author: Blackburn, Judge.

text:
    A97A0361.
    In the Interest of C. A., a child.
    (482 SE2d 534)
   Blackburn, Judge.

Appellant is the maternal grandmother of C. A., a child. Alleging that C. A. was deprived, the grandmother filed a petition in the juvenile court seeking temporary custody of C. A. C. A.’s mother contested the petition, and following a hearing, the court determined that C. A. was not deprived and denied the grandmother’s petition for temporary custody. Appealing that order, the grandmother asserts that the juvenile court erred when it refused to allow testimony regarding what she refers to as “past acts of deprivation” regarding C. A. and C. A.’s brother, J.

The record shows that the excluded testimony involved the manner in which C. A., J., and their mother lived while in Florida, prior to moving to Georgia. When the question regarding the Florida living arrangements was posed, counsel for the mother objected on grounds of relevancy. Counsel for the grandmother argued that the question was relevant to show how the mother treated her children while they lived in Florida, and presumably how they were deprived while living there, but the court sustained the objection and indicated that it was only interested in evidence regarding present deprivation. Claiming this ruling was error, the grandmother asserts that she should have been allowed to elicit testimony regarding C. A. and J.’s living arrangements in Florida.

Our review of the record indicates that in spite of the juvenile court’s ruling, the grandmother did elicit testimony regarding C. A. and J.’s living arrangements in Florida. Some time after the objection was sustained, her counsel asked this same witness, “Can you tell me anything about [the mother’s] living conditions in Florida when [C. A.] was living there?” The witness responded in detail, extensively describing the cleanliness of the Florida home in which C. A., J., and their mother lived, including who else lived in the home at the time and the status of C. A.’s physical health. Accordingly, notwithstanding the court’s earlier ruling, the grandmother’s evidence regarding C. A. and J.’s alleged prior deprivation from their living arrangements in Florida was admitted.

To the extent that the grandmother is arguing that she was erroneously prevented from eliciting testimony regarding the living arrangements and deprivation in Florida of C. A.’s brother J., this contention is without merit. When the witness answered the question about “living conditions in Florida,” she pointed out that C. A. and J. were living in the same household in Florida. Her answer therefore addressed the alleged deprivation arising out of the living conditions with respect to both children. Because the evidence which the grandmother claims the trial court erroneously excluded as to both children was actually admitted, the grandmother has shown no harm from the trial court’s ruling, and she is not entitled to relief. “Harm as well as error must be shown to authorize reversal.” In the Interest of C. T., 197 Ga. App. 300, 301 (1) (398 SE2d 286) (1990).

The grandmother also contends that the trial court erroneously prevented her from questioning a witness regarding evidence of alleged past beatings of J. The evidence was excluded by the court as irrelevant to the determination of the present deprivation of C. A. “The admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” (Punctuation omitted.) Pope v. Professional Funding Corp., 221 Ga. App. 552, 555 (3) (472 SE2d 116) (1996).

Decided March 3, 1997.

William B. Barker, for appellant.

Kyung H. Chang, Wendy J. Glasbrenner, Vicky O. Kimbrell, Lisa J. Krisher, Phyllis J. Holmen, for appellee.

Although generally “the past conduct of the parent is properly considered by the court in determining whether such conditions of deprivation are likely to continue,” we cannot say that the trial court clearly abused its discretion in refusing to admit the excluded evidence. (Punctuation omitted.) In the Interest of W. W. C., 210 Ga. App. 492, 494-495 (1) (436 SE2d 685) (1993). Although the grandmother argued that the excluded evidence was relevant because the children were living in the same household when J.’s bruising occurred, the same witness who testified to having seen bruises on J. in the past stated that she had never seen a bruise on C. A. The grandmother now argues that the evidence regarding J. is relevant to show how C. A. would likely be raised in the future, but as she did not raise this argument in the juvenile court, we may not consider it for the first time on appeal. See Hobdy v. State, 222 Ga. App. 625, 626 (475 SE2d 686) (1996) (“issues not properly raised and ruled on below cannot be raised for the first time on appeal”).

Past deprivation alone is not sufficient to terminate a parent’s rights without a showing of present deprivation, W. W. C., supra at 494, and in this instance, the past deprivation does not even relate to the child named in the petition. Although not completely irrelevant to a determination of C. A.’s status, exclusion of the evidence of past bruises on J. does not rise to the level of an abuse of discretion. Therefore, this Court will not interfere with the juvenile court’s ruling.

Judgment affirmed.

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

       J. was not named in the petition for temporary custody.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A96A1953.
    BROWN v. THE STATE.
    (483 SE2d 318)
   Smith, Judge.

Tommie Lee Brown was found guilty by a jury of armed robbery, rape, and two counts of aggravated assault. His motion for new trial was denied.

Construed to support the jury’s verdict, the record shows that two sisters, fourteen and sixteen years old, were returning to their home from a convenience store on the evening of June 15,1994, when Brown forced them at gunpoint to a nearby graveyard. At the graveyard, Brown instructed them to lie down on the ground face down and took the older sister’s jewelry. When the younger girl realized he was going to rape her, she protested, to no avail, that she was menstruating and was a virgin; Brown pulled off and discarded her tampon and pad and raped her. He then left, warning the victims not to look at him and to remain lying there for 20 minutes.

The girls remained on the ground for several minutes, then went home and told family members, who telephoned the police. They described their attacker to the police as a tall black male who smoked cigarettes, was missing front teeth, and was wearing gray pants and a gray and red bold-striped shirt. Officers canvassed the neighborhood and were directed- to Brown. They found him in the shower at his mother’s home in the neighborhood. The clothing on the bathroom floor matched the description of that worn by the perpetrator; Brown matched the description given by the victims of the man who attacked them. He was placed under arrest. In conducting a search of Brown’s mother’s home for other items listed in a search warrant, police also observed in Brown’s bedroom a striped shirt matching the description given by the victims.

The discarded sanitary pad and tampon were found in the cemetery. A photographic lineup was shown to the victims. Although the rape victim was unable to make an identification, her older sister identified Brown’s photograph as that of the attacker. She also made a positive identification of Brown at trial.

Brown claimed he had been with his girl friend at the time of the charged crimes. When interviewed by the police, however, he volunteered information not mentioned before by the interviewer regarding the age and clothing of the rape victim. Although he explained this reference at trial by saying he had seen the victim earlier in the day, he later testified he had never seen either victim before the trial.

1. Brown contends the trial court erred in denying his motion for new trial, made on the ground that his trial counsel rendered ineffective assistance. He raises four main points regarding this claim.

(a) He contends trial counsel was ineffective in that he failed to call as a witness the triage nurse who interviewed the rape victim after the assault. The nurse testified at the hearing on the motion for new trial that the rape victim was unsure of penetration. Brown argues that this omission demonstrates ineffectiveness because penetration is an essential element of the crime of rape, and this evidence could have cast doubts upon that essential element.

This was a strategic decision by trial counsel. Trial counsel testified that he examined the medical records regarding the examination of the rape victim and knew they reflected this uncertainty. He not only did not pursue this line of defense, he moved successfully in limine to exclude the medical records. These records would, in fact, have shown that the victim reported at the hospital that she had been penetrated several times. Had the triage nurse been called to testify as to the victim’s uncertainty, the evidence in the medical records could have been used to contradict her testimony. Further, the nurse could have been cross-examined about the victim’s hysterical emotional state and her lack of sanitary protection when she arrived at the hospital, which would have damaged the defense. “Trial strategy and tactics do not equate with ineffective assistance of counsel.” (Citations and punctuation omitted.) Spivey v. State, 193 Ga. App. 127, 131 (386 SE2d 868) (1989).

Moreover, as noted by trial counsel at the hearing, his theory of the case was that Brown had an alibi and had not committed the offenses. This line of defense was not consistent with that theory. Trial counsel’s decision was not deficient and did not constitute ineffective representation.

(b) Brown maintains that trial counsel’s acceptance of and agreement with the proposal of the trial court for dealing with a possibly biased alternate juror demonstrates ineffectiveness as well. After the jury had been impaneled and sworn, the second alternate juror expressed doubts that she could be impartial. The trial court delayed ruling on her dismissal until the next day, gave a preliminary charge to the jurors, then dismissed them. A discussion then ensued among counsel and the court. They agreed that day to try to keep the alternate on the jury for the time being, counseling her to keep an open mind, and further agreed to defer any decision on excusing her until and unless her presence on the jury might actually be required should two of the first twelve jurors be excused.

The next morning, however, trial counsel informed the court that Brown had instructed him that he wished to have the alternate juror excused. The trial court offered to excuse the alternate if Brown would agree to be judged by a jury of 11 should that become necessary. That way, a new jury would not have to be impaneled. After conferring with Brown for several minutes, trial counsel informed the court they had agreed to accept the trial court’s offer. Brown now contends this constituted ineffective assistance of counsel. We do not agree.

“The two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) [(1984)] asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense, that is, whether there is a reasonable possibility that the outcome of the proceedings would have been different, but for counsel’s deficiency.” Quinn v. State, 221 Ga. App. 399, 401 (3) (471 SE2d 337) (1996). We need not address both prongs of this test if the showing on one prong is insufficient. Ponder v. State, 201 Ga. App. 388, 389 (1) (411 SE2d 119) (1991). As to this ineffectiveness contention, Brown cannot show a reasonable probability that the outcome would have been different had trial counsel not agreed to the court’s proposal because this alternate juror would not have participated in the deliberations even had trial counsel not acceded to the proposal. Only one juror was excused because of a death in her family. The services of the second alternate in issue were therefore not required. Because Brown cannot satisfy the second prong of the test, we need not address the question of trial counsel’s ineffectiveness in this regard.

We note, however, that trial counsel discussed the problem with Brown before agreeing with the trial court’s proposal; the trial court asked Brown if he agreed, and he did. Brown had the right to waive a 12-person jury. See generally Glass v. State, 250 Ga. 736, 738 (1) (300 SE2d 812) (1983). He did so when he discussed the matter with counsel and acquiesced in the decision. Hudson v. State, 250 Ga. 479, 482-484 (3) (a) (299 SE2d 531) (1983). He cannot now complain of that decision, in which he participated fully.

(c) Although Brown asserts that trial counsel was ineffective in failing to cross-examine the rape victim regarding her prior sexual history, such questioning was clearly prohibited under the Rape Shield Law, OCGA § 24-2-3. That statute provides that “[i]n any prosecution for rape, evidence relating to the past sexual behavior of the complaining witness shall not be admissible, either as direct evidence or on cross-examination . . ., except as provided in this Code section.” OCGA § 24-2-3 (a). The single exception provided for applies only when consent is in issue. Such evidence is admissible if the court determines that the evidence sought to be introduced pertains to sexual behavior involving the participation of the defendant, and the court finds that such evidence could support an inference that the defendant could reasonably have believed that the victim was consenting to sex. OCGA § 24-2-3 (b). Clearly, that exception is not relevant in this case.

(d) Brown maintains that trial counsel was also ineffective by failing to prepare adequately for trial and by neglecting to interview witnesses who had information that the rape victim was lying. Brown testified that trial counsel spent only one hour with him preparing for trial, but trial counsel testified he spent more than 40 hours preparing for trial, including more than five hours preparing Brown to testify.

New counsel presented evidence at the hearing on the motion for new trial from two witnesses who claimed to have heard the rape victim say she lied in accusing Brown. Both these witnesses, however, testified that they did not come forward with their information before trial. Although Brown’s sister testified at the hearing on the motion for new trial that the word on the street was that the victim had lied and that she so informed Brown’s trial counsel before trial, trial counsel testified unequivocally to the contrary. He testified that no one had informed him of that matter, although before the trial, he discussed with Brown and his family the possible existence of helpful witnesses. He stressed that he would have tried to find and subpoena any such witnesses, but that no one suggested or informed him of their existence.

A finding by the trial court that an accused was not denied effective assistance of counsel must be affirmed unless clearly erroneous. Stevens v. State, 210 Ga. App. 355, 357 (6) (436 SE2d 82) (1993). In this case, trial counsel had many years of experience in criminal defense, and he presented a logical and vigorous defense. Based upon the evidence, we find that the trial court’s ruling in this case was not clearly erroneous, and it is affirmed.

2. Brown next contends the trial court erred in forcing him to choose between seating a biased juror and agreeing to a possible trial before an 11-person jury. As noted in Division (1) (b), supra, however, Brown himself agreed with the trial court’s proposal. Moreover, because the alternate was not reached during the trial, Brown cannot show harm. The burden is upon the party asserting error to show both error and harm. Manous v. State, 200 Ga. App. 293, 295 (2) (407 SE2d 779) (1991). This enumeration is without merit.

3. Brown asserts error in the trial court’s failure to order recordation of the voir dire. In support of this enumeration, he cites Graham v. State, 153 Ga. App. 658 (266 SE2d 316) (1980). Graham was reversed on certiorari by the Supreme Court in State v. Graham, 246 Ga. 341 (271 SE2d 627) (1980). The Supreme Court held that although the entire voir dire must be reported and transcribed in all death penalty cases, it need not be reported in other felony cases. This enumeration is meritless.

4. Brown contends that the trial court failed to instruct the jury to return a separate verdict as to each charge and further contends that the charge regarding the consideration of evidence and the verdict was confusing. We do not agree.

Decided February 14, 1997

Reconsideration denied March 4, 1997

Charles A. Mullinax, Robert L. Waller III, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee.

In evaluating error, the charge must be considered as a whole, rather than piecemeal. Leigner v. State, 213 Ga. App. 871, 872 (3) (446 SE2d 770) (1994). In this case, the trial court charged the jury that it must “consider all the evidence in this case and consider each count.” The court went over each count of the indictment separately. The jury was charged that the form of the verdict was dependent upon “how you find . . . the proof of the evidence presented to you. Again, in order to convict the defendant of any one count of this indictment, it must be proven as to that one count beyond a reasonable doubt.”

The court did instruct the members of the jury that if they believed Brown was either guilty or not guilty on all counts, it would be sufficient to say so simply in one sentence. Although this portion of the court’s charge is not a model of clarity, it is clear from the charge that this instruction applied only if their verdict was the same as to all counts — either guilty or not guilty. The court also instructed the jury that if they believed Brown to be guilty on some counts and not guilty on others, “you must specify which count you believe the State has proven its case beyond a reasonable doubt, and which ones . . . the State has not.”

Considering the trial court’s charge as a whole, we conclude that it did not confuse the jury, and that the jury understood from the charge that it was to consider each charge separately. We find no reversible error.

Judgment affirmed.

Andrews, C. J., and Pope, P. J, concur.


text:
    A96A1966.
    JOHNSON v. KAPLAN et al.
    (483 SE2d 292)
   Smith, Judge.

Floyd Johnson, the owner of two residential units at the Landmark Condominiums in Atlanta, brought suit against Jo Kaplan and Jim Williams, d/b/a Kaplan-Williams Parking Lot, alleging that the defendants’ reconfiguration of the parking spaces appurtenant to the condominium violated an order of the Superior Court of Fulton County entered in prior litigation and affirmed by the Supreme Court in Kaplan v. Helton, 261 Ga. 524 (407 SE2d 747) (1991). Johnson sought to hold the defendants in wilful contempt of the order affirmed in Helton. He also sought an injunction ordering the defendants to return the parking spaces to the prior configuration, as well as attorney fees.

Following a bench trial, the trial court ruled that the prior order did not prevent the reconfiguration and denied Johnson the relief he sought. Johnson appealed the trial court’s order to the Supreme Court, but that court found that the injunctive relief sought was ancillary to the issue of whether defendants were in contempt of the prior order. Finding no other basis for jurisdiction, the Supreme Court transferred the appeal to this Court. Upon review, we conclude that the trial court erroneously interpreted the Helton order, and we reverse.

1. In 1974, the developer of the Landmark Apartments converted the units from rental apartments to condominiums. When the apartments were converted to condominiums, the developer retained ownership of the parking garage. The original declaration of condominium and subsequent declarations provided that the owner of each unit was entitled to one parking space under a revocable license. The declaration provided that the license could not be revoked, however, except upon the occurrence of one of three conditions, none of which is applicable to this case.

Since 1974, ownership of the parking facility has changed several times;.defendants are the current owners. Johnson is one of several unit owners who were plaintiffs in Helton. That action arose when appellees herein, the owners of the parking facility, raised the monthly parking fees and the plaintiff unit owners sought a ruling that the increases imposed by the defendants were in violation of the declaration of condominium. In the order entered in Helton, the trial court ruled for the plaintiffs, finding increases in parking fees were limited to amounts determined by the method set forth in the declaration: multiplying the base rate originally set forth in the declaration by the published percentage increase in the Consumer Price Index.

Johnson initiated this action in 1994 when appellees reconfigured the parking lot to add additional spaces, changing the angle of the spaces and reducing the width of the existing spaces from nine feet to seven feet. He contended that the new configuration was unsafe and inconvenient, and that these changes constituted wilful contempt of the order affirmed by the Supreme Court in Helton. In addition to settling the issue concerning parking fee increases, the Helton order set forth other rights of the unit owners relative to parking. It recited that each unit owner had “a right to one assigned space per unit as an easement right that runs with the condominium unit ownership as well as the land of the ([defendants]).” Id. at 524, 525, n. 1.

Appellees, on the other hand, argued that they were free to make any changes to the parking lot, so long as each unit owner remained entitled to a single assigned parking space; the trial court agreed. The trial court interpreted the Helton order as meaning that the unit owners “cannot be divested of their right to have an assigned parking space in the Landmark parking lot(s). However, [the superior court] did not rule nor does this Court find a! proper interpretation of his ruling to be that defendants cannot reconfigure or reassign parking lot spaces under reasonable circumstances.” We do not agree.

The plain language of the order in Helton recited specifically that appellees were “bound and estopped now by the conduct of their grantors from changing the present assignment of parking spaces from those individuals presently using the spaces. The [appellees] may create a reasonable and rational system to assign or reassign parking spaces in the future as existing condominium owners sell such units or drop their rental of existing space, but they cannot take away existing assigned spaces, because such renters have acquired a vested interest in such space on a month to month basis as long as they continue to pay the appropriate rent.” (Emphasis supplied.)

In affirming the order, the Supreme Court relied upon Thomason v. Kern & Co., 259 Ga. 119 (376 SE2d 872) (1989), and Tietjen v. Meldrim, 169 Ga. 678 (151 SE 349) (1929), both of which concern easements. Helton, supra at 525 (2). It follows, therefore, that the Supreme Court agreed that the unit owners’ rights in their assigned parking spaces were not mere licenses, but easements. While we might agree that the changes were reasonable, we are constrained by the principles of res judicata and collateral estoppel to adhere to the holding in Helton that the unit owners have an easement — an interest not subject to alteration, notwithstanding the reasonableness of any such alteration. Thomason, supra at 120. Except under limited circumstances not applicable here, just as the dimensions of the individual apartments could not be changed once acquired by the unit owners, changes in the dimensions of the already assigned parking spaces to accommodate additional spaces were foreclosed by the existence of the unit owners’ easements. The trial court erred in its interpretation of the Helton order.

We note that the defenses to a civil contempt action, in addition to comprising arguments that the order was not violated and that the order was not definite and certain, include the argument that the violation was not wilful. Roberts v. Roberts, 206 Ga. App. 423, 424 (2) (425 SE2d 414) (1992). We have determined that the first two possible defenses were not meritorious in this case. Although the trial court did not address the issue of wilfulness, appellees readily admit they were aware of the contents of the order in Helton; they merely mistakenly believed that despite its clear provisions, the order allowed them to alter the parking spaces. This is insufficient to avoid a finding of wilfulness. See generally In re Smith, 211 Ga. App. 493, 497 (4) (b) (439 SE2d 725) (1993). The judgment of the trial court is therefore reversed with regard to contempt.

Decided February 12, 1997

Reconsideration denied March 4, 1997

Crim & Bassler, Candler Crim, Jr., Paul L. Hanes, M. Muffy Blue, for appellant.

Louis Levenson, for appellees.

2. For the reasons discussed in Division 1, the trial court also erred in denying Johnson’s application for an injunction ordering appellees to restore the parking deck to its original configuration. This case is remanded to the trial court for entry of such an order.

3. Contrary to Johnson’s contention, attorney fees are not award-able in conjunction with a citation for contempt. OCGA § 15-6-8; Eckerd Corp. v. Fayette County Bd. &c., 220 Ga. App. 454, 456 (3) (469 SE2d 285) (1996).

Judgment reversed and remanded with direction.

Andrews, C. J., and Pope, P. J, concur.

       After docketing in this Court, the appeal was remanded to the trial court for supplementation of the record and then returned for adjudication.


text:
    A96A2018.
    WAKILY v. THE STATE.
    (483 SE2d 313)
   Smith, Judge.

Rageeb Wakily, aka Derrick Edmondson, was found guilty by a jury of armed robbery; the jury acquitted him of a charge of kidnapping. His motion for new trial was denied, and he appeals.

The charges against Wakily arose out of an incident that began when the victim, accompanied by his girl friend, was nearing his home and noticed a small blue car parked nearby. Two men then approached them, and one of the men pulled a gun and ordered the woman to the ground; he told the victim to empty his pockets. According to the victim, the other man, Wakily, stood beside the gunman but said nothing. After picking up the money, the gunman told the victim to leave and pointed the gun at the victim as he fled. He ordered the woman to come with him. The victim was able to find a police officer and rode back to the scene.

When the police arrived, they observed Wakily and the gunman placing the woman in the back seat of the small blue car. When the officers turned on their blue lights Wakily ran to the driver’s seat and drove away. A chase ensued, during which Wakily wrecked the car. He and the other man jumped out and fled on foot in opposite directions. The woman remained in the car and was found there by the police. Wakily was apprehended in a wooded area shortly thereafter; the other man was never found. Wakily denied being the driver of the car.

1. In three enumerations, Wakily contends the evidence was insufficient to support his conviction. We do not agree.

Wakily argues that he was merely present at the scene of a crime and the evidence shows that he did not point a gun at the victim or rob him. It is true that mere presence at the scene of a crime will not support a conviction. The accused’s conduct before and after the offense, however, may present circumstances from which the jury may infer criminal intent. Further, one is a party to a crime if one intentionally aids or abets in its commission. Grace v. State, 210 Ga. App. 718, 719 (1) (437 SE2d 485) (1993).

Here, as in Grace, the evidence demonstrates that Wakily was more than a mere bystander at the scene of the crime. The jury was authorized to infer from Wakily’s actions that he was, in fact, a participant in the crime. He could have left, but he remained unprotesting at the scene while the victim was robbed. He then drove the car in which the robber fled after assisting the other man in placing the woman in the car. Finally, his flight is evidence of guilt. We find this evidence sufficient to authorize the jury to find Wakily guilty of armed robbery under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Wakily chose to represent himself at trial, informing the trial court that he had done so before and had been successful. Wakily maintains that it should have been clear to the trial court that he was not able to represent himself because he refused street clothing at trial, he rejected a plea bargain offering to run a five-year sentence concurrently with his prior revoked probation of two years, and he did not object to having received notice of recidivist charges on the day before trial. He argues that despite these questionable acts on his part, the trial court improperly failed to warn him of the dangers of self-representation.

We find no merit in this contention. The record reveals that the trial court repeatedly warned Wakily of the dangers of self-representation and urged him to allow the court to appoint an attorney to represent him.

He was warned of these dangers several times at his arraignment when he first voiced his desire to represent himself. The trial court informed him of his right to appointed counsel; a public defender was actually present at the arraignment and his representation was rejected. The trial judge indicated to Wakily that she believed he was using poor judgment in this regard, emphatically repeating that he needed a lawyer and could get “creamed” if he chose to proceed without one.

The court appointed standby counsel to assist Wakily with his self-representation and warned him again at the beginning of his trial. Near the conclusion of the State’s case, when Wakily requested that standby counsel be allowed to take a more active role, his request was granted. At that point, the trial judge again repeated her concerns about Wakily’s self-representation. The record demonstrates conclusively that the trial court fulfilled its responsibility in this regard. See Hobson v. State, 266 Ga. 638, 639 (2) (469 SE2d 188) (1996).

3. Wakily asserts that appointed standby counsel (later co-counsel) rendered ineffective assistance. A strong presumption exists that counsel’s performance fell within the wide range of reasonable professional assistance, and the trial court’s determination that an accused has not been denied effective assistance of counsel must be affirmed unless it appears clearly erroneous. Binion v. State, 222 Ga. App. 333, 334 (1) (474 SE2d 208) (1996).

Some of the complaints Wakily raises about counsel’s performance actually occurred during that portion of the trial in which Wakily was representing himself. He is therefore barred from raising those complaints on appeal. Mullins v. Lavoie, 249 Ga. 411 (290 SE2d 472) (1982). Other allegations are belied by the record. For instance, Wakily complains that the lawyer did not request a continuance in order to obtain a copy of the probation revocation hearing transcript needed to impeach the victim with his prior inconsistent testimony. The record shows that counsel, in fact did make a request for the transcript; the request was denied by the trial court because the transcript had not yet been prepared. Wakily complains that the lawyer deferred to him regarding strategy, but the record reflects that those were his counsel’s instructions from the trial court. Although Wakily now states he wanted to testify in his own defense, when the trial court inquired whether he wished to do so, Wakily replied that he did not.

Wakily has failed to overcome the strong presumption that counsel’s representation was effective, and the trial court’s determination is not clearly erroneous. It is therefore affirmed.

4. Wakily also contends the trial court erred in refusing to allow him to obtain a copy of the prior transcript and in failing to advise him of proper impeachment technique. This enumeration relates to Wakily’s desire to impeach the victim with prior inconsistent testimony given at Wakily’s probation revocation hearing. At the revocation hearing, the victim testified he believed his girl friend knew the gunman because he had seen her speak with him on two prior occasions. At trial, however, the victim testified unequivocally that his girl friend did not know the gunman and that he had never seen her speak to him before. Wakily, still acting pro se with only standby counsel, sought to impeach the victim with this previous testimony. The State objected because Wakily did not provide a transcript of the prior sworn testimony, and the trial court sustained the objection.

This enumeration has no merit. Any errors in Wakily’s impeachment techniques were risks he assumed when he insisted upon self-representation against the trial court’s advice and counsel. See May v. State, 217 Ga. App. 427, 428 (457 SE2d 694) (1995). And impeachment must concern relevant issues. OCGA § 24-9-83. A witness may not be impeached by contradictory statements previously made by him as to immaterial matters. Thompson v. State, 187 Ga. App. 152, 153 (369 SE2d 523) (1988). The testimony on which Wakily sought to impeach the victim was not relevant or material. Whether the victim’s girl friend knew Wakily’s companion has no bearing on whether Wakily was involved in the crimes charged. Any error was therefore harmless.

5. Wakily next alleges error in the trial court’s admission of certain statements made by him while in police custody, on the ground that they were not furnished to him ten days before trial, as was required by former OCGA § 17-7-210, which governed discovery at the time. The record does not disclose that Wakily made a demand or request for such statements. Nevertheless, the record does show that such statements were provided by the prosecution.

6. Wakily asserts the trial court erred in refusing to allow his co-counsel and him to split the closing argument. We do not agree.

USCR 13.3 provides that “[n]ot more than two attorneys shall be permitted to argue any case for any party except by leave of court; in no event shall more than one attorney for each party be heard in concluding argument.” This rule, which applies in both civil and criminal cases, tracks in substantial part the language of OCGA § 9-10-182, which applies to civil cases. It has been held that it is permissible, however, to allow the opening and concluding portions of closing argument to be given by two different counsel for one party; the term “concluding” has been held to refer to the concluding portion of final argument, rather than to closing arguments as opposed to opening statements. Goforth v. Wigley, 178 Ga. App. 558, 560-561 (3) (343 SE2d 788) (1986). The trial court could have allowed Wakily to split his final argument with counsel, but the rule does not mandate splitting final argument. The extent and order of closing argument is within the sound discretion of the trial court. Little v. State, 157 Ga. App. 462, 463 (3) (278 SE2d 17) (1981). Moreover, Wakily readily agreed to have counsel make his final argument. The trial court did not abuse its discretion in refusing Wakily’s request. Id.

7. Contrary to Wakily’s contention, the indictment need not charge the defendant with being a party to a crime in order for the State to prove his culpability in that manner. Perkins v. State, 194 Ga. App. 189, 190 (1) (390 SE2d 273) (1990). The trial court properly instructed the jury on OCGA § 16-2-20.

8. The trial court properly sentenced Wakily. In sentencing him, the court did mention that Wakily did not testify, and we do not condone such comment. Nevertheless, we conclude from a fair reading of the court’s remarks that here, as in Cottingham v. State, 213 Ga. App. 637 (1) (445 SE2d 384) (1994), they were not addressed to Wakily’s exercise of his fundamental right, but to the lack of any evidence of remorse.

Wakily also argues that in sentencing him, the trial court erroneously applied the law in effect at the time of sentencing, rather than the law in effect at the time the offense was committed. See Searcy v. State, 162 Ga. App. 695, 697-698 (2) (291 SE2d 557) (1982). But in this case, the sentence imposed, ten years, is well below the maximum allowed, and it is a legal sentence under either the former or the current sentencing statute. It is therefore not subject to review by this Court. Moon v. State, 194 Ga. App. 777, 781 (392 SE2d 19) (1990).

9. We find no evidence of prosecutorial misconduct. The prosecutor stated in his opening that Wakily had drawn a pistol. This was untrue. But the prosecutor corrected this misstatement before concluding his opening statement.

Wakily also maintains that the prosecutor suborned perjury when he objected during Wakily’s cross-examination of the victim to Wakily’s questions aimed at impeaching the victim. Wakily attempted to show that the victim had given conflicting testimony on a particular point at the probation revocation hearing. First, Wakily’s characterization of the victim’s conflicting statements as perjury is extreme. Recollection, and testimony, about past events may vary at times for reasons other than perjury. In this case, we have held that the substance of the conflicting testimony is not material. See Division 4, supra.

Second, we do not conclude that the prosecutor’s conduct in this instance was improper. Wakily was attempting to impeach the victim using his prior conflicting testimony. But his attempt was legally incorrect; he was using an improper method. The prosecutor merely objected to Wakily’s method of impeachment, and the objection was sustained. Nothing in the record suggests that the prosecutor was attempting to hide the conflict in the victim’s testimony or that Wakily’s conviction was based upon the State’s knowing use of perjured testimony. Boyd v. State, 195 Ga. App. 758, 760 (2) (395 SE2d 7) (1990); Arnold v. State, 163 Ga. App. 10, 11 (1) (b) (293 SE2d 501) (1982).

Decided February 14, 1997

Reconsideration denied March 4,1997.

Elaine T. McGruder, for appellant.

Lewis R. Slaton, District Attorney, Leonora Grant, Charles E. Rooks, Elizabeth W. Morn, Assistant District Attorneys, for appellee.

10. Wakily contends the trial court improperly failed to advise him of his appeal rights. We do not agree.

In order for alleged error to be grounds for reversal, an appellant must show harm as well as error. Goodwin v. State, 208 Ga. App. 707, 709 (2) (431 SE2d 473) (1993). Wakily can show no harm, even if error existed. Immediately after sentencing, appointed trial counsel informed the court that Wakily desired to appeal. The court immediately appointed appellate counsel.

Judgment affirmed.

Andrews, C. J., and Pope, P. J., concur.


text:
    A96A2063.
    CANAL INSURANCE COMPANY v. MERCHANT et al.
    (483 SE2d 311)
   Smith, Judge.

This vehicular accident litigation appears for the second time before this Court. In Northbrook Property &c. Ins. Co. v. Merchant, 215 Ga. App. 273 (450 SE2d 425) (1994), we addressed issues concerning uninsured motorist coverage under OCGA § 33-7-11 (b) (1) and setoff for workers’ compensation benefits. In this appeal, we must apply the principles established in Travelers Ins. Co. v. Maryland Cas. Co., 190 Ga. App. 455 (379 SE2d 183) (1989), and Southern Guaranty Ins. Co. v. Premier Ins. Co., 219 Ga. App. 413 (465 SE2d 521) (1995), to determine which of two uninsured motorist carriers provides “primary” coverage. For the reasons stated below, we conclude that the trial court erred in designating appellant as the primary carrier, and we reverse.

The facts relevant to our analysis are not in dispute. Appellant Canal Insurance Company insured an independently-owned tractor-trailer that broke down while hauling chicken feed to Claxton Poultry Company. Claxton dispatched two company vehicles, both insured by Northbrook Property & Casualty Company, and four individual appellees, all employees of Claxton, to transfer the chicken feed from the disabled vehicle. While the transfer was in progress, a minimally insured and intoxicated driver drove into the transfer site, injuring the individual appellees.

When more than one source of uninsured or underinsured motorist coverage is available, claimants may “stack” the policies, but the priority of the multiple UM carriers must be determined. To assist in this task, Georgia courts have used two tests: the “receipt of premium” test and the “more closely identified with” test. Southern Guaranty, supra at 413; Travelers, supra at 455-456. Because it is undisputed that appellees did not pay a premium for either policy, the first test is inapplicable. Travelers, supra at 455. We must therefore examine appellees’ status, or their relationship to the policies of insurance, to determine the policy with which they are more closely identified and hence which policy provides primary coverage. Southern Guaranty, supra at 414.

The trial court concluded that Canal’s insured vehicle was “more closely identified with” the injured parties because it was the “center of all the activities and the reason for all other parties being at the scene.” But the “more closely identified” test does not focus on the relationship between the circumstances of the collision and a particular policy of insurance; it looks instead to the relationship of the injured party to the policy. As noted in both Travelers and Southern Guaranty, supra, this distinction “addresses itself to the relationship of the injured plaintiff to the policy rather than the circumstances of the injury to the policy. This status rather than incident context controls.” Travelers, supra at 457; see also Southern Guaranty, supra at 414.

Applying the test correctly, the relationship between the individual appellees and Canal clearly does not meet this standard. Other than the circumstances of the injury and appellees’ status as injured persons claiming under Canal’s policy, no relationship exists between Canal and appellees. The Northbrook policy, in contrast, was issued to appellees’ employer, Claxton; appellees therefore have a connection with that policy through their employer.

In Travelers and Southern Guaranty, the competing considerations were between an individual or family relationship with a policy and an employment relationship with a policy. In both those cases, the individual or family relationship was considered to be more closely identified with the claimant. Here, in contrast, the competing considerations are an employment relationship with the policy and no relationship at all, whether individual, family, contractual, or employment. Under these circumstances, the “more closely identified” test establishes Northbrook, rather than Canal, as the primary uninsured motorist carrier, and the trial court erred in holding otherwise.

Decided February 14, 1997

Reconsideration denied March 4, 1997.

McNatt, Greene & Thompson, Troy L. Greene, for appellant.

Killian & Boyd, Robert P. Killian, for appellees.

Judgment reversed.

Andrews, C. J., and Pope, P. J., concur.

       In the previous appearance of this case, we held that the trial court correctly denied summary judgment to Northbrook on the issue of whether the individual appellees are “insureds” under Northbrook’s policy. We concluded that the facts present a jury issue as to appellees’ “use” of the insured vehicles at the time of the collision. See Northbrook, supra, 215 Ga. App. at 274-275 (1).


text:
    A96A2094.
    DOOLEY v. DUN & BRADSTREET SOFTWARE SERVICES, INC.
    (483 SE2d 308)
   Smith, Judge.

James F. Dooley, Jr. filed suit against his former employer, Dun & Bradstreet Software Services, Inc., d/b/a D & B Software (D & B), seeking damages under theories of breach of contract, promissory estoppel, and quantum meruit. Dooley claimed he was entitled to more compensation than was paid under an employee bonus incentive plan. D & B moved the court for summary judgment, and Dooley moved for partial summary judgment. The trial court granted D & B’s motion and denied that of Dooley, and this appeal ensued.

The record reveals that in 1993 Dooley was employed as the Field Program Manager for the Southern Region and Latin America. He was notified that he had been selected to participate in the company’s 1993 annual incentive plan for employees. The plan set forth certain goals for employees and provided for bonus compensation for achieving or exceeding those goals. Bonus calculations were weighted, with ninety percent of the bonus entitlement dependent upon revenue attributable to the region for which Dooley was the Field Program Manager and ten percent dependent upon overall operating revenue. Dooley does not dispute that portion of his bonus attributable to overall operating revenue.

His claim is that the portion of his bonus dependent upon regional revenue was underpaid. It is undisputed that Dooley exceeded his 1993 regional revenue goal by 263 percent. He received a bonus of $74,520 attributable to software license revenue from the Southern Region, in addition to his base salary of $96,600. This amount was the bonus payable for achieving 140 percent of goal, which was the highest amount indicated on the table shown on the Participant Summary.

1. The Participant Summary contains a table indicating the targeted goals and the bonuses applicable for reaching or exceeding them. Dooley’s goal for Southern Region/Latin American Smart-stream License Revenue was $1,843,000 for 1993. The Participant Summary sets forth the bonus awardable for reaching 65, 80, 100, and 140 percent of this revenue goal. A note at the bottom of the table recites that “[a]ll awards will be interpolated and extrapolated for performance between specified performance levels.”

The primary issue in this appeal centers upon that language. D & B argues that the relevant language places a “cap” upon that portion of Dooley’s bonus dependent upon regional license revenue at 140 percent of goal, which is the highest level of performance for which bonus payout is indicated on the table; Dooley contends that no cap is indicated by the Participant Summary. The trial court agreed with D & B. Dooley argues that the trial court erred because the plan’s language is ambiguous regarding bonuses for amounts greater than 140 percent of goal, but applying the rules of contract construction resolves the ambiguity in his favor or, at the very least, leaves the ambiguity for jury resolution.

Contract construction involves a three-step process. The court must first determine whether the contract is ambiguous; if it is, the applicable rules of construction must be applied. Only if an ambiguity remains after applying the rules of construction does a jury resolve the ambiguity. Gram Corp. v. Wilkinson, 210 Ga. App. 680, 681 (437 SE2d 341) (1993).

We agree with Dooley that the sentence in question is ambiguous because it is internally inconsistent. It is clear from the Participant Summary that if Dooley’s performance level fell between two of the figures set forth explicitly on the table, his bonus would have been “interpolated” from the two figures surrounding his actual performance level. But the usual and ordinary meaning of the word “extrapolate” is “to estimate or infer (a value, quantity, etc. beyond the known range) on the basis of certain variables within the known range, from which the estimated value is assumed to follow.” Webster’s Unabridged Dictionary (2nd ed. 1983). It is therefore not possible to “extrapolate” Dooley’s bonus “between specified performance levels”; the actual performance level exceeds the highest level specified on the table. Because a dispute exists regarding how to resolve this inconsistency, the sentence is ambiguous.

Even ambiguous contracts, however, are to be construed by the court. No jury question is presented unless the ambiguity remains after applying the applicable rules of contract construction. Campos v. Williams, 217 Ga. App. 296, 298 (457 SE2d 243) (1995). This is true even though the contract may be difficult to construe. Kusuma v. Metametrix, Inc., 191 Ga. App. 255, 256 (2) (381 SE2d 322) (1989). Dooley raises several arguments aimed at demonstrating either that the ambiguity is resolved in his favor by applying various rules of contract construction or that, at the very least, an ambiguity remains after applying these rules so that a jury must decide the issue.

We need not address whether Dooley’s arguments relating to application of the rules of contract construction have merit because we conclude that the trial court properly granted D & B’s motion for summary judgment for a different reason. The cardinal rule of contract construction is to determine the intent of the parties. It is the parties’ intent at the time the contract is made that governs; if the language of a contract may be understood fairly in more than one way, it should be construed to reflect the sense in which the parties themselves understood it at the time of execution. Extrinsic evidence is admissible to establish that understanding. Gans v. Ga. Fed. Sav. &c. Assn., 179 Ga. App. 660, 662 (1) (347 SE2d 615) (1986). When parties disagree as to their intent upon entering an agreement, the meaning placed upon the contract language by one party and known to be thus understood by the other party at the time shall be held as the true meaning. OCGA § 13-2-4; Lothridge v. First Nat. Bank &c., 217 Ga. App. 711, 714 (3) (a) (458 SE2d 887) (1995). The record in this case demonstrates that Dooley signed the contract to participate in the employee incentive plan after he became completely aware that D & B intended to limit bonus awards under the plan.

Dooley was notified by his manager, Dave Gould, D & B’s Vice President of Program Management, in late May 1993, before he even received a copy of the plan, that it incorporated a cap on his bonus earnings. Shortly thereafter, Dooley received a copy of the plan and met with Gould for 30 to 45 minutes. During that meeting, Dooley informed Gould that he found nothing in the written plan that indicated a cap on his bonus earnings and that he therefore disagreed with the cap. Gould maintained D & B’s position that a cap was imposed under the plan as written. At that meeting, Dooley stated he would sign the agreement despite his unhappiness with a cap because he was “a good corporate citizen” and because it was not an issue for him at that time; he did not yet know whether he would even reach the revenue threshold beyond which his bonus would be capped. He signed the plan that day. Dooley admits he met with Gould and others several other times during the course of 1993, and that at no time did Gould or D & B ever retract or change its position that the plan capped bonus earnings at 140 percent of goal.

Dooley clearly signed the contract with full knowledge that D & B’s intention in offering the plan was to cap bonus earnings at the amount applicable to achievement of 140 percent of goal. Although Dooley may have felt it was not an issue for him on the day he signed it, he could not sign the contract with a full understanding of D & B’s intent with regard to the bonus and then dispute that intent later, when it became an issue because of his own subsequent performance. Because Dooley knew and understood at the time he signed the contract that D & B intended to cap his bonus earnings should his performance exceed 140 percent of the targeted goals, D & B’s interpretation is the one we must place upon the language in the plan summary despite its facial ambiguity. The trial court therefore did not err in granting summary judgment to D & B despite the ambiguity in the plan’s language. Lothridge, supra.

2. Dooley also contends the trial court erred in granting summary judgment in favor of D & B because genuine issues of material fact remain for jury determination with regard to his claims for breach of contract, promissory estoppel, and quantum meruit. We do not agree.

With regard to breach of contract, Dooley’s claim is predicated upon his insistence that the plan called for an unlimited bonus. Because we have concluded in Division 1 that D & B’s interpretation must be used in construing the plan language and D & B interprets the plan as capping the bonus, this contention is without merit.

3. We disagree with Dooley’s contention that he has established all the elements of his claim under a theory of promissory estoppel. To establish his claim under this doctrine, Dooley was required to show (1) that D & B promised to pay him an unlimited bonus; (2) that D & B expected him to rely on that promise; (3) that he did, in fact, rely upon it; and (4) that injustice may be avoided only by enforcing D & B’s promise. OCGA § 13-3-44 (a); Fidelity & Deposit Co. v. West Point Constr. Co., 178 Ga. App. 578, 579 (1) (344 SE2d 268) (1986).

Dooley has failed to demonstrate that D & B ever actually promised him an unlimited bonus or that he relied to his detriment upon such a promise. In fact, the record demonstrates that D & B told Dooley he would not receive an unlimited bonus and that Dooley signed the agreement knowing this, at least partly because he did not yet know whether he would reach the cap threshold. The trial court did not err in granting summary judgment to D & B on this ground.

4. A claimant may not recover under the theory of quantum meruit when an express contract covers all the claimed rights and responsibilities of the parties. Lord Jeff Knitting Co. v. Lacy, 195 Ga. App. 287, 288 (2) (393 SE2d 55) (1990). Both parties agree that an express contract covered the issue of Dooley’s bonus; they disagree only as to the interpretation of that contract. The trial court did not err in granting summary judgment in favor of D & B on this ground.

Decided February 14, 1997

Reconsideration denied March 4, 1997.

Kaufman & Chaiken, Fredric Chaiken, for appellant.

Paul, Hastings, Janofsky & Walker, Weyman T. Johnson, Jr., for appellee.

5. The denial of Dooley’s motion for partial summary judgment was proper for the same reasons the grant of D & B’s motion for summary judgment was proper.

Judgment affirmed.

Andrews, C. J, and Senior Appellate Judge Harold R. Banke concur.


text:
    A96A2124.
    DUTTON v. THE STATE.
    (483 SE2d 305)
   Smith, Judge.

This appeal presents a single issue: the proper application of the delusional compulsion defense. OCGA § 16-3-3 provides: “[a] person shall not be found guilty of a crime when, at the time of the act, . . . the person, because of mental disease, injury, or congenital deficiency, acted as he did because of a delusional compulsion as to such act which overmastered his will, to resist committing the crime.” Three elements comprise the defense: “(1) that the defendant was laboring under a delusion; (2) that the criminal act was connected with the delusion under which the defendant was laboring; and (3) that the delusion was as to a fact which, if true, would have justified the act. [Cit.]” Stevens v. State, 256 Ga. 440, 442 (350 SE2d 21) (1986). Appellant Andrew Wise Dutton contends the trial court improperly applied the third element of the defense. We disagree and affirm.

On September 18, 1995, Dutton went to the home of the victim, his neighbor, confronted him, and struck him in the face. He returned later the same evening to confront the victim again, but fled when the police arrived. Released on bond, Dutton returned approximately three months later with a butcher knife and tried to break into the victim’s home. By the time the victim and his wife forced Dutton away, he had broken a window and was reaching through the opening, trying to grasp the door knob to open the door.

These incidents led to charges of simple battery, OCGA § 16-5-23 (a) (2); misdemeanor obstruction of an officer, OCGA § 16-10-24 (a); burglary, OCGA § 16-7-1 (a); aggravated assault with a deadly weapon, OCGA § 16-5-21 (a) (2); criminal trespass, OCGA § 16-7-21 (b) (1); and criminal damage to property in the second degree, OCGA § 16-7-23 (a) (1). Dutton waived his rights to grand jury presentment, arraignment, and jury trial. He admitted all factual allegations and entered pleas of not guilty by reason of insanity pursuant to OCGA § 16-3-3, the delusional compulsion defense. At a bench trial, the trial court heard evidence on Dutton’s insanity defense.

Dutton’s sole witness, a forensic psychologist, testified that Dutton had a history of mental illness. Dutton had received varying diagnoses at several mental health facilities, but his symptoms consistently included auditory and visual hallucinations and delusional thinking. Before the incidents, according to the psychologist, Dutton began to hear what he believed to be the voice of the victim. As he described it, the voice was very intrusive and was threatening to kill him. The psychologist opined that Dutton confronted the victim because he was in fear, felt threatened, and felt “confused” and “out of control.” He testified that in his opinion Dutton was able to distinguish between right and wrong. He concluded, however, that the delusion was so powerful that it overmastered Dutton’s will to resist committing the crimes. The psychologist declined to offer an opinion on whether Dutton’s delusion was as to a fact which, if true, would justify the criminal act: “I defer that to the wisdom of the court. . . . I do not get into that area.”

Dutton was found guilty but mentally ill on all counts. In its judgment, the trial court concluded that insufficient evidence was presented to satisfy the justification criterion of the delusional compulsion defense, although the other two elements were met. In applying the third element of this test to Dutton’s defense, the trial court stated that it was “guided by the law of justification as set forth in OCGA § 16-3-21.”

In Dutton’s sole enumeration of error, he contends that the trial court erred in considering OCGA § 16-3-21, the self-defense statute, in evaluating the justification criterion of the delusional compulsion defense. He also contends that such a construction of the justification criterion impermissibly imposes upon the defendant a standard of “reasonable” conduct. We disagree.

OCGA § 16-3-21 provides, in pertinent part: “(a) A person is justified in . . . using force against another when and to the extent that he reasonably believes that such . . . force is necessary to defend himself . . . against such other’s imminent use of unlawful force. . . . (b) A person is not justified in using force under the circumstances specified in subsection (a) of this Code section if he: . . . (3) [w]as the aggressor.” The trial court found that the facts did not establish the imminent use of unlawful force by the victim, as required by OCGA § 16-3-21 (a). The trial court further found that Dutton was the aggressor and that his acts were not justified by his delusion. As a result, the trial court concluded that Dutton failed to establish by a preponderance of the evidence that he was suffering from a delusional compulsion at the time of the crimes. See Appling v. State, 222 Ga. App. 327, 329 (3) (474 SE2d 237) (1996).

1. Dutton’s first assertion is that the trial court erred in considering the “imminent use of unlawful force” requirement of OCGA § 16-3-21 (a) and the defendant-as-aggressor exception of OCGA § 16-3-21 (b) (3) in determining justification, because OCGA § 16-3-3 does not explicitly incorporate either statute. He relies upon Stevens v. State, supra, noting that in finding that the defendant’s acts were justified, the Stevens court made no mention of the imminent use of force requirement or the defendant-as-aggressor exception.

The weight of authority, however, supports the trial court’s construction of the justification criterion. It is an established practice in Georgia courts to construe the justification criterion as requiring legal justification for the defendant’s acts and to evaluate the evidence in light of the justification statutes. See Brown v. State, 228 Ga. 215 (184 SE2d 655) (1971), overruled in part, Burger v. State, 238 Ga. 171, 172 (1) (231 SE2d 769) (1977); Appling v. State, supra; Mitchell v. State, 187 Ga. App. 40, 43 (2) (369 SE2d 487) (1988). The use of the legal justification statutes in this manner can be traced to Brown, in which the Supreme Court applied the general justification statute, OCGA § 16-3-20 (formerly Code Ann. § 26-901), to the facts of the defendant’s delusion. Brown, supra at 219. OCGA § 16-3-20 incorporates by reference numerous statutes, including OCGA § 16-3-21. It was therefore proper for the trial court to use the general law of self-defense and OCGA § 16-3-20 (6) (formerly OCGA § 16-3-20 (b)) to determine whether Dutton had met the justification criterion of the delusional compulsion defense.

•2. Dutton also asserts that the trial court’s reliance on the self-defense statute imposed upon him an impossible burden to prove that his acts were objectively reasonable. Dutton claims that construction of the justification criterion by reference to the self-defense statute would impose such a standard, because the term “reasonably believes” in the self-defense statute, see OCGA § 16-3-21 (a), has been interpreted as imposing a “reasonable man” standard. At trial, the forensic psychologist testified that while a sane person can avoid an unwanted voice by leaving or telling the speaker to be quiet, those suffering from auditory hallucinations “don’t have that choice. It’s there with them whether they choose it or not.” Relying on this statement, Dutton argues that a person suffering from a delusional compulsion cannot choose how he acts, and thus does not have the choice to act “reasonably,” as demanded by OCGA § 16-3-21. Therefore, Dutton claims, imposing a standard of reasonableness on the conduct of a person suffering from a delusional compulsion creates an insurmountable obstacle to a successful defense under OCGA § 16-3-3.

This argument is foreclosed by the Supreme Court of Georgia’s decision in Lawrence, supra at 312-314 (2). Lawrence challenged the justification criterion in its entirety, contending that it unconstitutionally differentiates between two classes of defendants who are equally “powerless to resist their respective delusional compulsions.” Id. The Supreme Court rejected this contention: “Georgia constitutionally could decline to recognize an insanity defense based on any type of irresistible impulse. Leland v. Oregon, 343 U. S. 790, 800-801 (72 SC 1002, 96 LE 1302) (1952). Accordingly, we conclude that among the group of similarly situated individuals, namely, mentally ill defendants who are capable of distinguishing between right and wrong, it is not unconstitutional to differentiate between defendants who are compelled to act in a manner ‘justified’ by their delusions and defendants, like appellant, who act, however compelled, in a manner they are capable of recognizing as wrong. [Cit.]” Id. at 313-314. Dutton’s conduct was properly subjected to this standard by the trial court. We conclude that the trial court’s construction of the justification criterion was permissible and that the resulting evidentiary burdens and putative standard of conduct are also permissible.

Judgment affirmed.

Andrews, C. J., and Pope, P. J., concur.

Decided February 14, 1997

Reconsideration denied March 4, 1997

Davidson & Strain, John M. Strain, Rebecca C. Terry, for appellant.

James R. Osborne, District Attorney, David B. Fife, Assistant District Attorney, for appellee.

       This conclusion foreclosed a plea of insanity on the basis of inability to distinguish between right and wrong. OCGA § 16-3-2. Compare Salter v. State, 257 Ga. 88, 89 (356 SE2d 196) (1987).

       This assessment of Stevens is not entirely accurate, as it is apparent from the text of the opinion that the Supreme Court considered the imminent use of unlawful force, as perceived by the defendant, in reaching its decision. See 256 Ga. at 442.

        Brown was decided when the law treated as justifiable homicide a killing done by a husband or wife to prevent an adulterous act. See Brown, 228 Ga. at 218-219; Richardson v. State of Ga., 70 Ga. 825, 830 (2) (1883). This is no longer the law in Georgia. See Bennett v. State, 262 Ga. 149, 152, n. 2 (414 SE2d 218) (1992).

       Although Brown later was overruled in part, the Supreme Court’s continuing reliance upon it as the leading authority on the justification criterion indicates that its reasoning and principles remain sound. See Stevens, 256 Ga. at 442; Lawrence v. State, 265 Ga. 310, 312 (2) (454 SE2d 446) (1995).

       Contrary to Dutton’s contention, the record contains no indication the trial court “engraft[ed] onto OCGA § 16-3-3 the reasonable man requirements of a justification defense gleaned from OCGA § 16-3-21.” Dutton fails to point to any part of the record supporting this contention, and the judgment contains no reference to a “reasonable man” standard or any suggestion that the court applied such a standard.


text:
    A96A2147.
    HIGHTOWER v. KENDALL COMPANY.
    (483 SE2d 294)
   Smith, Judge.

Pro se plaintiff David Hightower filed this action for wrongful discharge against his employer, Kendall Company. He also claimed that Kendall made “mean spirited,” false and misleading statements to the Georgia Department of Labor in order to deny him unemployment benefits. Summary judgment was granted in Kendall’s favor, and Hightower appeals.

Construed in Hightower’s favor, evidence was presented that he was employed as a truck loader at Kendall’s warehouse for approximately eight years before he was discharged. He did not work pursuant to a contract but was paid hourly wages as an at-will employee. His supervisor, Joiner, testified via affidavit that Hightower was suspended without pay and then fired following an investigation because Hightower loaded pallets onto outgoing trucks contrary to Joiner’s instructions and established company policy.

1. Hightower raises several arguments as to why his termination was wrongful. These arguments are immaterial. “Employment in Georgia is terminable at the will of either party [cit.] so an employee has no entitlement to a certain term of employment unless a contract exists therefor.” Golden v. Nat. Svc. Indus., 210 Ga. App. 53 (435 SE2d 270) (1993). It is undisputed that Hightower did not work pursuant to a contract and that his employment was terminable at will. Consequently, it was Kendall’s prerogative to discharge Hightower “with or without cause and regardless of its motives . . . without liability.” (Citations and punctuation omitted; emphasis in original.) Bendix Corp. v. Flowers, 174 Ga. App. 620 (330 SE2d 769) (1985). See also Johnson v. Hames Contracting, 208 Ga. App. 664, 666 (431 SE2d 455) (1993). Hightower therefore has no claim for wrongful termination.

We note Hightower’s contention that Joiner’s affidavit was “invalid.” Disagreement with another’s affidavit testimony does not render that testimony invalid. Additionally, if Hightower wanted to dispute facts, it was his burden on summary judgment to do so in the trial court. See generally Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Hightower also contends the trial court erroneously failed to conduct a hearing on the motion for summary judgment. Neither party requested oral argument, however, and the trial court consequently did not err in granting the motion without a hearing. Weir v. McGill, 203 Ga. App. 431, 433-434 (4) (417 SE2d 57) (1992).

2. The alleged statements by Kendall to the Georgia Department of Labor likewise provide no basis for liability. They were “absolutely privileged and shall not be made the subject matter or basis for any action for slander or libel in any court of the State of Georgia.” OCGA § 34-8-122 (a).

3. Hightower’s notice of appeal and brief contain new allegations of slander not raised in Hightower’s complaint and an extended discussion of the law of libel. He appears to argue that he was libeled by prior warning letters to him, which were attached to Joiner’s affidavit. He also alleges that Kendall wrongfully told other employees that he was discharged for theft and dishonesty. These claims were not raised below, and we will not consider them here. See Long v. Marion, 182 Ga. App. 361, 362 (355 SE2d 711) (1987), aff’d, 257 Ga. 431 (360 SE2d 255) (1987). Moreover, any argument that the affidavits served as a basis for a libel claim is foreclosed by OCGA § 51-5-8, which states, “All charges, allegations, and averments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and material to the relief sought, whether legally sufficient to obtain it or not, are privileged. However false and malicious such charges, allegations, and averments may be, they shall not be deemed libelous.” As for Hightower’s additional claim that a negligence claim remains pending, we note simply that although the complaint does mention negligence, Hightower’s claim is for wrongful discharge, which is intentional in nature.

4. Hightower contends the trial court’s failure to compel Kendall to answer “post judgment” interrogatories rendered its grant of summary judgment premature. The only interrogatories appearing in the record are a set of 54 interrogatories, erroneously styled “in Fi.Fa.” served by Hightower on Kendall about six weeks after Hightower filed his complaint. Those interrogatories inquired into several aspects of Kendall’s business activities, including pallet handling policies, employee turnover rates and the downsizing of Kendall’s other plants. Kendall objected to all but one of these interrogatories on the ground that they were “irrelevant and not calculated to lead to the discovery of relevant, admissible evidence.” Hightower moved to compel answers to the interrogatories, but no order on the motion appears in the record.

The motion did not comply with Uniform Superior Court Rule 6.4 in several respects, including the failure to show that a good faith effort was made to resolve discovery disputes prior to filing a motion to compel. Nor did Hightower show how the interrogatories would lead to discovery of relevant evidence. In addition, the interrogatories did not question Hightower’s at-will employment status, which was the central issue to be decided. Consequently, the failure of Kendall to answer the interrogatories had no bearing on the trial court’s decision. We find no error in the trial court’s failure to issue an order compelling Kendall to respond to the interrogatories.

5. On motion by Kendall, the trial court assessed transcript costs of $268.38 and partial attorney fees of $1,000 against Hightower. The sanction was based in part on a lengthy letter from Kendall’s attorney to Hightower, written before an answer was filed. In the letter, Kendall’s attorney explained in detail the reasons the complaint lacked merit, particularly the clear Georgia law concerning at-will employment, and advised Hightower that he would face frivolous litigation sanctions if he persisted with the lawsuit. In addition, the lawyer advised Hightower to seek counsel and stated that Kendall would not seek costs if Hightower immediately dismissed the lawsuit. Hightower served 54 immaterial interrogatories about a week later, and further litigation obviously ensued. The trial court assessed costs and attorney fees on the ground that continuation of the action constituted frivolous litigation. Hightower has not appealed this order.

Kendall requests that this Court also assess a penalty against Hightower. When the law is indisputably clear concerning the issues raised on appeal, frivolous appeal penalties may be imposed. Suchnick v. Southern Gen. Ins. Co., 196 Ga. App. 687, 688 (396 SE2d 609) (1990). Upon reviewing the record, including the pleadings, discovery requests, Hightower’s deposition, and efforts by Kendall’s attorney to advise Hightower, and even considering Hightower’s pro se status, we agree with the trial court that the complaint lacked merit and that Hightower’s pursuit of the claim after having been apprised of the law constituted frivolous litigation. We also agree with Kendall that a frivolous appeal penalty is appropriate. If Kendall’s counsel’s letter to Hightower, which explained the clear Georgia law that his claim was foreclosed by the employment at-will doctrine, did not put him on notice that his claim was frivolous, the trial court’s order certainly did. Even after the assessment of costs and a portion of Kendall’s attorney fees by the trial court, however, Hightower continued in his effort to raise arguments completely lacking in merit. Accordingly, we assess a penalty for frivolous appeal against Hightower in the amount of $500 pursuant to Court of Appeals Rule 15 (b). The trial court is directed to enter judgment for a $500 penalty against Hightower and in favor of Kendall upon return of the remittitur. See Suchnick, supra.

Decided February 12, 1997

Reconsideration denied March 4, 1997

David T. Hightower, pro se.

Fisher & Phillips, Charles Kelso, Anderson B. Scott, for appellee.

Judgment affirmed.

Andrews, C. J., and Pope, P. J., concur.


author: Judge Harold R. Banke.

text:
    A96A2401.
    WHITE v. THE STATE.
    (483 SE2d 329)
   Judge Harold R. Banke.

Lanor Ramon White was convicted of trafficking in cocaine and received a 30 year sentence. On appeal, he enumerates nine errors.

The evidence, viewed in the light most favorable to the verdict, revealed the following. In May 1994, a month before White’s arrest, Gerald Easley, an undercover agent, purchased approximately two ounces of cocaine from Marvin Johnson at American Auto Detail, a business Johnson owned. Easley ordered the cocaine from Johnson, who stated that his cousin would pick up the drugs and deliver them to the detail shop. White, who subsequently was identified as Johnson’s cousin, arrived on a red and white Honda motorcycle, opened the receptacle under the seat, removed a hat containing three clear plastic bags filled with a white powder, and took them to Johnson. Easley then exchanged $2,000 for the cocaine. While Easley was waiting for the delivery, surveillance agents observed a black male drive a red and white Honda motorcycle from the detail shop to 55 Branchwood Drive in Covington, stop briefly and then return to the detail shop. White’s mother owned the Covington residence and lived there with three of her children, including White, and his girl friend and their child.

Several weeks later, Easley ordered three more ounces of cocaine from Johnson. Johnson contacted White, and the three men met at the detail shop. Because White’s lunch break at work left him too little time to retrieve the cocaine, Johnson drove to 55 Branchwood Drive, returned to the detail shop, and sold the cocaine to Easley.

Several weeks after this transaction, agents obtained no-knock search warrants for the detail shop and the Branchwood Drive residence and simultaneously executed them. In so doing, agents discovered White at the residence as well as approximately $4,500 in cash and three bags of cocaine of over 80 percent purity. One of the bags contained 444.4 grams; the other two collectively held over 36 grams.

The State predicated the charges against White solely on his possession of the cocaine seized at his residence. Evidence of his participation in the May delivery was admitted at trial as a similar transaction. Held:

1. We reject White’s contention that the absence of probable cause invalidated the search warrant and required the suppression of the evidence seized at the residence. Elaborate specificity is not required in affidavits supporting search warrants and, where the affidavit leaves doubt as to the existence of probable cause, such questions should largely be resolved by a preference accorded warrants. Davis v. State, 266 Ga. 212, 213 (465 SE2d 438) (1996).

Notwithstanding White’s contention to the contrary, the affidavit supporting the warrant was not inadequate for failing to mention him by name, state that contraband had been seen in the house, or specify that he entered the residence. The affidavit and the record showed that Johnson was a high volume dealer whose family participated in the enterprise. Hale v. State, 220 Ga. App. 667, 668 (2) (a) (469 SE2d 871) (1996) (entire record may be considered in reviewing probable cause determination). Each time Johnson sold cocaine to Easley, someone went to the residence at issue and returned with cocaine. The affidavit connected White, identified as Johnson’s cousin and courier, with the motorcycle, which was purchased and used for delivering cocaine, and the residence. Compare State v. Porter, 167 Ga. App. 293 (306 SE2d 377) (1983) (affidavit showing mere pattern of behavior with no specific knowledge of drugs inadequate). Accordingly, the denial of White’s motion to suppress was not clearly erroneous. Hale, 220 Ga. App. at 669 (2) (a).

Nor was the information supporting the warrant stale. In light of the continuing nature of Johnson’s enterprise, the statements in the affidavit were sufficient to create a reasonable belief that the conditions described in the affidavit still prevailed when the warrant was issued. Hale, 220 Ga. App. at 669 (2) (c).

2. White waived his enumeration challenging the admission of similar transaction evidence of his delivery of the cocaine to Johnson in May 1994. Although White asserted a lack of similarity objection at the similar transaction hearing, he failed to object when the evidence was admitted at trial. Sapeu v. State, 222 Ga. App. 509, 510 (4) (474 SE2d 703) (1996).

Had this issue been properly preserved, we would have rejected White’s claim of lack of similarity. Similar transactions need not be identical in every respect. Lumsden v. State, 222 Ga. App. 635, 636 (1) (475 SE2d 681) (1996). Moreover, when determining their admissibility, courts should focus on the similarities of the occurrences rather than their differences, particularly when the purpose of the evidence is to show intent rather than identity or criminal signature. Harris v. State, 222 Ga. App. 83, 85 (1) (473 SE2d 245) (1996); see Maggard v. State, 259 Ga. 291, 293 (2) (380 SE2d 259) (1989). Because there was a logical connection between the two incidents, in that White possessed cocaine in both, and proof of the similar transaction tended to establish the offense at issue, admission of the evidence was not error. Dixon v. State, 267 Ga. 136, 140 (4) (475 SE2d 633) (1996).

3. The evidence, viewed in the light most favorable to the victor, was sufficient to support the verdict. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). The State more than met its burden of proving that White knowingly possessed over twenty-eight grams of cocaine with a purity of at least ten percent. OCGA § 16-13-31 (a) (1). In effect, White seeks a reweighing of the evidence. This we cannot do. Pardo v. State, 215 Ga. App. 317 (1) (450 SE2d 440) (1994). The similar transaction evidence provided proof of intent sufficient to negate beyond a reasonable doubt White’s claims of mere presence and equal access. Compare Whipple v. State, 207 Ga. App. 131, 132 (1) (427 SE2d 101) (1993).

4. Because the standard of review for the denial of a motion for directed verdict of acquittal is identical to that used to review the sufficiency of the evidence, we need not reach White’s fourth enumeration. Carter v. State, 222 Ga. App. 397 (1) (474 SE2d 228) (1996).

5. The trial court did not err in refusing to charge the jury on the rebuttable presumption that the owner or lessor of premises possesses the contraband found therein. See Mobley v. State, 190 Ga. App. 771, 772 (1) (380 SE2d 290) (1989) (presumption that husband as head of household possessed contraband found therein violates due process). The charge was not authorized by the evidence. Davis v. State, 169 Ga. App. 601, 602 (3) (314 SE2d 257) (1984).

6. The trial court’s refusal to charge on mere presence was not reversible error. The evidence, including that demonstrating White’s intense involvement in Johnson’s enterprise, did not support the charge. Id. The court instructed the jury on equal access, which more accurately characterized the evidence in light of the number of individuals occupying the residence. In any event, mere presence is not a recognized defense, only a “ ‘corollary to the requirement that the State prove each element of the offense charged,’ [cit.]” and the instructions as a whole fairly presented White’s case and theories to the jury. Ancrum v. State, 197 Ga. App. 819, 821 (2) (399 SE2d 574) (1990); see Durham v. State, 192 Ga. App. 91, 92 (383 SE2d 654) (1989).

7. We reject White’s contention that the trial court committed reversible error by permitting one of the agents, who was not tendered or qualified as an expert, to testify that he had never seen fingerprints successfully lifted from plastic bags. Because the agent, who had over seven years experience in law enforcement and had participated in over 200 drug operations, could have qualified as an expert on this matter, the admission of this testimony does not require reversal. See Jefferson Pilot Life Ins. Co. v. Clark, 202 Ga. App. 385, 392 (3) (414 SE2d 521) (1991). Moreover, the agent’s testimony was not inconsistent with White’s defenses, particularly his equal access theory; thus, White demonstrated no harm. Johnson v. State, 221 Ga. App. 267, 269-270 (2) (471 SE2d 46) (1996).

Decided February 17, 1997

Reconsideration denied March 4, 1997.

William D. Kelly, for appellant.

8. The trial court did not abuse its discretion in prohibiting White from challenging each fact contained in the search warrant on cross-examination. Fletcher v. State, 197 Ga. App. 112, 113 (1) (397 SE2d 605) (1990) (standard of review). The court resolved the question of the warrant’s validity as a matter of law and White’s inquiry before the jury was irrelevant. Thomas v. State, 173 Ga. App. 481, 484 (2) (326 SE2d 840) (1985); Landers v. State, 164 Ga. App. 657, 660 (3) (297 SE2d 748) (1982).

9. The State’s failure to provide White with a scientific report stating that tests revealed no fingerprints on a plastic bag seized at his home or a videotape of the search does not require reversal. Because the information was provided to White at trial and he failed to satisfy his burden of showing the positive effect of earlier disclosure or the harm resulting from its absence, no Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963) violation was proved. Burgeson v. State, 267 Ga. 102, 104 (2) (475 SE2d 580) (1996).

The trial court erred in permitting the State to present testimony on the results of the written scientific report on the fingerprints because it failed to provide White with the report, notwithstanding his request. OCGA § 17-7-211 (b). OCGA § 17-7-211 (c)’s specific prohibition against the admission of such evidence in rebuttal as well as in the prosecution’s case in chief undermines the State’s contention that White opened the door by cross-examining a witness about the results of the fingerprint tests. White’s failure to demonstrate harm from this error precludes reversal, however. See Johnson, 221 Ga. App. at 269-270 (2).

Judgment affirmed.

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

Alan A. Cook, District Attorney, William K. Wynne, Jr., Assistant District Attorney, for appellee.

       OCGA § 17-7-211 was repealed effective January 1, 1995. The criminal discovery provisions currently in effect are codified at OCGA § 17-16-1 et seq.


author: Johnson, Judge.

text:
    A96A2526.
    ALTAMA DELTA CORPORATION v. HOWELL et al.
    (483 SE2d 127)
   Johnson, Judge.

In 1987, the shareholders of Altama Delta Corporation sold all corporate stock and assets to Wyatt & Broos Merger Sub, Inc. The business continued to operate under the name Altama Delta Corporation, though Wyatt & Broos eventually sold all the stock and corporate assets to its present owners.

The former shareholders, the 1987 sellers, are the plaintiffs in this action. The terms of the 1987 purchase agreement were memorialized in three documents: A November 18, 1987 “Agreement of Merger”; a December 1, 1987 “First Amendment to Agreement of Merger”; and a December 29, 1987 “Subordinated Promissory Note.” The total purchase price was $10,000,000, subject to some adjustments not relevant to this case. $9,000,000 (as adjusted) was paid at closing. The sellers accepted the “Subordinated Promissory Note” in the original principal amount of $1,000,000 as the remainder of the purchase price.

Altama Delta was to make quarterly interest payments on the note until 1990, and thereafter to make quarterly payments of interest and principal. The sellers made warranties in the merger agreement regarding such things as the company’s inventory, debts and liquid assets, tax liability, compliance with environmental laws, title to real estate, and the condition of its equipment. Any expenses to Altama Delta resulting from a breach of any of these warranties could be deducted from the unpaid principal balance of the promissory note, which would then be re-amortized over the remainder of the original term.

Altama Delta made some, but not all, scheduled note payments. Some of the original stockholders/sellers filed the instant action seeking recovery upon the promissory note. Later, the remainder of the original sellers, or their representatives or successors, were added as plaintiffs. In responding to this lawsuit, Altama Delta’s answer and counterclaim contended that the entire shortfall in payments under the promissory note was attributable to warranty breaches.

Altama Delta Corporation appeals from three orders entered by the superior court in this action. The first granted partial summary judgment to the plaintiffs; the second added parties as plaintiffs and limited the potential liability of some new plaintiffs under Altama Delta’s counterclaim; the third denied Altama Delta’s motion to dismiss for failure to join indispensable parties. For the reasons set out below, we reverse the grant of partial summary judgment and affirm as to the other two orders.

1. Altama Delta maintains the trial court erred in granting the sellers’ motion for partial summary judgment. We review de novo a ruling on summary judgment. Artlip v. Queler, 220 Ga. App. 775, 776 (470 SE2d 260) (1996).

The challenged order limited the sellers’ potential counterclaim liability to the amount of the note’s unpaid principal. The trial court relied on § 10.2 (f) of the merger agreement, which provided in pertinent part: “In the event any of the Shareholders who are payees under the Promissory Note are liable to Altama Delta pursuant to this Article X [providing for survival of all the agreement’s warranties after the closing], the unpaid principal amount of the promissory note shall be reduced by the amount of such liability (but not below zero). . . .”

The construction of a contract is a question of law, for resolution by the court, unless the contract contains an ambiguity regarding the parties’ intent that cannot be resolved by applying the rules of construction. Duke v. KHD Deutz of America, 221 Ga. App. 452, 453 (471 SE2d 537) (1996). One of the most fundamental rules of construction is that a court should, if possible, construe a contract so as not to render any of its provisions meaningless. Harris County v. Penton, 211 Ga. App. 498, 499 (439 SE2d 729) (1993). If the court cannot resolve an ambiguity in the contract, then the jury must determine its meaning. Century 21 &c. v. Cason, 220 Ga. App. 355, 358 (2) (d) (469 SE2d 458) (1996).

Altama Delta correctly contends that the trial court’s construction of “but not below zero” conflicts with two sections of the merger agreement. The first is § 3.30: “The Shareholders shall indemnify and hold harmless Altama Delta and Parent for any and all taxes, penalties and interest assessed against Altama Delta, either Subsidiary or International after the date hereof with respect to any taxable period ending on or before the Effective Date, and for any tax imposed pursuant to Code Section 4978.” (Emphasis supplied.) The second is § 10.2 (a), which obligates the sellers to indemnify Altama Delta and hold it harmless for “any and all” losses arising from breach of the sellers’ warranties.

The sellers respond, however, that unless “but not below zero” is construed as exculpating them from liability beyond the note’s unpaid principal, it is rendered an essentially meaningless restatement of the obvious principle that the payor owes the payee on a promissory note, not vice versa.

Because any interpretation will render some part of the contract meaningless, the contract is clearly ambiguous. Altama Delta cites Hall v. Skate Escape, 171 Ga. App. 178, 179-180 (319 SE2d 67) (1984), and Dept. of Transp. v. Arapaho Constr., 180 Ga. App. 341, 343 (1) (349 SE2d 196) (1986), for another rule of construction which it claims resolves the ambiguity: Exculpatory clauses “must be clear and unambiguous, they must be specific in what they purport to cover.” Id. In both Skate Escape and Arapaho, however, as well as in the more recent cases of Dept. of Transp. v. APAC-Ga., 217 Ga. App. 103, 106 (3) (456 SE2d 668) (1995) and Ragan Enterprises v. L & B Constr. Co., 221 Ga. App. 543 (1) (a) (472 SE2d 88) (1996), the defendants seeking exculpation drafted the instruments. Each of those cases held that ambiguities in exculpatory clauses are to be construed against the drafters. Skate Escape, supra at 180; Arapaho, supra at 343 (1); APAC-Ga., supra at 106 (3); Ragan, supra at 543 (1) (a). In the case before us, by contrast, the record does not disclose who drafted the merger documents. On this record, therefore, the ambiguity is not resolved as a matter of law by the rules of construction. Thus, a genuine issue of material fact remains as to this phrase’s meaning within the context of the entire agreement, and it was error to grant summary judgment. See Century 21 &c., supra.

2. Altama Delta contends the lower court erred in allowing appellees White, White-Plouffe, and Pontello to join the action as plaintiffs, while limiting their potential counterclaim liability to the amount of principal and interest they might otherwise receive under the note. These appellees are beneficiaries of a trust which was a stockholder and one of the 1987 sellers.

(a) OCGA § 9-11-21 provides: “Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just.” The grant or denial of a motion to join parties under this statute is within the discretion of the trial court. See Zappa v. Automotive Precision Machinery, 205 Ga. App. 584, 585 (5) (423 SE2d 286) (1992). Altama Delta has shown no abuse of that discretion in the adding of White, WhitePlouffe, and Pontello as plaintiffs.

(b) OCGA § 53-12-199 (c) provides: “A judgment rendered in an action brought against the trust shall impose no personal liability on the trustee or the. beneficiary.” Though Crow v. Cook, 215 Ga. App. 558, 563 (3) (451 SE2d 467) (1994) questioned whether this statute effectively abolished the common law rule allowing trustees to be held liable, Altama Delta has cited no cases suggesting that beneficiaries might also be held liable, even under the common law. The trial court did not err in limiting the potential liability of White, White-Plouffe, and Pontello to the amount they would otherwise have received as trust beneficiaries, and its or.der is affirmed.

3. Altama Delta claims the trial court erred in denying its motion to dismiss for failure to join indispensable parties plaintiff. This motion was heard before the trust beneficiaries and some other sellers became plaintiffs. Some sellers were by that time deceased. The trial court denied the dismissal motion, and ordered the non-party sellers, or their successors or representatives, to show cause why they should not be added as involuntary plaintiffs. Eventually all the sellers or their representatives were joined, with the limitation discussed above as to the liability of the trust beneficiaries.

Decided February 20, 1997

Reconsideration denied March 4, 1997

Morris, Manning & Martin, Warren W. Wills, Jr., Bradley C. Skidmore, Austin E. Catts, for appellant.

Oliver, Maner & Gray, James L. Panned, Virginia J. Bryson, Adam S. Popped III, for appellees.

The proper remedy for failure to join indispensable parties is not dismissal, but joinder. Zappa, supra; see OCGA § 9-11-19 (a), listing circumstances in which a court “shall order” a person joined if feasible. Before granting a motion to dismiss for failure to join indispensable parties, a court must allow a reasonable time for the absent parties to be joined. Hill v. McGarity, 205 Ga. App. 850, 851 (424 SE2d 62) (1992). Even if it is not feasible to join a party described in OCGA § 9-11-19 (a), the court may in some circumstances allow the action to proceed without that party. See OCGA § 9-11-19 (b). A trial court could not adhere to these principles, or exercise its discretion under OCGA § 9-11-21 to add parties (see Zappa, supra), without the discretion to deny motions to dismiss for failure to join parties. We find no abuse of discretion in this instance, and the order denying Altama Delta’s motion to dismiss is affirmed.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Ruffin, J., concur.