author: Birdsong, Presiding Judge.

text:
    A92A1642.
    JACKSON v. THE STATE.
    (424 SE2d 83)
   Birdsong, Presiding Judge.

Richard Jackson appeals his judgment of conviction of sale of cocaine in violation of the Georgia Controlled Substances Act and the sentence. His sole enumeration of error is that the evidence is insufficient to sustain the verdict of guilty, because the State failed to defend sufficiently and adequately his allegations of entrapment.

The undercover agent and a deputy sheriff testified that Darren Stinson (who, according to the deputy, had offered to become an informant for hire) was introduced to the agent by the deputy. The agent further testified that, prior to the incident, the informant had worked for the agent only once before. The informant was paid $50 for each drug buy. The drug buy involving appellant was the second drug buy the informant had participated in that particular evening. As the agent and informant were driving down the road, they observed appellant and several people standing in the street. The informant told the agent “who [appellant] was” and identified him by name. The agent instructed the informant to call appellant over to the vehicle. The informant walked up to appellant, remaining at all times in the agent’s sight, and stopped a few feet from appellant. The informant and appellant did not appear to be close enough so they could touch. Nothing was exchanged between informant and appellant; the informant never touched or handled the drugs in question in any way; and the informant did not furnish drugs to appellant. Appellant approached the driver’s side of the vehicle and asked the agent what he needed. The agent replied, “a twenty,” which is street slang for $20 worth of cocaine. Appellant removed an amber-colored bottle from his left pocket and poured out several packets containing a substance which appeared to be cocaine and handed one to the agent. The agent gave appellant $20. The agent testified without objection that he decided he was going to give appellant an “opportunity” to sell cocaine; and that the agent did not coerce or threaten appellant to sell drugs. A chemist testified that the substance was cocaine.

The informant testified as a defense witness as follows: The agent stopped him and asked if he knew where he could buy some dope; the agent offered to pay the informant $50. The informant agreed and got into the agent’s car. The informant had been involved in a prior dispute with appellant and had “told him [he] was going to get him.” Although appellant “doesn’t sell dope,” the informant set him up by talking him into doing the informant a favor by selling cocaine to the agent. The informant told appellant he did not want to sell cocaine personally to the undercover agent, as he did not want the latter to know who he was. Appellant said he did not have any dope because he did not sell it. The informant gave a “loose rock” of cocaine to appellant out of the sight of the agent. After receiving the cocaine, appellant approached the agent and sold it to him. Informant collected his money from appellant later. Held:

The defense of entrapment consists of the following three distinct elements: (1) the idea for the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime. Further, the predisposition of the defendant toward crime is the key element of the defense. Keaton v. State, 253 Ga. 70, 72 (316 SE2d 452).

In the case at bar, we find sufficient evidence of appellant’s predisposition so as to raise an issue for jury resolution as to entrapment. For example, when the agent’s testimony is viewed in its totality, an inference reasonably could have been drawn by the jury that the informant, when telling the agent “who [appellant] was” and when identifying appellant by name from among several persons standing in the street, also informed the officer that appellant was a person who sold drugs. At the time of this incident, the informant had been used on one prior occasion, and had helped the agent make another successful drug sale case earlier that same evening. “ ‘Because the concept of entrapment involves the predisposition of the accused, the question, like all fact questions, is generally one for the jury to decide,’ ” under proper instructions. State v. Royal, 247 Ga. 309, 310, n. 1 (275 SE2d 646).

The case Wilkey v. State, 203 Ga. App. 1 (416 SE2d 350), citing Hill v. State, 261 Ga. 377 (405 SE2d 258), is factually distinguishable from this case and is not controlling. The case at bar was not in such posture as to have demanded a directed verdict of acquittal (compare Worley v. State, 185 Ga. App. 528 (364 SE2d 897)); the issue of entrapment was presented to the jury under proper instructions, and the jury, as conclusively evidenced by its finding of guilty, rejected the entrapment defense.

Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of sale of cocaine of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Beasley and Andrews, JJ., concur.

Decided October 30, 1992.

Timothy L. Lam, for appellant.

Joseph H. Briley, District Attorney, James L. Cline, Jr., Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Andrews, Judge. Beasley, Judge,

license: Public Domain

text:
    A92A1881.
    JOLLEY v. GRANTHAM.
    (424 SE2d 362)
   Andrews, Judge.

Candidate Jolley, running for sheriff of Harris County, appeals the superior court’s reversal of the superintendent of elections’ decision that he was qualified to run.

Jolley qualified to run for the Democratic nomination for sheriff on April 29, 1992. Prior to doing so, he had initiated his retirement request for separation from the Army and had been notified that his scheduled date of separation from the service was October 31, 1992. His retirement ceremony was June 16, 1992 and he was placed on terminal leave status as of July 20, 1992. He also sought and was granted permission from the Staff Judge Advocate’s office to file for the sheriff’s nomination, in compliance with Army Regulation 600-20.

In his Declaration of Candidacy, filed April 29, Jolley stated his profession or occupation as “retired Federal Service.” In the additional affidavit required for the office of sheriff, in the blank asking for places of employment for the past six years, Jolley listed “October 1972 — Present U. S. Government.”

Elector Grantham filed his complaint with the superintendent of elections, challenging the qualifications of Jolley for the office. The grounds for his challenge were that Jolley had made a false statement under oath in his Declaration, because he stated that he was retired when he was not, but was instead an active duty Army Warrant Officer, and that he was not eligible to hold the office of sheriff because the federal “Hatch Act” prohibited him from doing so.

The hearing before the probate judge, sitting as the superintendent of elections, is included in the record and reflects that these were the only grounds urged there.

On these grounds, the superintendent concluded that the Hatch Act did not apply to members of the armed forces and that, even assuming that the statement concerning retirement was false, that would not be a felony and therefore would not disqualify him from running.

Elector Grantham then appealed to the superior court pursuant to OCGA § 21-2-6 (d), which provides that such decision may be appealed and that the “review shall be conducted by the court without a jury and shall be confined to the record. The court shall not substitute its judgment for that of the superintendent as to the weight of the evidence on questions of fact. The court may affirm the decision or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the findings, inferences, conclusions, or decisions of the superintendent are: (1) In violation of the Constitution or laws of this state; (2) In excess of the statutory authority of the superintendent; (3) Made upon unlawful procedures; (4) Affected by other error of law; (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.”

Relying on Grogan v. Paulding County Democratic Exec. Comm., 246 Ga. 206, 207 (1) (269 SE2d 467) (1980) and 10 USCA § 973, the superior court disqualified Jolley from running, finding as a matter of fact that he would “continue to be an active duty officer until at least October 31, 1992.”

1. To the extent that the superior court relied upon 10 USCA § 973, it exceeded its authority as a reviewing court, since that section is not part of the Hatch Act and was not relied upon before the superintendent of elections. OCGA § 21-2-6 (d), supra; see Georgia Power Co. v. Ga. Pub. Svc. Comm., 196 Ga. App. 572, 579 (5) (396 SE2d 562) (1990).

2. Further, the court’s reliance upon that section appears to have been misplaced. It provides that “(a) No officer of an armed force on active duty may accept employment if that employment requires him to be separated from his organization, branch, or unit, or interferes with the performance of his military duties, (b) (1) This subsection applies — (A) to a regular officer of an armed force on the active-duty list ... (B) to a retired regular officer of an armed force serving on active duty under a call or order to active duty for a period in excess of 180 days; ... (3) Except as otherwise authorized by law, an officer to whom this subsection applies may not hold or exercise, by election or appointment, the functions of a civil office in the government of a State, ... (or of any political subdivision of any such government).”

Decided October 30, 1992.

Elkins & Gemmette, James A. Elkins, Jr., Bobby G. Peters, for appellant.

Denney, Pease, Allison, Kirk & Lomax, Robert R. Lomax, for appellee.

Those two sections, read together, reflect that the prohibition is on holding the office, not seeking it. Here, by the date of the general election, Jolley will be retired as he will on the date in 1993 when he would assume the office, if elected. See Houlihan v. Saussy, 206 Ga. 1, 5 (55 SE2d 557) (1949). Further, the record reflects that he obtained the permission of his superiors and the Staff Judge Advocate’s office before qualifying.

Grogan does not require the result reached either, since it holds only that a candidate for sheriff must meet the requirements set by state statute, which Jolley does. OCGA § 15-16-1; Barbour v. Democratic Exec. Comm., 246 Ga. 193 (269 SE2d 433) (1980); Georgia Peace Officer &c. Council v. Mullis, 248 Ga. 67 (281 SE2d 569) (1981).

Judgment reversed.

Pope, J., concurs. Beasley, J., concurs specially. Birdsong, P. J., disqualified.

Beasley, Judge,

concurring specially.

I concur except with respect to what follows.

As to Division 2, subsection (a) of the statute need not be considered. Subsection (b) is directly on point and is the basis for appellant’s argument. One need not read the two subsections together to obtain the meaning of subsection (b). It is confusing, it seems to me, to bring the prohibition against “accepting] employment” into the current analysis. The candidacy is not being challenged as violative of that subsection.

It should be noted that the “false statement” ground ruled on by the probate judge was not ruled on thereafter so is not subject to review here, even though appellee attempts to raise it in his brief.

       This court issued an order pursuant to Rule 50 staying the superior court’s order and thereby allowing Jolley’s name to appear on the July primary ballot.

       False swearing on a notice of candidacy is prohibited by OCGA § 21-2-565 (a) and is a misdemeanor. OCGA §§ 21-2-560; 16-1-10.

       See generally 5 USCA § 7324 (a).

         The version of that statute relied upon by the court was superseded by Pub. L. 98-94, Sept. 24, 1983, now codified as 10 USCA § 973 (b).

       Sheriffs are elected in the “November election next preceding the expiration of the term of office.” OCGA § 21-2-9.


author: Andrews, Judge.

text:
    A92A0817.
    PRUETT et al. v. COMMERCIAL BANK OF GEORGIA et al.
    (424 SE2d 284)
   Andrews, Judge.

Pruett and Groover appeal from an order granting summary judgment: (1) in favor of Commercial Bank of Georgia (Commercial Bank) on a $7,000 promissory note executed by the appellants, and (2) in favor of Commercial Bancorp of Georgia, Inc. (Commercial Bancorp) on a personal guarantee executed by appellants on a real estate note in the principal amount of $2,100,000.

Commercial Bank made a $2,100,000 real estate development loan to Millennium Development II Corp. (Millennium). Millennium gave a note to Commercial Bank dated October 20, 1988, in the amount of $2,100,000 (the real estate note) which called for interest payments only and matured in one year. The real estate note was personally guaranteed by Pruett and Groover. Commercial Bank sold a portion of the loan to two other banks under agreements which provided that Commercial Bank continued to hold legal title to the loan and authority to collect on the note. The 1988 real estate note matured in one year, and was renewed on October 20, 1989, for another year along with the personal guarantee of Pruett and Groover. After Millennium defaulted on the renewal note, Commercial Bank assigned all of its rights in the loan to Commercial Bancorp which demanded payment and sued Pruett and Groover on their personal guarantees.

On February 6, 1990, Pruett and Groover, who are both major shareholders in Millennium, also personally executed a promissory note in favor of Commercial Bank in the amount of $7,000 which was used to make certain improvements to the real estate development. The promissory note became in default by its terms when Pruett and Groover failed to pay the defaulted real estate note under their personal guarantees.

Appellants claim that two affidavits supporting summary judgment which were relied upon to establish the amounts due on the notes were insufficient because no bank records were attached. See Taquechel v. Chattahoochee Bank, 260 Ga. 755 (400 SE2d 8) (1991) (affidavit which relied upon and referred to bank records was insufficient to support summary judgment where the records were not attached to the affidavit). The affidavits here do not refer to or rely upon bank or other records. Rather, they show that the affiant is personally familiar with both notes, the repayment history, default, and amounts due. Since this testimony was based on personal knowledge of the facts, it was sufficient, without attachment of records from which the facts may have been generated, to establish a prima facie case in support of summary judgment. See WGNX, Inc. v. Gorham, 185 Ga. App. 489 (364 SE2d 621) (1988). There was no error in the trial court’s refusal to strike portions of these affidavits.

We find no merit in appellants’ claims of fraud. The terms of the personal guarantees and other loan documents were clear, and although appellants claim the terms were not explained to them, they were not prevented from reading them. The record reveals no confidential relationship between appellants and Commercial Bank or Commercial Bancorp which would excuse the requirement that appellants exercise ordinary diligence to protect their own interests. United Fed. Savings &c. Assn. v. Eubank, 180 Ga. App. 402, 403 (349 SE2d 268) (1986). “One not prevented from reading the contract, and having the capacity and opportunity to do so, cannot after signing it claim he was fraudulently induced to sign by promises which contradict the express terms of the contract. . . . Moreover . . . the oral representations of a bank officer purporting to limit the bank’s right of recourse in the event of a default in the payment of a promissory note will not support a defense of fraud in the procurement of the note.” (Citations and punctuation omitted.) Campbell v. C & S Nat. Bank, 202 Ga. App. 639, 640 (415 SE2d 193) (1992). In refusing to renew the real estate note for a second time, and declaring the note due and payable, appellees were acting within their rights under the terms of the loans. Accordingly, claims that a bank officer assured appellants that in the event of default, the real estate would be taken as collateral before any suit on the guarantees, or that the note would be renewed again provides no defense. See Casgar v. C & S Nat. Bank, 188 Ga. App. 234, 235-236 (372 SE2d 815) (1988).

We find no factual issues with regard to appellants’ execution of the notes, default thereon, and interest due thereon as of May 31, 1991, as established by the affidavits filed in support of these facts. The trial court properly granted summary judgment as to these issues. However, in attempting to establish the amount of interest accruing on each note after May 31, 1991, to the date of judgment, the affidavits at issue recite a fixed daily rate of accrual. Post maturity interest on both notes accrues at a rate tied to the fluctuating prime rate, and cannot be stated in fixed terms. See Read v. Benedict, 200 Ga. App. 4, 8 (406 SE2d 488) (1991). Moreover, the only evidence of record showing that Pruett and Groover were given the statutory notice required by OCGA § 13-1-11 as to collection of attorney fees is in unsworn exhibits attached to trial briefs in support of the motions for summary judgment, or set forth in allegations of unverified complaints which were denied by appellants. This is insufficient to establish summary judgment on these issues. Accordingly, factual questions exist precluding summary judgment as to interest accruing after May 31, 1991, and the award of attorney fees on both notes.

Decided October 7, 1992 —

Reconsideration denied November 2, 1992

The Nodvin Firm, Marvin P. Nodvin, Micheline A. Besse, for appellants.

Frankel, Hardwick, Tanenbaum & Fink, Samuel N. Frankel, John D. Steel, for appellees.

Appellants correctly assert that the trial court was without authority to enter an order on January 27, 1992 requiring that appellants post supersedeas bond. The docketing of the appeal in this court on January 24, 1992 “terminated the authority of the judge of the lower court to act on the motion to require supersedeas bond then pending in that court.” Jones v. Sheffield, 122 Ga. App. 574, 575 (178 SE2d 299) (1970). Accordingly, the trial court’s order requiring supersedeas bond is invalid. Id. Appellees’ motion for this court to order a supersedeas bond is denied.

Judgment affirmed in part, reversed in part.

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

       The loan was secured by developed and undeveloped real property which according to an appraisal done for Commercial Bank in January 1990, had a current market value in excess of 2.5 million dollars. An affidavit from the same appraiser submitted by appellees in this action opines that the same property had a market value of approximately 1.6 million dollars as of January 1992.

       Although Commercial Bank’s affidavit establishing these facts, and relied upon by the trial court in support of its summary judgment order, was not timely filed, the trial court was authorized to consider it in determining that the other banks participating in the loan were not necessary parties to the action to collect on the note. Contrary to claims that an objection was entered, the record contains no evidence that any objection was made to the late-filed affidavit. The timeliness of the affidavit was waived. Suttle v. Northside Realty Assoc., 171 Ga. App. 928, 932 (321 SE2d 424) (1984). There was no error in the trial court’s failure to grant appellants’ motion to dismiss on the basis that the other participating banks were necessary parties.


author: Johnson, Judge.

text:
    A92A1039.
    TOKHEIM CORPORATION et al. v. FIRST AMERICAN BANK OF GEORGIA, N.A.
    (424 SE2d 54)
   Johnson, Judge.

Tokheim Corporation and its subsidiary, Sunbelt Hose & Petroleum Equipment, Inc., brought a three-count complaint against First American Bank asserting breach of an indemnification agreement, breach of contract and fraud. First American moved for summary judgment on all three counts. Tokheim moved for summary judgment in its favor on the breach of indemnification claim. The trial court granted summary judgment in favor of First American on all counts and this appeal follows.

1. Tokheim argues that the trial court erred in entering summary judgment in favor of the bank on its breach of indemnification claim. In reviewing the record in this case, with all inferences in favor of the plaintiffs/appellants, Eiberger v. West, 247 Ga. 767, 769 (1) (281 SE2d 148) (1981), the evidence is as follows. Tokheim Corporation is a manufacturer of petroleum and gas dispensing equipment which sold its products from 1970 through 1986 in Georgia and Florida through a distributor, Equipment Sales Company, Inc. (Sales). Sales became seriously delinquent on its open account with Tokheim, as well as on a line of credit account extended by First American Bank of Georgia. As security for the line of credit, First American held a perfected first priority security interest in Sales’ inventory. Tokheim and First American discussed forcing Sales into involuntary bankruptcy, but a deal was ultimately structured in which Sunbelt, a subsidiary of Tokheim, would purchase Sales’ assets. First American agreed to release its security interest in the inventory in exchange for paying down $740,000 of Sales’ debt. In conjunction with closing of the transaction on August 8, 1986, Sunbelt (Tokheim) deposited $740,000 into Sales’ account, which Sales directed the bank to apply to its debt. At closing, First American delivered a document captioned “Certificate and Agreement of National Bank of Georgia” (the indemnification) to Sunbelt (Tokheim). Section I of the Certificate stated that First American had a first priority security interest in Sales’ assets and stated that “no other person or entity has a right, claim or lien that is superior to [First American’s] to receive the $740,000 in proceeds from such sale and conveyance.” In Section II, First American agreed to indemnify Tokheim (and Sunbelt) “against any and all expenses, costs, payments, damages, losses and liabilities, including attorney fees resulting from the successful assertion by any person, persons, corporation, (etc.) that . . . they had an interest in the Proceeds that was superior to that of [First American]. . . .”

Prior to the closing, both the Internal Revenue Service and the Georgia Department of Revenue had notified the parties that delinquent taxes were outstanding. The IRS’ lien was discharged at closing. First American agreed to lend Sales an additional $41,916 to pay the Georgia Department of Revenue in order to make the transaction close. In conjunction with the closing, Sunbelt signed an acknowledgment stating that they understood that the amounts claimed by the Georgia Department of Revenue were “[f]or such taxes against assets conveyed by Sales to Sunbelt (and) will not give rise to a claim for indemnification by Sunbelt against First American under the terms of the documents executed today.”

Sunbelt received notices of past due tax assessments from the Georgia Department of Revenue throughout 1987 and 1988, eventually totalling $193,000. Sunbelt negotiated a settlement reducing the tax due to $129,000. Sunbelt brought this action against First American seeking to recover that amount pursuant to the indemnification provisions contained in the “Certificate” referred to above.

First American argued in its motion for summary judgment, that taxes were specifically contemplated and excluded from the indemnification agreement executed at closing. The trial court granted First American’s motion for summary judgment. We agree.

“ ‘(T)he scope of . . . indemnity provisions . . . , manifested in the form of written contracts, is a question of law for the court.’ [Cit.]” Westinghouse Elec. Corp. v. Williams, 183 Ga. App. 845, 846 (2) (360 SE2d 411) (1987). The indemnification given by First American would only be triggered in the event a successful claim was made against the proceeds of the $740,000 paid by Sales to First American. The Georgia Department of Revenue did not make a claim on those proceeds. Rather, it sought to collect from the funds paid from Sunbelt (Tokheim) to Sales pursuant to OCGA § 48-7-108 or OCGA § 48-8-46. A claim on the funds paid by Sunbelt (Tokheim) to Sales, the first stage of the two part transaction, was not contemplated by the language of the indemnification. It is not necessary to consider the acknowledgment, as the language of the indemnification alone adequately delineates the scope of the contract. We find that the indemnification did not extend to the Georgia Department of Revenue’s claim against Sunbelt (Tokheim). Therefore, the trial court did not err in entering summary judgment in favor of First American on Count 1.

2. The contract at issue in Count 2 of the complaint authorized ESCIA, Sunbelt’s predecessor, to collect Sales’ outstanding accounts on behalf of the bank and retain two percent of monies collected as commission. The bank, in support of its motion for summary judgment on this claim, submitted the affidavit of Michael Lane stating that the contract was terminated by mutual consent with the approval of ESCIA’s president. The record contains evidence which corroborates this by showing conduct of the parties subsequent to the mutual termination which is consistent with the facts asserted in the affidavit. The employee responsible for collection of the accounts left ESCIA and was hired by the bank to continue the same collection effort for the bank in-house. The affidavit of ESCIA’s (Sunbelt’s) general counsel that he was unaware of the president’s actions is insufficient to create a genuine issue of material fact as to whether the contract was terminated by mutual consent of the parties. Despite all of the discovery conducted in the case, appellants have not provided evidence of any amounts collected upon which the commission was not paid. Therefore it is clear that summary judgment as to the breach of contract claim was proper.

Decided October 9, 1992 —

Reconsideration denied November 2, 1992

Swift, Currie, McGee & Hiers, Jane C. Barwick, for appellants.

Sutherland, Asbill & Brennan, Thomas M. Byrne, for appellee.

3. In light of the rulings on Counts 1 and 2, recovery on a fraud claim would be precluded, and therefore the court did not err in granting summary judgment on Count 3 relating to fraud.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Applying this standard to the facts of this case, First American was entitled to summary judgment on all three counts of the complaint as a matter of law, and the trial court did not err in so ruling.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


author: Sognier, Chief Judge. McMurray, Presiding Judge,

text:
    A92A1451.
    A92A1452.
    A92A1453.
    A92A1454.
    HCA HEALTH SERVICES OF GEORGIA, INC. v. HAMPSHIRE et al. KATZ et al. v. HAMPSHIRE et al. GREEN v. HAMPSHIRE et al. BIELFELT v. HAMPSHIRE et al.
    (424 SE2d 293)
   Sognier, Chief Judge.

Oliver Hampshire and Katie Hampshire brought a medical malpractice suit against a hospital, one allopathic physician, five osteopathic physicians, and the professional corporation that employs several of the osteopathic physicians, seeking damages for personal injuries and loss of consortium. Two of the osteopath defendants were voluntarily dismissed; upon the death of Mr. Hampshire, Ms. Hampshire, as administrator of his estate, was substituted as plaintiff on the personal injury claim. Except for the allopath defendant, all the defendants moved to dismiss the complaint on the basis, inter alia, that it failed to comply with the requirements in OCGA § 9-11-9.1. The trial court denied the motions to dismiss, and we granted their applications for interlocutory appeal.

For purposes of OCGA § 9-11-9.1 (a), appellees submitted the affidavit of H. Harlan Stone, M.D. Dr. Stone set forth his training, qualifications, and employment as an allopathic physician and then stated that he personally reviewed certified copies of Mr. Hampshire’s medical records at appellant hospital, HCA Health Services of Georgia, Inc. d/b/a HCA Northlake Regional Medical Center (hereinafter “Northlake”). Dr. Stone’s affidavit does not mention by name any appellant except Northlake. Dr. Stone stated the dates, diagnoses, and procedures performed upon Mr. Hampshire, discussed in detail eight x-rays taken of the patient, explained what would appear “obvious” from a review of those x-rays, and averred that “[f]rom what I see in these X-rays, the physician(s) [sic] responsible for this patient’s care failed to exercise the degree of care for this patient as is recognized in the medical professional generally under similar conditions and like circumstances.” Dr. Stone then faulted the “physician(s) responsible for the patient” for two specified negligent acts or omissions and concluded that in his professional opinion the dare provided Mr. Hampshire “fell below the level of care required of general surgeons and other physicians responsible for the patient’s care in conjunction with the general surgeon, as is recognized generally in the medical profession under similar conditions and like circumstances. It is my professional opinion that the failure of the attending physician(s) to adhere to applicable standards of care in treating the condition presented by Mr. Hampshire” caused further injury to the patient.

1. Appellants contend that the trial court incorrectly interpreted OCGA § 9-11-9.1. That statute provides in pertinent part that “[i]n any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” The trial court held that because OCGA § 9-11-9.1 does not expressly require an expert’s averment of a negligent act or omission as to every defendant but instead indicates that only “an affidavit” by “an expert” is required (emphasis supplied), id. at (a), the submission by appellees of Dr. Stone’s affidavit, an expert competent to testify as to one alleged negligent act of the allopath defendant, satisfied the requirements of the statute as to the other defendants.

A statute is to be construed in accordance with its real intent and meaning and not so strictly as to defeat the legislative purpose, Johnson v. Housing Auth. of Atlanta, 198 Ga. App. 816-817 (403 SE2d 97) (1991), and should be read according to the natural and most obvious import of the language without resorting to subtle and forced constructions for the purpose of either limiting or extending its operation. Burbridge v. Hensley, 194 Ga. App. 523, 524 (1) (391 SE2d 5) (1990). “The purpose of OCGA § 9-11-9.1 is to reduce the number of frivolous malpractice suits being filed.” 0-1 Doctors &c. v. Moore, 190 Ga. App. 286, 288 (1) (378 SE2d 708) (1989).

We hold that the trial court misconstrued OCGA § 9-11-9.1. In accordance with the legislative purpose of reducing the number of frivolous malpractice suits, we construe OCGA § 9-11-9.1 as requiring a plaintiff in a malpractice suit to submit a valid affidavit by an expert competent to testify in court against each professional defendant named in the complaint, in which is set forth specifically at least one negligent act or omission claimed to exist as to each professional defendant (jointly, where appropriate; otherwise, severally) and the factual basis for the claim against each defendant. To construe the statute in the manner proposed by the trial court would defeat the purpose of the statute by authorizing the naming of professionals as defendants in malpractice suits in which a plaintiff can set forth no one negligent act or omission attributable to that defendant, thus sanctioning the filing of frivolous malpractice suits against professional defendants who are only tangentially related to the legitimate malpractice claim brought against another defendant.

Therefore, under the correct interpretation of OCGA § 9-11-9.1, the filing of an expert’s affidavit that satisfies the statute’s requirements as to one defendant does not necessarily mean that those requirements have been likewise satisfied as to other defendants. Accordingly, the trial court erred by concluding that appellees’ filing of an expert’s affidavit sufficient under OCGA § 9-11-9.1 as to the allopath defendant was dispositive of appellants’ claims that appellees’ affidavit was insufficient and precluded consideration of appellants’ objections to the affidavit.

2. In its order on appellants’ motion to dismiss, the trial court made “findings of fact” derived from deposition testimony and other evidence adduced during discovery conducted by the parties prior to the ruling on appellants’ motions, including a finding that there is no significant difference in the standard of care required of allopaths and osteopaths. We agree with appellants that on a motion to dismiss based upon the insufficiency of an affidavit submitted pursuant to OCGA § 9-11-9.1, consideration of essential evidentiary matters not included in the affidavit is improper. See Cheeley v. Henderson, 261 Ga. 498 (405 SE2d 865) (1991) rev’g 197 Ga. App. 543 (398 SE2d 787) (1990) (held: expert’s affidavit cannot incorporate by reference matters required by OCGA § 9-11-9.1 to be set forth within body of affidavit). Compare Gillis v. Goodgame, 262 Ga. 117 (414 SE2d 197) (1992) (evidence extrinsic to the affidavit is admissible to determine whether defendant is “professional” to whom affidavit requirement in OCGA § 9-11-9.1 applies).

3. Appellants contend the trial court erred by denying their motions to dismiss on the basis that Dr. Stone was an expert competent to testify against them.

(a) As to the osteopath appellants and their professional corporation, we have held that in order for an affiant to be “an expert competent to testify,” the expert either must be a member of the same professional school as the defendant or, if from a different professional school, must state the particulars how the methods of treatment are the same for the different schools in order to establish that the affiant possesses the expertise to be able to give an opinion regarding the applicable standard of care to which the defendant is held. Chandler v. Koenig, 203 Ga. App. 684, 685 (417 SE2d 715) (1992); Milligan v. Manno, 197 Ga. App. 171 (397 SE2d 713) (1990). “[W]here the affidavit ‘establishes that the witness is a member of a different school of medicine than that practiced by the defendant but contains no evidence that the methods of treatment of plaintiff’s condition are the same so as to bring the witness within the exception to the general rule that he is incompetent to testify(, then) the affidavit is legally insufficient.’ [Cit.]” Chandler, supra at 686. Because Dr. Stone’s affidavit established that he is a member of a different school of medicine than the osteopath appellants and contained no evidence regarding the methods of treatment so as to establish “a professional overlap of expertise in at least one matter alleged by [appellees] to constitute malpractice,” id. at 687, the trial court erred by denying the motions to dismiss made by the osteopath appellants and their professional corporation in Case Nos. A92A1452, A92A1453, and A92A1454.

(b) As to appellees’ allegation against appellant Northlake that the hospital was liable for the alleged malpractice of the individual physician-defendants, the pleadings established that the osteopath appellants are professionals within the meaning of OCGA § 9-11-9.1. Gillis, supra at 118 (see doctors of osteopathy in OCGA §§ 43-34-20 (3); 43-34-27; professional corporation for practice of osteopathy in OCGA §§ 14-7-2 (2); 14-7-3). Accordingly, Northlake was entitled to assert the insufficiency of the OCGA § 9-11-9.1 affidavit as a defense to its liability for the alleged malpractice of the osteopath appellants. Greene County Hosp. Auth. v. Turner, 205 Ga. App. 213 (421 SE2d 715) (1992). Compare Thornton v. Ware County Hosp. Auth., 205 Ga. App. 202 (421 SE2d 713) (1992). Therefore, based on our holding in Division 3 (a), supra, the trial court erred by denying Northlake’s motion to dismiss insofar as the hospital’s liability for the osteopath appellants is concerned.

4. We do not agree with Northlake that the trial court erred by denying its motion to dismiss other allegations in appellees’ complaint.

(a) Appellees alleged and Northlake admitted in its answer that O. M. Arora, M.D., the allopath defendant who performed Mr. Hampshire’s surgery, was a member of Northlake’s medical staff at the time of the surgery in issue. Appellees specifically alleged in their complaint that Dr. Arora (as one of the individual physician-defendants) was “acting as [Northlake’s] agent, either by actual authority, or ostensibly,” thereby setting forth a claim against Northlake under the theory of respondeat superior. See generally Doctors Hosp. v. Bonner, 195 Ga. App. 152, 161-162 (6) (a) (392 SE2d 897) (1990). A review of appellees’ OCGA § 9-11-9.1 affidavit reflects that Dr. Stone is an expert competent to testify against Dr. Arora and that Dr. Stone set forth specific acts of negligence allegedly committed by Dr. Arora. Since Northlake’s liability rests upon the theory of respondeat superior, “appell[ees] complied with the requirements of [OCGA] § 9-11-9.1 by filing with [the] complaint affidavits which set forth the negligence of the professionals whose acts form the basis for [their] claim against the hospital.” Thornton, supra at 203.

(b) Northlake argues that appellees’ affidavit was insufficient and dismissal was demanded because the certified copies of medical records referenced by and allegedly reviewed by Dr. Stone were not attached to the affidavit. We do not agree. OCGA § 9-11-9.1 mandates the expert’s affidavit set forth: “[1] specifically at least one negligent act or omission claimed to exist and [2] the factual basis for each such claim.” “Where a statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms.” (Citations and punctuation omitted.) Pier 1 Imports v. Chatham County Bd. of Tax Assessors, 199 Ga. App. 294, 296 (1) (404 SE2d 637) (1991). Nothing in OCGA § 9-11-9.1 suggests that the “factual basis” requirement must be verified by attaching documentary evidence to the affidavit. Such verification requirements relate to evidentiary standards applicable to affidavits supporting a motion for summary judgment, e.g., Smith v. Feliciano, 187 Ga. App. 86, 87 (2) (369 SE2d 346) (1988), and given the plain language of OCGA § 9-11-9.1, we will not apply a verification requirement to affidavits used to satisfy that statute’s different legislative purpose of reducing the filing of frivolous malpractice suits. See generally 0-1 Doctors &c., supra af 288 (1).

Dr. Stone’s affidavit fully complies with the statute by setting forth his synopsis of the salient facts he derived from Mr. Hampshire’s medical records, which supports his opinion that negligent acts or omissions had been committed. The presence within the body of the affidavit of the factual basis for the negligence claims distinguishes this case from Gooden v. Ga. Baptist Hosp. &c., 198 Ga. App. 407, 408 (1) (401 SE2d 602) (1991), cited by Northlake. We note that to the extent Gooden can be read as indicating that an affidavit can comply with the mandatory requirements of OCGA § 9-11-9.1 by incorporating by reference or by attaching to the affidavit other documents in which are set forth the requisite averrals, that holding conflicts with the Supreme Court’s decision in Cheeley, supra (decided five months after Gooden) and will not be followed.

(c) Finally, we do not agree with Northlake that the trial court erred by denying its motion to dismiss as to the allegation in appellees’ complaint that Northlake was liable “for having provided inferior services and facilities to [appellees].” “It is well recognized that a hospital may be liable in ordinary negligence for furnishing defective equipment for use by physicians and surgeons in treating patients. ... [T]he breach of a duty requiring ordinary care, albeit in a medical contéxt, is not medical malpractice. ...” Lamb v. Candler Gen. Hosp., 262 Ga. 70, 71 (1) (413 SE2d 720) (1992). “Insofar as [appellees’] complaint alleges negligence against the hospital for supplying [inferior non-medical services and facilities] for use in treating its patients, the case is not one against a ‘professional’ or involving ‘professional malpractice.’ Therefore, OCGA § 9-11-9.1 is inapplicable and no affidavit is required. [Cit.]” (Footnote omitted.) Id. at 72 (2). Thus, the sufficiency of appellees’ affidavit is not in issue for their ordinary negligence claim, and the trial court properly denied Northlake’s motion to dismiss as to that claim. Id.; Greene County Hosp. Auth., supra.

Judgment in Case No. A92A1451 affirmed in part and reversed in part. Judgments in Case Nos. A92A1452, A92A1453, and A92A1454 reversed.

Cooper, J., concurs. McMurray, P. J., concurs specially.

McMurray, Presiding Judge,

concurring specially.

I agree with the judgments and most of what is written in the majority opinion. I write solely in order to state my view, with reference to Division 4 of the majority opinion, that the decision in Gooden v. Ga. Baptist Hosp. &c., 198 Ga. App. 407, 408 (1) (401 SE2d 602) should be overruled rather than distinguished. Gooden plainly makes applicable to OCGA § 9-11-9.1 the rule from Smith v. Feliciano, 187 Ga. App. 86 (369 SE2d 346) that affidavits which rely on materials not contained in the record must be disregarded because they do not set forth admissible facts. This is inconsistent with the construction of OCGA § 9-11-9.1 as establishing an exception to the general liberality of pleading permitted under the Civil Practice Act and “not to require a plaintiff to prove a prima facie case entitling him to recover and capable of withstanding a motion for summary judgment before the defendant need file his answer.” 0-1 Doctors Mem. Holding Co. v. Moore, 190 Ga. App. 286, 288 (1) (378 SE2d 708). The majority opinion in this case distinguishes Smith as relating to evidentiary standards and holds that a verification requirement will not be applied to affidavits submitted to satisfy OCGA § 9-11-9.1.

Decided October 14, 1992 —

Reconsideration denied November 2, 1992

Alston & Bird, Judson Graves, Daniel A. Kent, Richard R. Hays, Paul J. Quiner, M. Gino Brogdon, for HCA Health Services.

Alston & Bird, Dow N. Kirkpatrick, for Katz.

Gleaton, Scofield & Egan, Frederick N. Gleaton, Charles H. Fails, for Green.

Sullivan, Hall Booth & Smith, Henry D. Green, Jr., for Bielfelt.

Ford & Haley, James L. Ford, David C. Cole, for Hampshire.

The majority opinion distinguishes Gooden on the basis that the affidavit in the present case has set forth a “synopsis of . . . facts . . . derived from” the absent medical records. I do not see this as significantly different from the Gooden affidavits which “recite, refer to and rely on” absent medical records. (Emphasis supplied.) Id. at 408. In my view, Gooden, if a viable decision, would be applicable to the case sub judice and would require that we disregard Dr. Stone’s affidavit. In Gooden, this court never reached the issue of whether the content of the affidavits satisfied the requirements of OCGA § 9-11-9.1 since the affidavits were disregarded due to the absence of the medical records upon which they were predicated.

An affidavit submitted pursuant to OCGA § 9-11-9.1 must set forth the factual basis for each claim. The matters required by OCGA § 9-11-9.1 to be set forth within the body of an expert’s affidavit may not be incorporated by reference. Cheeley u. Henderson, 261 Ga. 498 (405 SE2d 865). The anomaly which results is that material, which Gooden requires to be included in the record, may not be considered under Cheeley in determining the sufficiency of the expert affidavit.

       The professional corporation was named as a defendant solely in its capacity as the employer of the individual osteopath appellants. See Doctor’s Hosp. v. Bonner, 195 Ga. App. 152, 161-162 (6) (a) (392 SE2d 897) (1990).

       As to the factual basis for Dr. Stone’s averrals in his affidavit, see Division 4 (b), infra.


author: Beasley, Judge.

text:
    A92A1458.
    RAIFORD et al. v. DEPARTMENT OF TRANSPORTATION et al.
    (424 SE2d 789)
   Beasley, Judge.

The DOT petitioned to acquire by condemnation fee simple title to a 1.024-acre tract needed for a right-of-way for a State-aid road. OCGA §§ 32-3-4 through 32-3-19. Defendants were Charles Walker (owner), Bankers First (senior security deed holder), First Union (junior security deed holder), and Wayne Raiford (lessee). The latter operated a self-service laundromat on the property. He and Georgilina Enterprises, a wholly-owned corporation to which he transferred the assets of this business, appeal from a judgment on a jury verdict awarding them no damages for business losses on the ground that the property is not unique. They also complain of a ruling of the superior court that, under a subordination clause in the lease between Walker and Raiford, the security deeds have priority to the proceeds of the condemnation award.

Walker leased the property to Raiford beginning January 1,1981, for five years, with options to extend the lease for two successive five-year periods.

Paragraph 20 of the recorded lease, entitled SUBORDINATION, provided: “Lessee hereby agrees that his leasehold interest hereunder is subordinate to any deed to secure debt now on, or hereafter to be placed on, the premises leased hereunder; provided, as a condition precedent to future subordination, each deed to secure debt shall expressly covenant or each deed to secure debt shall expressly provide that so long as the Lessee is not in default under said lease agreement, the Lessee’s quiet possession of the premises leased shall remain undisturbed, on the terms and conditions stated herein, whether or not the deed to secure debt is in default and notwithstanding any foreclosure or other action brought by the holder of the deed to secure debt in connection therewith. This subordination agreement shall be self-operative and no further instrument or certificate of subordination shall be required from Lessee.”

In July 1981, Walker borrowed $120,000 from Bankers First. In May 1984, he borrowed $61,136.14 from First Union. Both loans were secured by this property.

The DOT filed this condemnation action in February 1988. It initially deposited $120,000 into the court registry as just and adequate compensation. Walker so moved for distribution of these funds and averred that the claims of the security deed holders have priority over Raiford’s claims under the subordination clause in the lease. Accordingly, Walker sought an order directing the clerk to pay the funds to Bankers First in satisfaction of that loan, and the remainder to First Union.

Raiford filed an affidavit in opposition to Walker’s motion, on the ground that there were no provisions in the security deeds held by the banks satisfying the condition precedent stated in the subordination clause of his lease. Raiford averred that he had made substantial improvements which cost over $57,000; the bank loans are based in part on value added to the leased premises through these improvements; Raiford is not in default under the lease; and the value of his leasehold estate is $90,000. First Union subsequently recorded a “modification” of the security deed incorporating the language specified in the subordination clause of the lease.

On May 18, the superior court decreed that Bankers First’s claim has first priority and First Union’s claim has second priority and ordered disbursements to them, exhausting the fund. Raiford appealed. See Raiford v. Dept. of Transp., Case No. A89A0212. This Court dismissed Raiford’s appeal of the May 18 order on the ground that it was not a final judgment because the issue of just and adequate compensation had not been decided, and Raiford had not obtained a certificate for interlocutory review.

While that case was pending here, Walker filed another motion for distribution of funds, stating that the DOT had paid the additional sum of $53,690 into the court registry as the balance of just compensation for the property, pursuant to a settlement agreement to the effect that $173,690 constituted just and adequate compensation for the property. Raiford had not agreed that the total just compensation for the property was the amount paid into the court registry. Walker obtained an order directing the clerk to pay the additional funds on deposit to First Union to apply to Walker’s indebtedness to it.

Before the jury trial on the issue of the amount of just compensation for the leasehold, the court granted a motion in limine by Walker to prohibit Raiford from making reference to,' or attempting to prove, that the value of his leasehold interest was $90,000, because the banks had priority to the first $173,690 and any claim by Raiford below that amount was irrelevant and immaterial. A trial was held on whether Raiford could recover business losses on the ground that the property taken was unique, and, if so, the amount of his losses.

Walker testified that the building on the property was a typical concrete block building with a steel roof, located at 1507 Fifteenth Street in Augusta, Georgia. He leased part of the building to Raiford for a laundromat. A convenience store being operated in the other part of the building went out of business, and Walker relet this area for the operation of a cafe with pool tables. Walker testified that Raiford had told him he was not going to renew the lease after the second option expired because of the resulting traffic and noise.

Hollingsworth and Strickland, professional real estate appraisers employed by the DOT, testified as to the fair market value of the building but not the laundromat business, utilizing traditional tests as to the sales price of comparable properties and the rental value of the building. Hollingsworth valued the portion of the building in which the laundromat was located at $68,620. Strickland valued it at $40,500. They also testified that comparable buildings could be rented in the Augusta area.

Raiford testified, and sought to show, that this property constituted a unique location for a self-service laundromat, in that Fifteenth Street was a heavily-traveled major artery; the laundromat was near a large apartment complex and across the street from a large public housing development whose residents were without washers and dryers; there was no other comparable location in the Augusta area.

The trial court charged the jury that there are three criteria for determining if property is unique: if it must be duplicated for the business to survive and there is no substantially comparable property in the area; or, it is of a design not generally bought and sold on the open market; or, it has such particular advantages of location for the use to which it is being put. It also charged that only one of these criteria need to be satisfied in order to authorize a recovery for business losses; that “existing use of a piece of property peculiar to the condemnee does not make the property unique”; and that if the property is not unique the condemnee is not entitled to any compensation for business losses.

The verdict was “in favor of the condemnor in the amount of (zero) $0.00 dollars.”

1. It was error to give the security deeds priority.

Under the general principle contained in OCGA § 44-14-323 that the first in time is the first in rank, the rights of a lessee are superior to those of a subsequent lienholder. Lunsford v. Income Properties, 254 Ga. 55, 56 (1) (325 SE2d 590) (1985). Consequently, foreclosure of the security deed and sale of the property pursuant to a power of sale do not divest the lessee of his or her leasehold estate where the lease antedates the security deed; otherwise, the lessee becomes a tenant at sufferance. Wright v. Home Beneficial Life Ins. Co., 155 Ga. App. 241, 242 (1) (270 SE2d 400) (1980) and cits. However, where there is a clause in the lease making the rights of the lessee “subject to” a subsequent security deed, the foreclosed security deed has priority. Id. at 242. Secondary authorities support the view that such a clause also gives a lienholder priority to condemnation proceeds to the extent that the security has been impaired by the condemnation, although we find no cases specifically addressing the question. 2 Nichols on Eminent Domain, § 5.18 [1] [a], p. 5-253 (1990), citing Restatement of the Law of Property 2d, Landlord & Tenant, § 8.2, comment j, pp. 274-275 (1977). See generally Dept. of Transp. v. McLaughlin, 163 Ga. App. 1 (1) (292 SE2d 435) (1982).

The first clause of paragraph 20 states that the “[l]essee hereby agrees that his leasehold interest is subordinate to any deed to secure debt now, or hereafter to be placed on, the premises leased hereunder.” The parties seem to be in agreement that in drafting paragraph 20 the lessor and lessee were contemplating priorities in the event of foreclosure and not condemnation. Compare Simmerman v. Dept, of Transp., 167 Ga. App. 383, 384 (1) (307 SE2d 4) (1983); Henson v. Dept. of Transp., 160 Ga. App. 521, 522 (1) (287 SE2d 299) (1981). However, the subordination agreed to is general and would operate to establish priorities between the lender and the lessee regardless of what event caused lessee’s ouster. The subordination was not limited to an event of foreclosure.

Nevertheless, paragraph 20 adds a proviso: “as a condition precedent to future subordination, each deed to secure debt shall expressly covenant or each deed to secure debt shall expressly'provide that so long as the Lessee is not in default under said lease agreement, the Lessee’s quiet possession of the premises leased shall remain undisturbed. This subordination agreement shall be self-operative and no further instrument or certificate of subordination shall be required for lessee.” Bankers First did not honor that condition precedent; First Union’s attempt, after the institution of condemnation proceedings removed any realistic possibility of foreclosure, was untimely. Appellees argue that the lenders’ nonperformance of this condition precedent is immaterial, because the lessee had the legal right to remain in possession in the event of foreclosure by reason of being prior in time to the security deeds.

This argument confuses contractual rights with statutory rights. The lessee’s subordination of his interest to those of the security deed holders was conditioned upon the security deed holders’ inclusion of a covenant of quiet possession in their deeds. The security deed holders did not fulfill this condition precedent. Consequently, whatever their statutory rights are, they do not have a contractual right to priority under the lease’s subordination clause. It was error to grant the motion in limine.

2. It was error to charge the jury that the existing use of a piece of property peculiar to the condemnee does not make the property unique.

Macon-Bibb County Water &c. Auth. v. Reynolds, 165 Ga. App. 348 (299 SE2d 594) (1983), was the authority cited by the DOT in support of its request for charge. There, the court observed that the terms “peculiar value” and “unique value” had been “commingled and confused.” Id. at 352. Citing from Nichols on Eminent Domain, Reynolds held that property has unique value to the owner, where it is “not of a type generally bought or sold in the open market, which is worth its cost to its owner but could be unmarketable. [Cit.] Examples are a church, college building, a clubhouse, or even such property as a golf club, or school.” Id. at 353. Reynolds held that property has peculiar value to the owner where “the relationship of the owner thereto is peculiar — its advantages to him [are] more or less exclusive — that is, that it is property having value peculiar to the owner only, and without possible like value to others who might acquire it.” Id.

The term “uniqueness” is used in two contexts. One is where the property on which a business is situated constitutes a “unique” location, allowing business losses. The other is where property is “unique,” so that its fair market value does not represent the condemnee’s actual loss. See Dept. of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541, 543 (3) (309 SE2d 816) (1983); City of Gainesville v. Chambers, 118 Ga. App. 25, 28 (2) (162 SE2d 460) (1968).

This case concerns the “uniqueness” of business property in the first context. Reynolds concerned the “uniqueness” of residential property in the second context. Reynolds held that the privacy of residential property, and the fact that it has a riverfront location, are factors to be considered in determining its fair market value, but they do not make it unique. “Neither is [privacy] a factor with a current use value which is peculiar only to the present owner and would not pass to a successor in title. [Cit.]” Id. at 354. Whether a piece of property is “unique” for business purposes depends upon the characteristics and location of the property in conjunction with the use to which it is being put. Theo v. Dept. of Transp., 160 Ga. App. 518, 521 (8) (287 SE2d 333) (1981).

Reynolds does not support the trial court’s charge that the existing use of a piece of property peculiar to the condemnee does not make the property unique. It was erroneous because the determination that there is an existing use of property peculiar to the condemnee is a touchstone for ascertaining whether the property is unique for business purposes.

3. It was not error to deny Raiford’s motion for new trial on the general grounds. “The issue of whether land taken or damaged in an eminent domain proceeding is unique or peculiar is a jury question. [Cit.]” Reynolds, supra at 353. “[0]nly slight evidence is necessary to authorize a jury charge on the uniqueness of a business and the subsequent recovery of its losses. ...” 2.734 Acres, supra at 542. There was sufficient evidence in this case to authorize a jury to find that the condemned property constituted a “unique” location for a self-service laundromat in the Augusta area. See Kessler v. Dept. of Transp., 142 Ga. App. 170 (235 SE2d 636) (1977); but compare Almond v. MARTA, 161 Ga. App. 363, 365 (1) (288 SE2d 129) (1982). The evidence did not demand such a finding.

The judgment is reversed and the case remanded for further proceedings consistent with this opinion.

Judgment reversed.

Birdsong, P. J., and Andrews, J., concur.

Decided October 8, 1992 —

Reconsideration denied November 2, 1992

Jay M. Sawilowsky, for appellants.

Michael J. Bowers, Attorney General, Harry B. James III, Fulcher, Hagler, Reed, Hanks & Harper, Robert C. Hagler, Nixon, Yow, Waller & Capers, Ziva P. Bruckner, 0. Palmour Hollis, for appellees.


author: Pope, Judge.

text:
    A92A1623.
    AUTO TOWNE INSURANCE AGENCY, INC. v. HART et al.
    (424 SE2d 303)
   Pope, Judge.

An action in negligence was filed against appellee Allen Hart arising out of an automobile collision which occurred January 18, 1990. At the time of the collision, Hart was driving an automobile owned by Charles Hart with the owner’s permission. The day before the collision, January 17, Charles Hart had made application for automobile insurance through the assigned risk plan with appellant Auto Towne Insurance Agency, Inc. (the “agent”). Coverage did not become effective until January 20 and thus the automobile driven by Hart was uninsured at the time of the collision. Hart filed a third-party complaint against the agent alleging the agent was liable to him to defend and indemnify him from the negligence action arising out of the collision. The trial court granted summary judgment to Hart on his claim against the agent and the agent appeals.

Pursuant to the rules of the assigned risk plan promulgated by the Georgia Insurance Commissioner pursuant to OCGA § 40-9-100 (a), applications to the plan may be submitted by certain licensed entities such as the agent in this case. Georgia Automobile Insurance Plan and Manual of Rules and Rates, § 11. Upon receipt of an application, the service office which administers the plan assigns the application to an insurance company. Coverage becomes effective “at 12:01 A.M. on the day following the date of mailing of the application to the Plan as shown by the postmark on the transmittal envelope. If the postmark is not legible the coverage will be effective at 12:01 A.M. on the date of receipt by the Plan Office.” Id. at § 12.A.1. In this case, a notation appears on the application in a block entitled “For Plan Use Only” indicating the postmark date was January 19 and the effective date of coverage was January 20.

At the hearing on his motion for summary judgment, Hart acknowledged that if the issue of the agent’s liability were submitted to a jury, it would be possible for the jury to find the agent acted promptly. Hart argued, however, that the evidence showed the agent did not mail the application to the plan on the day the application was submitted and thus the agent breached its duty of diligence and must be liable for damages. Actually, no evidence was presented concerning the date the application was mailed, although, since the application was postmarked two days after the agent received the application, it would be reasonable for a finder of fact to conclude it was not delivered to the post office on January 17. Even if the application was not mailed on the day the agent received the application, an issue of fact exists concerning the diligence of the agent. We find no requirement in the rules for the assigned risk plan that an agent must forward an application to the plan on the day it is received. We note that no evidence was presented concerning the time of day the application was submitted to the agent and thus we cannot conclude as a matter of law that the agent did not act diligently by not posting it the same day.

“ ‘An agent who negligently fails to procure insurance for his principal is liable to the principal for any resulting loss.’ [Cits.]” Johnson v. Pennington Ins. Agency, 148 Ga. App. 147, 148 (251 SE2d 116) (1978). Accord Wright Body Works v. Columbus Interstate Ins. Agency, 233 Ga. 268 (210 SE2d 801) (1974); Northeastern Ins. Agency v. Courson, 156 Ga. App. 321 (1) (274 SE2d 714) (1980). In each of these cases, however, the appellate court reversed the grant of summary judgment and held that the issue of the agent’s negligence was one for jury determination. More specifically, in Stewart v. Boykin, 165 Ga. App. 868 (2) (303 SE2d 50) (1983), where the issue concerning the defendant insurance agent’s negligence was whether he had acted diligently in submitting plaintiff’s application for insurance to the insurer 11 days after the application was made, this court held that the issue was one for jury determination and we reversed the grant of summary judgment to the defendant. Certainly, then, in the case now before us, in which the agent mailed the application for insurance no later than two days after the application was made, the question of the agent’s diligence is one for the jury.

In addition, we note that the application for insurance in this case contained on its face, near the bottom of the two-page form filled out by the owner of the car driven by Hart, the following language: “I am aware that I am applying for insurance through the Georgia Automobile Insurance Plan and I understand that I am not covered immediately for insurance. I also understand that I will be notified promptly by mail of the effective date of my insurance coverage by the Georgia Automobile Insurance Plan.” In its answer to the third-party complaint, the agent raised the defenses of contributory and comparative negligence as well as the defense that the alleged damages were solely caused by the acts or omissions of other parties. Thus, evidence was presented from which a jury could conclude that the agent was not liable because Hart’s damages were proximately caused by his own negligence in operating the insured automobile, or the negligence of the owner in permitting Hart to operate the insured automobile, before receiving notice of the effective date of insurance covérage.

Decided October 15, 1992 —

Reconsideration denied November 2, 1992

Arthur L. Waters, for appellant.

Harman, Owen, Saunders & Sweeney, Charles J. Cole, Wetzel & Carroll, Michael L. Wetzel, for appellees.

Judgment reversed.

Corley, P. J., and Johnson, J., concur.


author: Sognier, Chief Judge.

text:
    A92A1191.
    HUSSEY v. THE STATE.
    (424 SE2d 374)
   Sognier, Chief Judge.

Peter Hussey was found guilty of two counts of simple battery and one count of battery at a non-jury trial, and he appeals.

1. Appellant was charged in the accusation with two counts of simple battery, OCGA § 16-5-23 (a) (1) (intentionally making physical contact of an insulting and provoking nature) and (a) (2) (intentionally causing physical harm), and with the offense of battery, OCGA § 16-5-23.1 (intentionally causing visible bodily harm), all arising out of a confrontation he had with Mary Catherine Partridge on December 2,1990. The State concurs with appellant that the trial court erred by sentencing appellant on all three counts in the accusation, rather than merging the two counts of simple battery with the battery, given that the evidence at trial established that each crime was established by proof of the same facts, except that the battery charge required proof that the defendant caused visible bodily harm. See OCGA §§ 16-1-6 (1); 16-1-7. See generally Kelley v. State, 201 Ga. App. 343, 344 (1) (411 SE2d 276) (1991). Accordingly, this appeal is remanded to the trial court with direction to vacate the convictions on the simple battery counts and sentence appellant solely on the battery count. See Division 2, infra.

2. Appellant contends the evidence was insufficient to support his conviction for battery. OCGA § 16-5-23.1 provides that a person commits the offense of battery when he intentionally causes “visible bodily harm to another,” which is defined as “bodily harm capable of being perceived by a person other than the victim and may include, but is not limited to . . . substantial bruises to body parts.” Id. at (b).

At trial, Partridge testified that she went to appellant’s home to recover a radar detector belonging to her father that had been left in a vehicle driven by Partridge’s boyfriend, an employee of appellant, when appellant had retrieved the vehicle. Partridge testified that after appellant told her he would return the radar detector only in exchange for a radio in the possession of Partridge’s boyfriend, he invited her inside his home so that she could use the telephone to contact her boyfriend. Partridge was not able to locate her boyfriend. She testified that although appellant then ordered her off the property, he allowed her to remain to place a call to the boyfriend’s father, William F. Haggerty. Partridge testified that while appellant and Haggerty spoke, she saw the vehicle through the door to the garage and stepped into the garage to see if the radar detector was in the vehicle. She testified that appellant grabbed her, and when she jerked away he grabbed her again and threw her to the ground. He then pushed her out of the garage by holding onto one of her arms while prodding her with his foot. The force of the physical contact left Partridge badly bruised on both her upper arms and on one knee. Photographs showing the bruising were admitted into evidence.

Haggerty testified that in his conversation with appellant, appellant cursed him, spoke in an angry, out-of-control voice, and stated he was going to kick Partridge out of the house.

Appellant testified that he did not invite Partridge into his home, but that after explaining to her that he had arranged with her boyfriend to exchange the radar detector for the radio, she ignored his dozen or more requests that she leave his home and began searching for the detector, opening the cabinets in his kitchen. He testified that Partridge then went into the garage and he followed after hearing something strike his vehicle’s fender. He stated he found Partridge inside the vehicle where she had cracked the cover of the center console in her attempt to force it open. He testified he grabbed her to keep her from damaging the vehicle, but when he realized he could not break the hold she had on the vehicle’s roof, he reached around her waist, picked her up, and walked her the four feet to the garage door, and set her outside. Appellant denied knocking Partridge to the ground. The record reveals that appellant is nine inches taller and 70 pounds heavier than Partridge.

This evidence was sufficient to enable a rational trier of fact to find appellant guilty as charged beyond a reasonable doubt under the standard in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Danzis v. State, 198 Ga. App. 136, 137-138 (4) (400 SE2d 671) (1990).

Judgment affirmed in part and vacated and remanded with direction.

McMurray, P. J., and Cooper, J., concur.

Decided November 2, 1992.

Donald C. Turner, for appellant.

Patrick H. Head, Solicitor, Benjamin M. First, Clifford L. Granger, Jr., Assistant Solicitors, for appellee.


text:
    A92A1250.
    AMERICAN ASSOCIATION OF CAB COMPANIES, INC. v. ABDILLAHI.
    (424 SE2d 382)
    Decided November 2, 1992.

      Michael W. Broadbear, Sidney L. Moore, Jr., for appellant.
   Johnson, Judge.

American Association of Cab Companies, Inc., appeals from the trial court’s order granting a motion to dismiss his appeal for failure to timely file the trial transcript. American contends that the trial court abused its discretion in dismissing the appeal. “A trial court has authority to dismiss an appeal if, after notice and opportunity for hearing, it finds that there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by the appealing party. In passing upon these issues the trial court must exercise its discretion. . . . This court must decide, based on the evidence presented, whether the trial court abused its discretion by dismissing the appeal.” (Citations and punctuation omitted.) Van Diviere v. Delta Airlines, 204 Ga. App. 573, 574 (1) (420 SE2d 27) (1992). The trial court held an evidentiary hearing on the motion to dismiss the appeal. The record before us, however, does not contain a transcript of that hearing. The only pertinent evidence in the record shows that the trial transcript had not been filed by the date the court dismissed the appeal, almost 11 months after American filed its original notice of appeal. “An appeal with enumeration of error dependent upon consideration of evidence heard by the trial court will, absent a transcript, result in an affirmance.” (Citations and punctuation omitted.) Ross v. Ninety-Two West, 201 Ga. App. 887, 891 (2) (412 SE2d 876) (1991). Absent a transcript of the hearing held on the motion, we cannot say that the trial court abused its discretion in dismissing the appeal. The evidence presented at the hearing may well have supported a finding that the delay in filing the trial transcript was unreasonable, inexcusable and caused by American. Accordingly, we find no error.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.

Freeman & Hawkins, Edward M. Newsom, for appellee.


author: Cooper, Judge.

text:
    A92A1274.
    STANLEY v. THE STATE.
    (424 SE2d 90)
   Cooper, Judge.

Appellant was convicted in a bench trial of trafficking in cocaine, violating the Georgia Controlled Substances Act and giving a false name. He appeals from the judgment of conviction and sentence.

1. In his first enumeration of error appellant contends the trial court erred in dismissing his motion to suppress evidence seized in an unlawful search and seizure. The record reveals that when appellant’s motion to suppress came on for hearing, the State orally moved to dismiss the motion on the ground that it failed to set forth sufficient facts as required by OCGA § 17-5-30. The State argued that the brief filed in support of the motion, in which appellant set forth facts regarding the search and seizure, was a separate document which should not be considered as part of the motion. At the hearing, the trial court noted that if the brief were construed as being part of the motion, the motion would contain facts setting forth the circumstances surrounding the search, but the court ultimately agreed with the State that the brief was not a part of the motion and that the motion on its face was insufficient.

OCGA § 17-5-30 (b) requires that a motion to suppress “be in writing and state facts showing that the search and seizure were unlawful.” We do not find that this statute precludes the consideration of appellant’s brief, which was filed contemporaneously with the motion, as part of the motion. Accordingly, the motion showed the date and location of the search, the identity of the person searched, the organization with which the arresting officers were affiliated (albeit not the number of officers or their identities), the fact that the officers were acting on an informant’s tip, the identity of the material seized, the fact that appellant did not consent to the search, the fact that appellant was arrested when he refused to consent to the search, the fact that the search was incident to his arrest and the conclusion that officers did not have reasonable suspicion or probable cause. See Lavelle v. State, 250 Ga. 224 (3) (297 SE2d 234) (1982). Thus, “[t]he motion in this case was sufficient to put the state on notice as to the type of search involved (without warrant vs. with warrant), which witness to bring to the hearing on the motion, and the legal issues to be resolved at that hearing. We find that [appellant’s] motion was adequate, and that it was error to dismiss it without hearing [appellant’s] evidence thereon.” Id. at 227. The case shall be remanded “to the trial court with direction to conduct a hearing on appellant’s motion to suppress. Should the trial court grant appellant’s motion, he would be entitled to a new trial. Should the trial court, however, deny appellant’s motion on the merits, appellant would be entitled to file a new appeal from his conviction, an appeal limited in scope to the denial of the motion to suppress. [Cits.]” Harvill v. State, 190 Ga. App. 353, 357 (6) (378 SE2d 917) (1989).

Decided November 2, 1992.

Edward L. Adams, for appellant.

Robert E. Keller, District Attorney, for appellee.

2. Based on the foregoing, we need not consider appellant’s second enumeration of error that the trial court erroneously refused to consider appellant’s amended motion to suppress.

Case remanded with direction.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A92A1364.
    POUNCEY v. ADAMS.
    (424 SE2d 376)
   Birdsong, Presiding Judge.

Appellant/plaintiff Janice Pouncey appeals from the judgment entered against her and in favor of appellee/defendant Ross W. Adams. Appellant brought suit seeking damages for injuries sustained when the automobile in which she was a passenger struck appellee’s horse. The horse had escaped from its enclosed pasture, crossed a public highway, and was struck by the automobile in which appellant was riding. Held:

1. Appellant asserts the trial court erred in admitting evidence, over objection on the grounds of lack of relevance and violation of the collateral source rule, that appellant took sick leave from her employment to avoid wage loss. Pretermitting this issue is the issue whether any such error would have been prejudicial had it occurred as enumerated. Appellant did not pose any specific foundation objection as to the use of the statement in her deposition for impeachment purposes, or specifically object to impeachment on any other ground. Therefore, these objections are waived. See Gully v. Glover, 190 Ga. App. 238 (4) (378 SE2d 411).

The verdict rendered in this case was in favor of the appellee/ defendant; this is not a case where verdict was rendered for appellant/plaintiff and the damage award was either zero or of some inadequate amount. The evidence pertaining to the use of sick leave either was relevant to the issue of impeachment or it was not. Assuming without deciding that the admitted evidence was relevant, albeit doubtful, as to the question of impeachment (as argued by appellee), the trial court would not have abused its discretion in admitting it (see generally Gene Thompson Lumber Co. v. Davis Parmer Lumber Co., 189 Ga. App. 573, 575 (2) (377 SE2d 15)), and no error occurred. West v. Nodvin, 196 Ga. App. 825, 828 (3b) (397 SE2d 567). It is well established that if evidence is duly admissible under any legitimate evidentiary theory, it should be admitted even though it would not qualify for admission under one or more other evidentiary theories. Boatright v. State, 192 Ga. App. 112, 116 (6) (385 SE2d 298). In such circumstances, the objecting party’s remedy is to seek appropriate limiting instructions as to the evidence in question. Assuming, however, the evidence pertained only to the issue of damages and was admitted in violation of the collateral source rule (as argued by appellant), then the error occurring nevertheless would be harmless in this instance. Where an error in the giving of a charge or in the admission or exclusion of evidence relates only to the issue of damages, and the jury finds the defendant not liable, the error is harmless because it does not affect the verdict. Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (1) (378 SE2d 510); accord Barnes v. Wall, 201 Ga. App. 228, 230 (3) (411 SE2d 270).

2. Appellant asserts the trial court erred in charging the jury on the issue of permissible inference. Appellant took exception to the charge on the grounds it is an incorrect statement of law and that it was confusing and misleading to the jury. Assuming without deciding that this broad exception, which is lacking of any specificity as to why the charge was legally incorrect, confusing or misleading, is adequate to preserve the issue of charging error on appeal, we find that, assuming charging error occurred, it was harmless in this case.

The trial court charged the jury pertinently as follows: “The duty placed upon [a livestock] owner by law is to exercise ordinary care to keep his livestock from straying or running at large beyond the limits of the owner’s property. In cases where a person is injured or damaged by livestock straying or running at large there arises a permissible inference authorized by the mere fact of the running at large by the animal that the owner of the livestock was negligent in allowing the stock to run at large or to stray. But when the owner introduces evidence which would authorize a finding that he had exercised ordinary care in the maintenance of the stock, that permissible inference disappears. It is thus for you, the jury, to determine whether or not the [appellee/defendant] has introduced sufficient evidence to overcome the permissible inference of negligence. If you find that he has not, you would be authorized to return a verdict in favor of the [appellant /plaintiff]. If you find on the other hand that he has, you would be obligated to return a verdict in favor of [appellee/defendant] unless you have found . . . the [appellee/defendant] otherwise negligent in such a way as to proximately cause injuries to the [appellant/plaintiff].” (Emphasis supplied.) Thereafter, the trial court instructed the jury that the burden of proving each element of the claim was on appellant/plaintiff.

In support of this enumeration appellant relies primarily upon the language contained in Miller v. Miller, 258 Ga. 168, 170, n. 6 (366 SE2d 682) and cases cited therein. She argues that she was harmed when the jury was instructed that the permissible inference would disappear when rebutted, and in charging on permissible inference rather than on the law of presumptions.

Appellee asserts that the permissible inference would in fact disappear if rebutted. This contention is tacitly supported by the seminal case of Porier v. Spivey, 97 Ga. App. 209 (lc) (102 SE2d 706) and its progeny, although all of these cases precede Miller, supra, and none' of them concerns the question of what constitutes a correct charge to the jury regarding this issue. Accord Nichols v. Frey, 185 Ga. App. 829 (366 SE2d 212); Wilkins v. Beverly, 124 Ga. App. 842 (186 SE2d 436); L & N R. Co. v. Moreland, 122 Ga. App. 850, 854 (1) (178 SE2d 904); Green v. Heard Milling Co., 119 Ga. App. 116 (1) (166 SE2d 408).

We have frequently cautioned that, although the language used in an appellate decision may embody sound law, it is not always appropriate to employ such language in instructing the jury. Griffin v. State, 154 Ga. App. 261, 263 (2) (267 SE2d 867). Nevertheless, in determining whether an instructional error has occurred, charges must be examined in their entirety. See generally Jordan v. Santa Fe Engineering, 198 Ga. App. 600, 602 (2a) (402 SE2d 304).

We find no merit in the argument that reversible error occurred when the trial court charged the jury in language of permissive inference rather than presumption of fact. Presumptions of fact are exclusively questions for the jury to decide by the ordinary test of human experience. OCGA § 24-4-20. Likewise, in arriving at a verdict, the jury from facts proved (in this instance from proof of the mere fact of the running at large of the animal beyond the owner’s property, such conduct being contrary to the duty established by OCGA § 4-3-3), may infer the existence of other facts reasonably and logically consequent on those proved (that the owner of the livestock was negligent in allowing his animals to so run at large or to stray). OCGA § 24-4-9. Presumptive evidence is statutorily defined as “evidence which consists of inferences drawn by human experience from the connection of cause and effect and from observations of human conduct.” (Emphasis supplied.) OCGA § 24-1-1 (6). Thus, a thin line exists at best between a permissible inference of fact and a rebuttable presumption of fact; and, as one writer has said, “a presumption of fact is an inference drawn from a given fact or set of facts.” Green, Ga. Law of Evid., Presumptions, § 23. Appellant states that the real difference between a presumption of fact and an inference is in the way they are treated by the judge and jury; if it is a presumption, the judge may handle the case procedurally, but if it is an inference, it must be left to the jury. We are satisfied that based on the way this instruction was crafted, the factual principle concerned was properly labelled as a “permissible inference,” and not as a rebuttable presumption. See Nichols, supra at 830. Assuming, however, it could have been labelled as a rebuttable presumption of fact, we find no error. The judge did not attempt to dispose of this matter as a presumption of law, but rather placed the issue in the hands of the jury. “Whether the charge is fashioned in the language of ‘inferences’ or ‘presumptions,’ the technical import of the charge is the same.” Byrd v. Hopper, 234 Ga. 248, 251 (215 SE2d 251). This is especially true when the language charged is that of a “permissible inference” and the factual predicate for the permissible inference is clearly set forth to the jury, as was done in this case, so no fair risk exists that the jury could view the charge as pertaining to a presumption of law. Id.

The charge at issue is not so confusing or uncertain that any fair risk exists that the jury was misled thereby. “ ‘It is not necessary in considering a charge to assume a possible adverse construction, but a charge that is sufficiently clear to be understood by jurors of ordinary understanding is all that is required. (Cit.) While the specific portion^) of the charge of which complaint is made, when torn asunder and considered as a disjointed fragment, may be objectionable, when put together and considered as a whole, the charge is perfectly sound.’ ” Cochran v. State, 190 Ga. App. 884, 886 (5) (380 SE2d 319). Contrary to the tacit assertion of appellant, the jury was not instructed in this case that the permissible inference would disappear automatically when evidence was “offered” to rebut the inference. Rather, examining the charge in its entirety reveals that the jury was adequately informed that the inference would not disappear unless and until they determined that appellee/defendant had introduced “sufficient evidence to overcome the permissible inference of negligence.” Accordingly, the permissible inference was not removed from the jury’s consideration by the trial judge as implicitly contended by appellant.

We further find that appellant’s contention that the jury must be instructed regarding presumptions is, under Miller, supra, without merit. First, appellant has failed to enumerate as error that the trial court erred in failing to charge the court on the law of presumptions as requested at trial. Accordingly, this issue has not been preserved for appellate review. Roberts v. Cotton States Mut. Ins. Co., 186 Ga. App. 371, 373 (367 SE2d 272). Secondly, appellant has failed to address in her appellate brief exactly what tailored instruction should have been given in accordance with the so-called Miller rule, and we will not search the record in an attempt to determine what portion of the Miller rule would have warranted such a charge.

Decided November 2, 1992.

Wesley Williams, for appellant.

Forrester & Brim, Weymon H. Forrester, for appellee.

Any remaining deficiencies as to this charge to which no citation of authority was provided or express argument made in support thereof in appellant’s brief are deemed to be abandoned. Court of Appeals Rule 15 (c) (2); Boatright v. State, supra at 119 (10).

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A92A1383.
    BECKFORD v. RILEY.
    (424 SE2d 381)
    Decided November 2, 1992.

      Divida Gude, for appellant.
   Cooper, Judge.

Appellant brought an action against appellee for personal injuries sustained in an automobile accident. She appeals from the trial court’s denial of her motion for new trial after a jury returned a verdict for appellee and enumerates as error the court’s charges to the jury on comparative negligence and backing and the court’s denial of her motion for new trial on that ground.

“ ‘It is axiomatic that a party cannot complain of the giving of an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection. OCGA § 5-5-24 (a).’ [Cit.]” Isaacs v. Williams Bros., 195 Ga. App. 812, 813 (2) (395 SE2d 11) (1990). The record submitted on appeal contains only portions of the trial transcript and does not show that objections were made to the charges of which appellant now complains. The record contains only the testimony given by appellant and appellee at trial. “ ‘ “The burden is on the party alleging error to show it affirmatively by the record.” ’ [Cit.] Accordingly, there is no basis upon which to review this enumerated error. [Cit.]” Barnes v. Wall, 201 Ga. App. 228, 232 (4) (411 SE2d 270) (1991). Accord Coffee v. Silver, 195 Ga. App. 247 (1) (393 SE2d 58) (1990). Therefore, we must conclude that the trial court did not err in denying appellant’s motion for new trial.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.

Clifton Lee & Associates, Betty L. Bush, Chambers, Mabry, Mc-Clelland & Brooks, V. Jane Reed, for appellee.


text:
    A92A1415.
    MAGNUM COMMUNICATIONS, LTD. v. INTERNATIONAL BUSINESS MACHINES CORPORATION.
    (424 SE2d 379)
   Cooper, Judge.

In 1987, appellee brought an action against appellant for nonpayment of charges related to appellant’s use of certain copyrighted software owned by appellee. When the case appeared on the trial calendar, the parties entered into a settlement agreement and executed a consent judgment, which both parties agreed would not be filed as long as appellant made the required monthly payments under the settlement agreement. In August 1991, appellant defaulted on its payments due under the agreement, and appellee, after sending a demand letter for payment to appellant’s representative, filed the consent judgment. Appellant then filed a motion to set aside the judgment or, in the alternative, a motion for new trial. The trial court denied appellant’s motion and this appeal followed.

1. Appellee has filed a motion to dismiss this appeal on the grounds that appellant failed to follow the discretionary appeal procedures of OCGA § 5-6-35 (a) (8), which require that an application for discretionary appeal be filed from an order denying a motion to set aside a judgment. “The denial of a motion to set aside a judgment pursuant to OCGA § 9-11-60 is expressly a matter of discretionary appeal under OCGA § 5-6-35 (a) (8). [Cit.] A different result does not occur merely because [appellant’s] motion also sought a new trial.” Parker v. Bellamy-Lunda-Dawson, 190 Ga. App. 257, 258 (378 SE2d 502) (1989). Appellant argues that this appeal arises from the denial of its motion for new trial and therefore is not governed by the discretionary appeal provisions. However, “ ‘ “[objections which go to the judgment only, and do not extend to the verdict, cannot properly be made grounds of a motion for new trial. A motion for new trial seeks to set aside the verdict. No new trial is necessary to correct a judgment or decree. If a judgment or decree is erroneous or illegal, direct exception should be taken to it at the proper time.” ’ [Cit.]” Sands v. Lamar Properties, 159 Ga. App. 718, 719 (285 SE2d 24) (1981). Regardless of how appellant’s motion is denominated, the basis of the motion is that the consent judgment was entered in violation of the settlement agreement. Consequently, we conclude that the proper vehicle through which to take exception to the judgment was a motion to set aside and not a motion for new trial. Accordingly, appellant’s appeal is dismissed for failure to follow the discretionary appeal procedures of OCGA § 5-6-35 (b).

Decided November 2, 1992.

Stan E. Kreimer, Jr., for appellant.

Quirk & Quirk, Joseph P. Quirk, for appellee.

2. Appellee’s motion for damages pursuant to OCGA § 5-6-6 for frivolous appeal is denied.

Appeal dismissed.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A92A1531.
    MORGAN v. THE STATE.
    (424 SE2d 92)
   Cooper, Judge.

Appellant, David Wilson, and appellant’s girl friend, Nancy Wendt were indicted for burglary and robbery by force. Appellant and Wilson were also charged with aggravated assault. All of the charges resulted from the assault and robbery of an elderly victim, who was deceased at the time of trial. Appellant and Wendt were tried together, and the jury convicted appellant on all charges and convicted Wendt on two lesser offenses. Appellant appeals from the judgment entered on the conviction and from the denial of his motion for new trial.

The evidence introduced at trial reflects that on December 19, 1990, a police officer responded to a call at the home of the 82-year-old victim. The victim was noticeably shaken and told the officer that he had been asleep in his home when three persons came into his bedroom, put a pair of pants over his head, choked him and demanded money from him. The suspects told the victim that if he did not give them money, they would kill him. After the victim gave the suspects money, the suspects left the house. The crime was assigned to the detective bureau and remained unsolved for several months.

Sometime prior to March 1991, Wendt told her cousin, Pamela Adams, that Wendt went with appellant and Wilson to a doctor’s house where appellant told her to get under the car and holler if the police came. Appellant and Wilson then went around to the back of the house and Wendt heard glass break. Wendt stated that she heard the victim wake up and was scared that appellant and Wilson would kill the victim because they were beating him and demanding his money. Wendt told her cousin that she left before appellant and Wilson came out of the house and that the three met later at her residence and Wilson gave her some money.

Adams went to the police and related what Wendt told her, and based on Adams’ statement, appellant and Wendt were arrested. Wendt gave a written statement to the police which was consistent with the events she related to Adams. Appellant also gave a written statement in which he stated that he and Wendt were at home when Wilson came over and asked them to help him with something. The three of them went to the victim’s house. Wilson went around to the back of the house and a few moments later came to the front door from inside the house. Wendt waited outside while Wilson and appellant went into the house and into the victim’s bedroom where they found the victim asleep. When the victim awoke, Wilson grabbed the victim and demanded his money. Wilson then forced the victim into another room, and the victim got some money out of a drawer and gave it to Wilson. After Wilson released the victim, appellant, Wilson and Wendt left, went to an apartment and split the money. At trial, appellant denied making the statement and denied any participation in the crimes.

1. In his first enumeration of error, appellant contends that the trial court erred in admitting the statement made by Wendt while she was in custody. “In Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968), the United States Supreme Court held that a criminal defendant’s Sixth Amendment right to confront witnesses against him was violated by the admission in a joint trial of a confession of a codefendant implicating the defendant, where the co-defendant did not testify and the defendant maintained his innocence.” Ballard v. State, 252 Ga. 53, 54 (1) (311 SE2d 453) (1984). However, the United States Supreme Court has also held that the admission of a codefendant’s statement in violation of Bruton may be harmless error. See Schneble v. Florida, 405 U. S. 427 (92 SC 1056, 31 LE2d 340) (1972). Appellant gave a detailed statement to the police describing his participation in the robbery of and assault on the victim. Although appellant denied making the statement, the trial court ruled that the statement had been freely and voluntarily given. We conclude that appellant’s own confession constituted overwhelming evidence of his guilt so that any violation of Bruton was harmless beyond a reasonable doubt and does not require a reversal. See Bell v. State, 239 Ga. 146 (1) (236 SE2d 47) (1977); Cochran v. State, 177 Ga. App. 471 (1) (339 SE2d 749) (1986).

2. Appellant also argues that the trial court erred in allowing Adams to testify about the events Wendt related to her. The State argues that Adams’ testimony was admissible under OCGA § 24-3-5 as the declaration of a co-conspirator made during the concealment phase of the conspiracy. OCGA § 24-3-5 provides that “[a]fter the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.” Appellant’s own statement to the police was admitted into evidence and established a prima facie case of conspiracy. See Truitt v. State, 174 Ga. App. 687 (2) (331 SE2d 64) (1985). Although the trial court allowed Adams to testify prior to the admission of appellant’s statement, no challenge is made on appeal to the State’s timing of proof of the existence of a conspiracy. See Duren v. State, 177 Ga. App. 421 (3) (339 SE2d 394) (1986). Nor do we agree with appellant’s argument that Adams’ testimony should not have been allowed because Wendt’s statement was made three months after the crime. The challenged statement was “not made to police officers and may be said to have been made during the concealment phase of the conspiracy.” Hughes v. State, 257 Ga. 200, 202 (1) (357 SE2d 80) (1987).

Decided November 2, 1992.

John P. Cole, for appellant.

Willis B. Sparks III, District Attorney, Kimberly S. Shumate, Thomas J. Matthews, Assistant District Attorneys, for appellee.

Appellant contends that the trial court erred in not charging the jury that they could not consider Wendt’s statement to Adams unless they first found that a conspiracy existed. The record reflects that appellant neither requested such a charge nor voiced an objection at the conclusion of the trial court’s charge to the jury. Accordingly, the alleged error has not been preserved for our review. See Grant v. State, 185 Ga. App. 497 (5) (364 SE2d 628) (1988).

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.