author: Birdsong, Presiding Judge.

text:
    A97A0894.
    LANG v. THE STATE.
    (487 SE2d 485)
   Birdsong, Presiding Judge.

Appellant Edward Van Lang a/k/a Edward Brian Lang and Brian Lang appeals his conviction of sale of a controlled substance (cocaine) in violation of OCGA § 16-13-30 (b). He enumerates six errors. Held:

1. Judicial notice is taken of the record and transcript, pertaining to appellant, in Case No. A96A1327, Lang v. State. Rogers v. State, 195 Ga. App. 446 (1) (394 SE2d 116).

2. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of sale of cocaine of which he was found guilty. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

3. Appellant contends the trial court erred in failing to give his requested instruction on mistaken identification as that was his sole defense to the sale of cocaine charge. Compare Young v. State, 226 Ga. 553, 557 (7) (176 SE2d 52) with Micheli v. State, 222 Ga. 361 (149 SE2d 803) and Hubbard v. State, 220 Ga. App. 678 (469 SE2d 866) (whole court case with four judges in dissent). Pretermitting this issue is whether appellant failed to preserve this enumerated error for appeal. Appellant did not take any exception to the trial court’s failure to give his requested instruction on mistaken identification, at the conclusion of the charge to the jury, after being expressly asked by the trial court whether he had “any exceptions” to the charges. Such an election constituted waiver of any such charging error on appeal. Compare Weathers v. State, 202 Ga. App. 849, 852 (3) (415 SE2d 690) and Hamby v. State, 158 Ga. App. 265 (3) (279 SE2d 715); see Wright v. State, 182 Ga. App. 570 (1) (356 SE2d 531). Accordingly, we need not order a supplementation of the trial record in an attempt to determine the validity of the State’s contention that appellant withdrew this request to charge at the charge conference; nor need we determine if mistaken identification was in fact appellant’s sole defense.

4. After the jury had been deliberating approximately an hour and 25 minutes, a juror apparently wanted to make a phone call; the trial court called for the jury and ascertained that the vote stood at 10 and 2 but did not ascertain whether the majority were voting for acquittal or conviction. The trial court was informed that the vote had shifted slightly and that the jury was still discussing the case and “may be making slight progress.” The court then sua sponte gave a modified Allen charge. The Allen charge on its four corners reveals that the trial court did not suggest a particular verdict or even require that a verdict be reached by this particular jury. The jury was instructed to return to the jury room for a reasonable time to examine their differences in the spirit of fairness and candor, “with a proper regard for and deference to the opinions of each other,” and to “review again the evidence together and make every possible effort to reach a verdict which you, in good conscience, can subscribe as your own.” The charge conveyed the cautionary instruction that the court was not asking or suggesting that any juror give up honestly held convictions. See Tyson v. State, 217 Ga. App. 428 (1) (457 SE2d 690). The decision to give an Allen charge does not require that the jury be deadlocked. Moore v. State, 215 Ga. App. 626, 627 (3) (451 SE2d 534). Under the totality of the circumstances, the trial court’s election to give this particular Allen charge was not a breach of discretion, did not constitute reversible error, and was not unconstitutionally coercive. Id. Moreover, appellant’s counsel affirmatively stated on the record that there was no exception to the Allen charge.

5. Appellant’s enumeration of inadequacy of counsel “at his trial” is without merit. The proper standard of review of such a claim is the two-prong test of Strickland v. Washington, 446 U. S. 668 (104 SC 2052, 80 LE2d 674). Decisions such as what instructions to request and what witnesses to call are matters of trial tactics and strategy. See generally Van Alstine v. State, 263 Ga. 1 (426 SE2d 360); Reddin v. State, 223 Ga. App. 148 (3) (476 SE2d 882). Further, appellant’s trial record reveals that his trial counsel timely filed cogent pretrial motions and were adequately prepared for trial. Datz v. State, 210 Ga. App. 517, 519 (3) (a) (436 SE2d 506); Reddin, supra at 151 (3) (e). The trial court found that appellant’s trial attorneys, Ms. Griggs and Ms. Blair, were effective during all phases of the trial; inherent within this legal conclusion is the finding that appellant’s trial counsel provided appellant adequate representation throughout appellant’s trial. A trial court’s finding of adequacy must be upheld unless clearly erroneous. Datz, supra at 519 (3) (d). Appellant has failed to show that the trial court’s finding was clearly erroneous. Rather, the appellate records reveal that appellant’s counsel were not deficient within the meaning of Strickland. See generally Reddin v. State, supra at 148 (3); Datz, supra. Appellant failed to carry his burden and has failed to overcome the broad presumption of effective assistance of counsel. Reddin, supra at 152. This enumeration is without merit.

6. Appellant, proceeding pro se, made a motion for continuance at the commencement of his new trial hearing. The trial court denied the motion and subsequently denied appellant’s amended motion for new trial as well. On the date of his hearing, appellant was no longer represented by his trial attorney, and had filed (more than a month earlier) a motion to dismiss his retained appellate counsel, Mr. Cox. At the hearing, appellant stated that his family was going to retain a new attorney to represent him and conceded that, although he had contacted one attorney, no new appellate attorney was present at the hearing to represent him. Appellant further stated that he could proceed with the hearing but that he was only prepared to “go so far” as to the numerous motions which he had filed. He also confirmed that he had not requested either the trial court or the State to appoint an attorney to represent him at the hearing. Although appellant stated he would “prefer to have an attorney present” at the motion for new trial hearing and did not wish to waive his rights to an attorney, he conceded he had said he or his family would hire an attorney of his choice and had not asked for an appointed counsel.

It is reflected by the totality of the record that appellant was fully aware of the dangers associated with his proceeding pro se; this is unequivocally illustrated, for example, by his belated argument to the trial court that he was seeking a continuance because he needed assistance of counsel as he could “only go so far” by himself. Further, at no time after having dismissed his appellate attorney did appellant assert to the trial court that he was indigent and desired counsel to be appointed to represent him.

“A refusal to grant a continuance will not be disturbed by appellate courts unless it clearly appears that the judge abused his discretion in this regard. [Cits.] In all cases, the party making an application for a continuance must show that he has used due diligence. OCGA § 17-8-20.” (Citations and punctuation omitted.) Pope v. State, 256 Ga. 195, 207 (12) (345 SE2d 831). The record in this case discloses ample evidence from which the trial court could have concluded that, although adequate opportunity had existed, appellant had not used due diligence to retain counsel of his own selection prior to the hearing or to submit timely a request for appointment of counsel. This is particularly true considering that over a month had elapsed since appellant had submitted a motion to dismiss his previously retained appellate counsel, and that appellant had proceeded to submit several pro se motions without requesting the trial court for appointment of appellate counsel. Inherent within the trial court’s denial of appellant’s belated continuance motion was his finding that appellant had not exercised reasonable diligence to retain counsel on his behalf. Appellant has failed to establish affirmatively by the record that the trial court abused its discretion in denying his motion for continuance.

7. Appellant contends that the trial court erred when it failed to seek a knowledgeable waiver of Lang’s right to counsel at the commencement of the hearing on appellant’s motion for new trial. In addition to the facts addressed in Division 6 above, the appellate record in this case reflects: At trial appellant was represented by Ms. J. Griggs (and her associate, Ms. S. Blair) who had been retained on his behalf. On June 16, 1995, appellant retained Mr. W. O. Cox as his appellate attorney. On March 6, 1996, appellant filed his pro se motion to dismiss his counsel of record, Mr. Cox, asserting inter alia that his appellate attorney had failed to file certain appellate issues which appellant wished to be raised. In this motion, appellant affirmatively stated: “Defendant will proceed pro se until such time new counsel is obtained by retainer or appointed.” On March 15,1996, Mr. Cox filed a motion to withdraw as appellant’s counsel. In his motion, Mr. Cox affirmatively acknowledged: “Client Edward Lang understands that he[ ] has the obligation to prepare for upcoming case himself[ ] or hire representation of other counsel to prepare for his[ ] upcoming case.” He likewise acknowledged: “Client understands that if he[ ] fails or refuses to meet the burdens of hiring other counsel and preparing his[ ] case for upcoming court dates that he[ ] may suffer adverse consequences in the resolution of case.” Mr. Cox also affirmatively stated that the requirements of USCR 4.3 “had been complied with,” and requested to be allowed to withdraw from representation of appellant. On March 29, 1996, appellant filed a pro se motion to withdraw his pending appeal in Case No. A96A1327; we granted the motion on the grounds that the appeal had been prematurely filed as his motion for new trial remained pending in the trial court. On April 1, 1996, appellant filed a pro se motion to amend his motion for new trial to add additional evidence, documents and arguments for new trial. In this motion appellant acknowledges that he had dismissed his appellate counsel, Mr. Cox, and has “informed the court of his intention to proceed pro se.” After appellant’s motion for continuance was denied, appellant represented himself at the hearing and argued each of his motions to the trial ’court; his motion for new trial, as amended, and all other pending matters in the case were subsequently denied.

The hearing transcript reflects that appellant (or his family on his behalf) was seeking to retain counsel and did not request the appointment of counsel on the grounds that he was an indigent defendant. As appellant did not contend either before the trial court or in his appellate brief in this appeal that he was at the date of the hearing an indigent defendant, this particular issue has been abandoned. Court of Appeals Rule 27 (c) (2); see also Ray v. State, 187 Ga. App. 451, 452 (370 SE2d 629).

Examination of the hearing transcript reveals, however, that the trial court (while making a tacit finding) did not make any affirmative finding on the record that appellant/defendant had failed to act with reasonable diligence to obtain the services of an attorney; and the record fails to disclose whether the trial court determined whether the attorney’s absence was due to circumstances beyond appellant’s control. Compare Callaway v. State, 197 Ga. App. 606 (398 SE2d 856). “[W]hen presented with a non-indigent defendant who has appeared for trial without retained counsel, the trial judge has a duty to delay the proceedings long enough to ascertain whether the defendant has acted with reasonable diligence in obtaining an attorney’s services and whether the absence of an attorney is attributable to reasons beyond the defendant’s control.” (Punctuation omitted.) Burnett v. State, 182 Ga. App. 539, 540 (356 SE2d 231); see Woods v. State, 223 Ga. App. 99 (476 SE2d 865); Livingston v. State, 221 Ga. App. 563, 569-570 (2) (472 SE2d 317). We will remand this case for a hearing by the trial court in accordance with the requirements of Burnett, supra. If the trial court determines that appellant exercised due diligence to retain counsel and that the absence of counsel at the hearing was due to reasons beyond appellant’s control, it will direct that another hearing on appellant’s new trial and related motions be held giving appellant a reasonable time to obtain counsel and for such counsel to prepare for the hearing. If the trial court determines appellant failed to exercise due diligence to retain counsel and that counsel’s absence was not due to reasons beyond appellant’s control, the trial court may re-enter its order denying defendant’s various motions, including the denial of defendant’s motion for new trial, as amended. Ga. Const. of 1983, Art. VI, Sec. I, Par. IV.

Order denying motion for new trial vacated and case remanded with direction.

Ruffin and Eldridge, JJ., concur.

Decided June 6, 1997.

Before Judge Loggins.

Christopher A. Frazier, for appellant.

Spencer Lawton, Jr., District Attorney, Michael K. Dennard, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A97A1340.
    STEPIC v. THE STATE.
    (487 SE2d 643)
   Eldridge, Judge.

On April 13, 1995 in the Atlanta City Court, the appellant, William Stepic, was convicted of the offenses of failure to maintain a lane under OCGA § 40-6-48, and driving while under the influence of alcohol — less safe driver (“DUI”) under OCGA § 40-6-391 (a) (1). He appeals.

At approximátely 1:15 a.m. on September 7, 1994, the appellant was stopped by an Atlanta Police officer while driving north on Cheshire Bridge Road. The arresting officer testified that, while he was on DUI patrol, he saw the appellant driving toward him and that the appellant’s car occupied a portion of both northbound lanes, i.e., the appellant’s car was in the curb lane, but was also four to five feet over the white broken line and into the inside, left-hand lane. While briefly observing the appellant, the officer noted that the appellant’s car was not weaving between lanes, but that the appellant failed to maintain one lane or the other. There were few, if any, other cars on the road at that time. The officer turned his patrol car around, activated his emergency lights, and stopped the appellant for failure to maintain a lane.

While questioning the appellant, the officer noticed that the appellant smelled of alcohol and his eyes were “red and blurry.” The officer asked the appellant for permission to perform some field sobriety tests; the appellant agreed and the tests were performed, including the horizontal gaze nystagmus, walk and turn, and alcosensor tests. The appellant failed the performance based tests, and registered positive on the alco-sensor. Based on these results, the officer determined that the appellant was under the influence of alcohol. The appellant was placed under arrest, was given an Implied Consent Warning, and was transported to a mobile blood alcohol testing unit, where he was tested with an Intoximeter 3000 machine. The appellant registered a blood alcohol reading of 0.12 percent.

The appellant pleaded not guilty to the charges of failure to maintain a lane and DUI — less safe driver. Following a jury trial on April 13, 1995, the appellant was convicted on both counts. This appeal followed. Held:

1. The appellant’s first enumeration of error is that the trial court erred when it charged the jury that if it believed the appellant’s alcohol concentration was .08 percent or more, it “shall be inferred” that the appellant was under the influence of alcohol. See OCGA § 40-6-392 (b) (3). Under OCGA § 40-6-391 (a) (1), the State is required to prove beyond a reasonable doubt that the driver is “under the influence of alcohol to the extent that it is less safe for the person to drive.” This is one element, not two; the concepts are equivalent and describe a single physical condition. Hogan v. State, 178 Ga. App. 534, 536 (343 SE2d 770) (1986). Even though an elevated blood alcohol level may indicate that a driver is “under the influence,” it is solely within the determination of a trier of fact as to whether a defendant was, as a result of alcohol ingestion, a “less safe” driver. See Hogan v. State, supra at 536. Compare OCGA § 40-6-391 (a) (4); Lester v. State, 253 Ga. 235 (320 SE2d 142) (1984); Ellerbee v. State, 215 Ga. App. 102, 105 (449 SE2d 874) (1994); Simon v. State, 182 Ga. App. 210, 212 (355 SE2d 120) (1987); Stewart v. State, 176 Ga. App. 148, 149 (335 SE2d 603) (1985); Atkins v. State, 175 Ga. App. 470 (333 SE2d 441) (1985), overruled on other grounds, Hogan v. State, supra at 535. Therefore, we find that this instruction was error, as it is effectively a mandatory inference which invaded the province of the jury, and because it shifted the burden of proof to the appellant, forcing him to present evidence rebutting the inference. Holcomb v. State, 217 Ga. App. 482, 484 (458 SE2d 159) (1995); Ellerbee v. State, supra at 104-105; see also Francis v. Franklin, 471 U. S. 307 (105 SC 1965, 85 LE2d 344) (1985); Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39) (1979) (a mandatory inference or presumption concerning an element of the offense is invalid, and this is so whether it is mandatory-conclusive or mandatory-rebuttable). Cf. Lattarulo v. State, 261 Ga. 124, 125 (401 SE2d 516) (1991).

However, a jury instruction that states that a jury “may infer” that a driver was under the influence of alcohol will be acceptable as long as it includes language “reaffirming that it is within the jury’s discretion whether or not it will draw such an inference. . . .” Thompson v. State, 257 Ga. 481, 483 (361 SE2d 154) (1987); Ellerbee v. State, supra at 105; see also Francis v. Franklin, supra; Isaacs v. State, 259 Ga. 717, 734-736 (386 SE2d 316) (1989); Williams v. State, 224 Ga. App. 368 (481 SE2d 535) (1997); Animashaun v. State, 216 Ga. App. 104 (453 SE2d 126) (1995); Simon v. State, supra at 213; Patterson v. State, 192 Ga. App. 449, 451 (385 SE2d 311) (1989); Stewart v. State, supra at 148; Peters v. State, 175 Ga. App. 463, 468 (333 SE2d 436) (1985), overruled on other grounds, Hogan v. State, supra at 535; McCann v. State, 167 Ga. App. 368, 369 (306 SE2d 681) (1983). Such instruction should read substantially as follows: “If you find that the defendant was driving with an alcohol concentration of 0.08 grams or more, it may be inferred that he was under the influence of alcohol. However, whether or not you make such inference in this case is a matter solely within your discretion as members of the jury.” See OCGA § 40-6-392 (b) (3); Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, p. 20 published by the Council of Superior Court Judges of Georgia; Patterson v. State, supra at 451; McCann v. State, supra at 369; see also Thompson v. State, supra at 483.

Decided June 9, 1997.

Before Judge Lane.

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, Larkin M. Lee, for appellant.

June D. Green, Solicitor, Clayton Sinclair, Jr., Assistant Solicitor, for appellee.

In the case sub judice, immediately following the challenged jury instruction, the trial court gave the jury general instructions that, inter alia, the State’s burden was to prove each element; the jury should consider all of the evidence in the case; and the jury must determine the truth in reference to the charges against appellant. Such generalized instructions regarding the State’s burden and the jury’s responsibilities are insufficient to overcome the mandatory nature of the challenged instruction. See Francis v. Franklin, supra. The appellant is entitled to a new trial.

2. The appellant also asserts that the police officer had no reasonable and articulable basis for stopping the appellant’s vehicle, so that the trial court erred in denying a motion to exclude all evidence acquired as a result of the stop. However, the appellant was stopped after an Atlanta police officer observed him driving down the middle of two northbound lanes, straddling the broken white line which divides the lanes, in violation of OCGA § 40-6-48 (1). The officer testified that, in his opinion, the appellant was not in the process of changing lanes, as the appellant asserted during the hearing. After hearing the evidence, the trial court denied the motion to exclude. “Unless clearly erroneous, the trial court’s ruling on disputed facts and credibility at a suppression hearing must be accepted on appeal. [Cit.] The trial court’s findings in this regard are supported by the record and are not clearly erroneous.” State v. Davis, 261 Ga. 225, 226-227 (404 SE2d 100) (1991).

3. The appellant’s remaining enumerations of error are rendered moot by our decision in Division 1, supra.

Judgment reversed and remanded for retrial in a manner consistent with this opinion.

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


text:
    A97A1354.
    ROYSTER v. THE STATE.
    (487 SE2d 491)
   Eldridge, Judge.

Two accusations drawn in the State Court of Troup County charged appellant Royster with the offense of theft by taking of $200 and $62, respectively, from a Wendy’s Restaurant. A jury trial followed, and appellant was found guilty as charged under both accusations. She appeals, raising as her sole enumeration of error that the State Court did not have jurisdiction to try the case since the offense of theft by taking is “automatically a felony,” and only the punishment is classified as a misdemeanor when the value of the goods taken proves to be less than $500. OCGA §§ 16-8-2; 16-8-12 (a) (1). Appellant cites our Supreme Court’s decision in Mack v. Ricketts, 236 Ga. 86 (222 SE2d 337) (1976), as standing for this proposition. We disagree, and for the reasons that follow, we affirm appellant’s conviction.

A felony offense is defined, in pertinent part, as “a crime punishable by . . . imprisonment for more than 12 months.” OCGA § 16-1-3 (5). A misdemeanor offense is defined as “any crime other than a felony,” i.e., any offense punishable by imprisonment for less than 12 months. OCGA § 16-1-3 (9). Thus, the maximum punishment that may be imposed for those acts that are designated a crime under our Code is what distinguishes a felony crime from a misdemeanor crime.

Subject matter jurisdiction is conferred upon the state courts to try misdemeanor offenses. Ga. Const. of 1983, Art. VI, Sec. Ill, Par. I; OCGA § 15-7-4 (1). The superior courts have concurrent jurisdiction with other courts in misdemeanor cases. Clifton v. State, 53 Ga. 241 (1874); Bell v. State of Ga., 41 Ga. 589 (1871).

The offense in the case before us, theft by taking, may be punished as either a misdemeanor or a felony: “[a] person convicted of a violation of Code Sections 16-8-2 [theft by taking] through 16-8-9 shall be punished as for a misdemeanor except: (1) [i]f the property which was the subject of the theft exceeded $500.00 in value, by imprisonment for not less than one nor more than ten years or, in the discretion of the trial judge, as for a misdemeanor[.]” OCGA § 16-8-12 (a) (1). Because theft by taking may be classified as either a felony or misdemeanor, we have held that an indictment or accusation must specify the value of the goods taken, not as an element of the crime, but in order to put an accused on notice of whether he must defend against a misdemeanor or a felony. State v. Stamey, 211 Ga. App. 837, 839 (440 SE2d 725) (1994). Such designation also affects the applicable statute of limitation. State v. Williams, 172 Ga. App. 708 (324 SE2d 557) (1984).

Further, “[i]n our system of criminal justice it is elementary that an accused should be tried only for the particular offense with which he is charged.” Black v. Caldwell, 231 Ga. 589, 591 (203 SE2d 208) (1974); compare State v. Hendrixson, 251 Ga. 853 (310 SE2d 526) (1984). “ ‘(A)n accused cannot receive a sentence greater than that prescribed by law for the crime for which he was indicted and convicted.’ ” Pruitt v. State, 135 Ga. App. 677, 681 (218 SE2d 679) (1975); Black, supra at 592-593. Consequently when, as here, the prosecution’s accusation specifies an offense as theft by taking with the value of the goods taken as less than $500, such offense is a misdemeanor, since the punishment for such offense as charged must, by law, be less than 12 months. “[0]ne cannot be indicted by a Grand Jury for [one] offense carrying a maximum punishment, and then have that maximum punishment increased[.]” Black, supra at 593; see also Elrod v. Caldwell, 232 Ga. 876, 877 (209 SE2d 207) (1974). Clearly then, appellant’s contention that the offense of theft by taking is “automatically a felony” and only the punishment may reflect a misdemeanor is simply incorrect. In the instant case, appellant was charged with the theft by taking of goods valued at under $500; the maximum penalty for such offense is less than 12 months; such offense, as charged, is a misdemeanor and by law must be punished as such. Accordingly, the State Court of Troup County had jurisdiction to try the case.

The Supreme Court’s decision in Mack v. Ricketts, supra, does not demand a different result. Mack involved neither jurisdictional nor due process issues, but was “narrowly” decided on a claim of error asserting, in essence, a variance between the allegata and probata. Id.

Mack was decided under our 1933 Code wherein the theft of goods valued at more than $100 determined whether the offense was punished as a felony or misdemeanor. In Mack, the defendant was indicted for taking “ ‘seventy-two (72) dollars in money and assorted clothing, of the value of $72’ ”; the defendant was found guilty of “‘theft by taking over the value of $100.’” (Emphasis supplied.) Mack, supra at 86-87. The defendant maintained that the indictment alleged a misdemeanor offense, and that because the evidence proved a felony taking in excess of $100, the conviction “cannot stand.” Id. at 87.

The Court found that the indictment contained an ambiguity as to the value of the goods. However, the ambiguity was immaterial since the indictment “clearly charged the crime of theft by taking”; that theft by taking is “one crime” containing the same essential elements, regardless of whether the offense is punished as a felony or a misdemeanor. Id. Thus, there was no material variance between what was alleged and what was proved. See, e.g., Partridge v. State, 187 Ga. App. 325, 327 (370 SE2d 173) (1988). The Mack decision simply joins the long line of appellate decisions that have held that the value of the goods taken is not an essential element of theft by taking, but simply determines the punishment that may be imposed. See Wilson v. Reed, 246 Ga. 743 (272 SE2d 699) (1980); Bryan v. State, 148 Ga. App. 428 (251 SE2d 338) (1978). Clearly, jurisdiction is not conferred upon a court on the basis of the “essential elements” of the crime charged, but upon the classification of the crime as a felony or a misdemeanor, i.e., the maximum punishment that may be imposed for the offense as alleged in the indictment or accusation. Therefore, the Mack decision impacts not at all on the case sub judice, wherein there was no ambiguity in the accusations; the accusations specifically alleged against appellant offenses with maximum punishments of less than 12 months, i.e., misdemeanor offenses. Accordingly, trial was proper in the State Court of Troup County.

Decided June 9, 1997.

Before Judge Little.

Jackie G. Patterson, Yasma M. M. Patterson, for appellant.

Louis J. Kirby, Solicitor, for appellee.

Judgment affirmed.

Birdsong, R J., and Ruffin, J., concur.

       Compare Bass v. State, 169 Ga. App. 520 (313 SE2d 776) (1984), wherein the crime of entering an auto, OCGA § 16-8-18, is specified as a felony offense that is, when indicted, subject to a punishment of one to five years. However, in its discretion at the time of sentencing, the trial court may sentence as for a misdemeanor. Thus, the offense, when charged by the State in an indictment, will always be a felony offense. And, clearly, the exercise of the trial court’s discretion at the time of sentencing does not change the nature of the offense as charged in the indictment.


author: Johnson, Judge.

text:
    A97A0646.
    HEIS et al. v. YOUNG et al.
    (487 SE2d 403)
   Johnson, Judge.

On July 12, 1993, Norma and Harry Heis were involved in a car accident with Clinton Young in Georgia. The Heises were residents of Illinois, and Young was a Georgia resident. Young and his wife filed suit against the Heises in Georgia for personal injury and loss of consortium. The Heises moved to dismiss, claiming that they had not been properly served and that the statute of limitation had expired on the personal injury claim. Without stating its reasons, the trial court denied the motion. We granted the Heises’ petition for interlocutory review, and for reasons set out below, we affirm as to the loss of consortium claim and reverse as to the personal injury claim.

1. The applicable statute of limitation provides that a personal injury claim shall be filed within two years after the right of action accrues. OCGA § 9-3-33. A loss of consortium claim is to be filed within four years after the right of action accrues. Id. See Babb v. Cook, 203 Ga. App. 437, 438 (1) (417 SE2d 63) (1992); Central of Ga. R. Co. v. Harbin, 132 Ga. App. 65 (207 SE2d 597) (1974).

2. The record contains two returns of service and an additional affidavit, all executed by Willis Ridley, an employee of an Illinois process-serving company. These documents assert Ridley was appointed by “the Court” to serve process in this case, and that he served the Heises by leaving two copies of the complaint with Norma Heis at the Heis residence on July 11, 1995. The Heises contended in the trial court, however, that Ridley was not appointed to serve process, and the Youngs admit in their appellate brief that he was not. See Court of Appeals Rule 27 (b) (1).

The Heises raised as defenses insufficiency of service of process and expiration of the statute of limitation in their answer filed on August 2, 1995. The parties then engaged in discovery for approximately one year. In August 1996, before the entry of a pretrial order, the Heises filed the motion to dismiss which is the subject of this appeal. In September 1996, the Youngs served the Secretary of State with a copy of the complaint and sent copies to the Heises by certified mail, which is the method of service allowed by Georgia’s nonresident motorist act. See OCGA § 40-12-2.

3. The Heises claim that, though they waited a year to file their motion to dismiss, they did not waive their defenses of insufficient service and expiration of the statute .of limitation. We agree. These defenses were raised in the Heises’ first defensive pleading as required by OCGA § 9-11-12 (b). After a party has properly raised such a defense, it will only be found waived if the party later engages in conduct so manifestly indicative of an intention to relinquish a known right or benefit that no other reasonable explanation of its conduct is possible. See Roberts v. Bienert, 183 Ga. App. 751, 753-755 (2) (360 SE2d 25) (1987). The Heises engaged in no such conduct. Compare Wheeler’s, Inc. v. Wilson, 196 Ga. App. 622, 623-624 (396 SE2d 790) (1990), and Ga. Power Co. v. O’Bryant, 169 Ga. App. 491, 492-493 (313 SE2d 709) (1984), in which the defendants waived their procedural defenses by participating in substantial litigation on the merits, or by consenting to a pretrial order that did not list the procedural defense as a remaining issue.

4. The Heises correctly contend that because Ridley had no authority to serve the complaint and summons, his purported service is a nullity. See Mann v. Atlanta Cas. Co., 215 Ga. App. 747, 749-750 (452 SE2d 130) (1994). “[T]hat [the defendant] may have received a copy of the complaint and summons in connection with an attempted but invalid service does not suffice to afford the required notice of the action or dispense with a valid service.” (Citations and punctuation omitted.) Denny v. Croft, 195 Ga. App. 871, 872 (2) (395 SE2d 72) (1990).

Decided May 28, 1997

Reconsideration denied June 10, 1997

Before Judge Forrester.

5. The Heises also correctly contend that because the later service under the nonresident motorist act does not relate back to the filing of the personal injury claim, that claim is barred by the statute of limitation.

When service of process occurs after the expiration of the statute of limitation, and not within five days of the filing of the action, service relates back if the plaintiff acted reasonably and diligently in seeking to have the defendant served as soon as possible. Jones v. Isom, 223 Ga. App. 7, 8 (1) (477 SE2d 139) (1996); see generally OCGA § 9-11-4 (c). The plaintiff bears the burden of showing due diligence, and we review the trial court’s findings on this issue under the abuse of discretion standard. Mann, supra at 749. In this case, the trial court made no explicit finding that the Youngs were reasonably diligent, and they have presented no evidence tending to explain why they took no action in response to the service and statute of limitation defenses raised in the Heises’ answer.

The returns of service executed by Ridley do not constitute such evidence. It is the plaintiff’s duty to ensure that the person retained to serve process is authorized to do so, especially when the plaintiff employs a private process server instead of a governmental service authority. See Mann, supra at 749-750. As a matter of law, the Youngs have failed to carry their burden of showing reasonable diligence in perfecting service. See generally Land v. Casteel, 195 Ga. App. 455, 456-457 (393 SE2d 710) (1990). Because the service under the nonresident motorist act does not relate back to the filing of the complaint, the personal injury claim is barred by the statute of limitation. The trial court abused its discretion in failing to dismiss that claim.

6. On the other hand, the loss of consortium claim was filed and properly served within the four-year statute of limitation applicable to that claim. The trial court therefore did not err in refusing to dismiss the loss of consortium claim. See Parrotte v. Christian, 208 Ga. App. 823, 824 (2) (432 SE2d 255) (1993).

Judgment affirmed in part and reversed in part.

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

John T. Croley, Jr., for appellants.

Burge & Wettermark, Gary F. Easom, for appellees.


author: Andrews, Chief Judge.

text:
    A97A0052.
    McKENZIE et al. v. DETENBER.
    (487 SE2d 497)
   Andrews, Chief Judge.

The McKenzies and Christman, plaintiffs below, appeal from the trial court’s grant of partial summary judgment to Detenber on the question of whether an intersection qualified as an unmarked crosswalk for purposes of their negligence suit arising from being struck by Detenber’s car while crossing Pharr Road in Atlanta.

It is undisputed that Pharr Road runs east and west and is intersected on its south side by Boling Way, which dead ends at Pharr Road, forming a “T” intersection.

We agree with the trial court that this issue is determined by the clear language of OCGA § 40-1-1 (10) and our previous holding in Griffin v. Odum, 108 Ga. App. 572, 574 (133 SE2d 910) (1963). “Crosswalk” is defined by the statute as “(A) That part of a roadway at an intersection included within the connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs or in the absence of curbs, from the edges of the traversable roadway; or (B) Any portion of a roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by lines or other markings on the surface.” (Emphasis supplied.)

While the dirt street or driveway forming the “T” intersection in Griffin was not found to, be publicly maintained nor were sidewalks present, as required for the statute to be applicable, we find the logic used there in construing the statute compelling, even if dicta. As stated, “there could be no unmarked crosswalk here according to the definition set forth in the Code. This definition implies that an unmarked crosswalk can exist only if a street’s sidewalk is intersected and continues on after such intersection. Otherwise, there can be no ‘connection of the lateral lines of the sidewalks on opposite sides of the highway,’ as is the case when there is only a “T”, or variated “T” type intersection as here involved. Where there is this type intersection, the sidewalk terminates at such intersection, and no crosswalk exists unless it is marked as such.” Griffin, supra at 574-575, citing Langlois v. Rees, 351 P2d 638 (Utah 1960) and Martin v. Harrison, 186 P2d 534 (Ore. 1947).

Decided June 10, 1997.

Before Judge Baxter.

Robert Altman, Richard E. Stark, for appellants.

Hertz & Link, Houston D. Smith III, Leah R. Simpson, for appellee.

We also find persuasive cases from sister states which have reached the same conclusion based on identical wording of their statutes. See, e.g., Garrett v. Nagel, 417 NW2d 855 (N.D. App. 1988); Kauffman v. Schroeder, 568 P2d 411 (Ariz. 1977); Souvorin v. Lerich, 180 S2d 180, 182 (Fla. App. 1965) (all citing Griffin, supra); compare Fan v. Buzzitta, 344 NYS2d 788 (1973).

That many pedestrians cross where plaintiffs were hit does not make a crosswalk of it. Conner, supra at 104.

Judgment affirmed.

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

       The standard of care to be considered differs if the place of crossing is considered an unmarked crosswalk. See Conner v. Mangum, 132 Ga. App. 100, 104 (207 SE2d 604) (1974).


author: Pope, Presiding Judge.

text:
    A97A0224.
    PICKETT v. THE STATE.
    (487 SE2d 653)
   Pope, Presiding Judge.

Lynn Derrick Pickett was convicted by a jury of burglary and simple battery. He appeals his convictions, raising three enumerations of error.

Viewed in a light most favorable to the jury verdict, the evidence shows that at approximately 10:00 p.m. on September 13, 1994, defendant entered the bedroom of Tia Umberger, put a pillow over her head and pushed her down on the bed. Defendant asked Umberger where the money was and who else was at home. At that time, Umberger’s guardian, Donna Aldridge, entered the room to investigate the whimpering noises she had heard. When Aldridge noticed defendant in the room, she began screaming for her husband. Defendant yelled at Aldridge to “shut up” and then began punching her in the face. Eventually, defendant escaped through a window, and the two women called the police.

On September 15, 1994, the two women picked defendant out of. a photographic lineup. Defendant was one of the workers who had been working at Aldridge’s home doing odd jobs and construction work, so Aldridge was sure of her identification. Tia Umberger took a little longer to identify defendant because his hair was different in the photograph she was shown.

Defendant testified that on the day of the incident he had worked at the women’s residence doing construction work until about 6:00 p.m., at which time Aldridge’s husband drove him home. He further testified that he spent the evening at a club and stayed there until about 1:30 a.m. Defendant denied being at the Aldridge home during the incident.

1. Defendant contends that the trial court erred in ruling that his peremptory strikes of four jurors were not racially neutral and in seating the challenged jurors on the panel. We agree and reverse.

“ £(T)he equal protection clause prohibits a criminal defendant from engaging in purposeful discrimination on the basis of race in the exercise of peremptory challenges.’ Chandler v. State, 266 Ga. 509, 510 (467 SE2d 562) (1996), citing Georgia v. McCollum, 505 U. S. 42 (112 SC 2348, 120 LE2d 33) (1992). In order to evaluate whether or not a defendant exercised his peremptory challenges in a racially discriminatory fashion, ‘the trial court must engage in a three-step process. The opponent of a peremptory challenge must make a prima facie showing of racial discrimination; the burden of production shifts to the proponent of the strike to give a race-neutral reason for the strike; the trial court then decides whether the opponent of the strike has proven discriminatory intent. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.’ (Punctuation and footnotes omitted.) Chandler, supra at 510.” Gilbert v. State, 226 Ga. App. 230 (486 SE2d 48) (1997).

The transcript indicates that the panel from which the jury was struck consisted of twenty-nine people, of whom nine were white males; twelve were white females; four were black males; and four were black females. After using one strike for an alternate, defendant, who is a black male, used eleven of his peremptory strikes to remove eleven white jurors, nine of whom were females. The State then challenged the strikes, contending they were racially and gender motivated in violation of Georgia v. McCollum. The trial court found that the State had established a prima facie case of racial and gender discrimination and asked the defense to set forth their purported race- and gender-neutral reasons for the exercise of their peremptory strikes. Defense counsel provided an explanation for each of the eleven strikes, and the trial court accepted as race-neutral the reasons offered for seven of the jurors. However, the trial court ruled that defendant had failed to offer race-neutral reasons for the remaining four strikes and returned those four jurors to the jury panel.

The reasons defense counsel gave for exercising the strikes which the trial court determined were not race-neutral were: that juror no. 2 was a law student and had served as a juror in an assault case which might have addressed similar issues as the case on trial; that juror no. 6 was doing home renovations (like the victim in this case) and that she had been the victim of a burglary and had been victimized twice on entering a car; that juror no. 16 had served in the Navy, had a military manner and had been the victim of two burglaries; and that juror no. 18 looked like the victim and might identify with her and that her father worked for NASA security. The State then argued that other jurors who had been seated on the jury had done home renovations, were going to serve in the military, and had been victims of crime. At this point,.the court determined that the reasons Pickett offered were not race-neutral. “ ‘[Although the proponent of the strike must provide a clear and reasonably specific explanation of his legitimate reasons for exercising the challenges, what is meant by a “legitimate reason” is not a reason that makes sense, but a reason that does not deny equal protection.’ (Citations and punctuation omitted.) Jackson v. State, 265 Ga. 897, 898-899 (2) (463 SE2d 699) (1995), citing Purkett v. Elem, 514 U. S. 765 (115 SC 1769, 1771, 131 LE2d 834) (1995), and Batson v. Kentucky, 476 U. S. 79, 98 (106 SC 1712, 90 LE2d 69) (1986). ‘(A race-)neutral explanation means an explanation based on something other than the race of the juror. Unless a discriminatory intent is inherent in the proponent’s explanation, the reason offered will be deemed race neutral.’ (Punctuation omitted.) Jackson, supra at 898, citing Hernandez v. New York, 500 U. S. 352, 360 (111 SC 1859, 114 LE2d 395) (1991) (majority opinion).” (Footnote omitted.) Gilbert v. State, supra at 231.

The strikes Pickett exercised with respect to juror nos. 2, 6 and 16 were not, on their face, racially discriminatory. In other words, “[n]one of the rationales proffered by defense counsel was based on a characteristic or stereotype peculiar to any race. [Cit.]” Malone v. State, 225 Ga. App. 315, 317 (484 SE2d 6) (1997). Contrary to the trial court’s finding, Pickett did offer race-neutral reasons for striking these jurors. See O’Neal v. State, 226 Ga. App. 224 (482 SE2d 478) (1997); Leeks v. State, 226 Ga. App. 227 (483 SE2d 691) (1997).

* Again, as this Court recently stated in Gilbert v. State: “[i]t is not entirely clear from the record whether the trial court combined steps two and three of the procedure set forth in Chandler v. State, supra, or merely terminated the procedure at step two after finding that [Pickett] had not offered race-neutral reasons for his strikes. It is clear from the facts of this case that the court should have found [Pickett’s] reasons race-neutral, and then shifted the burden at that point to the State to prove that the [three] strikes, were racially motivated. As stated in Chandler, the burden of proving that a peremptory strike was exercised for racial reasons rests with the opponent of the strike, not its proponent, and at step three, the burden goes back to the opponent to prove that the strike was racially discriminatory. Chandler, supra at 510. If in fact the court did combine steps two and three of the process, in so doing, it improperly placed this burden upon [Pickett].” (Emphasis in original.) Gilbert v. State, supra at 232.

“In these matters, the findings of the trial court are entitled to great deference, and should not be disturbed unless clearly erroneous. However, here the trial court’s finding was clearly erroneous, and forced [Pickett] to trial with an illegally constituted jury.” (Citation omitted.) Jackson v. State, 265 Ga. at 900. Pickett is therefore entitled to a new trial.

2. Defendant further enumerates as error the trial court’s admission of two photographs of him which he contends impermissibly placed his character into evidence. Because it is likely that this alleged error will recur upon retrial, we will address it here.

The first photograph introduced into evidence was the actual photograph that was included in the photographic lineup shown to the two women shortly after the incident. This photograph was not referred to or labeled as a “mug shot,” and no testimony was elicited at trial regarding the reason defendant’s photograph was on file with the police department. Under these circumstances “the admission of the photograph of [defendant] did not indicate that [defendant] was guilty of any previous crime and was not in error. [Cit.]” Milsap v. State, 196 Ga. App. 820, 822 (2) (397 SE2d 168) (1990). See also Hamilton v. State, 196 Ga. App. 34 (395 SE2d 357) (1990).

The second photograph admitted into evidence was defendant’s “mug shot” following his arrest in this case. Defendant’s defense at trial was mistaken identity, and during the trial defense counsel questioned the reliability of Umberger’s identification of defendant at the photographic lineup. The photograph was introduced by the State to show that defendant looked different at the time of his arrest than he did in the photograph shown the witness at the lineup. Under these circumstances, it was not error to admit the photograph into evidence. McGinnis v. State, 183 Ga. App. 17, 19 (3) (358 SE2d 269) (1987). See also Blige v. State, 208 Ga. App. 851, 853 (4) (432 SE2d 574) (1993).

3. Finally, defendant enumerates as error the trial court’s ruling allowing the prosecutor to question him about a statement he made that he was going to “beat [Aldridge’s] ass.” This enumeration is also without merit. See, e.g., Moak v. State, 222 Ga. App. 36, 40 (5) (473 SE2d 576) (1996). Furthermore, “[w]here an entirely different objection or basis for appeal is argued in the brief which was not presented at trial we will not consider that basis as we are limited to those grounds presented to and ruled upon by the trial court.” (Citations and punctuation omitted.) Ellison v. State, 216 Ga. App. 639, 641 (3) (455 SE2d 361) (1995).

Decided June 10, 1997.

Before Judge Langham.

Cynthia A. Price, for appellant.

Lewis R. Slaton, District Attorney, Shawn E. Lagrua, Kirby Clements, Jr., Assistant District Attorneys, for appellee.

Judgment reversed.

Johnson and Blackburn, JJ, concur.

       Although the State raised this argument regarding Pickett’s allegedly discriminatory use of strikes against white jurors, our review of the record establishes that several of the other jurors to whom the State referred were white.

       Because the court erred in determining that the reasons offered for striking these three jurors were not racially neutral, we need not determine whether the court’s determination was correct with respect to juror no. 18.


text:
    A97A0540.
    BARKER v. THE STATE.
    (487 SE2d 494)
   Andrews, Chief Judge.

Darion Chris Barker appeals from his conviction of possession of crack cocaine with intent to distribute and obstruction of an officer. We affirm.

1. Barker, who was appointed new counsel for his appeal after having different appointed counsel for trial, filed a pro se Motion for Dismissal of Appellate Counsel and Appointment of New Appellate Counsel in this Court on April 28, 1997, after the filing on December 18, 1996, of the enumeration of errors and brief by his appointed •appellate counsel.

This motion complains of the trial court’s denial of a similar request for substitution of appellate counsel after the appeal was filed here. Initially, we note that Barker does not have the right to both be represented by counsel and also to represent himself, either in the trial court or here. Johnson v. State, 266 Ga. 775, 779 (9) (470 SE2d 637) (1996). Additionally, there is no record of the complained-of trial court proceedings before us and, therefore, nothing for our review on this issue. Peacock v. Campbell, 223 Ga. App. 620 (478 SE2d 409) (1996).

2. Viewed with all inferences in favor of the jury’s verdict, Bowman v. State, 222 Ga. App. 893, 896 (1) (476 SE2d 608) (1996), the evidence was that, on October 13, 1995, around 5:30 p.m., Officers Schlageter and Ellington were patroling an area known for drug distribution. They turned into a dead end cul-de-sac and saw Barker walking on a path used to cut through to the dead end from another area also known for drug dealing. Barker had a brown paper bag in his hand, which he threw to the ground upon spotting the marked police car. Barker continued walking toward the car, and Officer Ellington, who was driving, stopped the car, got out, and began talking to Barker. Officer Schlageter, who watched the bag as it hit the ground after it left Barker’s hand, exited the car, went immediately to the bag, and picked it up. While Officer Ellington was talking to Barker, he noticed Barker kept looking toward Schlageter out of the corner of his eye and began to act nervous. When Schlageter picked the bag up, Barker ran. Ellington tackled Barker, and both officers struggled with him before finally handcuffing him. After he was subdued, Barker spontaneously stated to the officers that he had “just gotten out for drugs” and could not go back. He also asked them if they could work out a deal for his cooperation. The paper bag contained a plastic bag with twenty-nine larger pieces of crack and another plastic bag with five smaller pieces. Both officers testified that such amounts were indicative of distribution, as was the packaging. The evidence of possession with intent to distribute and obstruction of an officer was sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Thomas v. State, 222 Ga. App. 337 (474 SE2d 631) (1996); Okongwu v. State, 220 Ga. App. 59, 62 (3) (467 SE2d 368) (1996).

While Barker contends he did not have the sack, but was merely walking through the area, and that the officers did not find the sack on the ground until after he was handcuffed and then had to search the area for it, the issue of which version of these events to believe was for the jury, which resolved the credibility issues in favor of the State. OCGA § 24-9-80. This Court will not weigh the evidence or determine witness credibility, but only determines the sufficiency of the evidence. Daras v. State, 201 Ga. App. 512 (1) (411 SE2d 367) (1991).

3. Barker’s first enumeration is that the court improperly allowed evidence of a similar transaction which occurred on July 1, 1993.

This evidence was that Investigator Cleveland received a report of drug activity in the Newberg Avenue area and responded, spotting Barker driving a Toyota Camry. This area is about one mile south of the location of the charged incident. The officer stopped Barker and searched the car, finding a brown paper sack under a rear floor mat. The sack contained a larger plastic bag in which there were 50 pieces of crack in individual small ziplock bags. Barker told the officer that, if they would not arrest him, he could help get some dealers.

Barker’s objection at trial was that the 1993 incident was not sufficiently similar in that it involved a different neighborhood, different packaging, and the cocaine was concealed under the car mat whereas the present case was a “throwdown” case. This objection is the only one we will consider here. DeFreese v. State, 232 Ga. 739, 746 (14) (208 SE2d 832) (1974); Hill v. State, 224 Ga. App. 208, 209 (1) (480 SE2d 256) (1997).

In order to be admissible, the transactions involved need not be absolutely identical. Woolfolk v. State, 202 Ga. App. 59, 61 (4) (413 SE2d 242) (1991). The test is not the number of similaritiés, but the evidence is admissible “ ‘if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character. Drug cases are no different from any other cases. If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.’ . . . [Cit.]” Spead v. State, 218 Ga. App. 547, 548 (1) (462 SE2d 635) (1995). Okongwu, supra at 62 (4).

Here, both events occurred in close proximity to each other in areas known for drug dealing; the packaging, while not identical, was very similar; the amounts involved were, in the opinions of the officers, so large as to indicate they were for distribution; and, on both occasions, Barker attempted to make deals to avoid prosecution. There was no error in admitting the similar transaction under Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). Roundtree v. State, 222 Ga. App. 363 (474 SE2d 224) (1996); compare Anderson v. State, 215 Ga. App. 426, 427 (451 SE2d 103) (1994).

4. The second enumeration is that the court erred in not, sua sponte, declaring a mistrial after a juror had been excused from the panel during deliberations as a result of having spoken to Investigator Cleveland while walking out of the courtroom.

Two of Barker’s friends stated that the officer said to the juror “we got one,” and the juror repeated this statement and shook hands with the officer.

After this conduct was reported to the court and defense counsel, the court conducted an inquiry of the officer and the jurors and determined that, while the jurors were crossing the courthouse lobby, one said “hello” to Investigator Cleveland. The juror knew Cleveland only as “Jack” and had not recognized his last name during voir dire. While determining that only greetings were exchanged, the court, out of an abundance of caution, excused the juror who spoke and seated the alternate.

Barker contends that, because the jury had been deliberating from 3:38 p.m. with the “tainted” juror, that replacing that juror at 5:00 p.m. when the verdict was then returned at 5:09 p.m. was inadequate to protect his rights.

Decided June 10, 1997.

Before Judge Wilcox.

Jackson & Associates, Joseph M. Williams, for appellant.

Charles H. Weston, District Attorney, Nancy S. Malcor, Laura D. Hogue, Assistant District Attorneys, for appellee.

“ ‘ “There is a presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown and the burden is on the prosecution to prove beyond a reasonable doubt that no harm has .occurred.” (Cit.)’ Lockridge v. State, 260 Ga. 528, 529 (397 SE2d 695) (1990). However, a jury verdict will not be upset solely because of such conduct, unless ‘the statements are so prejudicial that the verdict must be deemed “inherently lacking in due process.” (Cit.)’ Bobo v. State, 254 Ga. 146 (327 SE2d 208) (1985). Our inquiry then must be directed to whether this error is so inherently prejudicial as to require a new trial, or whether it is an immaterial irregularity without opportunity for injury. See Smith v. State, 218 Ga. 216 (2) (c) (3) (126 SE2d 789) (1962).” Sims v. State, 266 Ga. 417, 419 (3) (467 SE2d 574) (1996).

Where, as here, “ ‘there was conflicting evidence presented to the trial court as to the conduct of the juror and the trial court must pass on the issue, and its discretion is not shown to have been abused, such discretion will not be controlled by the reviewing court.’ [Cits.]” Scott v. State, 130 Ga. App. 75, 79 (4) (202 SE2d 201) (1973).

Here, there was a finding by the court of “an immaterial irregularity,” if any, and the court would have been entitled to retain the juror. Sims, supra; Scott, supra. There certainly was no harmful error in his nonetheless replacing the juror with the alternate. This enumeration is without merit.

5. The sole ground alleged here for Barker’s contention that a new trial should have been granted due to ineffective assistance of counsel is trial counsel’s failure to move for a mistrial after the juror was replaced.

Under the circumstances of this case, there is no basis for such a claim and the trial court’s ruling in this regard was not clearly erroneous. Waddell v. State, 224 Ga. App. 172, 175 (3) (b) (480 SE2d 224) (1996).

Judgment affirmed.

Beasley and Smith, JJ, concur.

       Barker’s trial counsel acquiesced in the replacement of the juror with the alternate, and we could not consider this enumeration for failure to preserve it below. Henderson v. State, 218 Ga. App. 311, 312 (3) (460 SE2d 876) (1995). However, since the issue of the juror is also the premise for Barker’s claim of ineffective assistance of counsel, we consider the merits.


author: Blackburn, Judge.

text:
    A97A0051, A97A0056.
    ROLLESTON v. CHERRY (two cases).
    (487 SE2d 354)
   Blackburn, Judge.

The estate of Rebecca Wight Cherry Sims (Cherry) sued Moreton Rolleston, Jr., Cherry’s former attorney, alleging claims of professional negligence, breach of fiduciary duty, fraud, contribution and indemnity. The jury returned a verdict against Rolleston in the amount of $5,200,000. Rolleston appeals, contending that the trial court made numerous errors in charging the jury and in failing to grant Rolleston’s motions for summary judgment and directed verdict.

Cherry owned a one-fourth undivided interest in certain beach property on St. Simons Island known as Camellia Cottage. Over the years, as the ocean receded, additional land had accreted between Camellia Cottage and the ocean. In August 1983, Cherry hired Rolleston, a long-time family friend, to establish title to the accreted land. Cherry signed a contingency fee agreement under which Rolleston would be entitled to one-third of any accreted land to which title was established. Cherry executed a quitclaim deed to Rolleston of a one-third undivided interest in such land, although Rolleston did not immediately record such deed.

Rolleston filed suit on behalf of Cherry against the Hopkins family, rival claimants to the accreted land, seeking to establish title to or a recreational easement over such land. The trial court granted summary judgment in favor of Hopkins, but the Supreme Court reversed on April 16, 1985, in Cherry v. Hopkins, 254 Ga. 260 (328 SE2d 702) (1985), sending the case to trial.

In July 1984, while the Hopkins litigation was pending, Cherry entered into an agreement with Tom Davis for the sale of her interest in Camellia Cottage. The agreement also gave Davis a separate option to purchase the accreted land if the Hopkins litigation were successful. This agreement was drafted by Rolleston. As subsequently revised, the agreement provided that closing on the sale of Camellia Cottage would take place on May 31, 1985, or 30 days after entry of a final order in the Hopkins litigation, whichever occurred first.

After the purchase contract was executed, Davis learned that Rolleston had taken a quitclaim deed to the accreted land. In a letter to Rolleston, Davis expressed his concern that the deeds could prevent Cherry from being able to convey good title to Camellia Cottage by destroying any claim to a recreational easement over the accreted land. This letter also alerted Rolleston to the possibility that the sale of Camellia Cottage would extinguish his client’s claim to the recreational easement over the accreted land, which interest Rolleston was seeking to establish in the Hopkins litigation.

At the trial of Cherry v. Hopkins, May 26-30, 1986, Rolleston failed to raise the issue of a recreational easement, and the sole issue litigated was title to the land. The jury returned a verdict in favor of Hopkins on May 30, 1986, which was subsequently affirmed by the Supreme Court.

The closing on the sale of Camellia Cottage was scheduled for May 31, 1985, the day after the trial of Cherry v. Hopkins. Rolleston was advised that Davis was assigning his rights under the purchase contract to parties who would consummate the closing. However, Rolleston told Cherry that she need not attend the closing because the .purchaser was unlikely, to have the purchase price. Rolleston appeared at the closing without Cherry and without a power of attorney to execute the necessary closing documents.

At the closing, Rolleston was informed that Davis’ assignee, Coast House, Ltd., was prepared to close. However, Rolleston presented Davis with a letter, dated June 1, 1985, stating that Davis had breached the purchase contract by not timely closing, and that the entire contract, including the option for the accreted land, was now void. Rolleston then left the closing. Coast House’s representatives attempted to consummate the closing by traveling to Cherry’s house with the purchase money, but Cherry was not there. On the morning after the failed closing, Rolleston recorded his quitclaim deed to the accreted land.

In December 1985, Coast House sued Cherry for breach of contract, and also asserted a claim against Rolleston for tortious interference with contractual relations. After Cherry and Rolleston filed counterclaims, Coast House added a claim for abusive litigation against the two parties. On September 14, 1987, the trial court severed the trials of Cherry and Rolleston, and the claims against Cherry were to be tried first. Shortly before trial, on May 15, 1990, Coast House dismissed the action without prejudice and refiled against Cherry, without naming Rolleston in this renewal action. Cherry had died on May 18, 1989. On February 27, 1991, the jury returned a verdict against her estate on both the breach of contract claim and the abusive litigation claim.

The estate subsequently settled with Coast House, agreeing in part that Coast House would receive a portion of the proceeds of an action to be filed against Rolleston. On February 20, 1992, the estate brought the present action against Rolleston for professional negligence, fraud, breach of fiduciary duty, and contribution and indemnity, and Rolleston appeals from the March 22, 1995 jury award of $5,200,000 to the estate.

Case No. A97A0051

1. (a) In his first enumeration of error, Rolleston contends that the trial court erred in failing to charge the jury that a two-year statute of limitation applies to torts, a four-year statute of limitation applies to contracts, and a two-year statute of limitation applies to claims of breach of fiduciary duty. However the brief, prepared by Rolleston, does not address these enumerations, but instead argues that the relevant statutes of limitation had expired on plaintiffs claims. Accordingly, these enumerations are deemed abandoned. Court of Appeals Rule 27 (c) (2). As “an enumeration of error cannot be enlarged by a brief to give appellate viability to an issue not contained in the original enumeration,” this Court will not consider Rolleston’s arguments that the statutes of limitation had expired. (Citation and punctuation omitted.) Crotty v. Crotty, 219 Ga. App. 408, 410 (3) (465 SE2d 517) (1995). In any event the requested charge was not a correct statement of the law, and it would have been error to have given it as requested.

(b) Rolleston’s first enumeration also contends that the court erred by allowing testimony regarding Rolleston’s fiduciary duties after he resigned his representation of Cherry in October 1988. However, as Rolleston does not address this assertion in his brief, cite to any testimony alleged to have been erroneously admitted, or show that he preserved this issue for appeal by objecting at trial, this assertion will not be considered. Court of Appeals Rule 27 (c) (2), (3); Langton v. Dept. of Corrections, 220 Ga. App. 445, 446 (2) (469 SE2d 509) (1996) (court will not cull the record on behalf of a party). Furthermore, even if this assertion had been supported in the brief, it would not be considered by this Court, as the first enumeration contains more than one assertion of error in violation of OCGA § 5-6-40. See West v. Nodvin, 196 Ga. App. 825, 830 (4) (c) (397 SE2d 567) (1990).

Throughout his brief, which was submitted by Rolleston and not by his attorney, Rolleston fails to provide record citations to evidence necessary to evaluate his arguments. It should be noted that the record in this case comprises 20 volumes and more than 6,500 pages. The trial transcript alone consists of over 2,600 pages, covering the testimony of 21 witnesses, arguments of counsel, and the court’s charges. The trial exhibits consist of over 1,000 pages. We have repeatedly held that “[i]t is not the function of this court to cull the record on behalf of a party.” (Citations and punctuation omitted.) Langton, supra at 446 (2). This rule is particularly apt in this case. While this Court is authorized under its rules to dismiss any appeal for failure to cite to the record, we will exercise our discretion and resolve this appeal on its merits.

2. (a) In addition to claims of malpractice, breach of fiduciary duty, and fraud, the estate asserted a claim against Rolleston for contribution and indemnity, seeking contribution for the damages it sustained as the result of an adverse jury verdict in the Coast House lawsuit. Coast House sued Cherry for failing to close under the real estate sales contract drafted by Rolleston, and also asserted a claim against Rolleston for tortious interference with contract in connection with the failed closing. After Cherry and Rolleston filed counterclaims, Coast House added a claim for abusive litigation against the two parties. The trial court severed the trials of Cherry and Rolleston, and the claims against Cherry were tried first. The jury returned a verdict against Cherry’s estate on both the breach of contract claim and the abusive litigation claim.

On appeal, Rolleston contends the court erred in charging the jury on contribution and indemnity, because such charge was not warranted by the evidence. In reviewing a jury instruction, this Court must determine if there was any evidence presented at trial to support it. Valdez v. Power Indus. Consultants, 215 Ga. App. 444 (451 SE2d 87) (1994). It is the duty of the trial court to instruct the jury on an issue of law if there is evidence to support the instruction. Feathers v. Wilson, 157 Ga. App. 753 (278 SE2d 434) (1981).

In essence, Rolleston asserts that he cannot be considered a joint tortfeasor with Cherry, and so cannot be liable for contribution and indemnity. However, the verdict in the Coast House lawsuit was not totally predicated upon Cherry’s breach of contract; at least a portion of the award related to Coast House’s claim for abusive litigation, which was based on the joint conduct of Cherry and Rolleston. Indeed, Cherry and Rolleston had originally been named as joint defendants on such claim, although the trial court severed the trials of the two. In his appellate brief, which was personally drafted by Rolleston, Rolleston states that the trial court granted summary judgment to him on all charges, and that the Supreme Court affirmed. This is a misrepresentation of the facts, as the trial court expressly denied Rolleston’s motion for summary judgment on the abusive litigation claim, and the Supreme Court expressly upheld that denial. See Cherry v. Coast House, Ltd., 257 Ga. 403, 407 (359 SE2d 904) (1987) (“We affirm the denial of summary judgment to [Rolleston] as to any Yost v. Torok claim which might now exist or arise in the future”). Since Cherry’s liability to Coast House was at least partially predicated upon acts for which Cherry and Rolleston could be considered joint tortfeasors, Cherry was entitled to seek contribution from Rolleston under OCGA § 51-12-32, notwithstanding the fact that Coast House apparently did not pursue its abusive litigation claim against Rolleston. See Marchman & Sons v. Nelson, 251 Ga. 475 (306 SE2d 290) (1983). Accordingly, the trial court did not err in charging the jury on contribution and indemnity.

(b) In this same enumeration, Rolleston also asserts that the court erred in charging the jury that the statute of limitation for contribution and indemnity claims is 20 years. As Rolleston failed to support this assertion in his brief by argument, citation to authority, or citation to the record, it is deemed abandoned. Moreover, this assertion is groundless on the merits, as the applicable statute of limitation for such claims is in fact 20 years. See OCGA § 9-3-22; Krasaeath v. Parker, 212 Ga. App. 525 (441 SE2d 868) (1994) (actions for contribution between joint tortfeasors governed by 20-year statute of limitation); see also Union Carbide Corp. v. Thiokol Corp., 890 FSupp. 1035 (S.D. Ga. 1994) (actions for contribution and indemnity governed by 20-year statute of limitation).

3. Rolleston contends that the trial court erred in not holding that a letter from Cherry’s attorney to Rolleston’s attorney constituted a release of any claims against Rolleston. In this letter, Cherry’s attorney stated that no action would be filed against Rolleston “for any of his acts or omissions relating to his draftsmanship of the sales contract at issue in [the Coast House] lawsuit, acts omissions, negotiations and other, or the failed closing on May 31, 1985, or his activities leading up to said failed closing.”

As an initial matter, Rolleston does not cite to any portion of the record in which he asked the court to rule that the letter constituted a release. “[W]e are limited on appeal to those grounds presented to, and ruled upon by the trial court.” (Citation and punctuation omitted.) Adams v. Coweta County, 208 Ga. App. 334, 336 (3) (430 SE2d 599) (1993). This Court will not cull the record on behalf of a party, particularly in a case such as this where the record is voluminous. See Langton, supra at 446 (2) (failed to show where in record request was made for oral argument).

Moreover, this enumeration is groundless on the merits. The letter does not on its face purport to be a release, but merely a statement of Cherry’s intentions regarding bringing a malpractice action. There was testimony that the letter was sent after Rolleston had threatened to bring an abusive litigation action if Cherry sued him for malpractice. There was also testimony that Cherry was financially unable to bring an action against Rolleston at the time the letter was written. Whether this letter was merely intended to advise Rolleston of Cherry’s present intentions, or was intended as a binding release, was a question of fact for the jury. See Johnston v. Ruppert, 177 Ga. App. 883 (341 SE2d 293) (1986) (where document ambiguous, question of fact remained regarding whether party intended to release other).

Rolleston argues that he relied on this letter by helping Cherry prepare for the Coast House lawsuit. However, once again, Rolleston does not cite to the record to show that he in fact provided such assistance, or that such assistance was in reliance on the attorney’s letter. Cherry’s attorney testified that Rolleston provided only minimal help with the lawsuit, and charged $200 per hour for his services. Whether this assistance was in reliance on the letter was a question of fact for the jury’s determination.

4. Rolleston contends the court erred in failing to charge the jury that a contract between Coast House and the estate, pursuant to which Coast House would receive a portion of any proceeds from this suit, was champertous and void as against public policy. The court did not err in refusing to give such a charge, as champerty is no defense to Rolleston’s liability. “[T]he fact that there is an illegal and -champertous contract for the prosecution of an action is no ground for an abatement of such action, nor a defense thereto.” Ellis v. Smith & Bussey, 112 Ga. 480, 484 (37 SE 739) (1900). Thus, even if the contract between the estate and Coast House were champertous, this would not constitute a defense to the estate’s action against Rolleston.

5. Rolleston asserts that the court erred in failing to charge the jury that the assignment of the estate’s claim to Coast House was illegal in violation of OCGA § 44-12-24. He also contends the court erred in failing to charge that the estate’s damages were limited to $500,000 plus attorney fees, and that “a legal opinion rendered by a lawyer, even if in error, does not constitute malpractice.” Rolleston failed to provide any record cites to show that he made written requests for such charges, and our own review of the record reveals that Rolleston did not make such requests. Accordingly, these enumerations are without merit. Service Merchandise v. Jackson, 221 Ga. App. 897, 900 (2) (473 SE2d 209) (1996).

6. In his enumerations of error, Rolleston contends that the trial court erred in giving an excessive, unduly broad and prejudicial fraud charge, as there was no evidence of fraud. In his brief, Rolleston limits this enumeration to his contention that there was no evidence of fraud, abandoning any contention that the court’s charge was erroneous as given. See Court of Appeals Rule 27 (c) (2).

The only argument Rolleston advances in support of this enumeration is that none of the estate’s three expert witnesses testified that Rolleston committed fraud. However, the fact that the word “fraud” was not used by the witnesses is irrelevant, as there was ample evidence to justify a fraud charge. After drafting the real estate sales contract at issue, Rolleston was put on notice that, if the sale were consummated, his client might forfeit her claim to a recreational easement over adjoining property, which claim Rolleston was asserting in a separate lawsuit. Rolleston then told Cherry not to attend the closing because the purchaser would not be able to close, although he had been put on notice that the original purchaser was assigning his rights under the purchase contract to an assignee who was able to close.

Rolleston appeared at the closing without Cherry and without a power of attorney to execute the necessary closing documents. Although the purchaser’s assignee, Coast House, informed Rolleston that it was ready to close, Rolleston refused to close. Instead, he presented a letter, dated the next day, stating that the purchaser had breached the purchase contract by not timely closing, and that the contract was now void.

The jury was authorized to conclude from the evidence that Rolleston intentionally misled his client in order to prevent the closing, so as to avoid a potential malpractice claim for his drafting of the purchase agreement. As there was evidence from which the jury could infer fraud, the court did not err in instructing the jury on the law of fraud. See Feathers, supra, 157 Ga. App. at 753 (1) (trial court must instruct jury on issue of law if there is evidence to support the instruction).

7. Rolleston contends the trial court erred in failing to charge that Cherry had ratified all of Rolleston’s actions. Rolleston’s brief does not identify the charge alleged to have been erroneously refused, and fails to cite to the record to show that he actually requested such a charge. Our review of the record reveals that Rolleston did not request in writing a charge that Cherry had ratified Rolleston’s actions. Thus, this enumeration is meritless. See Service Merchandise, supra.

Rolleston did ask the court to charge that a principal who has ratified the acts of her agent may not then sue such agent, and that the jury should find for Rolleston if it found that Cherry had ratified his acts. The court did not err in refusing to give such charges, as they are not a complete statement of the law of ratification. Such charges fail to define the term “ratification,” fail to state that the burden of proving ratification is on the party asserting it, and fail to state that ratification is ineffective unless made with full knowledge of the material facts. See Hendrix v. First Nat. Bank, 195 Ga. App. 510, 511 (1) (394 SE2d 134) (1990). Accordingly, the court’s refusal to give such charges was not error. See Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 276 (9) (329 SE2d 900) (1985).

8. Rolleston contends the trial court erred in charging that a violation of the Standards of Conduct constitutes legal malpractice. Rolleston fails to cite to the charge he contends was erroneous, and fails to demonstrate that he preserved any error by objecting to the charge.

Nevertheless, our review of the record reveals that the trial court did not charge the jury that a violation of the Standards of Conduct constitutes legal malpractice. Rather, the court charged the jury that such rules could be taken into consideration by them in determining whether Rolleston had committed professional negligence. This is a proper statement of the law under Allen v. Lefkoff, Duncan &c., 265 Ga. 374, 377 (453 SE2d 719) (1995) (bar rules not determinative of standard of care applicable in legal malpractice actions, but may be considered along with other facts and circumstances).

Decided March 6, 1997

Reconsideration denied June 11, 1997

Before Judge Jenrette.

Sullivan, Hall, Booth & Smith, Rush S. Smith, Jr., for appellant.

Moreton Rolleston, Jr., pro se.

Shelby Outlaw, Scott M. Kaye, for appellee.

9. In his final enumeration of error, Rolleston contends that the trial court erred in failing to grant his motion for directed verdict and motion for summary judgment. As Rolleston omitted this enumeration from his argument in his brief, it is abandoned. Court of Appeals Rule 27 (c) (2).

Case No. A97A0056

Rolleston also filed a notice of appeal of the trial court’s order requiring a supersedeas bond. As Rolleston has not filed enumerations of error relating to this appeal, or addressed it in his brief, it is abandoned.

Judgments affirmed.

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

       Rolleston does not contend that the court’s charge was an incorrect statement of the law. Accordingly, we do not address that issue.


text:
    A97A0089.
    GIST v. DeKALB TIRE COMPANY, INC.
    (487 SE2d 360)
   Blackburn, Judge.

Robert A. Gist appeals the trial court’s order finding him in contempt for failure to comply with post-judgment discovery requests propounded by DeKalb Tire Company, Inc. (DeKalb Tire).

Many of the facts relevant to this case are set forth in Gist v. DeKalb Tire Co., 223 Ga. App. 397 (477 SE2d 616) (1996). Gist sued DeKalb Tire in Fulton County over a set of allegedly defective tires he purchased. Gist dismissed the Fulton County suit without prejudice, and refiled in DeKalb County. After the DeKalb County case was dismissed for lack of prosecution, DeKalb Tire filed a motion for sanctions under OCGA § 9-15-14, seeking to recover fees and expenses incurred in both the Fulton and DeKalb cases. The DeKalb County court granted the motion with respect to fees and expenses incurred in the DeKalb County suit, but did not allow recovery of fees and expenses incurred in the Fulton County suit.

In Case No. A96A1590, Gist appealed the award of fees and expenses with respect to the DeKalb County case. The trial court required Gist to post a supersedeas bond, but Gist failed to do so. DeKalb Tire filed a cross-appeal in Case No. A96A1887, appealing that portion of the court’s order denying its request for fees relating to the Fulton County suit.

While these appeals were pending in this Court, DeKalb Tire served Gist with post-judgment interrogatories and document requests in an attempt to enforce the court’s award of fees. After Gist failed to respond to these discovery requests, the trial court entered an order finding Gist in contempt. On August 9, 1996, Gist filed a notice of appeal of this order.

On October 15, 1996, we reversed the trial court’s award of fees in the DeKalb County suit, finding that DeKalb Tire’s motion for such fees was untimely. We affirmed the trial court’s denial of DeKalb Tire’s motion for fees with respect to the Fulton County action. Gist, supra.

1. Gist’s sole enumeration of error contends that the trial court lacked jurisdiction to enter the contempt order because of the pendency of DeKalb Tire’s cross-appeal in Case No. A96A1887. Gist contends that such cross-appeal acts as a supersedeas precluding the trial court from entering the subsequent contempt order.

This argument is without merit. It is well settled that the filing of a notice of appeal, upon payment of costs, operates to deprive the trial court of jurisdiction to modify or alter the judgment appealed. Cohran v. Carlin, 249 Ga. 510, 512 (291 SE2d 538) (1982); Nest Investments v. Tzavaras, 221 Ga. App. 282 (471 SE2d 223) (1996). However, “the notice of appeal supersedes only the judgment appealed; it does not deprive the trial court of jurisdiction as to other matters in the same case not affecting the judgment on appeal.” Cohran, supra at 512. DeKalb Tire’s cross-appeal in Case No. A96A1887 related only to the trial court’s denial of its motion for fees incurred in the Fulton County action. DeKalb Tire did not appeal the court’s award of fees in the DeKalb County action, which was the subject of Gist’s appeal in Case No. A96A1590. As the trial court’s order finding Gist in contempt did not affect the judgment appealed by DeKalb Tire, the court had jurisdiction to enter the contempt order.

Gist does not contend that his appeal of the award of fees in the DeKalb County action operates as a supersedeas. The trial court required Gist to post a supersedeas bond in such appeal, which Gist failed to do. Accordingly, Gist’s appeal did not operate as a supersedeas, and DeKalb Tire was free to take steps to enforce the award of fees, including propounding post-judgment discovery. See Hawn v. Chastain, 246 Ga. 723, 727 (273 SE2d 135) (1980) (where appellant fails to post supersedeas bond, appellee may proceed to enforce judgment, subject to outcome of appeal). The fact that DeKalb Tire cross-appealed a separate portion of the judge’s order does not allow Gist to avoid the consequences of his failure to comply with the court’s order requiring a supersedeas bond.

Decided March 19, 1997

Reconsideration denied June 11, 1997.

Before Judge Wheeler.

Robert A. Gist, pro se.

Womble, Carlyle, Sandridge & Rice, William A. Capp, for appellee.

2. Gist’s motion for permission to file a supplemental brief is denied. In his proposed supplemental brief, Gist refers to our opinion in Gist, supra, in which we reversed the trial court’s award of fees in the DeKalb County lawsuit because DeKalb Tire’s OCGA § 9-15-14 motion was untimely. Gist argues that, since the trial court lacked jurisdiction to consider the motion, its award of fees was void. As “[a]n order of contempt cannot be based on noncompliance with a void order,” In re Estate of Adamson, 215 Ga. App. 613, 614 (2) (451 SE2d 501) (1994), Gist contends that the trial court’s order finding him in contempt for failing to respond to DeKalb Tire’s post-judgment discovery should be reversed.

However, Gist failed to raise this issue in his enumerations of error. Although our opinion in Gist, supra, was not issued until after this appeal was filed, this did not prevent Gist from raising the alleged voidness of the trial court’s fee award in his enumerations. Indeed, the very basis of Gist’s appeal in Case No. A96A1590 was that the trial court lacked subject matter jurisdiction to enter the fee award because DeKalb Tire’s OCGA § 9-15-14 motion was untimely. As “an enumeration of error cannot be enlarged by a brief to give appellate viability to an issue not contained in the original enumeration,” we do not consider the issues set forth in Gist’s proposed supplemental brief. (Citation and punctuation omitted.) Crotty v. Crotty, 219 Ga. App. 408, 410 (3) (465 SE2d 517) (1995).

Judgment affirmed.

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


author: Smith, Judge.

text:
    A97A0654.
    LAVERSON v. MACON BIBB COUNTY HOSPITAL AUTHORITY et al.
    (487 SE2d 621)
   Smith, Judge.

Steve Laverson brought this action against Mercer University and Macon Bibb County Hospital Authority d/b/a Medical Center of Central Georgia, alleging breach of an employment contract for a residency position in 1989-1990. Laverson appeals from the trial court’s grant of summary judgment to Medical Center and Mercer. Because Laverson failed to show all essential elements of a valid contract required under OCGA § 13-3-1, we affirm.

The year before entering into the alleged contract at issue, Laverson and Medical Center executed a residency agreement. That earlier agreement for a “PGY-3” residency in general surgery research was signed by Laverson and representatives of Medical Center in June 1988. The duration of the residency was one year, from July 1, 1988 through June 30, 1989. Near the completion of that year of residency, Laverson received two letters dated June 9, 1989. The first letter was from Dr. Will Sealy, Medical Center’s residency program director. Dr. Sealy offered Laverson an “appointment as a PGY-6 Chief Residant [sic] for 1989-1990.” The letter recited, among other things, that Laverson’s 1989-1990 contract was enclosed and instructed Laverson to sign and return the contract promptly if he accepted the position. The second letter, from Dr. James Evans, Chairman of the Department of Surgery of Mercer University School of Medicine and Medical Center’s Chief of Surgery, recited generally that Laverson’s appointment was appropriate.

Laverson contended below, as he does here, that he signed and returned the 1989-1990 contract on June 9, the day he received it. He did not keep or make a copy of the contract, and he could not remember during his deposition testimony whether he requested a copy of the contract. The contract is not in the record. Laverson learned several days later from Dr. Evans that the alleged agreement “could not be honored.” Although Laverson was offered a PGY-3 position for the following year, he did not accept it. Breach of the alleged 1989-1990 contract forms the basis of this action.

On motion for summary judgment, Medical Center made several arguments: that it never assented to the agreement, submitting as evidence Laverson’s testimony that he could not remember whether anyone on Medical Center’s behalf had signed the contract before he signed it; that Laverson’s signing and returning the June 9 contract was merely an unenforceable agreement to agree; that the contract, if one existed, was a mistake because Dr. Sealy did not have authority to offer a PGY-6 position to Laverson and thus should be rescinded; that Laverson had not suffered compensable damages; and that Laverson failed to prove the essential term of compensation under the contract. Mercer also moved for summary judgment on the grounds asserted by Medical Center and on the additional ground that it was not a party to any alleged contract between Laverson and Medical Center. We reach only Medical Center’s argument concerning compensation because it is dispositive of all issues.

Laverson’s burden, as the party asserting a contract, was to prove its existence. Workman v. McNeal Agency, 217 Ga. App. 686, 687 (1) (458 SE2d 707) (1995). Assuming without deciding that the June 9 letter offer and Laverson’s alleged acceptance by signing the agreement constituted a valid offer and acceptance, Laverson has failed to meet this burden. “To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate.” OCGA § 13-3-1. Each of these four essential terms must be certain. “In order that it may allege an agreement, a petition must set forth a contract of such certainty and completeness that either party may have a right of action upon it. The requirement of certainty extends not only to the subject matter and purpose of the contract, but also to the parties, consideration, and even the time and place of performance where these are essential. ... A contract cannot be enforced in any form of action if its terms are incomplete or incomprehensible.” (Citations and punctuation omitted.) Jackson v. Williams, 209 Ga. App. 640, 642-643 (1) (434 SE2d 98) (1993).

Medical Center correctly maintains that one of the four essential requirements of a valid contract is missing — consideration. “The amount of compensation is an essential element of an employment contract that must be stated with sufficient definiteness. . . . The promise must be for an exact amount of compensation or based upon a formula or method for determining the exact amount of the compensation.” (Citations and punctuation omitted.) Carter v. Hubbard, 224 Ga. App. 375, 377 (2) (480 SE2d 382) (1997). See also BellSouth Advertising &c. Corp. v. McCollum, 209 Ga. App. 441, 444 (2) (433 SE2d 437) (1993) (price essential element to valid contract, and alleged contract with “no firm agreement as to the price is unenforceable”). On motion for summary judgment, Medical Center pointed to the absence of evidence of the amount of Laverson’s salary under the putative contract. As respondent, it was Laverson’s duty to avoid summary judgment by pointing to specific evidence of compensation. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In response to the motion, Laverson admitted that the salary recited in the alleged 1989-1990 contract differed from that in the 1988-1989 contract and stated only that “an amount higher than the previous year’s figure was in fact included in the contract.” Also, in his deposition, Laverson admitted that he did not know the salary of a PGY-6 resident. On appeal, he maintains that “the evidence is undisputed that a salary was contained within the contract at issue.”

Decided May 29, 1997

Reconsideration denied June 11, 1997

Before Judge Phillips.

Reynolds & McArthur, W. Carl Reynolds, Bradley J. Survant, for appellant.

King & Spalding, Michael E. Ross, Hoyt L. Dennard, Jr., Martin, Snow, Grant & Napier, John C. Daniel III, William K. McGowan, for appellees.

These assertions are insufficient to show the essential element of consideration. “In a contract for the performance of services by one party in consideration of the payment of money by the other party, the nature and character of the services to be performed as well as the place of performance and the amount to he paid must be certain and definite. [Cit.]” (Emphasis supplied.) McTerry v. Free For All Missionary Baptist &c., 129 Ga. App. 724 (200 SE2d 915) (1973). Neither we nor the trial court have had the benefit of reviewing the purported 1989-1990 contract. As a result, neither this Court nor any other would be able to enforce the alleged contract because the salary term is unknown. Even if the amount in the alleged contract was greater than Laverson’s 1988-1989 salary, the purported salary term “lacks such definite terms and certainty that no court may determine what has been agreed upon. ... If the parties do not create a complete binding agreement, the courts are powerless to do it for them, or afford a remedy for a breach.” (Citations and punctuation omitted.) Southeastern Underwriters v. AFLAC, 210 Ga. App. 444, 446 (1) (436 SE2d 556) (1993). And Laverson has not otherwise pointed to a definite amount of compensation or formula for calculating compensation under the purported contract. See Carter, supra at 377 (2). Consequently, we cannot enforce the agreement.

Because Laverson failed, as respondent on motion for summary judgment, to provide evidence of a definite, enforceable salary term, he failed to show the existence of a valid contract, and the trial court did not err in granting summary judgment to Medical Center and Mercer.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

       “PGY” means “post-graduate year.’


text:
    A97A0778.
    HEWITT et al. v. WALKER.
    (487 SE2d 603)
   Blackburn, Judge.

Sam Hewitt and Sam Hewitt Services, Inc. (collectively, Hewitt) appeal the grant of summary judgment to Bill Walker on their claim for professional negligence in connection with his preparation of their tax returns. Because Hewitt failed to establish that Walker owed an extra-contractual duty of care to Hewitt, we affirm the grant of summary judgment.

Sam Hewitt hired Walker to perform bookkeeping and tax return preparation services for himself and his company, Sam Hewitt Services, Inc. Hewitt provided Walker with the necessary financial information to perform these services. Walker was not, and did not hold himself out to be, a licensed certified public accountant. Following an audit by the Internal Revenue Service, it was determined that Hewitt had underreported his income. Hewitt then sued Walker for professional negligence, alleging that he improperly utilized a cash method of accounting in preparing the tax returns. Hewitt also alleged that Walker negligently failed to provide certain financial advice to Hewitt and failed to prepare returns for Hewitt’s other business ventures. Hewitt did not assert a claim for breach of contract. Walker moved for summary judgment on the grounds that, since he was not a certified public accountant, he could not be sued for professional negligence. The trial court granted the motion, and Hewitt appeals.

It is undisputed that the relationship between Hewitt and Walker was created by contract. “[I]n order to maintain an action ex delicto because of a breach of duty growing out of a contractual relation the breach must be shown to have been a breach of a duty imposed by law and not merely the breach of a duty imposed by the contract itself. . . . ‘Duty imposed by law’ as used in this context means . . . either a duty imposed by a valid statutory enactment of the legislature or a duty imposed by a recognized common law principle declared in the reported decisions of the appellate courts of the State? Mauldin v. Sheffer, 113 Ga. App. 874, 879-880 (150 SE2d 150) (1966); Peterson v. First Clayton Bank &c. Co., 214 Ga. App. 94, 99 (1) (b) (447 SE2d 63) (1994).

This is not an action for professional negligence. “[T]he law imposes upon persons performing professional services the duty to exercise a reasonable degree of skill and care, as determined by the degree of skill and care ordinarily employed by their respective professions under similar conditions and like surrounding circumstances.” (Punctuation omitted; emphasis supplied and omitted.) Allen v. Lefkoff, Duncan, Grimes &c., PC., 265 Ga. 374, 375 (453 SE2d 719) (1995); Housing Auth. of Savannah v. Greene, 259 Ga. 435, 436 (383 SE2d 867) (1989). “This is a duty apart from any express contractual obligation.” Mauldin, supra at 880. In construing OCGA § 9-11-9.1, dealing with actions for professional malpractice, our Supreme Court has held that the term “professional” is limited to those professions recognized in OCGA §§ 14-7-2 (2); 14-10-2 (2); 43-1-24, and Chapter 4 of Title 26. Gillis v. Goodgame, 262 Ga. 117, 118 (414 SE2d 197) (1992); Harrell v. Lusk, 263 Ga. 895, 897 (439 SE2d 896) (1994). It is undisputed that Walker, as an unlicensed bookkeeper and tax return preparer, is not a professional under the Supreme Court’s analysis. See OCGA § 43-3-36 (b). Thus, Walker cannot be subject to an action for professional malpractice.

Decided April 29, 1997

Reconsideration denied June 11, 1997

Before Judge Smith.

William J. Mason, for appellants.

Grogan, Jones, Rumer & Gunby, Lee R. Grogan, for appellee.

Hewitt has not set forth any other statute or common law principle imposing a duty on Walker apart from those imposed by the parties’ contract. “[T]he question of duty is for the court, and if the court finds no duty was owed, no material question of fact remains for determination by the jury.” (Citation and punctuation omitted.) Peterson, supra at 100 (1) (b). Accordingly, the trial court properly granted summary judgment to Walker on Hewitt’s tort claim.

Judgment affirmed.

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