text:
    A96A1063.
    CRISP PECAN COMPANY v. WIGGINS PRODUCE COMPANY, INC.
    (476 SE2d 60)
   Andrews, Judge.

Wiggins Produce Company, an Alabama corporation, sued Crisp Pecan Company, a Georgia corporation, and sought to recover $44,986.18 for pecans it claims it sold to Crisp on an open account. The trial court granted summary judgment for Wiggins Produce. In this appeal, Crisp Pecan claims issues of material fact require a jury to resolve this dispute. We agree and reverse.

Wiggins Produce is controlled by Paul T. Wiggins, who in 1992 was a shareholder in Crisp Pecan. In September 1992, Wiggins met in Dothan, Alabama, with fellow Crisp Pecan shareholders Robert Lamar, John Lamar, James McKinley, and David Shute. The meeting resulted in a written, signed agreement among the shareholders. Their memorandum states in part that “John Lamar, David Shute and Paul Wiggins each agreed to sell Crisp Pecan Co., Inc. a load of nuts or provide the equivalent value and accept payment at the end of the shelling season. The end of the season should be in March or April 1993. Payment will be made as sales of product permits.” (Emphasis supplied.) Other portions of the memorandum reflect that Wiggins and other shareholders would also contribute cash to fund operations during the shelling season, and “[repayment will be made in 1993 depending upon the ability of the company to pay.” According to Robert Lamar and McKinley, the parties intended that Mr. Wiggins would make a capital contribution of pecans to the corporation, not a sale of pecans on credit.

Mr. Wiggins acknowledges he shipped to Crisp Pecan the pecans described in the agreement but denies they constituted a capital contribution. “I sold them to them on the credit [sic] through my corporation,” he testified in his deposition. The invoices for the pecans bear the heading, “Paul Wiggins Pecan Co.” but do not mention Wiggins Produce. Robert Lamar stated he believed he was dealing with Mr. Wiggins individually or through a proprietorship. The checks Crisp Pecan sent in partial repayment to Wiggins are made out to “Paul Wiggins Pecan Co.”

In November 1995, Robert Lamar purchased Paul Wiggins’ interest in Crisp Pecan. As part of that transaction, Wiggins released Crisp Pecan “from any and all claims, debts and obligations which [Crisp Pecan] might now or hereafter owe [Wiggins] by or because of any . . . event which occurred on or prior to the date of this agreement, expressly including any financial obligations [Crisp Pecan] owes or might owe [Wiggins].”

After reviewing the record de novo and the summary judgment standards set forth in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), we reach the following conclusions:

1. A jury must determine whether Crisp Pecan had a duty to pay for these pecans or whether, as Crisp Pecan claims, the pecans constituted a capital contribution to the corporation which it had no absolute obligation to repay. The language of the September agreement, “Payment will be made as sales of product permits,” is ambiguous. Applying the rules of construction found in OCGA § 13-2-2 does not resolve the ambiguity. Because the parties assign very different intentions to this phrase, a jury should determine the true intent of the September agreement. See Karlan, Inc. v. King, 202 Ga. App. 713, 715-716 (1) (415 SE2d 319) (1992).

2. If the pecans were sold on credit, as the plaintiff contends, a jury must then determine whether Crisp Pecan owed this debt to Wiggins Produce or to Mr. Wiggins alone. Wiggins Produce claims Mr. Wiggins acted as its agent when he shipped these pecans to Crisp Pecan. But the September agreement and Mr. Wiggins’ own testimony provide evidence that Mr. Wiggins may have contracted with Crisp Pecan individually and not as the plaintiff’s agent. “ ‘The contract may, depending upon the facts and circumstances, be impliedly one with [Mr. Wiggins] in his individual capacity. What was the understanding of both parties is a question of fact to be decided by the jury under the circumstances of [this] case. (Cits.)’ [Cit.]” Wojcik v. Lewis, 204 Ga. App. 301, 304 (2) (419 SE2d 135) (1992).

3. Even if the jury determines Mr. Wiggins acted as the agent of the plaintiff corporation, the jury must determine whether he adequately disclosed to Crisp Pecan that he was acting on behalf of the corporation. Mr. Wiggins signed the September agreement with no mention of Wiggins Produce or any other alleged principal. See Nursefinders of Atlanta v. Suttles, 213 Ga. App. 608, 609-610 (445 SE2d 318) (1994) (physical precedent only), holding that an agreement which is signed with no mention of an agency capacity is presumed to be signed individually. Although the plaintiff claims Crisp Pecan was aware it did business as “Paul Wiggins Pecan Company,” the invoices containing this trade name do not, as a matter of law, constitute a sufficient disclosure of the alleged corporate principal to remove this question from the jury’s consideration. Wojcik, 204 Ga. App. at 304.

Decided September 13, 1996.

Walters, Davis & Pujadas, J. Harvey Davis, Linwood R. Lovett, James D. Cowart, for appellant.

Stephen L. Ivie, for appellee.

If the jury determines Mr. Wiggins failed to adequately disclose the identity of his principal, it may then find the November 1995 release discharges any liability of Crisp Pecan to Wiggins Produce. “If. . . the [fact of] agency shall have been concealed, the party dealing with [the undisclosed principal] may set up any defense against the principal which he has against the agent.” OCGA § 10-6-62. See generally United States Fidelity &c. Co. v. Coastal Svc., 103 Ga. App. 133, 136-137 (4) (118 SE2d 710) (1961).

4. Crisp contends Wiggins Produce cannot maintain this action in Georgia because the Alabama corporation has never obtained authority to operate in Georgia pursuant to OCGA § 14-2-1502. Based on the record before it, however, the trial court properly found Wiggins Produce was not required to comply with that statute because it falls within the exceptions to “transacting business” described in OCGA § 14-2-1501 (b). See Work Clothes Outlet v. M & S Purchasing, 188 Ga. App. 179, 181 (3) (372 SE2d 509) (1988); Reisman v. Martori, Meyer &c., 155 Ga. App. 551, 553 (2) (271 SE2d 685) (1980).

Judgment reversed.

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


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A96A1223.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. BURCH et al.
    (476 SE2d 62)
   Andrews, Judge.

In this declaratory judgment action concerning an automobile liability policy exclusion, the trial court found Georgia Farm Bureau was required to provide on behalf of Mr. Burch up to $25,000 in coverage for injuries to Tammy Robertson. Farm Bureau claims its policy requires it to provide only $15,000 in coverage. We agree and reverse.

Decided September 13, 1996.

Fain, Major & Wiley, Charles A. Wiley, Jr., Kim M. Jackson, for appellant.

Garland & Milam, Richard G. Milam, Smith, Welch & Studdard, E. Gilmore Maxwell, Hawkins & Parnell, William H. Major III, Robert D. Brooks, Darrel L. Hopson, for appellees.

The material facts are not in dispute. Farm Bureau issued a $25,000 liability policy to Ms. Robertson’s mother. Ms. Robertson lived with her mother and was listed on the declarations sheet as an additional driver. She allowed Mr. Burch to drive her car, and she rode with him. He had an accident which, she claims in a lawsuit against him, caused her to suffer injuries. The Farm Bureau policy contains an exclusion which limits coverage for “bodily injury ... to ‘you’ [the named insured] or any family member ... (2) to the extent the limits of liability of this coverage exceed the limits of liability required by law. . . .” At the time of this accident, Georgia law required liability limits of $15,000 for bodily injury to or death of one person in one automobile accident. OCGA §§ 33-34-4; 40-9-2.

On these facts, Farm Bureau’s exclusion operates to limit its coverage obligation to $15,000. Ms. Robertson’s only contention is that the exclusion violates public policy. It does not. Spivey v. Safeway Ins. Co., 210 Ga. App. 775, 778 (3) (437 SE2d 641) (1993). Even if we found the exclusion contrary to public policy, it would be enforceable as to amounts in excess of the statutory minimum coverage. Stepho v. Allstate Ins. Co., 259 Ga. 475, 477 (2) (383 SE2d 887) (1989). The judgment of the trial court is reversed and this case remanded with direction to enter judgment on behalf of Farm Bureau.

Judgment reversed.

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


text:
    A96A1257.
    STANLEY v. THE STATE.
    (476 SE2d 58)
   Andrews, Judge.

Randall Lee Stanley appeals the trial court’s denial of his motion for out-of-time appeal. Stanley contends he was denied effective assistance of counsel on appeal. We disagree and affirm the judgment of the trial court.

“To establish ineffective assistance of counsel, [a defendant] must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).” Gross v. State, 262 Ga. 232, 233-234 (1) (416 SE2d 284) (1992). The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel. Gross, supra.

In analyzing a claim of ineffective assistance of counsel, we note at the outset that a trial court’s finding that a defendant has not been denied effective assistance of counsel will be affirmed unless clearly erroneous. Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484) (1990). Further, Stanley must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. Snyder v. State, 201 Ga. App. 66, 69 (8) (410 SE2d 173) (1991).

Stanley contends that trial counsel was ineffective because he did not inform Stanley that counsel’s absence from the courtroom during the trial court’s recharge on the definition of rape could create an appealable issue. Stanley claims that because his trial counsel was not present for the recharge, he was unaware that the court omitted the following: “consent to sexual intercourse obtained through a present or immediate fear of serious bodily injury to the female involved is equivalent to no consent at all.”

However, Stanley’s explanation of how he was harmed by this omission is not persuasive. We fail to see how not reiterating to the jury that, even if the victim consented, if she did so because of fear of injury, there was no consent, could harm the defendant. Rather, just the opposite.

Further, “the necessity, extent, and character of any supplemental instructions to the jury are matters within the sound discretion of the trial court.” (Citation and punctuation omitted.) Payne v. State, 219 Ga. App. 318 (464 SE2d 884) (1995). As this recharge did not contradict any earlier instruction on a question of law and cannot reasonably be perceived as impairing any defense raised at trial, Brannon v. State, 220 Ga. App. 572, 576 (469 SE2d 716) (1996), we find no abuse of discretion in the trial court’s recharge. Payne, supra.

Although Stanley claims counsel’s performance was deficient in waiving his presence during the recharge without consulting with Stanley and in not discovering what was said at the recharge, Stanley cannot show any harm as a result of counsel’s actions and, therefore, cannot satisfy the second prong of the Strickland test. See Strickland, supra at 695-696. Therefore, as the error on recharge, if any, was harmless, there was no issue to appeal.

Thus, trial counsel was not ineffective in not informing Stanley that this created an issue for appeal. Accordingly, as Stanley does not argue that he was not otherwise adequately informed of his appeal rights, the trial court correctly denied the motion for out-of-time appeal.

Judgment affirmed.

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

Decided September 13, 1996.

Michael R. McCarthy, for appellant.

T. Joseph Campbell, District Attorney, Rebecca B. Tierce, Assistant District Attorney, for appellee.


text:
    A96A1393.
    LANDMARK ENGINEERING, INC. v. COOPER et al.
    (476 SE2d 63)
   Andrews, Judge.

The Coopers sued Landmark Engineering in 1994, claiming its surveyor negligently prepared a plat of their property in 1984. On the plat, the surveyor signed his name and attached his seal showing him to be a legally registered professional. Landmark moved for summary judgment based on the expiration of the four-year statute of limitation for professional negligence, OCGA § 9-3-25. The trial court denied the motion, finding the plat to be an “instrument under seal” governed by a 20-year limitation period under OCGA § 9-3-23. We granted Landmark’s application for interlocutory appeal and reverse.

Without addressing whether this plat is an “instrument” within the meaning of OCGA § 9-3-23, it does not qualify as an “instrument under seal.” First, “[n]o instrument shall be considered under seal unless so recited in the body of the instrument.” OCGA § 9-3-23. Although there is a printed paragraph on this plat, it is illegible in every copy of the plat contained in the record. Regardless of what that paragraph contains, the Coopers have not argued that any of this writing shows the surveyor’s intent to bind his signature under seal. Hudson v. Sadtler, 100 Ga. App. 232 (1) (110 SE2d 706) (1959). Furthermore, the “seal” involved in this case is merely a stamp which shows that the surveyor is properly registered with the state. OCGA § 43-15-22 requires each registered surveyor to affix this stamp, which contains his name and registration number, to every plat, specification, plan, or report he produces. Although this seal ensures the surveyor takes responsibility for his work, nothing in the statute indicates that by requiring the stamp the legislature intended to create a 20-year statute of limitation for any cause of action arising from a stamped plat, survey, plan, or report. See Consolidated Mgmt. Svcs. v. Halligan, 186 Ga. App. 621, 622 (1) (368 SE2d 148) (1988), holding the four-year limitation period of OCGA § 9-3-25 applicable to actions for professional malpractice.

Decided September 13, 1996.

Fortson, Bentley & Griffin, Walter W. Hays, Jr., Robert N. Elkins, for appellant.

Chambers, Mabry, McClelland & Brooks, Emory S. Mabry III, Robert M. Malcom, Johnson & Freeman, Horace J. Johnson, Jr., for appellees.

As the record reveals without question that any applicable statute of limitation passed long before this suit was filed, and nothing in the record raises an issue of tolling, we reverse the trial court’s denial of Landmark’s motion for summary judgment.

Judgment reversed.

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

       Landmark contends the plat is not a contract or other legal instrument but is, rather, the final product of an oral agreement between the parties to provide a service: preparation of a survey and plat.


author: Birdsong, Presiding Judge.

text:
    A96A1514.
    McCORMICK v. THE STATE.
    (476 SE2d 271)
   Birdsong, Presiding Judge.

Jerry McCormick was indicted for rape, incest and sodomy involving his two daughters. He was tried by the trial court without a jury, and he did not testify or present any evidence on his own behalf. One daughter, M. M., was a special education student when these crimes occurred and was 19 at the time of trial. She testified she told her school counselor and a police detective that her father had “supposedly molested me” and had “supposedly” had intercourse and oral sex with her, but at trial she denied appellant had ever molested her. To the question: “Had you ever talked to [your sister] about what was going on?” she replied, “No. I talked to my grandmother mostly. . . . I told her everything that supposedly happened, but she never did believe it.” She admitted that after appellant was arrested she came to the courthouse and talked to two women in the district attorney’s office about dropping the charges against him. She also testified her mother wanted her to drop the charges: “[She] said why don’t you just go in there and tell them it was a lie and I said okay. . . . [STATE’S ATTORNEY]: You remember [those two women] asked you if he had actually done the things to you that you told [the detective] about, you remember? [M. M.]: Uh-huh. Q: And you told them that he had done those things but you just wanted it over with. . . . [M. M.]: Yes, sir. . . . Q: You remember telling them . . . that this really had happened but you just wanted to drop it because of what your mother wanted? [M. M.]: Yes, sir. I’ve been taught by my mother and my father [and] I do mind them.” On cross-examination, this victim admitted telling defense counsel about similar allegations against her father, but said, “I told you it was a lie, that my mother just wanted my father in jail because she didn’t love him anymore [because] she loved somebody else.” She testified that she decided on her own to go to defense counsel’s office and sign an affidavit stating that these criminal acts never happened. This affidavit was introduced in evidence.

M. M.’s 17-year-old sister, L. M., testified that despite her reports to school officials, her father never committed any sexual acts against her. She testified that her mother coerced her into making these false accusations by telling her she would not have a place to live “if I did not say these accusations.” However, she then testified without equivocation that while she was in the kitchen cooking appellant’s supper late one night, he forced her to perform oral sodomy; after she took his supper plate to him in the living room, he pulled her to the floor and attempted sexual intercourse, which she escaped by saying she had to go to the bathroom; and her grandmother then heard her crying, and “she called my name and told me to come do something for her. ... I felt mad and angry.” She testified her father told her something bad would happen if she told anybody and she would not have a dad, and she testified she loved her father. On cross-examination by defense counsel, however, she agreed that her accusations had caused serious problems for many people, that she regretted having made them and that she had voluntarily signed an affidavit saying her father never abused her sexually.

While testifying vaguely about the facts, the victims’ mother admitted unequivocally that her daughters had told her appellant “did do it.”

On appeal, appellant contends he was wrongly denied a new trial because nothing in the record or transcript shows he waived his right to a jury trial and his right to testify at trial as required by Reid v. State, 235 Ga. 378 (219 SE2d 740). The State contends a waiver of jury trial may be shown by “extrinsic evidence” such as appellant’s trial counsel’s testimony and letters introduced at the motion for new trial hearing. Held:

1. The burden to prove a voluntary waiver of jury trial rests squarely on the State. See, e.g., Jones v. State, 212 Ga. App. 676 (442 SE2d 908). To prove trial counsel discussed the waiver of a jury trial with appellant and that appellant voluntarily waived jury trial, three letters were introduced at the hearing on the motion for new trial. On September 15, 1993, defense counsel wrote to the district attorney that “perhaps [this matter] can be disposed of by way of a bench trial.” Six days later, counsel wrote appellant in jail that “[the district attorney] refuses to dismiss the actions against you, but will allow a bench trial.” (Emphasis supplied.) In a third letter to the district attorney, counsel wrote: “This will confirm our telephone conversation of October 18, 1993 that a bench trial will be held.” A copy of each letter by defense counsel to the district attorney was sent to appellant in jail.

These letters fall far short of showing appellant understood and voluntarily waived his right to a jury trial. At most, they show trial counsel alerted appellant that a “bench” trial would be “allowed” The use of this word “allowed” would reasonably indicate to appellant that it is the district attorney’s right to decide what sort of trial “will be allowed” and that with a “bench” trial appellant was being “allowed” advantageous privileges. There is no indication that appellant, who is not a lawyer and who the record shows was probably fairly unschooled, understood that a “bench” trial is not a “jury” trial. We note that many laypersons think a criminal “trial” naturally includes a jury, and laypersons may not understand that a “bench” trial does not include a jury. Some new lawyers do not know the difference, and experienced lawyers sometimes use the word “trial” to indicate that a “jury” was involved, as opposed to a hearing before a judge sitting alone.

In addition to these letters there is only trial counsel’s testimony which, according to the State, proves appellant waived his right to jury trial. That testimony is very uncertain. Referring to trial counsel’s letter to the district attorney on September 15, 1993, suggesting a bench trial, trial counsel was asked by the district attorney: “Had you discussed the subject of a bench trial with him at that point or was that something you talked [about] with him after the letter was sent?” Trial counsel replied that he did not “specifically recall. I would imagine I had been to the jail, I had interviewed his wife and children. I imagine before I would have issued such a letter that we would have discussed that that might be a reasonable resolution of this matter.” The district attorney then asked: “Before you actually got to the point of sending [the October 18, 1993 letter to the district attorney confirming that a bench trial would be held in December] do you remember having some conversations with [appellant] about the subject of what was going to happen with his case and when it was going to be disposed of? A: I don’t specifically recall, that was some time ago. I imagine that I would have to discuss with [appellant] the importance and my decision and recommendation to the bench trial as opposed to a jury trial. Q: Okay. You don’t remember a specific conversation but you believe you did it? A: I cannot recall that, no, sir. Q: Well, do you recall having discussed the subject with him? A: I do recall discussing it. Q: Okay. You recall discussing the subject of a bench trial versus jury trial with him? A: Yes, sir. And why I felt a bench trial might be best under the circumstances of this case. Q: And was there ever any question that [appellant] understood the difference between one or the other? A: I don’t recall any such. Q: Any difficulty? A: No.” To more leading questions by the district attorney whether trial counsel recalled a conversation wherein he and appelr lant reached a conclusion about how to handle the case and whether he recalled a conversation where a “specific decision” was made to “go this route” and whether he coerced or pressured appellant in any way to get him to decide to “go this way,” trial counsel finally responded that he did recall having such conversations and did not pressure appellant.

We conclude the transcript of the motion for new trial hearing does not disclose that trial counsel could recall discussing with appellant the fact that appellant had a right to be tried by a jury, and that appellant knowingly and voluntarily waived that right. At best the attorney recalled discussing the difference between a jury trial and a bench trial and his own recommendation of a bench trial, and he recalled a conversation where they “reached some conclusion about how you were going to handle this . . . [and] where a specific decision to go this route was made.”

There being no clear and affirmative evidence as there was in White v. State, 197 Ga. App. 162 (398 SE2d 35) that trial counsel even discussed with appellant his right to a jury trial, it does not signify that appellant did not testify at this hearing on his motion for new trial, since it is the State’s burden first to show a prima facie waiver of jury trial. See Reid, supra. The cases cited by the State to the effect that a knowing and voluntary waiver of jury trial may be shown by “extrinsic evidence” (see Evans v. State, 216 Ga. App. 21, 24 (3) (453 SE2d 100) and Cooper v. State, 189 Ga. App. 286 (375 SE2d 505)) are inapplicable here, as there is no such “extrinsic evidence” in this case. The discussions testified to by the attorney in Sims v. State, 167 Ga. App. 479 (306 SE2d 732) are not remotely similar to the conversations the attorney in this case testified he recalled, for the only conversations this attorney recalled were that a “conclusion” was reached how to handle the case and a “specific decision to go this route was made.”

For this reason, the trial court erred in denying appellant’s motion for new trial.

2. We therefore find it unnecessary to determine the merit of appellant’s second enumeration of error, to wit, that he was entitled to new trial because he was not advised of his right to, testify. We note, however, that trial counsel did not recall specifically telling appellant he could or could not testify.

Judgment reversed.

Beasley, C. J, and Blackburn, J., concur.

Decided September 13, 1996.

Margot S. Roberts, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, for appellee.


author: Judge Harold R. Banke.

text:
    A96A1170.
    RICHFIELD CAPITAL CORPORATION et al. v. FEDERAL SIGN DIVISION OF FEDERAL SIGNAL CORPORATION.
    (476 SE2d 26)
   Judge Harold R. Banke.

Federal Sign Division of Federal Signal Corporation (“Federal Sign”) sued Richfield Capital Corporation (“Richfield”) and Richard Lester, the personal guarantor, for breach of an equipment lease. Richfield appeals the judgment on damages entered in favor of Federal Sign.

After making a down payment and three installments, Richfield stopped making payments on the lease and maintenance agreement entered into with Federal Sign for an electronic sign because the motel for which the sign was being used ceased operation. At that point, the lease had 57 remaining monthly payments at $1,507 per month. Federal Sign unsuccessfully demanded the balance due and then filed suit for breach of contract seeking past due rents and liquidated damages for unpaid future rents.

After Federal Sign moved for summary judgment, Richfield and Lester consented to judgment on the default on the lease and the personal guaranty but disputed the amount of damages sought by Federal Sign contending that the liquidated damages provision of the lease was unenforceable. The trial court granted partial summary judgment determining that: 1) Richfield had breached the lease; 2) the liquidated damages provision of the lease constituted an unenforceable penalty; and 3) Federal Sign was entitled to recover “actual damages suffered.” The court deemed unenforceable the lease’s liquidated damages provision requiring that in the event of default, Richfield was obligated to pay 75 percent of the remaining rentals due under the entire lease. After partial summary judgment, Federal Sign requested the court enter judgment for approximately $28,000, plus interest, attorney fees and costs.

Three months later, a different judge conducted a bench trial solely on damages. Believing that the liquidated damages issue had been determined in his favor, Lester appeared at trial without counsel, contending that the $28,000 in alleged damages should be reduced by the $7,523 setoff for the sale price of the sign. However, at trial, Federal Sign claimed that it was entitled to all rent due through December 1, 1994, a few days before trial, a total of $60,000 plus attorney fees and costs. In so doing, Federal Sign effectively argued that a portion of the damages which it had previously sought as liquidated damages could be reclassified as past due rent. In sum, Federal Sign contended that although an amount of 75 percent of the unpaid monthly rentals on the contract constituted an unenforceable penalty, an award of 100 percent of the unpaid rentals through the date of trial was not a penalty but merely actual damages.

The trial court accepted Federal Sign’s damages argument and awarded $58,287 after deducting $7,500 as a setoff, and included $4,000 in attorney fees. The judgment included more than $30,000 which Federal Sign had previously designated as “liquidated damages.” Held:

1. Richfield contends the trial court erred in entering a subsequent order and judgment which was inconsistent with a prior summary judgment order. We agree. The partial summary judgment order determined as a matter of law that the liquidated damages provision of the lease was void and unenforceable as an unlawful penalty. It narrowed Federal Sign’s recovery to “actual damages suffered.” Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co., 258 Ga. 808, 809 (375 SE2d 222) (1989). No appeal was taken from that judgment, and the trial court was not asked to reconsider its judgment. OCGA § 9-11-56 (d).

By ignoring the substance of the partial summary judgment order and permitting the damages issue to be litigated beyond actual damages, the trial court erred in allowing Federal Sign to expand the damages issue. Federal Sign provided no notice to Richfield or Lester that it intended to relitigate the damages issue. This was plainly error.

The trial court also erred as a matter of law for several other reasons. Lacking a valid and enforceable acceleration clause in the lease, Federal Sign could not recover for installments falling due after the filing of the action. OCGA § 13-6-14; Whitley Constr. Co. v. Whitley, 134 Ga. App. 245, 246 (213 SE2d 909) (1975); Martin v. McLain, 51 Ga. App. 336, 339 (3) (180 SE 510) (1935). See Ragan v. Smith, 188 Ga. App. 770, 773 (3) (374 SE2d 559) (1988) (physical precedent only, Court of Appeals Rule 33 (a)). Also, the record fails to show that after the commencement of its action that Federal Sign amended the original complaint under OCGA § 9-11-15 (a), supplemented the pleadings under OCGA § 9-11-15 (d), or tried additional issues with the express or implied consent of Richfield and Lester in accordance with OCGA § 9-11-15 (b). See Wilburn, Ga. Law of Damages (4th ed.), § 7-2. Thus, Federal Sign was precluded from recovering unpaid rents accruing after it filed suit.

Decided August 29, 1996

Reconsideration denied September 16, 1996

Christopher J. McFadden, for appellants.

Robert S. Windholz, Douglas F. Kaleita, for appellee.

Moreover, Federal Sign failed to carry its burden to furnish sufficient information to the trial court to enable the calculation of the amount of damages with reasonable certainty. Lingo v. Kirby, 142 Ga. App. 278 (236 SE2d 26) (1977). Federal Sign failed to offer any evidence of actual damages, instead arguing that it was entitled to enforce the contract and receive rental payments continuing to accrue up to the day of trial. No evidence was offered to show the amount of expenses Federal Sign would have incurred in maintaining the sign and in executing its obligations under the lease, amounts which would have been deductible. Hosp. Auth. of Charlton County v. Bryant, 157 Ga. App. 330, 331 (2) (277 SE2d 322) (1981). Nor did Federal Sign present any evidence that the recovery sought bore a reasonable relationship to actual damages, particularly in light of the occurrence of the default so early in the term of the lease. See Taylor v. Commercial Credit Equip. Corp., 170 Ga. App. 322, 323 (316 SE2d 788) (1984). An allowance for damages cannot be based on guesswork. Lingo, 142 Ga. App. at 279. Because the judgment was not authorized by evidence which established the “actual damages suffered,” we reverse and remand for determination of damages in compliance with the partial summary judgment order.

2. In light of the holding in Division l; the denial of Richfield’s motion for new trial is rendered moot.

Judgment reversed and remanded.

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

       The trial court’s order stated it denied Federal Sign’s motion for summary judgment, hut the order effectively granted it in part and denied it in part.


author: Smith, Judge.

text:
    A96A1477.
    CORNELIUS v. AUTO ANALYST, INC.
    (476 SE2d 9)
   Smith, Judge.

Auto Analyst, Inc. brought this action against James Cornelius on an unsecured promissory note. Cornelius answered pro se and counterclaimed. He later sought to add various counterclaims and to bring in an additional party. Auto Analyst moved for summary judgment on its claim and the original counterclaims and to strike the additional counterclaims. The trial court granted these motions and denied Cornelius’s discovery-related motion as moot. Cornelius brings this pro se appeal from the grant of Auto Analyst’s motions and the denial of his discovery motion.

The record reveals that Auto Analyst obtains loans for persons desiring to purchase used and repossessed vehicles. Many of its customers are credit risks who cannot obtain financing from conventional sources. It obtains the customer’s credit history and evaluates the risk for the prospective lender. Cornelius was interested in purchasing a used car from Fidelity Financial Services, and at Auto Analyst’s request, he filled out and signed a credit application; he was evaluated as an acceptable risk.

Cornelius lacked $300 of the down payment required by Fidelity, and Auto Analyst agreed to lend that amount to him. Cornelius executed a promissory note for that amount, which could be repaid in 30 days without interest; the note carried an interest rate of 21 percent if not paid in 30 days. Cornelius also purchased an extended warranty service agreement offered by Auto Analyst for $999. The purchase price for this service agreement was added to the purchase price of the car and financed by Fidelity, which also financed the purchase of the car. When the car loan was closed, Fidelity disbursed $999 to Auto Analyst for the service agreement.

Cornelius defaulted on the $300 note, and when payment was not forthcoming after written demand, Auto Analyst filed this action seeking principal, interest, attorney fees, and costs. In his answer, Cornelius contended that the service agreement was worthless and had been procured by fraud in the inducement; he sought its cancellation and return of the $999. After being served with Cornelius’s answer, Auto Analyst cancelled the agreement and returned the $999 to Fidelity, who had paid it.

1. Cornelius contends the note is usurious, and Auto Analyst concedes that he is correct. OCGA § 7-4-2 (a) (2) permits a maximum rate of interest of 16 percent per annum on loans with a principal amount of $3,000 or less, and it is undisputed that the note called for an interest rate of 21 percent. Contrary to Cornelius’s argument, however, the penalty for this violation of OCGA § 7-4-2 is not forfeiture of the principal. OCGA § 7-4-10 (a) provides that when OCGA § 7-4-2 is violated, only interest is forfeited. Pave Way Constr. Co. v. Parrish, 187 Ga. App. 428 (370 SE2d 495) (1988).

Auto Analyst prayed for payment of interest, and the trial court’s grant of summary judgment incorrectly awarded that interest. That portion of the judgment awarding interest on the debt must therefore be reversed.

Cornelius also argues that the trial court erred in failing to consider that the note shows on its face that it was paid. This argument has no merit.

Nothing in the record shows that the court did not consider the note, including all notations thereon. The note includes on its face columns designated “date,” “payment,” and “balance.” The entries in these columns are ambiguous at best. They could indicate, as urged by Cornelius, that a balance of $300 existed on 3-22-94 but was paid on 4-23-94; they could also indicate, as argued by Auto Analyst, that a balance of $300 was created on 3-22-94 and was to be paid on 4-23-94. The interpretation of the language on the note was a matter of law for the court. Graphic Prep v. Graphcom, 206 Ga. App. 689, 691 (1) (426 SE2d 183) (1992).

The evidence presented by Auto Analyst showed that Cornelius did not pay the note. Cornelius did not dispute this below and does not dispute it on appeal. The trial court was authorized, therefore, to accept Auto Analyst’s interpretation of the notations on the note and to find that the note had not been paid.

2. In four enumerations, Cornelius contends the trial court erred in granting summary judgment to Auto Analyst on his original counterclaims.

(a) He asserts that the extended warranty service agreement was worthless because it simply duplicated the manufacturer’s warranty, that Auto Analyst’s representations that it had value constituted fraud in the inducement, and that the trial court erred in deciding as a matter of law his original counterclaim based on fraud.

Auto Analyst presented evidence of the agreement’s value, showing that the service agreement did not duplicate the manufacturer’s warranty because it added approximately 8,000 miles to the manufacturer’s warranty. The trial court correctly noted that Cornelius presented no evidence rebutting this showing.

Moreover, even if Auto Analyst’s representations had constituted fraud in the inducement, Cornelius was required to elect between rescinding the contract or affirming it and suing for damages. Rivers v. BMW of North America, 214 Ga. App. 880, 881 (1) (449 SE2d 337) (1994). He clearly chose to rescind, and Auto Analyst did as Cornelius requested and cancelled the contract. The trial court correctly concluded, therefore, that no issue remained for jury determination regarding this claim.

(b) Cornelius also maintains that the $999 purchase price for the extended warranty service agreement should have been returned to him. We do not agree.

First, Auto Analyst was not paid by Cornelius for this agreement; Fidelity paid the purchase price. Auto Analyst correctly returned the purchase price to the payor when the contract was can-celled. Fidelity reduced the principal and interest on Cornelius’s loan accordingly and lowered his monthly payments.

Second, the agreement itself provides on its face that “in the event of termination, any unpaid proceed will become the property of Fidelity Financial Services, Inc.” Cornelius’s claim to the $999 is meritless.

(c) Auto Analyst was not a party to the purchase and sale of the car. We therefore agree with the trial court that no cause of action exists against Auto Analyst for reimbursement of Cornelius’s costs for repairing allegedly defective brakes.

(d) Cornelius contends the court erred in finding that Auto Analyst’s actions did “not reach the level necessary for a finding of intentional infliction of emotional distress,” as alleged in his original counterclaim. This claim was based upon a letter sent to him by Auto Analyst threatening him with arrest if he did not pay.

To recover on his counterclaim for intentional infliction of emotional distress, Cornelius was required to show intentional or reckless conduct that was “extreme and outrageous,” causing “severe” emotional distress. Phillips v. Pacific & Southern Co., 215 Ga. App. 513, 515 (451 SE2d 100) (1994). The conduct must be “so extreme in degree, as to go beyond all possible bounds, of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Yarbrough v. SAS Systems, 204 Ga. App. 428, 429 (3) (419 SE2d 507) (1992). This Court has held that threatening language does not rise to such levels. Moses v. Prudential Ins. Co., 187 Ga. App. 222 (369 SE2d 541) (1988). The trial court did not err in finding no cause of action for intentional infliction of emotional distress.

3. Cornelius challenges the trial court’s ruling that he had not timely obtained leave of court to file his additional counterclaims. Although Cornelius is correct in stating that he filed a motion seeking such leave, he did not obtain leave; no ruling on his motion was made before he simply filed the additional counterclaims. OCGA § 9-11-13 (a) provides that a defendant must state all counterclaims at the time he answers. Filing an omitted counterclaim requires leave of court. OCGA § 9-11-13 (f). This subsection applies equally to permissive and to compulsory counterclaims. Kitchens v. Lowe, 139 Ga. App. 526, 527 (1) (228 SE2d 923) (1976). It was Cornelius’s duty to obtain a ruling on his motion before proceeding. Stagg v. Wang, 185 Ga. App. 310, 312 (3) (363 SE2d 808) (1987). He did not do so and proceeded without leave of court; the court did not err in dismissing the additional counterclaims.

Decided August 28, 1996

Reconsideration denied September 16, 1996

James Cornelius, pro se.

Day & Royal, Charles T. Day III, Robert H. Walling, for appellee.

4. Because all claims have been decided, it follows that the trial court also was correct in ruling that Cornelius’s discovery motion was moot.

Judgment affirmed in part and reversed in part.

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

       The trial court also correctly noted that the car was sold “AS IS” and without guaranty.

       We do not approve the practice used by Auto Analyst in its letter of threatening criminal action to collect a civil debt. When used by an attorney, such a practice violates the Canons of Ethics, Code of Professional Responsibility, EC 7-21. DR 7-105 prohibits attorneys from threatening to bring criminal charges to gain an advantage in a civil matter. See Laster v. Star Rental, 190 Ga. App. 1, 3-4 (378 SE2d 320) (1989) (physical precedent only). But the letter in issue was not written by an attorney, and here, as in Laster, the record does not suggest that an attorney participated in or authorized the conduct. Moreover, even had an attorney done so, “an alleged violation of a rule of the Code of Professional Responsibility, standing alone, cannot serve as a legal basis to support [a] civil action seeking money damages based on an intentional infliction of emotional distress.” (Citations and punctuation omitted.) East River Savings Bank v. Steele, 169 Ga. App. 9, 11-12 (311 SE2d 189) (1983).


author: Ruffin, Judge. Beasley, Chief Judge,

text:
    A95A1575.
    AYCOCK et al. v. CALK et al.
    (476 SE2d 274)
   Ruffin, Judge.

Walter and Joan Aycock sued Laura and Thomas Calk for injunctive relief and damages allegedly arising out of an ongoing feud between the parties. The complaint asserted causes of action for stalking, deprivation of the Aycocks’ right of privacy, and assault and battery. The Calks answered the complaint and counterclaimed for damages allegedly resulting from stalking, slander, deprivation of the full use and enjoyment of their property, and assault and battery. The Aycocks moved the court to strike the Calks’ counterclaim on the ground that the Calks were required to assert their claims in an earlier action between the parties and that the claims were therefore barred by the doctrines of res judicata and/or collateral estoppel. The trial court granted the Aycocks’ motion and ruled, sua sponte, that because the Aycocks’ complaint arose out of the same set of facts which formed the basis of the earlier action, it too was subject to dismissal. The trial court accordingly dismissed the Aycocks’ complaint. The Aycocks appeal from that order, asserting that the trial court did not have the authority to dismiss their complaint sua sponte. We agree and therefore reverse.

It is clear that in dismissing the Aycocks’ complaint, the trial court considered matters outside the pleadings, thereby converting the order into one for summary judgment. OCGA § 9-11-12 (b). See Allera Corp. v. Derby Cycle Corp., 210 Ga. App. 564 (1) (436 SE2d 753) (1993). “Although our law concerning motions for summary judgment allows a trial court to grant, sua sponte, a summary judgment, a trial court’s authority to do so is not unlimited. The grant of summary judgment must be proper in all other respects. [Cit.] ‘This means that in addition to ensuring the record supports such a judgment, the trial court must ensure that the party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment. [Cits.]’ [Cit.]” Hodge v. Sada Enterprises, 217 Ga. App. 688, 690 (1) (458 SE2d 876) (1995). “ ‘The crucial point is to insure that the party against whom summary judgment is sought has had a full and final opportunity to meet and attempt to controvert the assertions against him.’ . . . [Cit.]” (Emphasis supplied.) Famble v. State Farm Ins. Co., 204 Ga. App. 332, 336 (4) (419 SE2d 143) (1992).

While the record as it stands may support the trial judge’s ruling, it also shows that the Aycocks were not notified that the trial court intended to rule upon the merits of their claim and that they were not provided a full and final opportunity to respond to the court’s sua sponte review. The notice requirement is clear, simple to meet, and necessary. We should not muddy the waters by assuming a party had notice where the record shows none was given. We are thus required to remand the cause so that the Aycocks may be given such fair notice and an opportunity to respond.

Judgment reversed.

McMurray, P. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Blackburn and. Smith, JJ, concur. Beasley, C. J., dissents.

Beasley, Chief Judge,

dissenting.

I respectfully dissent, as it is time to end this litigation between neighbors.

1. Before addressing the issue of notice, I note that the appeal was originally filed in this Court, It was transferred to the Supreme Court because it is from the dismissal of a complaint for a restraining order, the primary relief requested. Plaintiffs only later added by amendment prayers for monetary damages. It is thus a suit in equity involving an extraordinary remedy. See Higgins v. Dept. of Public Safety, 256 Ga. 288 (347 SE2d 562) (1986). “Unless otherwise provided by law, the Supreme Court shall have appellate jurisdiction of the following classes of cases: ... (2) All equity cases; . . .” Ga. Const. 1983, Art. VI, Sec. VI, Par. III. The legislature has not provided otherwise. Thus it would appear that jurisdiction of the appeal is in the Supreme Court of Georgia. However, the case was transferred back to this Court, by the Supreme Court, which cited Pittman v. Harbin Clinic Professional Assn., 263 Ga. 66 (428 SE2d 328) (1993).

2. In the exercise of jurisdiction of the appeal, this Court should affirm the trial court with direction to enter summary judgment because the dismissal is in effect a summary judgment for defendants. The intended result is correct, but what must be clarified is that the case is properly ended. Where the trial court incorrectly grants summary judgment rather than a motion to dismiss, in cases such as Rehco Corp. v. Calif. Pizza Kitchen, 192 Ga. App. 92, 94 (383 SE2d 643) (1989), the Court has reversed and remanded. However, in Porter v. Buckeye Cellulose Corp., 189 Ga. App. 818, 821 (2) (b) (377 SE2d 901) (1989), the Court affirmed with direction.

Plaintiffs had full notice that the trial court would consult the record in the first suit, i.e., Calk v. Aycock et al., CA No. 94-6451-4 (DeKalb Superior Court). In fact, plaintiffs referred to and purportedly attached a part of that record to their brief in support of their motion to strike defendants’ counterclaim. And the transcript of the hearing in the prior case has been made a part of the record in this case, at plaintiffs’ request in their notice of appeal. The prior suit was the very basis for plaintiffs’ own motion to strike defendants’ counterclaim. There is no need for further notice and opportunity to respond to the court’s sua sponte grant, in effect, of summary judgment to defendants. Based on the record in the prior suit, the Court did grant plaintiffs’ motion and dismissed the counterclaim. The same record establishes that the Aycocks even tried to bring into the testimony in the prior suit evidence of what they now complain and could have complained of then. Instead of filing a compulsory counterclaim, however, they filed a separate action before the hearing on the Calks’ lawsuit. For that reason, their own complaints were not relevant to the hearing on the Calks’ complaint for a permanent restraining order against the Aycocks, which was granted.

The trial court in this case found that “[tjhere is no dispute that this action, filed one day before the final hearing in Calk v. Aycock, arises out of the same set of facts which formed the basis for that action.” Plaintiffs do not demonstrate, by ordering transmittal of the record in the Calk case, that the pleadings show that the present suit arises out of a different transaction or occurrence than was the subject of the Calk suit. OCGA § 9-11-13 (a); Tenneco Oil Co. v. Templin, 201 Ga. App. 30, 31 (1) (410 SE2d 154) (1991). It is their responsibility to do so. BankSouth, N.A. v. Zweig, 217 Ga. App. 77, 78 (2) (456 SE2d 257) (1995). Thus we must accept the trial court’s finding. See id.

Moreover, as recognized by the trial court, plaintiffs’ own motion to strike the counterclaim on the grounds of “collateral estoppel” admits that these claims of these former next-door neighbors against each other are “ ‘logically related.’ ” P & J Truck Lines v. Canal Ins. Co., 148 Ga. App. 3, 4 (251 SE2d 72) (1978). See also Idowu v. Lester, 176 Ga. App. 713, 714 (1) (b) (337 SE2d 386) (1985). Claim preclusion, or res judicata, bars this suit. See Sorrells Constr. Co. v. Chandler Armentrout &c., 214 Ga. App. 193, 194 (447 SE2d 101) (1994), for the distinction between res judicata and collateral estoppel.

Decided September 16, 1996.

Lawrence D. Kupferman, Drew Findling, for appellants.

John L. Welsh II, for appellees.


text:
    A96A1511.
    NASH v. THE STATE.
    (476 SE2d 69)
   Andrews, Judge.

Pappeio Nash was found guilty by a jury of aggravated assault and criminal trespass. On appeal, he claims: (1) that the aggravated assault conviction must be reversed because the evidence at trial varied from the facts alleged in the indictment; (2) that the evidence was insufficient to support his conviction for either offense; and (3) that his trial counsel was ineffective.

The victim testified for the State that she was at her aunt’s residence when Nash, her ex-boyfriend and the father of her unborn child, came uninvited into the residence and demanded that she speak to him. When the victim refused to speak with Nash, the victim’s 19-year-old sister, who testified she was living at the aunt’s residence at the time, told Nash to leave. The State presented evidence that, instead of leaving, Nash got a knife from the kitchen, ran after the victim with the knife and grabbed her, and then dropped the knife when he lost his balance while attempting to stab the victim.

Nash testified that the victim invited him to come to the residence. He testified that, after he arrived at the residence, he got into an argument with the victim’s sister, who had a knife. He testified that he got a knife from the kitchen, at which point the victim said, “you ain’t fixing to mess with my sister,” spat in his face, and ran. Nash then testified that he chased the victim but dropped the knife before he caught the victim and slapped her.

1. There was no fatal variance between the evidence produced at trial and the facts alleged in the indictment in support of the aggravated assault charge.

The indictment alleged that Nash assaulted the victim with a deadly weapon, a knife, by throwing the knife at the victim. At trial, the evidence showed that the knife fell out of Nash’s hand as he was stabbing at the victim. This variance was not sufficient to mislead or surprise Nash and thus impair his ability to prepare a defense, nor did it subject him to the risk of being prosecuted again for the same offense. Since Nash was not prejudiced, the variance between the allegations and the proof was not fatal to his conviction under the indictment. DePalma v. State, 225 Ga. 465, 469 (169 SE2d 801) (1969).

2. The evidence was sufficient to support Nash’s convictions for aggravated assault and criminal trespass.

. Evidence that Nash chased the victim with a knife and dropped it while stabbing at her was sufficient to allow a rational trier of fact to find beyond a reasonable doubt that he was guilty of aggravated assault with a deadly weapon. OCGA § 16-5-21 (a) (2); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

As to the criminal trespass conviction, the jury found Nash guilty of this offense as a lesser included offense of the charge of burglary. See Huffman v. State, 153 Ga. App. 203, 204 (265 SE2d 603) (1980). The jury verdict was based on the trial court’s instruction that a person commits the offense of criminal trespass when he “knowingly and without authority: . . . [rjemains upon the land or premises of another person . . . after receiving notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant to depart.” OCGA § 16-7-21 (b) (3). The testimony of the victim’s 19-year-old sister that she was living at the residence leased by her aunt was sufficient to allow the jury to conclude that she was a rightful occupant of the residence with authority to notify Nash to depart the premises within the meaning of OCGA § 16-7-21 (b) (3). See Hutson v. State, 220 Ga. App. 609, 610-611 (469 SE2d 825) (1996); Murphy v. State, 238 Ga. 725, 728-729 (234 SE2d 911) (1977). Evidence that Nash remained at the residence after being notified by the victim’s sister to depart was sufficient to support his conviction for criminal trespass. Jackson v. Virginia, supra.

3. Lastly, Nash claims he received ineffective assistance of counsel at trial because of alleged errors made by a third-year law student who, with the approval of the court, assisted in the trial of his case under the supervision of a staff attorney at the University of Georgia Legal Aid Clinic, who represented Nash and was physically present during the trial. See Rules of the Supreme Court of Georgia, Rules 92-97; OCGA § 15-20-1 et seq. We find no error amounting to ineffective assistance of counsel.

The record shows that defense counsel elicited testimony from Nash that, during his relationship with the victim, they had some minor scuffles prior to the present incident. Nash also testified on direct examination that, after he was arrested and jailed on the present charges, the victim accepted numerous collect telephone calls he made to her from jail. Assuming this testimony had the effect of commenting adversely on Nash’s character, defense counsel testified at the hearing on the motion for new trial that eliciting this testimony was part of a deliberate trial strategy. The testimony by Nash about the minor prior difficulties he had with the victim was obviously intended to bolster his testimony that the present incident was also such a minor altercation. His testimony about collect telephone calls by him from jail accepted by the victim after the incident was intended to lend additional credibility to Nash’s claim that the incident was just another minor scuffle with the victim in their continuing relationship. “Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant’s original representation was inadequate.” (Citations and punctuation omitted.) Powell v. State, 210 Ga. App. 409, 413-414 (437 SE2d 598) (1993). The trial court did not err in finding that Nash’s trial counsel was not ineffective. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

Decided September 16, 1996.

Kimberly C. Harris, for appellant.

Harry N. Gordon, District Attorney, Richard L. Dickson, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A96A2211.
    GABLE v. THE STATE.
    (476 SE2d 66)
   Judge Harold R. Banke.

Homer Anthony Gable was convicted of rape, aggravated sodomy, aggravated child molestation, and six counts of child molestation. On appeal, he challenges the sufficiency of the evidence, the admission of certain similar transactions, and the court’s failure to merge the aggravated child molestation charge and three of the child molestation charges.

The evidence, viewed in the light most favorable to the verdict, revealed that Gable committed rape, aggravated sodomy, aggravated child molestation, and three counts of child molestation against his daughter. The victims of the remaining three child molestation charges were a niece and the daughter of Gable’s brother’s live-in girl friend. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979).

Gable’s daughter testified that her father initiated sexual contact with her in the fall of 1991 when she was 12 by asking if he could perform oral sex on her. In return, he agreed to let her drive his car. On that occasion he placed his tongue in her vagina and later inserted his penis. Gable placed his mouth on her vagina two or three more times on different days. He also inserted his fingers several times, touched her breasts, and masturbated in front of her more than once.

The daughter of Gable’s brother’s live-in girl friend testified that when she was about ten, Gable began to touch her breasts, at first on top of her clothing and later under her clothes. She stated that he once touched her vagina under her clothing. She also testified that she witnessed Gable touch two of his nieces’ breasts and vaginas. She stated that Gable told them they would be taken away from their mothers if they told.

Like the other victims, Gable’s niece gave a videotaped statement to a police officer. On the videotape, the niece stated that on more than one occasion Gable placed his finger on her vagina. At trial, however, she recanted this statement.

The similar transaction witness, the daughter of Gable’s former girl friend, testified that when she was seven or eight Gable began exposing himself to her and several times he forced her to masturbate him and to perform oral sex. She also stated that he touched her vagina a lot of times and had inserted his fingers. In addition, she testified that she witnessed Gable touch his daughter’s vagina. She stated that she had not reported Gable’s actions because he threatened to hurt her and her family. After this child informed her. mother of Gable’s actions, charges were brought. The State presented evidence of Gable’s plea of guilty to enticing a child for indecent purposes. Held:

1. We reject Gable’s challenge to the sufficiency of the evidence on the aggravated child molestation count and the three child molestation charges committed against his daughter. The evidence is sufficient as a matter of law if, when viewed in the light most favorable to the verdict, a rational trier of fact could find all the essential elements of the crimes. Jackson v. Virginia, 443 U. S. at 319-320. The weight of the evidence and witness credibility are not reviewable on appeal. Pardo v. State, 215 Ga. App. 317 (1) (450 SE2d 440) (1994).

The pertinent elements of child molestation are (1) commission of an immoral or indecent act; (2) to or in the presence of or with any child under the age of 16; (3) with the intent to arouse or satisfy the sexual desires of either the child or the perpetrator. OCGA § 16-6-4 (a). The aggravated child molestation charge required proof of the additional element of sodomy. OCGA § 16-6-4 (c).

Decided September 16, 1996.

J. Richardson Brannon, for appellant.

Lydia J. Sartain, District Attorney, Leonard C. Parks, Jr., Assistant District Attorney, for appellee.

The daughter’s testimony that Gable sodomized her while they were alone at her grandmother’s house is sufficient to establish aggravated child molestation. Smith v. State, 210 Ga. App. 634, 636 (2) (c) (437 SE2d 333) (1993). The respective child molestation charges were predicated on touching the child’s breasts, vagina, and masturbating in front of her. The child’s testimony established the requisite elements of each. See Salley v. State, 199 Ga. App. 358, 359 (1) (405 SE2d 260) (1991). Moreover, the similar transaction witness confirmed that she witnessed Gable touch his daughter on more than one occasion. In any event, Georgia law does not require corroboration of a child molestation victim’s testimony. Royal v. State, 217 Ga. App. 459, 460 (1) (458 SE2d 366) (1995).

2. The admission of the similar transaction evidence relating to Gable’s conviction for enticing a minor was not error. Before admitting the similar transaction evidence, the trial court satisfied the requisites of Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). The similar transactions involved sexual acts Gable committed on a young girl and were admitted to show identity, course of conduct, bent of mind, and lustful disposition. Moreover, counsel’s failure to object to the admission of the similar transaction evidence at trial waived the issue on appeal. Phillips v. State, 215 Ga. App. 526, 527 (4) (451 SE2d 517) (1994).

3. We reject Gable’s contention that the aggravated child molestation count and the above-described three child molestation charges should have been merged at sentencing. The evidence established that each of these counts was a separate and distinct crime which was completed before Gable perpetrated the next. Jimmerson v. State, 190 Ga. App. 759, 762 (4) (380 SE2d 65) (1989). The same conduct was not being punished twice, nor was one crime included in the others so as to bar the separate conviction and punishment for each act. Id.

Judgment affirmed.

Johnson and Ruffin, JJ., concur.

       In Ms first enumeration, Gable raises the “general grounds,” leaving us with only the sufficiency of the evidence to review. Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988).


text:
    A96A1796.
    In the Interest of R. J. P. et al., children.
    (476 SE2d 268)
   Judge Harold R. Banke.

In this appeal from a juvenile court order terminating the parental rights to two minor children, the appellant father enumerates four errors. Only the father pursued this appeal.

The evidence presented at the parental rights termination hearing revealed that the father was frequently incarcerated over the past 20 years for such offenses as breaking and entering with intent to commit larceny, escape, carrying a concealed weapon, and being an habitual felon. He did not attend the termination hearing due to his incarceration in Michigan on a probation violation. The mother testified that the father had not been employed since approximately 1979. The father has provided no financial support to R. J. R and T. M. P. since their births in 1990 and 1992 respectively. Before the family moved to Georgia for no more than three months in early 1993, Michigan authorities had been notified that the children were abused.

In late April 1993, the Whitfield County Juvenile Court adjudicated R. J. P. and T. M. P. deprived. At a hearing on the matter, the father admitted he was destitute and unable to care for his children and had difficulty controlling his temper. Specifically, the father admitted to abusing the children both verbally and physically.

After the children were adjudicated deprived, the father returned to Michigan where he was incarcerated. The children were placed in a foster home and the foster parents wish to adopt them. Believing that the adoption would be in the children’s best interest, the mother did not contest the termination of her parental rights.

At the termination hearing, a neighbor testified that he constantly heard the father verbally abusing the children. After he witnessed the three-year-old R. J. P. wander around her yard and into the woods on a cold morning clothed only in a diaper, the neighbor retrieved her. He testified that the parents never came looking for her and when he eventually carried the child to their door, the father grabbed her and slung her on the couch, swearing at her and calling her stupid. On another occasion when the child was outside on a cold morning in only a diaper, the father reached down, grabbed R. J. P. by the hair and pulled her up the trailer steps. After the father slammed the door, the neighbor heard crying.

In the two years before the termination hearing, the father sent no cards or gifts to the children, but wrote twice to his Georgia Department of Family & Children Services (“DFCS”) caseworker to inquire about the children and to ask her to express his love to them. On one occasion when the father telephoned the caseworker, he told her he was in counseling. After hearing the evidence, the juvenile court concluded that there was clear and convincing evidence of parental misconduct and that the children’s best interests would be served by terminating the parental rights. Held:

1. Based on the above-stated facts, a rational trier of fact could find clear and convincing evidence of parental misconduct and inability. In the Interest of E. B., 215 Ga. App. 326 (450 SE2d 341) (1994); OCGA § 15-11-81 (a). The record is replete with evidence that the children were deprived and the parents were the cause. OCGA § 15-11-81 (b) (4) (A) (i) and (ii). It shows the father verbally and physically mistreated the children, provided no financial support to them, and did not keep them clean. The fact that the father made little or no effort to support or even contact his children in the two years since the deprivation hearing demonstrates that such deprivation is likely to continue, as does his failure to implement the DFCS plan or to discuss his inability to comply with it or seek its modification. OCGA § 15-11-81 (b) (4) (A) (iii). In addition, the court properly considered the impact of the incarceration on the quality of the parent-child relationship. OCGA § 15-11-81 (b) (4) (B) (iii). Notwithstanding the father’s argument to the contrary, the court’s findings of fact were sufficient to demonstrate that termination of the father’s parental rights was in the children’s best interest and the record clearly substantiates these findings. We find that a rational trier of fact could have found clear and convincing evidence to support the termination of the father’s parental rights. In the Interest of R. L. M., 221 Ga. App. 343 (471 SE2d 245) (1996). The trial court therefore did not err in denying the father’s motion to dismiss.

2. The trial court did not err in basing its decision in part on the father’s failure to comply with the DFCS case plan. OCGA § 15-11-81 (b) (4) (C) (iii) authorizes the court to consider such failure. The father’s plan required him, inter alia, to “maintain regular and consistent contact” with the children. His incarceration did not prevent him from writing to or calling the children. “[N]o evidence upon which the trial court relied in making its determination can properly be attributed to any alleged failings of DFCS.” In the Interest of E. B., 215 Ga. App. at 328. Moreover, the record demonstrates that the father’s failure to comply with the DFCS plan was only one of many reasons his parental rights were terminated.

3. We reject the father’s contention that the trial court violated the Equal Protection Clause by refusing to make arrangements for him to attend the termination hearing as it would have for a prisoner incarcerated in Georgia. Appointed counsel attended the hearing in the father’s stead.

The Equal Protection Clause mandates that the State treat all similarly situated persons alike. Ferros v. Ga. State Patrol, 211 Ga. App. 50, 53 (4) (b) (438 SE2d 163) (1993). Because the father is incarcerated in Michigan, his claim that the trial court was required to treat him as though he were a Georgia prisoner lacks merit. He is not similarly situated. Nor has he addressed the jurisdictional impediments inherent in his argument. Moreover, we observe nothing in the record indicating that the father attempted to participate in the hearing via telephone, as did the children’s mother and grandmother. Under these circumstances, we find the trial court’s refusal to arrange for the father to attend the termination hearing was not error. Accord Matter of Adoption of Quenette, 341 NW2d 619, 622 (4) (N.D. 1983); see Griffith v. Brooks, 193 Ga. App. 762, 765 (1) (389 SE2d 246) (1989) (declining to reverse based on the court’s failure to arrange for inmate father’s appearance at termination hearing). Further, pretermitting the question of error, by failing to specify exactly what testimony he would have provided at the termination hearing, the father failed to show any harm caused by his absence. See Hunt v. State, 204 Ga. App. 799, 802 (5) (420 SE2d 656) (1992).

4. The trial court did not err in declining to place the children with the father’s aunt and uncle. The record shows that these relatives were not suitable due to the insufficiency of their housing and income. Neither the uncle nor aunt worked, both survived on government assistance, and more than one observer expressed concern that their eagerness to obtain custody of the children was motivated by plans for the children to qualify for disability benefits. The aunt and uncle missed the first two months’ payments on their new trailer, owed some $2,000 to the local power company, and their application to become licensed foster care providers in Michigan was denied. Notwithstanding the father’s inference to the contrary, nothing required the trial court to pay these non-parties’ travel expenses to attend the second termination hearing. Although the court limited their testimony at the first hearing to the ways they could assist the father should he regain custody and reside with them, their testimony as well as the other evidence addressing their ability to care for the children was sufficient to enable the court to ascertain their suitability.

“ ‘The trial court had the opportunity to question and observe the parties, and possesses a wide discretion in determining the issues before him, and if the judgment is supported by any evidence and is not clearly erroneous, an appellate court is not authorized to set it aside.’ [Cits.]” In the Interest of C. N. G., 204 Ga. App. 239, 240 (3) (419 SE2d 42) (1992). The trial court did not abuse its discretion. In the Interest of D. T., 221 Ga. App. 328, 330 (2) (471 SE2d 281) (1996). Further, we find nothing in OCGA § 15-11-90 precluded the trial court from including its finding of unsuitability in the parental termination order.

Judgment affirmed.

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

Decided August 30, 1996

Reconsideration dismissed September 17, 1996.

Nancy E. Bradshaw, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Stephanie M. Baldauff, Senior Assistant Attorneys General, Shalen A. Sgrosso, Assistant Attorney General, Waycaster, Morris, Johnson & Dean, Cynthia N. Johnson, Michael R. McCarthy, Jerry W. Moncus, for appellee.


author: Ruffin, Judge.

text:
    A96A0922.
    NEAL v. NATURAL GAS OF TENNESSEE, INC.
    (476 SE2d 73)
   Ruffin, Judge.

Billy Neal instituted proceedings to foreclose his mechanics’ liens on certain motor vehicles and equipment owned by Natural Gas of Tennessee, Inc. (“NGT”). The trial court conducted a probable cause hearing pursuant to OCGA § 40-3-54 (c) (3), and dismissed the case, finding that Neal forfeited his liens because he failed to institute foreclosure proceedings within the time required by OCGA § 40-3-54 (b). Because we agree with the trial court that Neal did not institute foreclosure proceedings in a timely manner, we affirm.

The evidence shows that Neal, who was a self-employed machine mechanic, had possession of certain automotive and other equipment owned by NGT At the hearing, Neal testified that NGT representatives hired him to purchase and/or repair the equipment. On November 8, 1994, NGT sent a letter to Neal stating that his possession of the equipment was unauthorized and that if he did not return it to NGT within ten days from the date of the letter, NGT would file suit for unlawful conversion of the property. On November 10, 1994, Neal responded to the demand, acknowledging possession of the equipment and stating that he was holding it as “security” and to “assert his rights under Georgia’s lien law. . ...” In a letter dated November 21, 1994, NGT again demanded that Neal return the equipment unless he could provide evidence that he repaired the equipment and that the repairs were authorized by NGT. On February 3, 1995, Neal instituted the instant foreclosure proceedings on his mechanics? liens by filing an affidavit of foreclosure with the superior court.

1. We note initially that because the trial judge was sitting as the trier of fact at the hearing, his findings are analogous to a jury’s verdict and will not be disturbed if there is any evidence to support them. See Mantegna v. Professional Auto Care, 204 Ga. App. 254 (1) (419 SE2d 43) (1992).

In his first enumeration of error, Neal asserts the trial court erred in dismissing the foreclosure because neither of NGT’s letters constituted demands under OCGA § 40-3-54 (b). We disagree.

OCGA § 40-3-54 (b) provides that if the mechanic retains possession of the equipment to assert his lien, “the owner-debtor may contest the validity of the amount claimed to be due by making written demand upon the lienholder. If upon receipt of such demand the lienholder fails to institute foreclosure proceedings within ten days where possession has been retained,. . . the lien is forfeited.” OCGA § 40-3-54 (b).

In this case, it is clear that NGT’s letters to Neal constituted written demands contesting the validity of the claimed debt. In its first letter to Neal, NGT not only stated that Neal’s possession of the equipment was unauthorized, but also demanded that Neal return the equipment. See Haire v. Suburban Auto Body, 204 Ga. App. 16 (1) (418 SE2d 163) (1992); Davison’s Auto &c. v. Security Ins. Co. of Hartford, 187 Ga. App. 220 (369 SE2d 538) (1988) (physical precedent only). In addition, in its second letter to Neal, NGT contested whether Neal was authorized to conduct any repairs and again demanded that Neal return the equipment. See P & B Corp. of America, Ltd. v. One 1983 BMW, 175 Ga. App. 462 (333 SE2d 633) (1985) (debt not valid if repairs unauthorized); Davison’s Auto, supra.

Under these circumstances, there was ample evidence to support the trial court’s findings that NGT made a proper written demand to Neal and that Neal forfeited his liens due to his failure to timely institute foreclosure proceedings.

2. In three enumerations of error, Neal asserts that even if the trial court’s order was otherwise correct, it was invalid because NGT did not properly assert its defenses or request a hearing. We disagree.

(a) Neal’s contention that NGT was required to file a counter-affidavit in order to preserve its defenses is without merit. Although the former version of OCGA § 40-3-54 required an owner to file a counteraffidavit to contest a mechanic’s affidavit, there is no such requirement under the current version of OCGA § 40-3-54. See Ga. L. 1961, p. 68, § 23. OCGA § 40-3-54 (c) (2) now requires that the court clerk notify the owner that the mechanic has filed an affidavit of foreclosure, and that an owner contesting the debt petition for a hearing within five days of receiving the notice. Accordingly, NGT was not required to file a counteraffidavit.

(b) Also without merit is Neal’s contention that NGT’s letter to the court requesting a hearing did not constitute a petition. The record shows that within five days of receiving notice of Neal’s affidavit, NGT sent the court clerk a letter stating: “[p]lease consider this our request to have a hearing set on the Affidavit to Foreclose Lien on Personalty filed by Billy R. Neel [sic], . . .” Because NGT’s letter clearly requested the hearing, Neal’s contention is without merit; substance prevails over form. See Comm. for Better Govt. v. Black, 216 Ga. App. 173, 174 (1) (453 SE2d 772) (1995).

Decided September 17, 1996.

James G. Maddox, for appellant.

J. Hatcher Graham, for appellee.

Judgment affirmed.

Johnson, J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A96A1179.
    CARR v. THE STATE.
    (476 SE2d 75)
   Andrews, Judge.

James D. Carr appeals from the judgment entered on a jury verdict finding him guilty of driving a vehicle under the influence of drugs and improper lane usage.

Carr was observed driving a tractor-trailer rig on Interstate 75 weaving aimlessly from lane to lane. After he failed to respond to a Georgia state trooper’s efforts to stop him with flashing lights and a siren, two additional state troopers and a Department of Transportation enforcement employee were dispatched in their vehicles to assist in the stop. The four vehicles, with activated lights and sirens, boxed in the moving tractor-trailer, and, while avoiding a collision with the erratically weaving rig, gradually decelerated until Carr finally stopped. Carr was found in the driver’s seat unresponsive to the officers, staring straight ahead, his hands tightly gripping the steering wheel. Carr was unable to maintain his balance and had to be assisted by the officers to get out of the rig and walk. The officers testified that, although they did not detect any of the usual signs that Carr was under the influence of alcohol, he clearly appeared to be under the influence of some kind of intoxicant or drug to the extent that he was an unsafe driver. Carr was arrested for driving under the influence and later charged with driving under the influence of certain drugs to the extent that it was less safe for him, to drive. OCGA § 40-6-391 (a) (2).

After being read implied consent rights, Carr consented to a State-administered chemical test of his blood for the purpose of determining whether he was under the influence of alcohol or drugs. Thereafter, Carr was taken to a local hospital where blood was withdrawn from him for the State-administered test. At that time, Carr also had his own independent testing done. The blood withdrawn was analyzed at the State Crime Lab. A forensic toxicologist from the State Crime Lab testified at trial that Carr’s blood tested positive for the presence of the drugs carisoprodol and its metabolite, meprobamate, and diazepam and its metabolite, nordiazepam. The toxicologist testified that both carisoprodol and diazepam are prescription drugs with sedative effects and that the unusually high level of carisoprodol found in Carr’s blood was enough by itself to have caused Carr’s erratic driving and unresponsive demeanor.

1. Carr claims the trial court erred by denying his motion to strike the testimony of the toxicologist as to the results of the State-administered chemical testing of his blood because the State failed to present probative evidence that the person who withdrew his blood for the test was qualified as required under OCGA § 40-6-392 (a) (2).

OCGA § 40-6-392 (a) (2) provides in part that “[w]hen a person shall undergo a chemical test at the request of a law enforcement officer [under OCGA § 40-5-55], only a physician, registered nurse, laboratory technician, emergency medical technician, or other qualified person may withdraw blood for the purpose of determining the alcoholic content therein. . . .” Although the statutory requirement of OCGA § 40-6-392 (a) (2) that blood be withdrawn by a qualified person refers only to testing of blood “for the purpose of determining the alcoholic content. . .” (emphasis supplied), the testing referred to by the statute is done pursuant to OCGA § 40-5-55 (a), which provides for a driver’s implied consent “to a chemical test or tests of his or her blood . . . for the purpose of determining the presence of alcohol or any other drug. . . .” (Emphasis supplied.) Construing the two statutes together, we conclude that, since the chemical testing serves the dual purpose of detecting the presence of alcohol or drugs, the statutory requirement that blood used in the testing be withdrawn by a qualified person applies to all blood test results showing drug content as well as alcoholic content. Accordingly, the “qualified person” requirement of OCGA § 40-6-392 (a) (2) applies in this case even though the blood test results showed only drug content rather than alcoholic content.

OCGA § 40-6-392 establishes mandatory requirements for the admission of chemical blood test results in criminal cases arising out of violations of OCGA § 40-6-391 in which such violations are an essential element of the charged offense. Harden v. State, 210 Ga. App. 673, 674 (436 SE2d 756) (1993); Munda v. State, 172 Ga. App. 857, 858 (324 SE2d 799) (1984). Thus, when the State seeks to prove the charged offense by using evidence of the chemical test results, it must show compliance with the statutory requirements. Harden, supra. In this case, as to the requirement that blood be withdrawn by a qualified person, the State neither produced the person who withdrew the blood to establish his or her qualifications under OCGA § 40-6-392 (a) (2), nor did it establish that such person was qualified by producing a certificate from the Secretary of State or the Department of Human Resources as provided by OCGA § 40-6-392 (e). The only evidence produced by the State to prove this requirement was testimony from a state trooper that a nurse withdrew the blood. Because the trooper’s testimony was clearly non-probative hearsay, the State failed to present any competent evidence to prove compliance with the requirements of OCGA § 40-6-392 (a) (2). Harden, supra at 675.

Nevertheless, when the State introduced the testimony of the toxicologist as to the results of the blood test, Carr made no objection. Instead, Carr waited until after the State rested its case and then moved to strike the toxicologist’s testimony on the basis that the State failed to prove the blood was withdrawn by a person qualified under OCGA § 40-6-392 (a) (2). By failing to object when the testimony was offered, Carr waived any objection which he could have made. “It is well settled in this state that it is too late to urge objections to the admission of evidence after it has been admitted without objection.” (Citations and punctuation omitted.) Henderson v. State, 162 Ga. App. 320, 323 (292 SE2d 77) (1982). Although a party may move to strike illegal evidence any time before the case goes to the jury, even where no objection was made when it was admitted (see Mable v. State, 261 Ga. 379, 380-381 (405 SE2d 48) (1991)), the result of the blood test admitted in this case, without objection, despite the State’s failure to satisfy the foundational requirement that the blood was withdrawn by a person qualified under OCGA § 40-6-392 (a) (2), was not illegal evidence subject to a subsequent motion to strike. Corley v. State, 192 Ga. App. 35, 36 (383 SE2d 586) (1989).

There was no challenge to the validity of the blood test results. Although the State’s failure to lay a proper foundation by proving the blood was withdrawn by a person qualified under OCGA § 40-6-392 (a) (2) affected the admissibility of the test results, there was no evidence that the probative value of the test was in any way affected. “[A] distinction is to be drawn between illegal testimony and secondary evidence or other evidence which is legal in itself because it is of probative value but is inadmissible until the proper foundation for its reception has been laid.” Patton v. Bank of LaFayette, 124 Ga. 965, 974 (53 SE 664) (1905). The testimony regarding the blood test results was of probative value and was not illegally admitted. Henderson, supra at 322-323, 328-329. The trial court did not err by denying Carr’s motion to strike the testimony.

2. The evidence was sufficient to support the jury’s guilty verdict as to both offenses. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided September 17, 1996.

Ralph M. Hinman III, for appellant.

Kermit N. McManus, District Attorney, Forest L. Miles, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A96A1372.
    PENNYMAN v. THE STATE.
    (476 SE2d 71)
   Andrews, Judge.

Ronald Pennyman appeals from the trial court’s denial of his plea of former jeopardy. Pennyman argues that his termination from the Thomaston Police Department for threatening and attempting to choke Robin Williams bars his prosecution for those same offenses. We disagree and affirm the judgment of the trial court.

On April 30, 1995, the police department took a call from Ms. Williams saying someone was trying to break into her house. Two officers went to Williams’ house and found Pennyman at her back door. When Williams opened the door and requested that the officers take Pennyman away, Pennyman put his hands around her throat, and the officers had to intervene to prevent Pennyman from choking her.

On May 11, 1995, the Chief of Police fired Pennyman because of this incident. Pennyman appealed his termination and the City Manager held an evidentiary hearing at which Pennyman was represented by counsel. The City Manager upheld Pennyman’s termination, finding the Chief of Police was justified in firing Pennyman because Pennyman’s conduct was “totally incompatible with public service and . . . endangered the public and his fellow officers.”

On September 25, 1995, Pennyman was indicted on one count of making terroristic threats and one count of simple battery. Pennyman objected, claiming the double jeopardy clause of the United States Constitution prohibited his subsequent prosecution for these offenses.

The double jeopardy clause of the Fifth Amendment to the United States Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The double jeopardy clause “protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.” Moser v. Richmond County Bd. of Commrs., 263 Ga. 63 (428 SE2d 71) (1993) (citing North Carolina v. Pearce, 395 U. S. 711, 717 (89 SC 2072, 23 LE2d 656) (1969)).

Decided September 17, 1996

Until recently, a civil sanction did not constitute a prosecution or punishment for purposes of the double jeopardy clause. But, two recent Supreme Court cases have held that certain administrative proceedings may trigger double jeopardy protection. See Dept. of Revenue of Montana v. Kurth Ranch, 511 U S. _ (114 SC 1937, 128 LE2d 767) (1994) (excessive tax on defendants for possession of illegal drugs after conviction on drug charges was functional equivalent of a successive criminal prosecution); United States v. Halper, 490 U. S. 435 (109 SC 1892, 104 LE2d 487) (1989) (statutory penalty assessed under the False Claims Act was a second punishment in violation of the double jeopardy clause).

In Halper, the Supreme Court held that, for purposes of the double jeopardy clause guarantee against multiple punishments for the same offense, a civil sanction may constitute punishment if it can be described only as punitive. In addition, a civil sanction that does not bear a rational relation to a nonpunitive purpose will be treated as punishment. Id. at 449.

Therefore, in order to determine whether Pennyman’s termination from the police force constituted a “punishment” for purposes of the double jeopardy clause, Halper requires a particularized assessment of the penalty imposed and the purpose that the penalty may fairly be said to serve. Id. at 448. Further, whether a sanction constitutes punishment is not to be determined from the defendant’s perspective, but rather, “it is the purposes actually served by the sanction in question, not the underlying nature of the proceeding giving rise to the sanction, that must be evaluated.” (Emphasis supplied.) Id. at 447, n. 7.

Applying these guidelines to our case, we find the purpose actually served by the termination did not constitute solely a punishment. The purpose of the sanction, as the City Manager stated, was the remedial one of removing a police officer whose conduct reflected poorly on the force and who posed a danger to the public and other officers.

Thus, Pennyman’s termination from the police force does not rise to the level of “punishment” required for a finding that a subsequent prosecution is barred by the double jeopardy clause. Halper, supra at 448. Accordingly, the trial court did not err in denying Pennyman’s plea of former jeopardy.

Judgment affirmed.

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

Michael B. King, for appellant.

William T. McBroom III, District Attorney, Michael G. Webb, Assistant District Attorney, for appellee.


author: Beasley, Chief Judge.

text:
    A96A1728.
    CALGATI CHEMICAL COMPANY, LTD. v. WEILAND.
    (476 SE2d 78)
   Beasley, Chief Judge.

Egle Gatins Weiland sued her brother, Martin Gatins, and the company of which he was president, Calgati Chemical Company, Ltd., to recover $10,000 allegedly owed on a promissory note.

Calgati is a Georgia corporation. The original principals of the company were Kenneth Callaway, the majority stockholder, and Gatins, a shareholder.

Prior to Gatins’ termination as president, he wrote to his sister Weiland, stating that he and Callaway were facing a temporary cash flow shortfall at Calgati and asking whether she would make “me or Calgati a 45-day loan of $10,000.” Two days later, a $10,000 machine-generated check was issued on a Weiland bank account. The payee is identified on four lines which gave Gatins’ name, Calgati’s name, and the corporate address. The payor is identified on the check face as “TR U/A Mrs. Egle G. Weiland.” Immediately below her name appear the words “paid Mr. Martin Gatins gift from Egle Weiland.” Gatins endorsed the check and deposited it into a Calgati bank account. Two days after the check was issued, the promissory note was executed in favor of Weiland by Gatins as president of Calgati and in his individual capacity.

According to Weiland, she intended the $10,000 as a loan to Calgati. She testified that it was her understanding that her brother, in his capacity as president of Calgati, was authorized to borrow the money on behalf of the company and that, as a condition of the loan, she required him to personally co-sign the note. Gatins testified that he held himself out as being authorized to borrow the $10,000 on behalf of Calgati and that he believed that he was so authorized.

However, a Calgati shareholders’ agreement provided that no corporate borrowing could take place without the prior written consent of the holders of not less than two-thirds of the outstanding stock of the company. Callaway testified that Calgati never gave any such consent for any loan from Weiland. Callaway further testified that it was his understanding that the $10,000 Gatins received was a gift or loan from Weiland to Gatins which Gatins in turn invested in Calgati.

After the note was executed, Gatins sent Callaway an internal company memo, stating that he had allowed Calgati to book the $10,000 loan from Weiland and other loans as paid-in capital rather than notes payable so that the corporation would show a positive net worth, and that these monies would be repaid to Gatins through bonuses. The memo asked for Callaway’s signature on the memo to indicate his agreement with this, but the copy in the record contains no such signature.

Decided September 17, 1996.

Wood, Odom & Edge, Arthur B. Edge TV, Kirwan, Parks, Chesin & Remar, Allan L. Parks, Jr., Larry Chesin, for appellant.

Gatins answered the complaint, admitting all its allegations. Calgati answered and asserted various defenses, including that the $10,000 was a gift from Weiland to Gatins.

Weiland moved for judgment on the pleadings or summary judgment. She argued that Gatins had at least apparent authority to sign the note and borrow the money on behalf of Calgati, and that Calgati ratified Gatins’ signature on the note by accepting deposit of the note proceeds into a company bank account and using the money in the conduct of its business. In response, Calgati argued that there were numerous material issues of fact, including whether Gatins had authority to execute the note on behalf of Calgati. The court entered judgment against Gatins based on his admissions of record and against Calgati on the ground that it is jointly and severally liable as a co-signor of the note.

The latter ruling was error. There is evidence from which a jury could find that the $10,000 was paid by Weiland to Gatins as a gift to him. This gives Calgati a triable defense to enforcement of the note. See Harrison v. Martin, 213 Ga. App. 337, 342 (1) (444 SE2d 618) (1994); Scarbrough v. Honea, 174 Ga. App. 736 (1) (331 SE2d 80) (1985); compare Motz v. Nat. Bank of Ga., 156 Ga. App. 871 (275 SE2d 809) (1981). Moreover, in view of the Calgati shareholders’ agreement, Gatins did not have actual or implied authority to borrow the money on behalf of the corporation. If Calgati is to be held liable on the note, it must be on the ground that Gatins had apparent authority. Weiland does not argue that, as a matter of law, a corporation president has apparent authority to borrow money on its behalf. Nor does she present evidence that would demand a finding that Gatins had apparent authority to borrow money on behalf of Calgati. There is thus a material issue of fact on the question of Gatins’ apparent authority.

Judgment reversed.

Birdsong, P. J, and Blackburn, J., concur.

Parker, Johnson, Cook & Dunlevie, William A. Capp, for appellee.