text:
    A99A1782.
    SAM’S WHOLESALE CLUB v. RILEY.
    (527 SE2d 293)
   Blackburn, Presiding Judge.

Sam’s Wholesale Club (Sam’s) appeals the trial court’s denial of its motion to dismiss, motion to set aside, and motion to open default judgment. The issues on appeal concern whether: (1) this appeal is properly brought as a direct appeal; (2) Victoria Riley, in her suit against Sam’s, named a proper party in the suit; (3) service was perfected; (4) the action fell within the exclusive remedy provisions of the Workers’ Compensation Act; (5) the statute of limitation had expired; and (6) the trial court properly awarded compensatory damages after a bench trial. The trial court wrote a very thorough order including findings of fact and specific rulings on each of Sam’s motions. After determining that the trial court’s findings of fact are supported by the evidence, we have adopted much of the trial court’s rendition.

“Upon appellate review, factual findings made after a bench trial shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. OCGA § 9-11-52 (a). The clearly erroneous test is the same as the any evidence rule. Thus, an appellate court will not disturb fact findings of a trial court if there is any evidence to sustain them.” (Citations and punctuation omitted.) Lyon v. State of Ga., 230 Ga. App. 264 (495 SE2d 899) (1998).

Oasis Goodtime Emporium I v. Cambridge Capital Group, 234 Ga. App. 641, 643 (4) (507 SE2d 823) (1998).

On August 8, 1997, Riley filed the underlying complaint seeking compensatory and punitive damages for the defendant’s alleged intentional infliction of emotional distress, assault, and attempts to commit physical injuries in violation of OCGA § 51-1-14. In her complaint, Riley named “Sam’s Wholesale Club” as the defendant. On August 15, 1997, Deputy Bill Morgan of the Richmond County Sheriff’s Department served the complaint and summons on a manager of Sam’s, Tom Fernandez. After Sam’s failed to file an answer or other entry of appearance for over 90 days, Riley moved for a default judgment, which the trial court granted by order dated November 17, 1997.

On December 11, 1997, a bench trial was held on the issue of damages. The trial court bifurcated the issues of compensatory and punitive damages pursuant to OCGA § 51-12-5.1 (d). Although the hearing was not recorded, the trial court outlined its procedure in its order as follows:

The [trial] Court, after hearing evidence on compensatory damages, found that actual and general damages had been proven and announced that they would be awarded to [Riley]. The [trial] Court did not state the amount of such award in open court or enter a written award of compensatory damages. The [trial] Court further determined that based on the evidence produced at trial that [Riley] had proven by clear and convincing evidence that [Sam’s] actions showed willful misconduct, malice, fraud, wantonness, oppression or that entire want of care which would raise the presumption of conscious indifference to consequences and that an award of punitive damages should be made. The [trial] Court then received evidence on the issue of punitive damages hearing testimony from an expert economist as to [Sam’s] net worth. Due to time constraints the punitive damage phase of the trial could not be completed and the [trial] Court recessed the trial. On February 23, 1998, the [trial] Court re-convened the trial on the issue of punitive damages, giving notice to [Sam’s]. [Sam’s] did appear on February 23,1998, more than six months after service of the summons and complaint.

Upon its appearance, Sam’s filed an answer, a motion to open default judgment, a motion to dismiss, a motion to set aside the judgment, a motion for trial, and a motion for continuance. On February 9, 1999, the trial court entered its orders. The trial court awarded Riley $750,000 in compensatory damages based upon Sam’s actions of intentional infliction of emotional distress and sexual assault, by and through overt acts, with acquiescence and ratification by Sam’s management and other employees. In its second order, the trial court denied Sam’s motion to dismiss, motion to set aside, and motion to open default judgment. The trial court also denied Sam’s motion for jury trial with regard to compensatory damages, but granted it with regard to punitive damages. This appeal followed. The issue of punitive damages remains pending below.

1. Initially, we must resolve Riley’s motion to dismiss Sam’s direct appeal. Sam’s filed the instant direct appeal as well as applications for interlocutory and discretionary appeal. Sam’s applications for appeal were denied. Sam’s direct appeal is proper, despite the fact that a claim for punitive damages remains pending. Pursuant to OCGA § 9-11-54 (b), a direct appeal is proper where the trial court specifically determines that its ruling on a claim is final and that there is no just reason for delay. In this case, the trial court made a final ruling with regard to compensatory damages and specifically found that there was no just reason for delay. Therefore, Riley’s motion to dismiss Sam’s direct appeal is denied.

2. The trial court did not abuse its discretion in denying Sam’s motion to open the default. See K-Mart Corp. v. Hackett, 237 Ga. App. 127 (1) (514 SE2d 884) (1999) (“sole function of an appellate court reviewing a trial court’s denial of a motion to open default is to determine whether . . . the trial court abused its discretion based on the facts peculiar to each case”).

(a) Sam’s contends that “Sam’s Wholesale Club” is not a legal entity and that, therefore, Riley’s action cannot be maintained. Sam’s argues that “Sam’s Wholesale Club” is not a corporation registered to do business in the State of Georgia. Sam’s contends that the proper legal entity is ‘Wal-Mart Stores, Inc.” or the trade name “Sam’s Club No. 8115.”

The trial court found that “Sam’s Wholesale Club” was a trade name of Wal-Mart. Such determination is supported by evidence. Wal-Mart holds the exclusive federal trade name registration for “Sam’s Wholesale Club.” The members’ identification cards issued by Sam’s specifically gives membership privileges to “Sam’s Wholesale Club.” Additionally, the record is replete with evidence of Sam’s referring to itself as “Sam’s Club,” “Sam’s Wholesale Club,” or “Sam’s Wholesale Club #8115.”

A corporation conducting business in a trade name may sue or be sued in the trade name. ... A suit at law is not a children’s game, but a serious effort on the part of adult human beings to administer justice; and the purpose of process is to bring parties into court. If it names them in such terms that every intelligent person understands who is meant, it has fulfilled its purpose; and courts should not put themselves in the position of failing to recognize what is apparent to everyone else. As a general rule the misnomer of a corporation in a notice, summons, notice by publication, garnishment citation, writ of certiorari, or other step in a judicial proceeding is immaterial if it appears that it could not have been, or was not, misled. Our own Georgia cases implicitly followed this rationale and do not hold that the existence of a mere misnomer authorizes one freely to ignore the fact that he has been served with legal process.

(Citations and punctuation omitted; emphasis in original.) Carrier Transicold Div. v. Southeast Appraisal Resource Assoc., 233 Ga. App. 176, 177 (504 SE2d 25) (1998).

“A trade name is merely a name assumed or used by a person recognized as a legal entity. . . . An undertaking by an individual in a fictitious or trade name is the obligation of the individual.” (Punctuation omitted.) Crolley v. Haygood Contracting, 201 Ga. App. 700, 702 (3) (411 SE2d 907) (1991). “A corporation conducting business in a trade name may sue or be sued in the trade name.” John L. Hutche-son &c. Hosp. v. Oliver, 120 Ga. App. 547 (1) (171 SE2d 649) (1969).

The trial court’s determination that Sam’s Wholesale Club is a trade name for Wal-Mart, Inc. d/b/a Sam’s Wholesale Club No. 8115 is supported by evidence and, therefore, will not be reversed on appeal.

(b) Sam’s contends that service was never perfected. Sam’s argument that the deputy’s misspelling of Fernandez’s name should support a finding of non-service is disingenuous at best. Sam’s contention that the complaint was left with an unknown employee is wholly without merit. The trial court found, and the return of service indicates, that the suit was left with Tom Fernandez. Sam’s admitted that he was a manager of the store. Service upon a business may generally be perfected by serving the manager at the subject location.

OCGA § 9-11-4 (d) (1) provides for service of process against a corporation by serving a managing agent. Furthermore, Sam’s neither argues that its manager would not be authorized to accept service nor did it present any evidence from its manager that service was not received. See Oasis Goodtime, supra at 642 (1).

The trial court’s denial of Sam’s motion to open default judgment on the grounds set forth above was not an abuse of discretion.

3. Sam’s contends that Riley’s complaint must be dismissed because the cause of action falls within the exclusive remedy provision of the Workers’ Compensation Act. See OCGA § 34-9-11 (a). However, pretermitting whether Sam’s argument is legally correct, it must fail because of the state of the record. Because Sam’s is in default, the allegations of the complaint are deemed to be supported by proper evidence. See OCGA § 9-11-55 (a). Furthermore, the record does not contain a transcript of the evidence taken by the trial court at the hearing on damages. The appellant’s failure to present a transcript of the evidence precludes review of the issue. See Atwood v. Southeast Bedding Co., 236 Ga. App. 116 (1) (511 SE2d 232) (1999) (without the transcript, an appellate court must assume judgment below was supported by evidence). Without a transcript, the appellate court must presume that the trial court’s findings of fact are supported by evidence. See id.

Moreover, in Murphy v. ARA Svcs., 164 Ga. App. 859, 862 (298 SE2d 528) (1982), this Court “refuse [d] to say that the risk of verbal and physical abuse of a sexual nature alleged by [the employee] belongs to or is in any way connected with what [the employee] had to do in fulfilling her responsibilities of employment.” Based on the allegations in the complaint, the same can be said in the present case. Additionally, claims for intentional infliction of emotional distress are not precluded by the exclusivity provisions of the Workers’ Compensation Act. See Oliver v. Wal-Mart Stores, 209 Ga. App. 703, 704 (434 SE2d 500) (1993).

4. Sam’s contends that Riley’s complaint must be dismissed because the statute of limitation had expired on her claims. Sam’s argues that each individual wrongful act against Riley was a separate cause of action that initiated the running of the statute of limitation. The trial court determined that Riley was subjected to a continuing tort which did not conclude until her constructive firing on September 9, 1995, which started the running of the statute of limitation.

Sam’s assertion of error is without merit due to its failure to properly raise the statute of limitation as a defense. Default judgment had been entered against Sam’s before it raised a statute of limitation defense. Statute of limitation is an affirmative defense which must be properly raised or it is waived. See Black v. Lowry, 159 Ga. App. 57, 58 (1) (282 SE2d 700) (1981). Sam’s statute of limitation defense was foreclosed by the entry of default judgment against it. See Cassidy v. Wilson, 196 Ga. App. 6, 8 (395 SE2d 291) (1990).

5. Sam’s contends that the trial court erred by rendering its verdict on compensatory damages after some evidence on punitive damages was presented. Because this case was tried before the trial judge as a bench trial, we find no error. The trial judge announced that it was going to award compensatory damages and that it found the requisite conduct to award punitive damages before continuing the hearing by admitting evidence on punitive damages. A trial judge is presumed to have considered only legally admissible evidence. See Schaffer v. City of Marietta, 220 Ga. App. 382, 384 (2) (469 SE2d 479) (1996). Therefore, without some showing that the trial court considered the punitive damage evidence in its award of $750,000 in compensatory damages, we must presume that the award is based upon admissible evidence.

Decided December 30, 1999

McLain & Merritt, Anthony A. Rowell, for appellant.

John R Batson, John J. Czura, for appellee.

6. Sam’s contends that the trial court erred in failing to award a jury trial as to compensatory and punitive damages. The trial court did award a jury trial to Sam’s on the issue of punitive damages because it had not made its ruling as to such damages when Sam’s filed its demand for jury trial. However, on the issue of compensatory damages the trial court had already heard all the evidence and determined that compensatory damages were proven. That part of the case was over, and as to it, Sam’s demand for jury trial was not timely. The case cited by Sam’s is distinguishable because it involves a situation where a jury trial was demanded before the trial began. See Camilla Cotton Oil Co. v. C.I.T. Corp., 143 Ga. App. 840 (240 SE2d 212) (1977).

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

       Although Deputy Morgan spelled it as “Herendez” on the Sheriffs entry of service, the correct spelling is “Fernandez.” Sam’s admitted “ ‘that Mr. Fernandez is a manager out there,’ ” but Sam’s failed to produce any testimony from Fernandez regarding service.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A99A2023.
    AYERS v. REMBERT.
    (527 SE2d 290)
   Eldridge, Judge.

Keith Ayers d/b/a Advanced Materials appeals from a judgment ordering it to pay former employee Richard Rembert money owed to him under a workers’ compensation award, including a penalty for late payment. Advanced Materials challenges the authority of the superior court to include the penalty in its judgment. We find that the superior court acted within its statutory authority and affirm.

On May 5, 1997, Rembert experienced a sharp pain in his lower back while cleaning the plant floor. He returned to work the next day and experienced additional lower back pain while lifting several partially filled 55-gallon drums. He left the plant and reported to the emergency room. Subsequently, Rembert missed several days of work and was terminated on May 12, 1997. Rembert was eventually diagnosed with a herniated disk.

Rembert filed a claim with the State Board of Workers’ Compensation (the “Board”) seeking temporary total disability benefits from the date of the May 5, 1997 accident, along with medical expenses and attorney fees. An administrative law judge (the “ALJ”) heard the claim and awarded Rembert medical expenses, $300 a week in temporary total disability benefits and attorney fees in the amount of 25 percent of the temporary total disability benefits.

The appellate division of the Board adopted the findings of the ALJ. On appeal by Advanced Materials, the superior court affirmed the Board award. Rembert subsequently petitioned the superior court for a judgment pursuant to OCGA § 34-9-106, representing by affidavit that no monies had been paid to him by Advanced Materials as required by the Board’s award. The superior court entered a judgment on April 27, 1999, directing that Rembert recover from Advanced Materials “indemnity benefits” accrued as of February 24, 1999, of $28,200, medical expenses of $2,216.73, attorney fees of $7,050 and a 20 percent penalty of $5,640.

Advanced Materials’ sole contention is that the superior court exceeded its statutory authority when it included the $5,640 penalty in its judgment because the Board had not found it liable for penalties.

OCGA § 34-9-106 provides a basis for converting a final order or decision of the Board to a judgment, which may then be enforced. Such a judgment may be issued ex parte, but does not amount to a taking or deprivation of property without due process. West Point Pepperell v. Springfield, 238 Ga. 655, 656 (235 SE2d 24) (1977). When issuing a judgment under OCGA § 34-9-106, a superior court may not change the award of the Board. Wade v. Harris, 210 Ga. App. 882, 884 (1) (437 SE2d 863) (1993). The function of the superior court is administrative and “equivalent [to the] determination of an amount due under a former final periodic-payment judgment.” Springfield, 238 Ga. at 656.

When an employer fails to make payment under an existing Board award, OCGA § 34-9-221 (f) provides, in part, that “[i]f income benefits payable under the terms of an award are not paid within 20 days after becoming due, there shall be added to the accrued income benefits an amount equal to 20 percent thereof.” The additional amount owed arises by operation of the statute. In Cartersville Ready Mix Co. v. Hamby, 224 Ga. App. 116 (479 SE2d 767) (1996), which concerned a late payment of workers’ compensation income benefits, this Court found that:

requiring resolution of the issue of whether a penalty is due[ ] is unnecessary. Such a procedure would add a layer of litigation and delay to the proceedings, in order to determine an issue over which no dispute usually exists. In this case, for example, no question exists that [the employer] was late in beginning to pay benefits; under the clear language of OCGA § 34-9-221 (e) an increased amount is therefore due the claimant. This issue needs no “resolution.”

Id. at 118. The reasoning of Hamby is likewise applicable to subsection (f). Penalties accrue automatically by operation of the statute upon failure of the employer to pay in a timely fashion.

Advanced Materials argues that penalties must be authorized by an award of the Board in order to be included in a judgment of the superior court rendered under OCGA § 34-9-106. However, the fallacy of the argument is apparent inasmuch as the accrual of late penalties is dependent upon actions which occur following the initial award of the Board.

Advanced Materials relies heavily on Kingery Block &c. Co. v. Luttrell, 174 Ga. App. 481 (330 SE2d 181) (1985). In Luttrell, this court refused to affirm the judgment of a superior court rendered pursuant to OCGA § 34-9-106. However, the judgment was not merely an enforcement of an underlying Board award. Id. at 483. The superior court had directed the employer to make payment for temporary partial disability benefits, but temporary partial disability benefits were not included in the underlying Board award. This court properly refused to affirm penalties associated with the non-payment of benefits which the superior court had no authority to include in its judgment. The penalties in the instant case arose from the failure of the employer to make timely payment following the Board award.

Even if Advanced Materials had a “day in court” before the Board, the employer would have no legitimate issues to raise before the Board with respect to the late payment penalty other than its mathematical calculation or actual payment. Although the Board has the power to excuse a penalty imposed on an employer pursuant to OCGA § 34-9-221 (e), there is no corresponding language in OCGA § 34-9-221 (f), which is applicable here, allowing the Board to grant such relief to the employer.

There is no independent cause of action available to an employee for an employer’s deliberate failure to make workers’ compensation payments. Bright v. Nimmo, 253 Ga. 378, 381 (320 SE2d 365) (1984). Once a late payment penalty has accrued, there is no particularly compelling reason for an employer to make the payment, and if employees must enforce collection of late payment penalties in proceedings separate from the judgment for the overdue benefits, employers will most likely make them do so. This result is not consistent with the purpose of the Workers’ Compensation Act. “The Workers’ Compensation Act was designed to provide immediate financial assistance to injured employees and to furnish a speedy, inexpensive and final settlement of their claims. [Cits.]” Southeastern Aluminum Recycling v. Rayburn, 172 Ga. App. 648, 649 (1) (324 SE2d 194) (1984).

Decided December 30, 1999.

Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., Kenneth A. David, for appellant.

Jack F. Witcher, Lee W. Fitzpatrick, for appellee.

The superior court calculated the penalty of 20 percent of Rembert’s accrued income benefits in a manner consistent with the underlying award of the Board and in conformity with the Code. Therefore, we affirm the judgment of the superior court.

Judgment affirmed.

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


author: Johnson, Chief Judge.

text:
    A99A2330.
    CASWELL et al. v. ANDERSON.
    (527 SE2d 582)
   Johnson, Chief Judge.

Where contract language is unambiguous, no construction is necessary and the court must simply enforce the contract according to its clear terms. Contract language is unambiguous if it is capable of only one reasonable interpretation. When Harry Anderson withdrew from three real estate development partnerships, he and the other partners entered into a settlement contract. Section 2.1 of that contract provided that the partners would pay Anderson $650,000 at the contract closing, and section 2.2 stated that they might have to pay him up to $50,000 per year for the third, fourth and fifth years after the closing. The contract further stated that if certain partnership buildings were sold or refinanced within five years of Anderson’s withdrawal, then he would receive a percentage of the net proceeds, “subject in each case to credits for all payments made under subsections 2.1 and 2.2 above.”

Is this contract language ambiguous in that it may or may not allow the partners to use their single $650,000 payment to Anderson as a credit more than once? We hold that the language is not ambiguous because the only reasonable interpretation of it is that the partners can use the one-time $650,000 payment as a credit only once and cannot deduct that single payment multiple times as a credit against Anderson’s share of every sale or refinancing of a building. We therefore disagree with the trial court’s finding that the contract is ambiguous. But we agree with the court’s ultimate finding, reached .after applying the rules of contract construction, that the partners are not entitled to multiple credits based on that single payment. And because a ruling that is right for any reason must be affirmed, we affirm the trial court’s grant of partial summary judgment to Anderson and denial of partial summary judgment to the partners.

In 1985, James Caswell, Claude Petty, Michael Walsh, Stanley Williams and Harry Anderson formed Habersham Venture, Ltd. and two other limited partnerships. The partnerships were formed in order to develop real estate. Habersham Venture’s main assets were its interests in buildings in the Piedmont Center office complex in Atlanta.

In 1992, Anderson sued his partners for alleged misconduct. And the partners counterclaimed that Anderson had committed wrongful acts. Anderson and the partners mediated their disputes. In 1994, they entered into a settlement agreement which provided, among other things, for Anderson’s compensation upon leaving the partnerships.

Pursuant to section 2.1 of the agreement, a cash payment of $650,000 was made to Anderson at the closing of the contract on April 27, 1994. Section 2.2 of the contract further provided that on the third, fourth and fifth anniversaries of the closing, Anderson could receive payments of as much as $50,000. Under sections 2.4 and 2.5, Anderson was to be paid if certain Piedmont Center buildings were sold or refinanced within the five years following the agreement closing. Those sections provided that if there was such a sale or refinancing, then Anderson would be paid 13.63 percent of the proceeds, “subject in each case to credits for all payments made under subsections 2.1 and 2.2 above.”

In December 1995, the partners sold one of the Piedmont Center buildings. Anderson’s 13.63 percent share of the proceeds was $1,415,052. But pursuant to contract section 2.4, the partners applied as a credit the entire $650,000 payment that had been made to Anderson under section 2.1. After deducting that credit, the partners paid Anderson $765,052 as his share of the sale proceeds.

In March 1996, the loans for other Piedmont Center buildings were refinanced. The partners computed Anderson’s 13.63 percent share of the distributed loan proceeds to be $650,151. But they again deducted as a credit the $650,000 payment that had been made under section 2.1 and therefore paid Anderson only $151.

Anderson sued his former partners, asserting that the partners have already exhausted the $650,000 credit by deducting it from his share of the 1995 building sale and that they have breached the settlement agreement by using it again as a credit for the 1996 refinancings. Both sides filed motions for partial summary judgment, asking the trial court to enforce their respective interpretations of the contract. Anderson averred that the only reasonable interpretation is that the partners may use the $650,000 credit once, while the partners claimed that they could apply it to every sale or refinancing of a building.

The trial court found that the contract is ambiguous because these are both reasonable interpretations of the language. The court then applied the rules of contract construction and concluded that given those rules the contract must be construed in favor of Anderson’s claim that the $650,000 credit has been exhausted. The court therefore granted Anderson’s motion for partial summary judgment and denied the partners’ opposing motion. The partners appeal.

Interpretation of a contract involves three steps. First, the court decides if the contract language is unambiguous, and if so the court enforces the contract’s clear terms. Second, if the contract is ambiguous, the court must apply the rules of contract construction to resolve the ambiguity. And third, if the ambiguity remains after use of the construction rules, the meaning of the contract must be decided by a jury.

In the instant case, the language of the settlement agreement is unambiguous, so the second and third steps of contract construction need not be reached. Ambiguity exists when the language may be fairly understood in more than one way; language is unambiguous if it is capable of only one reasonable interpretation. Contrary to the trial court’s finding, the partners’ interpretation of the contract language — that they are entitled to multiple credits of $650,000 — is not reasonable.

The contract provides that the money owed to Anderson after each building sale or refinancing is subject to credits for all payments made under sections 2.1 and 2.2. There is no section 2.2 credit issue in this case, only a question as to the partners’ credit for having made a single payment of $650,000 under section 2.1. The term “credit” is clear and unambiguous and thus is to be understood in its ordinary and popular sense as supplied by dictionaries. Webster’s Third New International Dictionary defines credit as “a deduction from an amount otherwise due.” The ordinary meaning of credit thus provides for a single deduction, not multiple deductions as urged by the partners.

Decided January 3, 2000.

Troutman Sanders, James K. Quillian, Nancy K. Deming, Scott A. Farrow, Julia M. Gonzalez, Eric A. Richardson, for appellants.

King & Spalding, M. Robert Thornton, Joseph B. Haynes, William F. Lummus, Jr., Roger B. Handberg, for appellee.

The amounts otherwise due to Anderson are his 13.63 percent shares of any sold or refinanced buildings. According to the agreement, the partners are entitled to deduct from those amounts payments that they have previously made. Because they have previously made a single $650,000 payment, they are entitled to a single deduction or credit in that amount. They have already used that entire credit, so they are not entitled to use it again. Under the unambiguous contract terms, they are not entitled to take multiple credits for their single payment.

A summary judgment ruling that is right for any reason must be affirmed. Although the trial court erred in finding that the contract language is ambiguous, the court correctly granted partial summary judgment to Anderson and denied partial summary judgment to the partners by finding, after applying the rules of contract construction, that the partners are not entitled to multiple credits or deductions of the single $650,000 payment. Because that finding is correct, we must affirm the grant of partial summary judgment to Anderson and the denial of partial summary judgment to the partners.

Judgment affirmed.

McMurray, P. J, and Phipps, J., concur.

        Estate of Sam Farkas v. Clark, 238 Ga. App. 115, 119-120 (2) (517 SE2d 826) (1999).

        Lostocco v. D’Eramo, 238 Ga. App. 269, 275 (d) (518 SE2d 690) (1999); Estate of Sam Farkas, supra.

        Lostocco, supra.

       Id.

       Id.

       Id.

       Id.

        Estate of Sam Farkas, supra.

       See Henderson v. Henderson, 152 Ga. App. 846, 847 (264 SE2d 299) (1979).

        King Indus. Realty v. Rich, 224 Ga. App. 629, 631 (3) (481 SE2d 861) (1997).


author: Blackburn, Presiding Judge.

text:
    A99A2339.
    DAVIS v. BEASLEY TIMBER COMPANY, INC.
    (527 SE2d 221)
   Blackburn, Presiding Judge.

Garvis Davis appeals the trial court’s order granting defendant Beasley Timber Company, Inc.’s motion for summary judgment in the underlying negligence action. This appeal concerns whether Fred L. Miles was an independent contractor or an employee of Beasley Timber. Because the evidence shows an issue of material fact remains as to whether Miles was an independent contractor, we reverse.

On appeal of the grant of summary judgment, this Court applies a de novo review of the evidence to determine whether any question of material fact exists. Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A defendant meets this burden by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. All of the other disputes of fact are rendered immaterial.

(Citations and punctuation omitted.) Phelps v. BellSouth Advertising &c. Corp., 235 Ga. App. 147, 148 (508 SE2d 779) (1998).

Our de novo review of the record reveals plaintiff Davis and defendant Miles were involved in a collision in which Davis was injured. At the time of the accident, Miles was driving a tractor-trailer which was loaded with logs. As a result of the accident, Davis brought the underlying action against Miles and John C. Moore d/b/a C. Moore Trucking. After conducting discovery, Davis amended his complaint to add Beasley Timber and Susan Spell Moore d/b/a C. Moore Trucking.

1. In its motion for summary judgment, Beasley Timber contends that Miles was an independent contractor and that, therefore, it cannot be responsible for any negligent acts alleged against Miles.

The employer generally is not responsible for torts committed by his employee when the latter exercises an independent business, and in it is not subject to the immediate direction and control of the employer. In determining whether the relationship of parties under a contract for performance of labor is that of employer and servant or that of employer and independent contractor, the chief test lies in whether the contract gives, or the employer assumes, the right to control the time, manner, and method of executing the work as distinguished from the right merely to require certain definite results in conformity to the contract. Where the contract of employment clearly denominates the other party as an independent contractor, that relationship is presumed to be true unless the evidence shows that the employer assumed such control. On the other hand, where the contract specifies that the employee’s status shall be that of independent contractor but at the same time provides that he shall be subject to any rules or policies of the employer which may be adopted in the future, no such presumption arises.

(Citations and punctuation omitted.) Ross v. Ninety-Two West, Ltd., 201 Ga. App. 887, 891-892 (412 SE2d 876) (1991). See also OCGA §§ 51-2-4; 51-2-5.

Both Miles and his sister, Susan Spell, deposed that, at the time of the collision, Miles drove a truck for Spell d/b/a C. Moore Trucking but was under contract with Beasley Timber. Beasley Timber paid C. Moore Trucking a certain amount for each load that was hauled. Spell then paid Miles 30 percent of the gross amount received from Beasley Timber. As the driver, Miles was not responsible for the upkeep on the tractor or the trailer. Spell rented the trailer from Beasley Timber which made any necessary repairs to it, and Spell arranged for any repairs to the tractor. Spell provided gas, log chains, flags, and log lights. Spell carried insurance on the tractor.

Beasley Timber told Miles to show up between 6:00 and 7:00 a.m. for his first load and not to show up after 6:00 to 6:30 p.m. for a new load. Beasley Timber also told Miles where to take each load. Miles determined what route to take to each mill and could stop on the way for business or personal reasons. Miles testified that either he or the Beasley Timber employee loading the trailers would decide how many loads he would take in a day.

Beasley Timber gave Miles a handbook on company policy and explained the company’s “Do’s and Don’ts.” Although normally Miles took the tractor and trailer home with him every night, Beasley Timber could instruct him to leave it in a certain area of the woods for the night.

Although there is evidence to support the conclusion that Miles was an independent contractor, i.e., method of payment and ability to make personal stops on the way to the mill, there is also evidence to support the conclusion that Beasley Timber maintained sufficient control over Miles so that he can be considered an employee, i.e., instructions regarding company policies and direction regarding timing and destination of hauls. Under these circumstances, we cannot say that the evidence is undisputed.

Beasley Timber contends that the trial court improperly relied upon depositions that were taken before it was added as a party. However, we need not reach this issue, because our review of only the evidence taken by representatives of Beasley Timber creates issues of material fact as to whether Miles was an independent contractor.

2. Due to our holding in Division 1, we need not reach whether the alleged violation of OCGA § 40-8-27 (requiring a red light at the end of a load on a trailer under certain conditions) created liability pursuant to OCGA § 51-2-5 (4) (employer is liable for negligence of contractor if wrongful act is the violation of a duty imposed by statute).

Decided December 15, 1999

Reconsideration denied January 5, 2000

Jones & Smith, Julian B. Smith, Jr., Harrison & Wall, Milton Harrison, for appellant.

Newton, Smith, Durden, Kaufold, Rice & Trimble, Wilson R. Smith, for appellee.

Judgment reversed.

Eldridge and Barnes, JJ, concur.


text:
    A99A1664.
    WATERS v. STEAK & ALE OF GEORGIA, INC.
    (527 SE2d 592)
   Blackburn, Presiding Judge.

In this action based on the principles of respondeat superior, Gordon Waters appeals the trial court’s grant of summary judgment to Steak & Ale of Georgia, Inc. d/b/a Bennigan’s on his claims of battery, false imprisonment, and active negligence. Waters contends that issues of fact remain as to whether Bennigan’s can be held responsible for injuries he received from an altercation between himself and members of Bennigan’s kitchen staff. Because we find that the acts of the kitchen staff were not done within the scope of their employment, we find that respondeat superior does not apply and affirm the decision of the trial court.

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

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

Viewed in this light, the record shows that, around 12:45 a.m. on May 15, 1993, Waters was driving his girlfriend, Paige Jones, to her parents’ house after spending the earlier part of the evening at a bar. At the time, Jones was highly intoxicated, and Waters contends that she was having flashbacks about a prior boyfriend who used to beat her. In this commotion, Waters drove over the curb of the interstate, and two of his tires blew out. Waters then stopped the car, told Jones to stay seated, and crossed the street to use the telephone at Benni-gan’s.

Waters entered the restaurant and asked to use the phone, but before he could do so, he heard Jones, in the midst of an alleged flashback, screaming that someone was trying to hurt her and asking for help. Waters then returned to his parked car, attempted to calm Jones who was now standing on the curb, and turned to go back into Bennigan’s. At that time, a number of Bennigan’s kitchen staff had begun to exit the building, either to go home or to investigate the screaming. One such employee was a friend of Jones, and he immediately went to talk with her. Meanwhile, Waters encountered six to eight other employees in the parking lot who asked him what he had been doing to Jones. Three or four of the employees then hit or kicked Waters. The assault stopped when Brian Kirk, the kitchen manager, noticed what was going on and asked the employees to bring Waters inside the restaurant. Kirk told Waters, “We’ll go inside and get [Jones’] parents here and get it straightened out.”

Waters then tried to run to the back corner of the parking lot and into the woods, but some of the employees caught him and struck him again. In an attempt to protect Waters, Kirk instructed the employees to let Waters enter the restaurant. Waters went inside and shortly thereafter sneaked out of an emergency exit and ran into the woods behind the restaurant.

Waters later brought suit against Bennigan’s, claiming that it should be held liable for the actions of its employees on his claims for battery, false imprisonment, and active negligence. The trial court subsequently granted a motion by Bennigan’s for summary judgment on all claims, finding that Bennigan’s employees were not acting within the scope of their employment when the incident occurred. We agree.

All three of Waters’ claims, which are grounded in the doctrine of respondeat superior, are without merit if, at the time of the incident Waters complains of, Bennigan’s employees were not acting within the scope of their employment.

Our Code states that every person shall be liable for torts committed by his servant by his command or in the prosecution and within the scope of his business. OCGA § 51-2-2. But, our appellate courts have followed a long line of authorities citing the general rule that in determining the liability of the master for the negligent or wilful acts of a servant, the test of liability is, not whether the act was done during the existence of the employment, but whether it was done within the scope of the actual transaction of the master’s business for accomplishing the ends of his employment.

(Punctuation omitted.) Wittig v. Spa Lady, Inc., 182 Ga. App. 689, 690 (356 SE2d 665) (1987). See also Lipham v. Federated Dept. Stores, 263 Ga. 865 (440 SE2d 193) (1994) (active negligence, where an employee takes affirmative action which results in harm, exists only where employee acts within scope of his employment).

As a general rule, the determination of whether an employee was acting within the scope of his employment is a question for the jury; however, in plain and indisputable cases, the court may decide the issue as a matter of law. New Madison South L.P. v. Gardner, 231 Ga. App. 730, 733 (1) (231 SE2d 730) (1998).

The undisputed facts in the record before us show that Benni-gan’s employees were not acting within the scope of their employment when Waters was attacked. According to the affidavit of Nancy Fournier, a general manager of Bennigan’s operations in Georgia and Florida, the duties of the kitchen staff were limited to activities within the kitchen, and they had no authorization to employ physical force against any party for any reason. Furthermore, the kitchen staff had no duties to maintain security on the premises, and no Ben-nigan’s employees were authorized to detain customers or other persons for any reason. Waters provided nothing to contradict this evidence, and, as such, it is clear that the members of the kitchen staff were acting in an unauthorized manner not within the scope of their employment when they attacked Waters. Therefore, Waters’ claims must fail because the elements of respondeat superior are not present in this case.

Waters’ vociferous arguments that Bennigan’s employees were “on the clock” at the time of the altercation have no bearing on this result. As stated earlier, “the test of liability is, not whether the act was done during the existence of the employment, but whether it was done within the scope of the actual transaction of the master’s business for accomplishing the ends of his employment.” (Punctuation omitted.) Wittig, supra.

Moreover, we point out that, even if Waters’ claim for active negligence was not otherwise faulty, as discussed above, it still lacks substantive merit. Waters contends that Kirk, the kitchen manager, committed active negligence by failing to stop the altercation in a timely manner. The evidence, however, indicates that Kirk stopped the fight shortly after it began, and there is no indication that the fight should have been foreseeable to Kirk in any way. The only evidence before us indicates that Kirk did what he could to protect Waters once the unexpected altercation began. Accordingly, there is no support for Waters’ argument that Kirk committed active negligence.

Decided January 5, 2000.

Almand & Wiggins, O. Hale Almand, Jr., Pattie J. Williams, for appellant.

Smith, Gambrell & Russell, David A. Handley, Dana M. Richens, for appellee.

Judgment affirmed.

Eldridge, J., concurs. Barnes, J., concurs in the judgment only.


author: Barnes, Judge.

text:
    A99A2337.
    SMILEY v. THE STATE.
    (527 SE2d 585)
   Barnes, Judge.

David Smiley was convicted of cocaine possession under OCGA § 16-13-30 (a) and appeals his sentence of 30 years imposed under OCGA § 16-13-30 (c) and the recidivism statute, OCGA § 17-10-7. Smiley argues that his previous conviction for cocaine possession with the intent to distribute was not a previous conviction for cocaine possession and, therefore, he should not have been sentenced for a second offense of cocaine possession under OCGA § 16-13-30 (c). We disagree and affirm.

We have held that a conviction for trafficking in cocaine under OCGA § 16-13-31 constitutes a second violation of possession with intent to distribute cocaine under OCGA § 16-13-30 (b), triggering the mandatory life sentence required by OCGA § 16-13-30 (d). Gilbert v. State, 208 Ga. App. 258, 260 (1) (430 SE2d 391) (1993). In that case, we said:

To conclude that Gilbert’s prior conviction under OCGA § 16-13-31 does not trigger the recidivist provisions of OCGA § 16-13-30 (d) would lead to an illogical result since Gilbert’s first conviction was for a more serious version of the offenses outlined in OCGA § 16-13-30 (b). It appears that OCGA § 16-13-30 (b) was a lesser included offense of Gilbert’s conviction under OCGA § 16-13-31.

Id. Accord Brundage v. State, 231 Ga. App. 478, 480 (4) (499 SE2d 408) (1998); Cody v. State, 222 Ga. App. 468, 471 (4) (474 SE2d 669) (1996).

A similarly illogical result would apply here if Smiley’s previous conviction for possession with intent to distribute did not equal a conviction of simple possession that triggered the mandatory 30-year sentencing for a second simple possession offense under OCGA § 16-13-30 (c). Simple possession is a lesser included offense of possession with the intent to distribute. See Burse v. State, 232 Ga. App. 729, 731 (2) (503 SE2d 638) (1998); Howard v. State, 220 Ga. App. 579, 583 (2) (469 SE2d 746) (1996). We find no error in Smiley’s sentence.

Decided January 5, 2000.

Luz F. Cloy, for appellant.

Stephen D. Kelley, District Attorney, Ann S. Williams, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.


text:
    A99A2410.
    RALEY v. THE STATE.
    (527 SE2d 590)
   Barnes, Judge.

Michael Raley pled guilty to aggravated assault and possession of a firearm by a convicted felon. The trial court rejected the parties’ negotiated plea of twelve years to serve five, and after Raley affirmed he did not want to withdraw his plea, the court sentenced him to fifteen years to serve seven. Raley contends that the trial court erred in denying his motion to set aside his guilty plea on the ground that he was not sufficiently informed of the rights he was giving up and in denying his motion for a new trial on the ground his counsel was ineffective. We affirm.

1. Raley argues his guilty plea should be set aside because the trial court did not comply with Uniform Superior Court Rule 33.8. This rule provides that, before accepting a guilty plea, a judge should determine that the defendant understands the nature of the charges, inform the defendant that he waives specified rights by pleading guilty, and inform the defendant of the terms of any negotiated plea, the maximum sentence, and any mandatory minimum sentence. The rule further provides that all of this information should be on the record.

In response to questions from his lawyer, Raley said at his plea hearing that he understood he was charged with aggravated assault and possession of a firearm by a convicted felon, had discussed with his lawyer the charges against him, had no questions about the charges or the proceedings, and had understood and written his answers to 31 questions on a preprinted form that outlined the hearing procedures and his rights. The trial court then asked Raley each of the 31 questions on that form. In his responses, Raley confirmed that he understood that he had the right to plead not guilty and that if he did so, he had rights to a trial by jury, to appointed counsel, to remain silent, and to confront his accusers. Raley further confirmed that he understood that his entry of a plea waived these rights.

Raley asserts that the plea transcript shows that he was not told he was waiving his presumption of innocence and his right to testify and offer evidence or that he could possibly receive consecutive sentences on the two charges to which he pled guilty. He further asserts that, instead of telling him he waived specific rights if he pled guilty, such as the right to a trial by jury, the trial court erred by asking instead if he understood that he had the right to a trial by jury if he pled not guilty.

Although before sentence is imposed the defendant has an absolute right to withdraw a guilty plea, after sentence is imposed a guilty plea may be withdrawn only to correct a manifest injustice. State v. Evans, 265 Ga. 332, 336 (3) (454 SE2d 468) (1995). While the requirements of USCR 33 are mandatory, id. at 333-334 (1), the court need not specifically address each issue found in USCR 33.8. McClen-don v. State, 256 Ga. 480, 481 (2) (350 SE2d 235) (1986); Johns v. State, 223 Ga. App. 553 (1) (479 SE2d 388) (1996). Instead, the State must show that the record as a whole demonstrates that Raley’s plea was knowing and voluntary. King v. State, 215 Ga. App. 139, 140 (1) (449 SE2d 870) (1994). It can meet that burden either by “(1) showing on the record of the guilty plea hearing that the defendant realized all the rights he was waiving and the possible consequences of his plea, or (2) using extrinsic evidence that shows that the guilty plea was knowing and voluntary.” Id.

Here, “although the court did not specifically address each issue found in [USCR] 33.8, we find the court’s determination of voluntariness clearly supported by the record,” and find no error. (Citation and punctuation omitted.) King v. State, supra at 141.

2. Raley argues that the trial court erred in denying his motion for a new trial based on ineffective assistance of counsel. Raley contends that his trial counsel was ineffective because she incorrectly assured him that a new policy from the Board of Pardons & Paroles did not apply to him. That policy, according to Raley, requires that an inmate convicted of aggravated assault serve at least 90 percent of his sentence. Raley asserts that he would not have pled guilty had he known he would have to serve that much time. Therefore, he argues, his counsel was ineffective, and the trial court should have granted his motion for new trial.

A defendant who waives his right to trial and enters a guilty plea is entitled to effective legal assistance. On appeal,

the question is whether the attorney’s advice falls within the range of competence of attorneys in criminal cases and whether there is a reasonable probability that the defendant would not have pleaded guilty and would have insisted on going to trial but for counsel’s errors.

Decided January 5, 2000.

Ronnie Joe Lane, for appellant.

J. Brown Moseley, District Attorney, Minerva S. Cansino, Assistant District Attorney, for appellee.

Smith v. Wilson, 268 Ga. 38, 39 (2) (485 SE2d 197) (1997).

_ In the hearing on his motion for new trial, Raley testified that his lawyer told him that the 90 percent rule did not apply to him, but that he would serve from one-third to one-half of his sentence. Raley’s mother also testified that his lawyer told him that the 90 percent rule did not apply to him. On the other hand, Raley’s former lawyer testified that Raley asked her a few days before the plea calendar whether the 90 percent rule applied to him. She testified that she told him she did not know but would research the issue. The lawyer further testified that when they met again just before the plea, she told Raley that she could not definitively say whether the rule applied to him or not.

In its order denying the motion for new trial, the trial court noted that it had considered the testimony of Raley, his mother, and his former attorney. “A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous.” (Punctuation omitted.) Whitehead v. State, 211 Ga. App. 121, 123 (438 SE2d 128) (1993). Because the evidence supports the conclusion that Raley’s trial counsel advised him that she did not know if the Board policy applied, the trial court’s denial of Raley’s motion for a new trial based on ineffective assistance of counsel is not clearly erroneous.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.


author: Ruffin, Judge.

text:
    A99A1842.
    MAGUIRE v. DOMINION DEVELOPMENT CORPORATION.
    (527 SE2d 575)
   Ruffin, Judge.

This appeal presents the issue of whether an injured worker can sue a statutory employer in tort after that employer has successfully defeated a claim for workers’ compensation benefits based upon the worker’s failure to follow proper procedures. We hold that he cannot.

In 1993, Timothy Maguire began working with two of his relatives, Brent and Dwayne Eiland, in the construction business. The three men heard about a construction project for Dominion Development Corporation at Bristol Park Apartments, and, on February 2, 1994, they went to the construction site to inquire about jobs. After Brent spoke with Leonard Shaw, a subcontractor for Dominion, Shaw told the men that they could get their tools and begin work immediately.

On February 7, 1994, while working at the construction site, Maguire injured his back and foot when the scaffolding on which he was standing collapsed, causing him to fall 25-30 feet. As a result of his injuries, Maguire was unable to work. He filed a claim with the State Board of Workers’ Compensation against Shaw and Dominion, and a hearing was held on January 24, 1995.

In an order dated March 9, 1995, the administrative law judge (ALJ) found that Maguire was not an employee of either Shaw or Dominion, but that he worked for an independent contractor. The ALJ concluded that Maguire and Brent and Dwayne Eiland had formed a partnership and that Maguire was an employee of the partnership. The ALJ noted that, under OCGA § 34-9-8, Maguire was required to first seek benefits from the partnership as his immediate employer before pursuing a workers’ compensation claim against either Shaw or Dominion as statutory employers. Accordingly, the ALJ concluded that Maguire was barred from bringing such a claim against Shaw or Dominion.

On February 6, 1995, Maguire filed suit against Dominion in Fulton County State Court, alleging that the collapse of the scaffolding was due to Dominion’s negligence. Dominion moved for summary judgment asserting that, under the exclusive remedy doctrine, it was immune from tort liability. Dominion maintained that, as a statutory employer, it enjoyed the same immunity from suit as an immediate employer. The trial court agreed and granted Dominion’s motion. In his sole assertion of error, Maguire argues that the trial court erred in granting summary judgment. We disagree.

“The fundamental principle underlying the workers’ compensation system is that, in exchange for prompt payment of income and medical benefits to injured workers, employers are immune from tort liability.” Under OCGA § 34-9-8, principal contractors, as “statutory employers,” may also be liable for payment of workers’ compensation benefits to injured employees of subcontractors if those subcontractors do not have workers’ compensation insurance. Accordingly, such statutory employers also enjoy tort immunity even if they do not pay a claim. As our Supreme Court stated in Wright Assocs. v. Rieder, “[t]he quid pro quo for the statutory employer’s potential liability is immunity from tort liability.”

Maguire argues that the principle enunciated in Rieder should not apply because Dominion denied liability for workers’ compensation benefits and successfully defended the claim before the State Board of Workers’ Compensation. But the fact that Dominion prevailed before the Board is not dispositive. It is a statutory employer’s potential liability for workers’ compensation benefits rather than actual liability that triggers the tort immunity. Thus, so long as Dominion was Maguire’s statutory employer, it would enjoy immunity from a tort claim.

It is undisputed that Dominion is Maguire’s statutory employer. As such, Dominion is potentially liable for his workers’ compensation benefits. The only reason Dominion did not have to pay Maguire’s workers’ compensation benefits is that Maguire failed to comply with OCGA § 34-9-8 (c), which requires employees to first pursue a claim against the immediate employer before pursuing the statutory employer.

We see no reason to allow a worker to sue a statutory employer in tort simply because that employer successfully defended a claim for workers’ compensation benefits. Under Maguire’s reasoning, an employee whose claim was defeated by a statutory employer on the grounds of wilful misconduct — such as drug use or horseplay — would be able to file a tort claim against that employer. Indeed, the argument advanced by Maguire would essentially deprive statutory employers of any defense to a workers’ compensation claim because any successful defense would render the employer liable in tort. Moreover, Maguire’s construction would allow injured workers to circumvent a statutory employer’s tort immunity by intentionally failing to file a claim against his immediate employer. We cannot reconcile these results with the Supreme Court’s holding in Rieder. Accordingly, we affirm the trial court’s grant of summary judgment to Dominion.

Decided December 17, 1999

Reconsideration denied January 6, 2000

Toliver & Gainer, Alvin L. Toliver, Joseph H. King, Jr., Jack T. Brinkley, Jr., for appellant.

Carter & Ansley, David J. Marmins, Christopher N. Shuman, for appellee.

Judgment affirmed.

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

       It does not appear from the record that Maguire appealed the ALJ’s decision.

       Maguire also sued Shaw and Catalino Caneda, but the other parties have been dismissed.

       Maguire also asserted that Dominion was strictly liable for the collapse of the scaffolding. But the trial court ruled that Dominion could not be held strictly liable, and Maguire does not appeal this ruling.

       See Sheehan v. Delaney, 238 Ga. App. 662, 663 (1) (521 SE2d 585) (1999); OCGA § 34-9-11.

        Wright Assocs. v. Rieder, 247 Ga. 496, 497-500 (1) (277 SE2d 41) (1981).

       (Emphasis supplied.) Id. at 500.

       Id.

       See OCGA § 34-9-17 for defenses to workers’ compensation claims.


text:
    A99A2167.
    CROMARTIE v. THE STATE.
    (527 SE2d 228)
   Eldridge, Judge.

A Worth County jury found James Cromartie guilty of trafficking in cocaine, driving without a tag light, and driving with a suspended driver’s license. He appeals pro se and, from what we can decipher, raises four alleged errors of law. Finding the enumerated errors mer-itless, we affirm.

1. Cromartie contends that he received ineffective assistance of counsel at trial because his trial attorney allegedly: (a) failed to discuss the case with him in preparation for trial; (b) failed to produce material witness Reginald Gissendanner; (c) failed to prepare his wife Carolyn Cromartie to testify at trial; (d) failed to file a motion to suppress evidence obtained pursuant to a search of his Pathfinder sport utility vehicle (“SUV”); and (e) failed to request the trial court to charge the jury on the law relating to “misfortune.”

[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). Further, “[a] trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.” (Citation and punctuation omitted.) Smith v. State, 216 Ga. App. 415, 416 (3) (454 SE2d 615) (1995).

We have reviewed defense counsel’s testimony at the motion for new trial and find Cromartie’s contentions to be without merit for the following reasons:

(a) Trial counsel met with Cromartie at least four times prior to trial and discussed all aspects of the case, including Cromartie’s theory of defense. Apparently, the only reason more meetings did not occur was because Cromartie, who was out on bond, would not call counsel or set up an appointment to come to counsel’s office. The record indicates that Cromartie was more interested in seeking a continuance of his case than preparing for trial. Thus, counsel was not ineffective due to a failure to discuss the case with Cromartie.

(b) Cromartie told his trial counsel that he, Cromartie, would produce allegedly material witness Gissendanner, who resided in Miami, Florida. Thus, counsel was not ineffective for failing to produce said witness.

Further, Cromartie wanted Gissendanner as a witness in order for Gissendanner to testify that the drugs were his and that he had placed them into Cromartie’s SUV. In addition, Gissendanner had outstanding criminal charges in Worth County. Under such circumstances, it would appear likely that any attempts to obtain testimony from Gissendanner would be unavailing. Accordingly, the failure to produce such witness would not be ineffective.

(c) Carolyn Cromartie was not listed as a witness for the defense and was not supposed to testily; she was called as a rebuttal witness immediately following the testimony of the State’s rebuttal witness. As such, “preparation” for trial testimony would be impossible, since counsel was not aware of the substance of the State’s rebuttal testimony in order to engage in “preparation.”

Moreover, the record shows that the “preparation” Cromartie had in mind would have altered his wife’s testimony that she never heard Cromartie discuss his case with his probation officer, which testimony was contrary to Cromartie’s statements during the defense case-in-chief. While the alteration of Mrs. Cromartie’s harmful, but presumably truthful, testimony may be viewed as “preparation” by appellant, we would consider it “fabrication” and do not find trial counsel ineffective for failing to engage in such. See Nix v. Whiteside, 475 U. S. 157 (106 SC 988, 89 LE2d 123) (1986) (holding that the right to testify on one’s own behalf does not include the right to lie).

(d) Trial counsel filed 12 motions on Cromartie’s behalf. Counsel discussed in detail with Cromartie the stop of his SUV, Cromartie’s arrest for driving with a suspended license, and the subsequent search of the SUV. A search of the vehicle could be done pursuant to impound following arrest, but Cromartie also gave the officers consent to search his SUV and even told the officers how to open the back hatch. “In light of this evidence, a motion to suppress would have been meritless, and [Cromartie’s] counsel was therefore not ineffective for failing to file such motion.” Crews v. State, 226 Ga. App. 232, 233 (1) (486 SE2d 61) (1997).

(e) While Cromartie may view the officers’ discovery of 42 grams of cocaine under the hood of his SUV as “unfortunate,” such does not justify a jury charge on the law regarding “misfortune.” The law of accident and misfortune does not encompass Cromartie’s defense that the drugs belonged to someone else and that he did not know the drugs were in the SUV. Where there is nothing to indicate that a defendant, himself, did anything by accident or mistake, a charge on misfortune is not applicable. Mansfield v. State, 214 Ga. App. 520-521 (1) (448 SE2d 490) (1994). Trial counsel was not ineffective for failing to request an inapplicable jury charge.

The record supports the trial court’s finding that Cromartie received effective assistance of counsel. Accordingly, this assertion of error is meritless.

2. Cromartie contends that, at the time of trial, he was “clandestinedly [sic] infiltrating a special case” on behalf of drug enforcement agents and, thus, the trial court erred in denying his motion to continue the trial of his case to another trial calendar.

The record shows that Cromartie’s motion for continuance was first made following jury selection. Cromartie requested a continuance in order to hire an attorney, because he was dissatisfied with his court-appointed attorney. The trial court noted that Cromartie had ample time to hire an attorney during the months his court-appointed attorney had represented him; it was then Cromartie alluded to some work he was doing with law enforcement investigator Tommy Adams that Cromartie thought would preclude the necessity to go to trial at all. The trial court denied Cromartie’s motion for continuance, because Cromartie had requested a court-appointed lawyer and had over four months to hire an attorney, if he had wanted to do so. However, at the same time, the trial court specifically held:

[0]n the matter Mr. Cromartie was talking about and this reference to Mr. Adams, if at some point either side desires, well just take the court reporter in chambers with just the lawyers and investigator [Adams] and the defendant, and explore this matter a little further.

Cromartie put forward no further evidence on this subject.

Since the record contains no evidence in support of Cromartie’s contentions regarding “clandestined infiltration,” we find no abuse of the trial court’s discretion in denying his motion for a continuance on such basis. OCGA § 17-8-22.

3. (a) Cromartie next contends that the trial court erred in denying his motion for new trial, because the trial court allegedly failed to consider the exculpatory affidavit of Gissendanner attached to the defense’s brief in support of the motion for new trial. Gissendanner’s affidavit stated that the drugs were his and that Cromartie had no knowledge that drugs were present in the SUV. To the extent that Cromartie’s motion for new trial encompasses an extraordinary motion for new trial based on newly discovered evidence, we find his contentions meritless.

The standard for granting a new trial on the basis of newly discovered evidence is well established. It is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness. All six requirements must be complied with to secure a new trial.

(Citations and punctuation omitted; emphasis supplied.) Timberlake v. State, 246 Ga. 488, 491 (271 SE2d 792) (1980).

Here, Gissendanner’s affidavit is not “newly discovered” evidence, since the record shows that Cromartie had been in contact with Gissendanner and expected Gissendanner to appear at trial to testify regarding the substance of the affidavit. Nor has Cromartie shown that he used due diligence in order to obtain Gissendanner’s presence prior to trial. There is no evidence that Gissendanner was subpoenaed, nor was any evidence put forward regarding the steps exercised to obtain Gissendanner’s presence at trial.

Decided December 15, 1999

Reconsideration denied January 6, 2000

James Cromartie, pro se.

C. Paul Bowden, District Attorney, Holli G. 'Martin, Assistant District Attorney, for appellee.

In fact, from the record, it appears that Gissendanner was aware that Cromartie had been charged with the offense and, apparently, refused to appear for trial, even though he was contacted by Cromar-tie; Gissendanner did not appear at the motion for new trial on Cro-martie’s behalf; and there is absolutely no showing that Gissendan-ner would appear at any subsequent trial on this case to testify to the substance of his affidavit. “Implicit in [the] six requirements [for newly discovered evidence] is that the newly discovered evidence must be admissible as evidence. [Cit.]” Seritt v. State, 237 Ga. App. 665, 667 (2) (516 SE2d 366) (1999). Gissendanner’s affidavit would not be admissible in a criminal trial. We find no error in the trial court’s refusal to consider it, since there is no evidence that its putative author would actually appear in court to testify in support thereof.

(b) Cromartie also contends that the trial court denied his motion for new trial because of a bias against Cromartie due to what Cromartie calls his “flagrant life style and drug involvement.” There is absolutely nothing in the record to support such contention, and we will not consider it.

4. “Because we have decided the main appeal, the appeal from the denial of bond pending post-trial relief is moot. [Cit.]” Fenimore v. State, 218 Ga. App. 735, 739 (463 SE2d 55) (1995).

Judgment affirmed.

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

       Cromartie’s appeal was docketed on June 29, 1999; his brief, styled “Brief in Support of Defendant’s Notice of Appeal,” was filed on August 4,1999. An additional brief, untimely-filed on August 31, 1999, and raising the same issues as the prior brief, will not be considered by this Court.


text:
    A99A2138.
    ZACHERY v. THE STATE.
    (527 SE2d 601)
   Barnes, Judge.

Robert A. Zachery was indicted and convicted of six counts of robbery and recidivism. The trial court sentenced him to serve 20 years pursuant to the recidivist statute, OCGA § 17-10-7 (a), and Zachery appeals. He argues that the trial court erred in failing to merge the six robbery counts into one count and in deciding the' recidivist count itself instead of sending it to the jury. We affirm.

Decided January 6, 2000.

Marcia G. Shein, for appellant.

1. Zachery was indicted on alternative counts of robbery, which alleged that on December 23, 1995, he took: (1) the property of Little Caesar’s pizza from Timothy Wilson; (2) the property of Little Caesar’s pizza from Wilson by sudden snatching; (3) the property of Little Caesar’s pizza from Wilson by use of force; (4) the property of Wilson by intimidation; (5) the property of Wilson by sudden snatching; and (6) the property of Wilson by use of force. He was convicted on all six counts, but he was not sentenced on all six counts. The trial court sentenced him only to serve 20 years as a recidivist.

We agree with Zachery that only one robbery occurred. “Robbery is a crime against possession, and is not affected by concepts of ownership. Similarly, one may only rob a person, and not a corporate entity. . . .” Creecy v. State, 235 Ga. 542, 544 (5) (221 SE2d 17) (1975). Because Zachery took sums of money belonging to both Little Caesar’s and Wilson from only one victim, Wilson, only one robbery occurred, not six. Id.; OCGA § 16-1-7 (a). However, the trial court apparently merged the offenses before sentencing, as it imposed only one 20-year sentence under the recidivist statute, thus avoiding a violation of OCGA § 16-1-7. See Hill v. State, 193 Ga. App. 401, 402 (4) (387 SE2d 910) (1989).

2. Zachery contends the trial court erred in deciding the recidivism count itself rather than sending it to the jury. After the jury returned its verdict on the first six counts, the trial court announced that the parties should return in ten days for sentencing. Zachery made no objection. When the parties reconvened at the appointed time, Zachery did not object to the trial court hearing the recidivism count but did object to two of the State’s prior convictions. Pursuant to Zachery’s objections, the trial court postponed the sentencing for a month so the State could obtain transcripts of the two guilty pleas at issue. Finally, Zachery made no objection to the trial court determining the recidivism count at the second sentencing hearing, after the State presented evidence that two previous guilty pleas were entered knowingly and voluntarily.

Zachery waived this issue by failing to raise it at the trial court. Clark v. State, 206 Ga. App. 10, 12 (2) (424 SE2d 310) (1992). Even if he had properly preserved the issue for appeal, a defendant has no right to a jury trial on a recidivism count. LaPalme v. State, 169 Ga. App. 540, 541 (4) (313 SE2d 729) (1984).

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.

David McDade, District Attorney, Jeffrey L. Ballew, Assistant District Attorney, for appellee.