah bus stop, when defendant rode up on a blue bicycle, got off and sat down beside him. Defendant pointed a pistol at Kevin Bride and said, “My man, I don’t want to kill you, so give me your watch, your necklace, your bracelet, and all the money in your pocket.” Kevin Bride gave defendant “everything he asked for.” Defendant rode off on his bicycle, and Kevin Bride ran to a police station a block away and reported the robbery. Defendant’s mother testified that at the time Kevin Bride was robbed, she and her son were visiting Rosemarie Wiley, a family friend. Rosemarie Wiley corroborated this alibi.

At approximately 8:00 p.m., the day after Kevin Bride was robbed, defendant approached a white automobile parked at a Savannah park. He opened the driver’s door and ordered the driver, Haroon Ghani, out of the vehicle and demanded his money and jewelry. Haroon Ghani refused, and defendant threatened to shoot and “F” Haroon Ghani’s passenger, Tanika Lemmon, if he did not comply. Haroon Ghani pushed defendant away with his car door and drove away. Minutes later, Haroon Ghani and Tanika Lemmon flagged down Sergeant Harry Traywick of the Savannah Police Department and reported the attempted robbery. In this regard, Haroon Ghani testified that “[defendant] keep saying he will shoot me and . . . coming close to me and he pushed my head with his finger. . . .” Haroon Ghani believed defendant had a gun because he held a hand behind his back when he threatened to shoot Ghani, who felt intimidated because of his concern for Tanika Lemmon’s safety.

“A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon.” OCGA § 16-8-41 (a). The State’s evidence established the armed robbery of Kevin Bride, who identified defendant as the perpetrator. “Despite the conflicting testimony produced by the defendant to establish an alibi and to show his inability to be two places at once on the occasion of the [armed robbery], the jury believed the state’s witnesses [and] not the defendant’s.” Maxwell v. State, 163 Ga. App. 606 (295 SE2d 865).

Here, notwithstanding defendant’s alibi defense, the State proved that defendant took the property of Kevin Bride by pointing a pistol at him. This evidence was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of armed robbery as alleged in Count 1 of the indictment. Maxwell v. State, 163 Ga. App. 606, supra.

2. The State’s evidence was also sufficient to establish defendant’s guilt, beyond a reasonable doubt, of criminal attempt to commit robbery by taking the substantial step of attempting to take currency from the immediate presence of Haroon Ghani through intimidation as alleged in Count 2 of the indictment.

Decided July 23, 1999.

Darden & Moyers, Richard M. Darden, for appellant.

Spencer Lawton, Jr., District Attorney, Kimberly Rowden, Assistant District Attorney, for appellee.

“A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1. Although Haroon Ghani testified that while he did not feel intimidation out of fear for his own safety, he nonetheless testified he felt intimidated for fear for Tanika Lemmon’s safety. Defendant threatened to kill Haroon Ghani and Tanika Lemmon by word, gesture, and constructive force. Edenfield v. State, 41 Ga. App. 252, 255 (152 SE2d 615) (threats by word or gesture are the most usual means of intimidation and, standing alone, are sufficient to imply force). See also Brown v. State, 210 Ga. App. 59 (1) (435 SE2d 274) (concealed hand sufficient to establish intimidation even without use of verbal threats or violence). The enumeration of the general grounds is without merit.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.


author: Ruffin, Judge.

text:
    A99A1587.
    McBEE v. THE STATE.
    (521 SE2d 209)
   Ruffin, Judge.

A jury found Michael McBee guilty of rape, aggravated sodomy, and sodomy. The trial court merged the aggravated sodomy and sodomy counts and entered judgment against McBee on the rape and aggravated sodomy counts. We affirmed McBee’s convictions in McBee v. State, 228 Ga. App. 16 (491 SE2d 97) (1997). McBee then moved to vacate his convictions on the sodomy and aggravated sodomy charges, asserting that those convictions were void in light of the Supreme Court’s ruling in Powell v. State, 270 Ga. 327 (510 SE2d 18) (1998). The trial court denied the motion, and McBee appeals. We affirm.

As an initial matter, the trial court’s authority to vacate or modify a judgment ends with the expiration of the term of court in which the judgment was entered. See State v. Kight, 175 Ga. App. 65, 66 (1) (332 SE2d 363) (1985); Crumbley v. State, 261 Ga. 610, 611 (1) (409 SE2d 517) (1991). However, “[a]n exception exists where a sentence is void, i.e., where the court has imposed punishment which the law does not allows ” Battle v. State, 235 Ga. App. 101, 102 (508 SE2d 467) (1998). “Where a sentence is void, . . . the court may resentence the defendant at any time.” Crumbley, supra.

Decided July 23, 1999.

Michael J. McBee, pro se.

Herbert E. Franklin, Jr., District Attorney, Christopher A. Amt, Assistant District Attorney, for appellee.

McBee contends that the Supreme Court’s decision in Powell renders his sodomy and aggravated sodomy convictions void. This contention is without merit. Powell held that the sodomy statute, OCGA § 16-6-2, was unconstitutional only to the extent it criminalized “the performance of private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent.” Powell, supra at 336 (3). See Johnson v. State, 236 Ga. App. 764, 766 (4) (513 SE2d 291) (1999). To convict a defendant of aggravated sodomy, however, the jury must find that the defendant committed sodomy “with force and against the will of the other person.” OCGA § 16-6-2 (a). Thus, Powell did not render McBee’s conviction for aggravated sodomy void, and the trial court did not err in denying McBee’s motion to vacate the conviction. See Johnson, supra. Although the jury also found McBee guilty of simple sodomy, the trial court did not enter judgment on that count, but merged it with the aggravated sodomy conviction. Thus, the only crimes for which McBee was in fact convicted were rape and aggravated sodomy. See Mackey v. State, 235 Ga. App. 209 (1) (509 SE2d 68) (1998).

Judgment affirmed.

McMurray, P. J., and Andrews, P. J., concur.

       Contrary to McBee’s contention, the Supreme Court in Powell did not redefine aggravated sodomy so as to make it indistinguishable from rape, as the two crimes have different elements. See OCGA §§ 16-6-1 (a); 16-6-2 (a).


author: Pope, Presiding Judge.

text:
    A99A0670, A99A0671.
    BURNS et al. v. HOWARD et al.; and vice versa.
    (520 SE2d 491)
   Pope, Presiding Judge.

In Case No. A99A0670, Richard and Nell Burns appeal dismissal of their appeal. In Case No. A99A0671, Larry and Juanita Howard cross-appeal an award of attorney fees in their favor.

Case No. A99A0670

In March 1994, the Howards filed a complaint seeking damages for defamation against Mr. and Mrs. Burns. The Burnses filed a counterclaim for property encroachment and trespass. Following an adverse jury verdict, Mr. and Mrs. Burns appealed the judgment to the Supreme Court, but their appeal was dismissed by the trial court for failure to timely file the transcript in accordance with OCGA § 5-6-48 (c). They now appeal that dismissal.

Judgment was entered on February 18, 1998. The Burnses filed their notice of appeal to the Supreme Court on March 4. On June 12 the Howards moved to dismiss the appeal because the transcript had not been timely filed, no order extending the time to file had been entered, and the costs had not been paid. Following an unreported hearing on July 17, the court entered an order dismissing the appeal. The order stated,

The above-styled matter having come on regularly to be heard pursuant to notice and after hearing evidence, no order for extension of time for completion of the record having been sought or entered, it is the judgment of this Court in accordance with the criteria set forth in OCGA Sec. 5-6-48c that the motion be granted and the appeal dismissed.

After another hearing, the court denied the Burnses’ motion for reconsideration without further elaboration.

OCGA § 5-6-42 provides that a transcript must be filed within 30 days of the notice of appeal unless an extension of time is properly requested. “The trial court may, after notice and hearing, order an appeal dismissed for a party’s failure to file a transcript on time only if the delay was (1) unreasonable, (2) inexcusable, and (3) caused by such party. OCGA § 5-6-48.” Dalton v. Vo, 224 Ga. App. 382 (480 SE2d 377) (1997).

But in this case, the trial court did not make the above findings of fact which are necessary to dismiss the appeal. Dalton, 224 Ga. App. at 382-383; Baker v. Southern R. Co., 260 Ga. 115 (390 SE2d 576) (1990). And, failure to timely request an extension, standing alone, is not sufficient to justify dismissal of the appeal. Id. at 116. This case is therefore remanded to the trial court for further action in accord with this opinion. See Dalton, 224 Ga. App. at 383.

Case No. A99A0671

At trial, the jury awarded attorney fees to the Howards, and the court set the amount at $5,500. The Howards contend the court failed to award the full amount of their attorney fees as allowed by OCGA § 9-15-14. However, it is the duty of this Court to inquire into its jurisdiction. Cole v. Cole, 205 Ga. App. 332 (1) (422 SE2d 230) (1992). To do so, we must consider the sequence of events leading to this cross-appeal.

Decided July 1, 1999

Reconsideration denied July 26,1999.

Michael B. King, for appellants.

Judgment and the fee award were entered on February 18 and March 3, 1998, respectively. Mr. and Mrs. Bums filed their initial notice of appeal to the Supreme Court on March 4. The Howards filed a notice of cross-appeal on March 17. On July 17, the Burnses’ appeal was dismissed.

Once the original appeal to the Supreme Court was dismissed, there was no longer a pending appeal. Under OCGA § 5-6-48 (e), a cross-appeal may survive the dismissal of the main appeal but only where the cross-appeal can stand on its own merit. Patel v. Ga. Power Co., 234 Ga. App. 141, 142 (2) (505 SE2d 787) (1998).

Appeals from orders awarding attorney fees under [OCGA § 9-15-14] require compliance with the discretionary appeal procedure of OCGA § 5-6-35 (a) (10) unless the award is appealed as part of an otherwise directly appealable judgment. Stancil v. Gwinnett County, 259 Ga. 507 (384 SE2d 666) (1989); Haggard v. Bd. of Regents of the University System, 257 Ga. 524 (360 SE2d 566) (1987).

Roberts v. Pearce, 232 Ga. App. 417-418 (501 SE2d 555) (1998). At that point in time, because the main appeal had been dismissed, and the Howards had not sought a discretionary appeal, the cross-appeal could not stand on its own merit. Id. at 418.

On August 17 the Burnses filed their notice of appeal to this Court from the dismissal of their appeal. On December 15, the Howards filed an “Amended Notice of Cross-Appeal.” A notice of cross-appeal must be filed “within 15 days from service of the notice of appeal by the appellant.” OCGA § 5-6-38 (a). Because the Howards failed to file a timely notice of cross-appeal, their cross-appeal must be dismissed. Nat. Consultants v. Burt, 186 Ga. App. 27, 28 (1) (366 SE2d 344) (1988).

We note that should the trial court reverse its ruling on the dismissal of the main appeal in Case No. A99A0670, then the Howards’ cross-appeal will likewise be revived.

Judgment vacated and remanded in Case No. A99A0670. Appeal dismissed in Case No. A99A0671.

Smith and Eldridge, JJ, concur.

Wallace & Moss, Howard P. Wallace, Barbara J Call, for appel-lees.


text:
    A99A1169.
    DAVIS v. THE STATE.
    (521 SE2d 368)
   McMurray, Presiding Judge.

A jury found defendant guilty of armed robbery (Count 2) and possession of a firearm during the commission of a crime (Count 3). This appeal follows the trial court’s grant of defendant’s motion to withdraw his motion for new trial. Held:

1. Defendant first contends that the trial court erred in “violating the rule of sequestration when counsel requested the investigator be made to testify first or give a reason why he should not. . . .”

Trial counsel timely invoked the rule of sequestration. Thereafter, the State’s attorney sought leave of court to “allow Lieutenant Mahlon Donald to sit in here with me . . . [as] the primary investigator on the case. And I need him for presentation of the State’s case.” OCGA § 24-9-61, regarding the sequestration of witnesses, “confers upon the party making such request an absolute right, subject only to the sound discretion of the trial judge in permitting one or more witnesses to remain in the courtroom to advise the opposite party in the presentation of his case. [Cit.]” (Punctuation omitted.) Johnson v. State, 198 Ga. App. 316 (4) (401 SE2d 331).

It has long been the law in this State that where the trial court exercises its discretion in allowing a police officer who is the nominal prosecutor to remain in the courtroom based on the district attorney’s statement that such officer’s presence is necessary for the orderly presentation of the State’s case, the discretion of the court in allowing him to remain will not be disturbed. Davis v. State, 225 Ga. App. 564, 569 (6) (484 SE2d 284) (1997); Howard v. State, 144 Ga. App. 31 (240 SE2d 589) (1977).

Williams v. State, 233 Ga. App. 70, 72 (3) (503 SE2d 324).

In the case sub judice, the trial court did not abuse its broad discretion in permitting the State’s witness to sit at counsel’s table before testifying.

2. Defendant challenges his sentence to life without parole as a denial of due process. He contends that his status as a first offender at the time he was sentenced foreclosed sentencing him as a recidivist with a record of a second conviction for a serious violent felony under OCGA § 17-10-7 (b). We disagree.

Decided July 26, 1999

Lloyd W. Walker, for appellant.

William T. McBroom III, District Attorney, Richard A. Vandever, Assistant District Attorney, for appellee.

The State introduced evidence that defendant received first offender status for armed robbery and possession of a firearm during the commission of a crime on March 11, 1991. As a first offender, defendant was sentenced to confinement in the state penal system with ten years to serve, five years as to Count 1 (armed robbery), and five years as to Count 2 (possession of a firearm during the commission of a crime), “each count to run concurrent” and “upon service of Five years of the [foregoing] sentence, the remainder of [the] Sentence may be served on probation.” Defendant was sentenced in the case sub judice on September 25, 1997.

A prior first offender record may be used to sentence a defendant as a recidivist for a later crime except where the conditions of probation attendant to such record have already been fulfilled so that the defendant has been discharged without an adjudication of guilt pursuant to OCGA § 42-8-62 (a). Scott v. State, 216 Ga. App. 692, 694 (4) (455 SE2d 609).

Here, defendant’s eligibility for discharge as a first offender could not have arisen until March 11, 2001, and then, only upon satisfaction of the conditions of probation. One of the general terms of probation is that the probationer “[v]iolate no local, state, or federal laws.” OCGA § 42-8-35 (11). Defendant’s subsequent conviction for armed robbery rendered him ineligible for the discharge contemplated by OCGA § 42-8-62 (a). Consequently, in the case sub judice, he was properly sentenced as a recidivist with a record of a. second conviction for a serious violent felony. It follows that defendant’s sentence to life without parole under OCGA § 17-10-7 (b) was proper and did not amount to a denial of due process.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.