author: Phipps, Judge.

text:
    A99A1749.
    WARREN et al. v. INSTANT LOANS & RENTAL, INC. et al.
    (526 SE2d 424)
   Phipps, Judge.

Patrina Warren and her four children resided in a house that Warren rented from Instant Loans & Rental, Inc. A fire engulfed the house, killed three of the children, and injured Warren and the other child. On behalf of herself and her children, Warren previously brought a wrongful death and personal injury action against Instant. After that action was settled by agreement of the parties, Warren initiated this suit seeking to relitigate the same claims which formed the subject matter of the prior suit. In this action, Instant and various individuals affiliated with the company were named as defendants, although Instant was later dismissed. The question for decision is whether the action against the remaining defendants is barred by the settlement agreement. Based on its construction of the agreement, the trial court answered this question in the affirmative and dismissed the complaint. We agree and affirm.

Scottsdale Insurance Company was supposed to have issued an insurance policy providing liability coverage to Instant for the fire. For reasons unrelated to any action by Instant, the policy (referred to as Scottsdale I) provided no coverage. There does exist, however, another Scottsdale Insurance Company policy (referred to as Scottsdale II) providing potential coverage. But it is Scottsdale’s position that no coverage exists under either policy. As a result, Scottsdale refused to defend the prior action. The errors and omissions carrier for the entities responsible for providing the coverage, nonetheless, agreed to pay $300,000 to Warren in return for her executing a release under Scottsdale I.

In the settlement agreement, Warren accepted the $300,000 in partial satisfaction of the subject claims. The agreement is summarized in a “whereas” clause which states that Warren, in exchange for the $300,000, agrees that she will not seek to collect any further sum against Instant or anyone affiliated with the company and that any other recovery will be limited to whatever she might recover under Scottsdale II or any other available policies of insurance “whether as assignee of [Scottsdale II] or as a judgment creditor of [Instant].”

Decided December 2, 1999.

Savage & Turner, Robert S. Kraeuter, for appellants.

Paragraph 2 of the settlement agreement states that if it is determined that neither Scottsdale II nor any other available policy of insurance issued by Scottsdale provides coverage for the claims arising from the fire, the $300,000 payment will constitute a complete satisfaction of these claims. “[I]n any continued pursuit of” the claims, paragraph 3 provides that Warren will only “look to and make claim for any additional sums recoverable under [Scottsdale II], or any other available policy of insurance, issued by Scottsdale. . . .” Under paragraph 4, Warren must limit all recovery on any judgment obtained in the lawsuit “or any claim arising from the incident described in the lawsuit” to any amounts recoverable against Scottsdale II or other insurance policies. Paragraph 7 requires Warren to indemnify Instant and its agents and employees for expenses they might incur in any action by Warren against Scottsdale.

Following approval of this settlement agreement, Warren received a consent judgment from Instant. Through a garnishment action, she sought to collect a $6,160,000 balance due on the judgment from Scottsdale. Scottsdale answered the summons of garnishment, denying liability. Warren then dismissed the garnishment proceeding without prejudice and later filed another summons of garnishment which remains pending.

Warren argues that under the settlement agreement she may institute this litigation to establish liability for claims arising from the fire, although she may collect judgment only to the extent there is available insurance coverage. This argument is without merit. The only future litigation contemplated by the settlement agreement consists of actions by Warren either to collect the consent judgment from Scottsdale or to litigate the issue of insurance coverage with Scottsdale. Another tort action against Instant or individuals affiliated with Instant is barred. Warren remains free to pursue her pending garnishment action against Scottsdale.

Judgment affirmed.

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

Karsman, Brooks & Callaway, Stanley Karsman, George L. Lewis, for appellees.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A99A2234.
    HAWKINS et al. v. GMAC MORTGAGE CORPORATION.
    (526 SE2d 421)
   Eldridge, Judge.

This case arises as a result of protracted litigation concerning the breach of a sales contract for a luxury home in Fulton County. The prospective purchasers, La-Van and Wendy Hawkins, appellants, challenge the grant of summary judgment to the seller, GMAC Mortgage Corporation (“GMAC”), appellee.

The facts, viewed in the light most favorable to the appellants, as nonmovants, are as follows: In May 1996, the appellants contracted to purchase an Atlanta home from GMAC for $1,575,000. Christopher Investment Properties, Inc., d/b/a Re/Max Northwest (“Re/Max”), served as the real estate broker for the purchase. The appellants paid $50,000 in earnest money into an escrow account. The sales contract was contingent on the appellants’ ability to obtain a 75 percent mortgage loan, i.e., $1,181,250. The appellants applied for a $1,400,000 loan, but were denied; there is no evidence in the record that they applied for a 75 percent mortgage on the property. The appellants refused to close on the home, claiming that they were unable to secure financing and were, therefore, relieved of the obligation to purchase the home. GMAC and Re/Max disagreed and contended that the appellants breached the sales contract.

On October 2, 1996, Re/Max notified the appellants of its intent to disburse the $50,000 in earnest money within 15 days, pursuant to section 3 of the contract and Chapter 520-1-34 of the Rules & Regulations of the Georgia Real Estate Commission. The letter informed the appellants that the earnest money would be sent to GMAC; Re/Max neither sought nor received any portion of the earnest money. The appellants responded on October 15, 1996, again asserting that they had not breached the contract and insisting that the earnest money be refunded to them. On October 28, 1996, GMAC accepted the $50,000 earnest money disbursement.

In December 1996, Re/Max sued the appellants for the broker’s commission on the aborted sale. The appellants counterclaimed against the broker and also filed a third-party claim against GMAC. GMAC answered and filed a counterclaim against the appellants for $275,000, the difference between the contract purchase price ($1,575,000) and the price for which the property later sold ($1,300,000), when GMAC attempted to mitigate its damages after the appellants’ breach.

The appellants failed to appear at two depositions or otherwise cooperate in any discovery in the Re/Max suit. As a result, the trial court sanctioned the appellants by striking their answer and counterclaim against Re/Max and issued a default judgment in favor of Re/Max.

In March 1998, GMAC mailed to the appellants a request for admissions in its counterclaim. The request included, inter alia, the following admissions: that the appellants peremptorily breached their duty to GMAC under the contract; that GMAC had fulfilled all of its duties under the contract; that GMAC was specially damaged in the amount of $275,000 in lost profits on the sale; and that these lost profits were the “sole measure of damages incurred by GMAC due to [the appellants’] breach.”

The appellants failed to answer the request for admissions. Therefore, the trial court treated GMAC’s allegations as conclusively admitted by the appellants. See OCGA § 9-11-36 (a), (b); ETI Corp. v. Hammett, 140 Ga. App. 618, 619 (231 SE2d 545) (1976). On November 5, 1998, the trial court granted GMAC’s motion for summary judgment and awarded damages to GMAC in the amount of $275,000. This appeal followed. Held:

1. In their first enumeration, the appellants claim that the trial court erred in awarding GMAC $275,000 in damages, asserting that the sales contract provided that the earnest money would serve as liquidated damages if the appellants breached the contract. See OCGA § 13-6-7. The appellants’ argument relies on the following contractual provisions:

3. Earnest Money. . . . The parties to this agreement understand and acknowledge that disbursement of earnest money held by Holder, escrow agent, can occur only as follows: at closing; upon written agreement signed by all parties having an interest in the funds; upon court order; upon failure of any contingency or failure of either party to fulfill his obligations contained in this Agreement, or as otherwise set out herein. . . .
11. Brokerage. . . . Buyer agrees that if Buyer fails or refuses to perform any of Buyer’s covenants herein, Buyer shall forthwith pay Broker the full commission immediately; provided that Broker may first apply one-half of the earnest money toward payment of, but not to exceed, the full commission and may pay the balance thereof to Seller as liquidated damages to Seller, if Seller claims balance as Seller’s liquidated damages in full settlement of any claim for damages, whereupon Broker shall be released from any and all liability for return of the earnest money to Buyer.

(Emphasis supplied.)

The contract language in this case is “clear, unambiguous, and capable of only one reasonable interpretation, [so that] no construction is necessary or even permissible by the trial court.” (Citations and punctuation omitted.) Estate of Sam Farkas v. Clark, 238 Ga. App. 115, 120 (517 SE2d 826) (1999). When the provisions cited above are construed in pari materia, they provide for the disbursement of the earnest money as liquidated damages in specific circumstances. The facts of this case fall within these circumstances.

The disbursement to GMAC was made pursuant to section 3 of the contract, i.e., following a breach by the appellants. Under section 11, such disbursement could be made only “if Seller claims balance [of earnest money] as Seller’s liquidated damages in full settlement of any claim for damages.” Therefore, GMAC’s election, demand, and acceptance of the $50,000 in earnest money from the broker under the contract precludes it from pursuing additional remedies for the same breach. See OCGA § 9-2-4.

The trial court erred in awarding GMAC damages for lost profits. We reverse the trial court’s grant of summary judgment to GMAC and remand this case with directions to grant summary judgment in favor of the appellants, because there has been a full satisfaction for the contract breach under the contract’s remedies.

Decided December 2, 1999.

Middleton, Mathis, Adams & Tate, Charles A. Mathis, Jr., for appellants.

Campbell, Martin & Manley, David B. Manley III, for appellee.

2. The appellants’ second enumeration is controlled by our decision in Division 1, supra.

Judgment reversed and remanded with direction.

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

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Even so, the trial court has ruled that the appellants have, by default, admitted certain damaging evidence, as demonstrated below. See OCGA § 9-11-36.

       Re/Max is not a party to this appeal.

       The appellants subsequently were found to be in wilful contempt under OCGA § 15-1-4 for their failure to cooperate with post-judgment discovery, which included their failure to appear for depositions pursuant to a subpoena. The appellants and Re/Max eventually agreed on a payment schedule for the damages, and a consent order was issued by the trial court.

       If GMAC claimed entitlement to the earnest money but was unwilling to accept the funds as liquidated damages, Re/Max should have filed an interpleader action and deposited the earnest money into the registry of the court. See OCGA § 9-11-22 (a).

       Notably, the appellants are not bound by their admissions that the sole measure of damages in this case was lost profits and that GMAC lost profits in the amount of $275,000. If the contract had not provided for liquidated damages, the amount of unliquidated damages would have been a question of fact for the jury. OCGA § 13-6-4; Magnan v. Miami Aircraft Support, 217 Ga. App. 855 (459 SE2d 592) (1995); Ward v. Dollar, 216 Ga. App. 143 (453 SE2d 142) (1995); Quigley v. Jones, 174 Ga. App. 787, 788 (332 SE2d 7) (1985); see also OCGA § 9-11-55 (a). “[T]he amount of damages a plaintiff has suffered is not a proper request to admit because the answer is outside the knowledge of the defendant. [Cits.]” K-Mart Corp. v. Hackett, 237 Ga. App. 127, 133 (4) (514 SE2d 884) (1999). See also Cole v. Smith, 182 Ga. App. 59, 63-64 (354 SE2d 835) (1987). Therefore, the appellants’ admissions could not have provided the evidentiary basis for an award of damages on summary judgment.


author: Barnes, Judge.

text:
    A99A1152.
    MUNICIPAL ELECTRIC AUTHORITY OF GEORGIA v. GEORGIA PUBLIC SERVICE COMMISSION et al.
    (525 SE2d 399)
   Barnes, Judge.

The Municipal Electric Authority of Georgia (“MEAG”) appeals a superior court decision affirming an order of the Georgia Public Service Commission (“PSC”). MEAG contends that it has the legal authority to apply to the PSC for a certificate to offer telecommunications services to the public for hire, either by the terms of its enabling statute or by Federal Telecommunications Act preemption. We disagree and affirm the superior court’s opinion.

MEAG is a public corporation created by the legislature “to function without profit in developing and promoting for the public good in this state adequate, dependable, and economical sources and supplies of bulk electric power and energy. . . .” OCGA § 46-3-110. Under the Georgia Code, MEAG is to acquire, construct, operate, and maintain electric generation and transmission facilities. OCGA § 46-3-125.

In December 1997, the Superior Court of Fulton County confirmed and validated MEAG’s revenue bonds totaling $35 million, to be used to fund the construction and acquisition costs of an internal telecommunications system. MEAG sought to build this internal system to improve its operations in various ways, such as adding the ability to monitor system conditions and control system devices remotely, isolate faults within a fraction of a second, and manage energy resources. The superior court also validated MEAG’s telecommunications project contracts with 31 municipalities and Crisp County but specifically declined to address whether MEAG had the legal right to offer telecommunications services to the public for hire. Such sales require a certificate from the PSC, the court concluded.

Before the superior court’s December 1997 ruling, MEAG petitioned the PSC for a declaratory ruling that it is authorized by the MEAG Act, the Georgia Telecommunications & Competition Development Act (OCGA § 46-5-162 (17)), and the Federal Telecommunications Act (47 USC § 151 et seq.) to apply for a certificate of authority to provide telecommunications services to the public. The commission granted motions to intervene by BellSouth and the Cable TV Association of Georgia. After a two-day evidentiary hearing, the majority of commissioners concluded in March 1998 that MEAG “did not have the authority to apply for or obtain a certificate of authority to offer or provide telecommunications services to the public for hire.” The commission made three specific findings of fact and conclusions of law in its order: (1) MEAG can exercise only those powers that the legislature expressly or implicitly gave it, and those powers do not include offering telecommunications services to the public for hire; (2) the Georgia Telecommunications Act does not give MEAG “the authority to deviate from the purpose for which it was created” in order to offer telecommunications services to the public for hire “or otherwise to compete in the telecommunications industry”; and (3) the Federal Telecommunications Act does not preempt state law to permit MEAG to offer telecommunications services to the public.

MEAG petitioned the Superior Court of Fulton County for judicial review of the PSC’s decision pursuant to OCGA § 50-13-19. The superior court affirmed, noting that public corporations

can exercise only such powers as are conferred on them by law, and a grant of power to such corporations must be strictly construed. . . . The policy that is promoted by this rule avoids competition between private industry and a public corporation in a field that was not addressed as a need by the enabling statute.

The superior court found that the specific powers granting MEAG the ability to compete as a state authority in the private energy sector did not encompass telecommunications services, concluding that “[t]o allow MEAG to enter this separate industry would be opening up a ‘[P]andora’s box’ which the General Assembly could not have intended with the passage of this Act.”

1. The superior court reviews the PSC’s order to determine whether its findings of fact are supported by any evidence. Sawyer v. Reheis, 213 Ga. App. 727, 728-729 (1) (445 SE2d 837) (1994). As we then review the superior court’s actions, we again construe the evidence in favor of the decision rendered. Ga. Power Co. v. Ga. Pub. Svc. Comm., 196 Ga. App. 572, 580 (5) (396 SE2d 562) (1990). However, both the superior court and this court review conclusions of law de novo. See OCGA § 50-13-19 (h); St. Joseph’s Hosp. v. Thunderbolt Health Care, 237 Ga. App. 454, 456 (1) (517 SE2d 334) (1999); Deweese v. Ga. Real Estate Comm., 136 Ga. App. 154-155 (1) (220 SE2d 458) (1975).

The parties disagree on whether this court should give great weight to the PSC’s interpretation of the MEAG Act. We have held that an agency’s interpretations of the statute it administers are entitled to great weight. Kelly v. Lloyd’s of London, 255 Ga. 291, 293 (1) (b) (336 SE2d 772) (1985). However, the PSC does not administer MEAG. In fact, the MEAG Act specifically provides:

[t]he rates, services, and practices relating to the generation, transmission, and sale by the authority of power to be generated from the projects authorized by [the MEAG Act] shall not be subject to the provisions of the Georgia Public Service Commission law nor to regulation by nor jurisdiction of the commission.

OCGA § 46-3-152. We conclude, therefore, that the PSC’s interpretations of the MEAG Act are not entitled to great deference. Thus, we will review the PSC’s interpretations of the MEAG Act de novo.

2. MEAG argues that it is authorized under its enabling statute to apply to the PSC for a certificate to sell its excess telecommunications capacity to the public for hire. MEAG’s enabling statute does not specifically authorize it to offer telecommunications services to the public for hire, so we must look to see if that authority is necessarily implied from the express grant of other powers. While MEAG’s enabling statute provides that it “shall be liberally construed to effect the purposes hereof,” OCGA § 46-3-155, the Supreme Court has held that “liberally’ in this context does not mean “ultra-liberally.” Day v. Dev. Auth. of Adel, 248 Ga. 488, 490 (284 SE2d 275) (1981).

(a) MEAG first contends that OCGA § 46-3-125 of the MEAG Act authorizes it to offer related services to third parties in order to take advantage of economies of scale. According to MEAG, the bond validation proceeding conclusively established that telecommunications is a “related service” under § 46-3-125 and therefore provides it with statutory authorization to sell its excess capacity. There are two fatal problems with this argument.

First, the superior court did not conclude that an internal telecommunications system was “related to” electrical power services; it decided that the proposed internal telecommunications system was a “sound, reasonable and feasible” project for which revenue bonds could be generated.

This statute provides that MEAG’s purpose is

to take all other necessary or desirable action in order to provide or make available an adequate, dependable, and economical supply of electric power and energy and related services to those political subdivisions of this state identified in Code Section 46-3-130 which may desire the same and, incidentally and so as to take advantage of economies of scale in the generation and transmission of electric power and energy, to other persons and entities.

OCGA § 46-3-125. Second, OCGA § 46-3-125 does not authorize MEAG to take advantage of economies of scale in producing related services. If services useful to providing electricity were “related services,” then the enabling statute would give MEAG the authority, for example, to go into the wire and cable manufacturing business, a result we believe the legislature did not intend.

(b) Also, MEAG contends that OCGA § 46-3-126 (10) implicitly grants it the ability to provide telecommunications services to the public for hire by empowering it “ [t] o do any and all things necessary or proper for the accomplishment of the objectives of this article and to exercise any power usually possessed by private corporations performing similar functions. . . .”

In Flint Elec. Membership Corp. v. Barrow, 271 Ga. 636 (523 SE2d 10) (1999), the Supreme Court considered whether Flint Electric Membership Corporation was allowed to sell propane gas to its customers. The corporation’s statutory purpose was “to engage in rural electrification,” and the legislature gave it “all powers necessary or convenient to effect any or all of the purposes for which the electric membership corporation is organized.” OCGA § 46-3-201 (b) (26). Our Supreme Court concluded that “it can hardly be said that it is ‘necessary or convenient’ for Flint to sell propane gas to accomplish its purposes.” Flint Elec., supra, 271 Ga. 636. We similarly reject MEAG’s argument that its enabling statute, which provides that it can do whatever is necessary to accomplish its objectives — developing and selling electric power — authorizes it to sell its excess telecommunications capacity to the public for hire.

For the reasons discussed in Divisions 2 (a) and (b), the superior court did not err in upholding the PSC’s determination that the MEAG Act did not authorize MEAG to apply to the PSC for a certificate to offer its excess telecommunications capacity to the public for hire.

3. MEAG contends that the Federal Telecommunications Act preempts state law, requiring that the MEAG Act and the Georgia Telecommunications Act be construed to allow MEAG to offer telecommunications services to the public for hire.

The Federal Telecommunications Act of 1996 provides that “[n]o State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” 47 USC § 253 (a). It further provides that

[i]f, after notice and an opportunity for public comment, the Commission determines that a State or local government has permitted or imposed any statute, regulation, or legal requirement that violates subsection (a). . . of this section, the Commission shall preempt the enforcement of such statute, regulation, or legal requirement to the extent necessary to correct such violation or inconsistency.

47 USC § 253 (d).

The U. S. Supreme Court has held that courts should not interpret federal law to preempt state sovereignty unless the language of the federal law clearly compels the intrusion. Gregory v. Ashcroft, 501 U. S. 452, 460-461 (II) (A) (111 SC 2395, 115 LE2d 410) (1991). In the only federal case we found that considered whether the Federal Telecommunications Act preempted a state statute restricting telecommunications sales, the D.C. Circuit Court of Appeals noted that Congress failed to define in the Telecommunications Act the “entity” whose telecommunications service offerings should not be restrained. City of Abilene v. Fed. Communications Comm., 164 F3d 49 (D.C. Cir. 1999). Because the definition of “entity” was vague, the court concluded that the language of the federal law did not compel the conclusion that Congress intended to preempt state law on the issue. Id. at 52-53.

We also conclude that Congress did not clearly intend to include public corporations within the definition of “entity” under 47 USC § 253 (a). Without such a clear expression of congressional intent, the Federal Telecommunications Act does not preempt the MEAG Act. Gregory, supra, 501 U. S. at 460-461.

4. Because MEAG withdrew its enumeration asserting that the superior court and PSC erred in holding that MEAG lacked the authority to otherwise compete in the telecommunications industry, we make no finding as to whether MEAG has the right to offer its excess telecommunications capacity in any manner other than to the public for hire.

Decided November 16, 1999

Reconsideration denied December 3, 1999

Alston & Bird, Peter M. Degnan, L. Clifford Adams, Jr., for appellant.

Thurbert E. Baker, Attorney General, Robert S. Bomar, Deputy Attorney General, Harold D. Melton, Senior Assistant Attorney General, Thomas K. Bond, Assistant Attorney General, for appellees.

For all of the above reasons, the superior court did not err in affirming the PSC ruling that the Federal Telecommunications Act did not preempt it from applying the MEAG Act to forestall MEAG from applying for a certificate to sell excess telecommunications capacity to the public for hire.

Judgment affirmed.

Blackburn, P. J., and Ellington, J, concur.

       The statute vests MEAG with 11 specific grants of authority that permit it to act as a corporation by, for example, buying property, entering into contracts, suing or being sued, hiring employees, and selecting officers. OCGA § 46-3-126.


text:
    A99A1204.
    HUNTER v. THE STATE.
    (525 SE2d 766)
   Barnes, Judge.

Richard Kimlin Hunter pled guilty to driving under the influence, and a jury convicted him of the offenses of theft by taking and possession of marijuana. He now appeals contending that his defense counsel was ineffective, the trial court had improper contact with the jury, the trial court gave an erroneous charge on equal access and expert testimony, and the evidence was insufficient to sustain his conviction for theft by taking. Finding no error, we affirm.

Viewed in the light most favorable to the verdict, the evidence shows that at about 2:00 a.m. a deputy sheriff, using radar, clocked the vehicle Hunter was driving at 95 mph. When Hunter stopped, the deputy immediately noticed obvious signs of intoxication. After Hunter failed field sobriety tests, the deputy arrested him. While Hunter was inside his patrol vehicle, the deputy saw Hunter bending and shifting around as if he were trying to conceal something. The deputy removed Hunter from the vehicle, searched the inside of the vehicle, and found a marijuana cigarette directly behind where Hunter was sitting. The deputy testified that he had thoroughly checked the back seat of his car before he arrested Hunter.

The rightful owner of the car Hunter was driving testified that her car was stolen from her yard after 11:30 p.m. on the night Hunter was arrested. Hunter, who lived less than a mile from the victim, testified that around 11:30 p.m., he walked to a nearby convenience store where he met Tim Johnson, who gave him a ride to a bar in Winder. According to Hunter, Johnson loaned him the car to obtain “some speed.” While en route, the deputy intercepted him and he was unable to complete his errand.

1. Hunter’s contention that he was entitled to an equal access charge on the marijuana possession is without merit. The equal access rule applies only where the sole evidence of possession of contraband found in a vehicle is the defendant’s ownership or possession of the vehicle. Wright v. State, 194 Ga. App. 739, 741 (2) (391 SE2d 791) (1990). Here, Hunter neither owned nor possessed the patrol car, and no presumption of possession arose. See Barnwell v. State, 197 Ga. App. 116, 117 (3) (397 SE2d 717) (1990).

2. Hunter claims that the trial court erred in charging the jury about expert witnesses because the witness mentioned during the charge was not qualified as an expert. Whether a witness has such learning and experience in a particular profession to be deemed an expert is a matter within the sound discretion of the trial court (Hudson v. State, 175 Ga. App. 692, 693 (4) (334 SE2d 20) (1985)), and our law does not demand that a witness be designated as an expert before testifying as an expert. Bacon v. State, 225 Ga. App. 326, 328-329 (483 SE2d 894) (1997). Here, the trial court determined that one witness was an expert, and, thus, the charge given was appropriate.

3. Hunter also contends his trial counsel was ineffective because she failed to request a charge on prior consistent statements. In both Hunter’s statements to the deputy after he was stopped and his trial testimony he said he borrowed the car from a person he had just met, and he was going to another bar to buy drugs. As both Hunter and the deputy related the same statements, the essential evidence supporting Hunter’s defense was before the jury. As this evidence was not contradicted by other testimony, we find it highly unlikely that the failure to request this charge affected the result in this case. Error by counsel, even if unreasonable professionally, does not warrant reversal if the error had no effect on the judgment. Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995).

4. Hunter also contends his trial counsel was ineffective because she failed to object to the admission of improper bad character evidence regarding his past illegal drug use. Hunter, however, introduced evidence that as a former drug user he had an established drug connection in Loganville from whom he would be able to obtain some speed. As a result, he opened the door to cross-examination about his past drug use and his knowledge of where to get drugs. See Hayes v. State, 189 Ga. App. 39, 41 (2) (375 SE2d 114) (1988) (defendant’s testimony about his past criminal activity raised issue for full exploration on cross-examination). As this evidence was admissible, Hunter’s defense counsel was not ineffective for failing to object.

5. Hunter further claims that his convictions must be reversed because the trial court on two occasions had impermissible contact with the jury out of his presence. The record shows with regard to the first occasion that after denying a motion for directed verdict, the judge asked if anyone objected to his going to the jury room to release the jurors. The defendant was present in the courtroom at the time of this request and made no objection. Under the circumstances, the issue was waived. Russell v. State, 230 Ga. App. 546, 547 (1) (497 SE2d 36) (1998).

On the second occasion, while the jury was deliberating and the defendant was in a holding cell, the trial court consulted with counsel and then stated, “Let the record reflect that I’m fixing to go in the jury room and ask them do they want to go to lunch or continue to deliberate. The defendant’s presence in the courtroom for this particular purpose is waived.” Because this problem recurs with regularity, we repeat:

Unquestionably the trial judge should not in any manner communicate with the jury about the case, in the absence of the accused and his counsel, pending the trial; and the better practice is for the judge to have no communication with the jury on any subject except through the medium of the sworn bailiff in charge of the jury; and the communication should be restricted, in the absence of the accused and his counsel, to matters relating to the comfort and convenience of the jury. There should be no communication which would tend in any manner to prejudice the accused; and unless the character of the communication clearly shows that it could not have been prejudicial to the accused, the presumption of law would be that it was prejudicial. We state again: all communications with the jury are to be discouraged except in open court with all persons present.

(Citation and punctuation omitted.) Hanifa v. State, 269 Ga. 797, 807 (6) (505 SE2d 731) (1998).

Because the trial court placed on the record what his communication with the jury would be, we can say that this communication clearly was not prejudicial to the accused. Therefore, this contact does not require reversal. Hanifa, supra, 269 Ga. at 808; Hurston v. State, 206 Ga. App. 570, 571-573 (2) (426 SE2d 196) (1992); Recoba v. State, 179 Ga. App. 31, 33 (3) (345 SE2d 81) (1986).

6. Hunter’s contention that the evidence was insufficient to sustain his conviction for motor vehicle theft is also without merit. The victim testified that she did not loan her car to Hunter or anyone else. Hunter, who lived nearby, testified that he was out walking around the time the vehicle was taken, and Hunter was found in sole possession of the stolen vehicle shortly after it was reported missing. Although Hunter claimed that a stranger gave him permission to use the car, the jury was free to disbelieve this version of events. This evidence was sufficient to sustain Hunter’s conviction within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Rogers v. State, 185 Ga. App. 211, 212-213 (1) (363 SE2d 846) (1987).

Decided November 19, 1999

Reconsideration denied December 3, 1999

Brian Steel, for appellant.

Alan A. Cook, District Attorney, Jay M. Jackson, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, P. J., and Ellington, J., concur.


author: Andrews, Presiding Judge.

text:
    A99A1313.
    TILLMAN et al. v. WINN-DIXIE STORES, INC.
    (526 SE2d 146)
   Andrews, Presiding Judge.

Mary Ida Tillman and her husband appeal from the trial court’s grant of summary judgment to Winn-Dixie Stores, Inc. in this trip and fall case.

This Court reviews de novo a trial court’s grant of summary judgment, Jackson v. Post Properties, 236 Ga. App. 701 (513 SE2d 259) (1999), viewing the evidence below with all inferences in favor of the Tillmans, opponents of summary judgment. Flournoy v. Hosp. Auth. of Houston County, 232 Ga. App. 791 (504 SE2d 198) (1998).

So viewing the evidence, it was that Mrs. Tillman regularly visited the Winn-Dixie store in her neighborhood, either to shop or just browse. On March 7, 1997, she drove up and parked in front of the store, intending to use a pay phone there. As she arrived, she noticed a temporary display of plants on the sidewalk in front of the store. Tillman got out of her car, walked onto the curb, and was looking at the display of flowers and vegetables which was as high as her car’s hood. Although she claims she did not realize it before she fell, the display consisted of three tiered shelves. Flowers and plants were displayed on the shelves.

Decided November 23, 1999

Reconsideration denied December 3, 1999

Edward E. Boshears, for appellants.

Lee, Black, Scheer & Hart, Steven E. Scheer, Christopher L. Rouse, for appellee.

Intending to purchase some plants, she approached the display from the end of the shelves and was walking around it so she could reach the plants more easily. The display was near a big pillar, and there was just enough space for a person to walk around it. As she went around the end of the display, she caught her shin on the end of the lowest shelf. Before falling, Tillman claims that she did not realize that the lowest shelf extended that far over the sidewalk because the flowers were “[d]raping all over it. All I could see was blooms.”

After tripping on the shelf, Tillman fell forward and attempted to regain her balance. She nonetheless fell to the ground when her foot caught on a supporting leg of the shelves.

When asked what was wrong with the shelving, Tillman stated that “[i]t was tiered, the top shelf, then there was a second shelf, but that wouldn’t have tripped anybody. It was that bottom one jutting out there that far.”

“The plaintiff’s first burden in a premises liability case is to show the premises were defective or hazardous. [Johnston v. Grand Union Co., 189 Ga. App. 270, 271 (1) (375 SE2d 249) (1988); see Robinson v. Kroger Co., 268 Ga. 735, 748 (2) (b) (493 SE2d 403) (1997).]” Beman v. Kmart Corp., 232 Ga. App. 219, 220 (2) (501 SE2d 580) (1998).

Here, there is no evidence that the display was anything other than a simple three-tiered step arrangement. Obviously, any such tiered arrangement will have steps progressively extending from the top step down. Equally obvious is the fact that the flowers and plants were sitting on something — they were not suspended in air.

There is no evidence that the display was negligently designed or constructed and, accordingly, no evidence that it was defective or hazardous.

Therefore, on the record before us, this is one of those cases where the evidence is “plain, palpable, and undisputed” entitling Winn-Dixie to summary judgment.

Judgment affirmed:

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

       Mr. Tillman’s claim was for loss of consortium.


author: Barnes, Judge. Blackburn, Presiding Judge,

text:
    A99A1500.
    ALLSTATE INSURANCE COMPANY v. CZAPLICKI et al.
    (526 SE2d 78)
   Barnes, Judge.

Allstate Insurance Company appeals the denial of summary judgment to it and the grant of summary judgment to the Czaplicki family in this declaratory judgment action. Finding no error, we affirm.

Allstate contends that an automobile insurance policy covering Robert Czaplicki as a resident of his father’s household excluded coverage for a wreck that occurred when Robert was driving his grandfather’s van. Allstate admitted coverage under the grandfather’s policy but argues that coverage under the father’s policy is excluded by the following language: “Allstate will not pay for any damages a person insured is legally obligated to pay because of . . .a non-owned auto which is furnished or available for the regular use of a person insured.”

The parties stipulated that the van Robert Czaplicki wrecked is a non-owned vehicle, and that he drove the van only occasionally. The facts also showed that the grandfather had been living with the Czaplickis, but at the time of the wreck he had been living in a personal care home for several months. The grandfather hoped he would be able to return home. They kept the van for the grandfather, and “on a rare occasion,” household members drove it so the battery would not die. All three vehicles garaged at the Czaplickis, the grandfather’s van and the parents’ two vehicles, were insured by Allstate, and the policies were written by the same agent.

The father also testified that his son, who was 16 at the time of the wreck, was allowed to use the van only with permission and that if he took any of the vehicles without permission, he would lose the keys to all of them. The son testified that he always had to ask for permission before using any vehicle. The day of the wreck he was returning a gym key to his coach after playing basketball.

The parties dispute whether having the van merely available for regular use is sufficient to exclude coverage under the parents’ policy. Allstate argues that, because the van was continuously garaged at the Czaplickis’ house and all the family members had keys, it was available for regular use and thus not covered. The Czaplickis argue that, regardless of the van’s availability, it was not actually in regular use, and thus was covered. Both appellant and appellees argue that existing case law supports their position.

In Mattox v. Cotton States Mut. Ins. Co., 156 Ga. App. 655 (275 SE2d 667) (1980), we reasoned that

a jury could debate endlessly the meaning of “furnished or available for regular use” under the facts of any case and arrive at results as confusing as those of the four cases [cited as precedent]. We think the facts of a case of this sort should be analyzed only with reference to the intent of the parties with respect to the purpose of the exclusion. . . . The purpose of the “drive other cars” or “non-owned regular use” provision is to cover occasional or incidental use of other cars without the payment of an additional premium, but to exclude the habitual use of other cars, which would increase the risk on the insurance company without a corresponding increase of the premium.

(Citations and punctuation omitted; emphasis supplied and omitted.) Id. at 657. The test for determining coverage under Mattox is whether the vehicle’s use materially increases the insurer’s risk without a corresponding increase in the insured’s premium. The risk materially increases only if the vehicle is habitually used; it does not increase if the vehicle is merely available for use. Id.

We have repeated this analysis in subsequent cases. See, e.g., Intl. Indem. Co. v. Keith, 199 Ga. App. 171, 173 (1) (404 SE2d 335) (1991).

The key to the insurer’s intention in the use of such clause is its obvious intention to cover only those uses, whether described as occasional, incidental, casual, infrequent or by other similar adjectives, which will not materially increase the insurer’s risk without a corresponding and compensating increase in premium.

(Punctuation omitted.) Id., citing Mattox, supra at 657. See also Greenway v. Southern Gen. Ins. Co., 192 Ga. App. 674, 675 (385 SE2d 793) (1989) (‘We agree with the trial court that Mattox is controlling. . . .”); American Southern Ins. Co. v. Golden, 188 Ga. App. 585, 587 (373 SE2d 652) (1988) (“[t]his provision extends coverage where an insured uses a non-owned vehicle with the permission of the owner on an occasional, incidental, casual or infrequent basis,” citing Mattox, supra at 657).

Because the parties stipulated that Robert Czaplicki drove the van only occasionally, the non-owned auto exclusion does not apply here. As a result, the trial court did not err in granting summary judgment to the Czaplickis and denying summary judgment to Allstate.

Judgment affirmed.

Ellington, J., concurs. Blackburn, P. J., concurs specially.

Decided November 19, 1999

Reconsideration denied December 3, 1999

George H. Connell, Jr., for appellant.

Langley & Lee, Carl R. Langley, Hodges, Erwin, Hedrick & Coleman, William A. Erwin, for appellees.

Chambers, Mabry, McClelland & Brooks, Deeann B. Waller, Christian G. Henry, amici curiae.

Blackburn, Presiding Judge,

concurring specially.

While I fully concur in the judgment, I cannot agree with all that is said by the majority. The policy excludes damages because of “a non-owned auto which is furnished or available for the regular use of a person insured.” (Emphasis supplied.) The parties stipulated that the grandfather’s van was only occasionally used by Robert Czaplicki. It is also undisputed that even though he had a key to the van, it was not regularly available to Czaplicki because he could not use it without specific permission. Consequently, by its own language, the exclusion does not apply to this claim, and the decision of the trial court should be affirmed.


text:
    A99A1574.
    In the Interest of M. B. B., a child.
    (526 SE2d 76)
   Barnes, Judge.

Brenda Brown, former temporary guardian of M. B. B., appeals the trial court’s order terminating the parental rights of the child’s natural mother and also appeals the termination of her temporary guardianship of M. B. B. This appeal arises from petitions filed by M. B. B.’s paternal grandfather seeking custody of M. B. B., asking that she be found to be deprived, terminating the natural mother’s parental rights, and dissolving Brown’s temporary guardianship. Although these petitions were filed in different courts, they were consolidated for disposition by the Walton County Juvenile Court.

After conducting hearings, the juvenile court terminated the mother’s parental rights and Brown’s temporary guardianship. The court, however, held in abeyance a final disposition of the custody of the child.

Even though the order terminating the natural mother’s parental rights finds that the mother had not been heard from for eight years, Brown contends the court erred by finding that the natural mother had abandoned M. B. B. She also contends the court erred by terminating Brown’s temporary guardianship because of the loss of the mother’s parental rights.

1. Our first consideration is whether we have jurisdiction to consider this appeal. Atlantic-Canadian Corp. v. Hammer, Siler &c. Assoc., 167 Ga. App. 257 (1) (306 SE2d 22) (1983). We are presented with two jurisdictional issues: (a) whether Brown has standing to appeal the termination of the natural mother’s parental rights, and (b) whether we have jurisdiction to consider the termination of Brown’s guardianship because the trial court’s order held in abeyance appointing a successor guardian.

(a) As a general rule, one who is not aggrieved by the judgment of the trial court is without legal right to contest the ruling on appeal because she has no just cause of complaint. Morgan v. Miller, 191 Ga. App. 803, 804 (383 SE2d 183) (1989). Here, even though Brown had some interest in whether the natural mother’s parental rights were terminated, she was not a proper party to the termination proceedings. Gates v. Rutledge, 151 Ga. App. 844 (261 SE2d 757) (1979). “It is well-settled that a person may only challenge a ruling which has adversely affected his or her own rights.” (Citations and punctuation omitted.) Stevens v. State, 215 Ga. App. 718, 720 (2) (452 SE2d 176) (1994). As shown by the petition to terminate and the order terminating the natural mother’s parental rights, the issues concerned only the rights and conduct of the natural mother. Accordingly, because Brown is not a proper party and had no standing to bring this appeal, we have no jurisdiction to consider Brown’s appeal of the order terminating the natural mother’s parental rights.

Additionally, M. B. B. was represented during these proceedings by a guardian ad litem, who had authority to bring an appeal on M. B. B.’s behalf and did not. Therefore, a proper party was available to contest this ruling for the child, but elected not to do so. Miller v. Rieser, 213 Ga. App. 683, 690 (2) (446 SE2d 233) (1994).

(b) Although Brown would have had standing and would be a proper party to appeal the trial court’s order terminating her temporary guardianship if the trial court had issued a final order, we find that the order Brown seeks to appeal is not a final order. See OCGA § 5-6-34 (a) (1); R. J. Reynolds Tobacco Co. v. Fischer, 207 Ga. App. 292, 293 (1) (427 SE2d 810) (1993) (a judgment is final within the meaning of OCGA § 5-6-34 (a) (1) if no issues remain to be resolved, it is a final ruling on the merits of the action, and the parties have no further recourse in the trial court).

Here, the grandfather’s petition to terminate Brown’s temporary guardianship also sought his appointment as M. B. B.’s guardian, but the trial court did not resolve that issue. The order states: “Therefore, the Temporary Letters of Guardianship over the person of [M. B. B.] designating Brenda Brown as guardian is hereby dissolved and further action by this Court must be taken in the best interest of the minor child.” The issue of who shall be appointed the child’s guardian is yet to be resolved, and it is possible that Brown could be appointed guardian. The trial court recognized that this was an interlocutory ruling because it issued a certificate of immediate review. Further, the trial court’s comments showed that the court contemplated that the parties might take an appeal on this issue even while the issue of the guardian’s appointment remained to be decided. During this hearing the trial court stated, “Now we will look for the best interest and welfare of the child. And that will allow [Brown] to be considered in this particular case. She has been the physical custodian for this child for a period of eight years.”

Decided November 19, 1999

Reconsideration denied December 3, 1999

Macklyn A. Smith, for appellant.

L. Stanford Cox III, for appellee.

2. Although the trial court issued a certificate of immediate review, Brown did not follow the interlocutory appeals procedure. See OCGA § 5-6-34 (b). Therefore, this appeal must be dismissed. Eckland v. Hale & Eckland, P.C., 231 Ga. App. 278, 279 (1) (498 SE2d 358) (1998).

Appeal dismissed.

Blackburn, P. J., and Ellington, J., concur.


text:
    A99A2401.
    WATKINS v. THE STATE.
    (526 SE2d 155)
   Eldridge, Judge.

Approximately 500 feet from Willingham Village, a public housing project operated by the Rome Housing Authority and a known drug sale location, Bruce F. Watkins was seen by surveillance police officers concealing 13.6 grams of cocaine, having a street value of approximately $1,300. Following his arrest and indictment, which indictment included a recidivist count, a Floyd County jury found Watkins guilty of possession of cocaine with intent to sell; possession of cocaine within 1,000 feet of a publicly owned and operated housing authority; and simple possession of cocaine. He appeals the conviction. We affirm.

1. Watkins first claims error in the trial court’s denial of his Batson challenge, issued when the State utilized its peremptory strikes to remove from the panel three black prospective jurors and one black prospective alternate juror. Following Watkins’ motion, the State offered explanations for its use of the strikes, asserting that prospective juror Carl Barner was struck because the State’s records showed prior arrests for the juror; while prospective jurors Lucille Carter, Kenneth Jones, and alternate juror Pitts were struck because they each claimed to know the defendant “by face,” having seen him around the neighborhood. The trial court found the State’s explanations to be sufficiently race-neutral and denied Watkins’ Batson motion. “During a Batson hearing, the trial court sits as the finder of fact and its findings concerning whether the opponent of a strike carried his burden of persuasion are ‘entitled to great deference.’ ” Dennis v. State, 238 Ga. App. 343, 346 (5) (518 SE2d 745) (1999), citing Turner v. State, 267 Ga. 149, 151 (2) (476 SE2d 252) (1996).

Before this Court, Watkins concedes that the State’s explanation for striking Carl Barner “is sufficient.” With regard to the remaining jurors, we find that, “[a] prosecutor’s explanation that he used peremptory challenges to strike the prospective jurors because they knew the defendant provides a proper and racially neutral basis for the exercise of his challenges.” Byers v. State, 212 Ga. App. 110, 113 (2) (441 SE2d 290) (1994).

Watkins has not shown that the trial court’s ruling was clearly erroneous. Pye v. State, 269 Ga. 779, 781 (1) (505 SE2d 4) (1998); Dennis v. State, supra at 347. And because the prosecutor’s challenged explanation was race-neutral on its face, we cannot conclude that the trial court’s denial of Watkins’ Batson motion was error. Barber v. State, 267 Ga. 521, 522 (3) (481 SE2d 813) (1997); Knuckles v. State, 236 Ga. App. 449, 453 (512 SE2d 333) (1999).

2. Next, Watkins contends that the trial court erred in denying his motion for mistrial when the State improperly injected his character into evidence. The record reveals that the State asked the following foundational question to the crime lab expert in order to establish the admissibility of the drugs:

I’m going to hand you what has been marked as State’s Exhibit 1. Obviously, the top has been cut off this bag, but I’ll ask you if you’ll examine State’s Exhibit 1 from the outer envelope down to the actual contents. . . . Have you seen that item before . . . [and] [w]here have you seen it?

To which question the crime lab technician replied, “This is the item that I pulled out of Mr. Johnston’s unworked lockbox and did analysis upon, and then I’ve also brought it here for court for probation revocations.”

Watkins moved for a mistrial, claiming that the mention of probation revocations placed his character into evidence. The motion was denied. The trial court offered to give curative instructions, but Watkins declined the offer. He did not renew his motion.

Watkins’ failure to renew his motion after declining curative instructions waives this issue on appeal. Lewis v. State, 198 Ga. App. 808, 809 (2) (403 SE2d 233) (1991).

Moreover, the prosecutor’s foundational question asked only where the technician had first seen the drugs, not where she had taken the drugs. The question did not ask about prior court appearances with the drugs. The portion of the witness’ testimony about which Watkins complains was unresponsive to the State’s question, and there is no indication — nor allegation — that the examination was contrived. “When a witness gives a non-responsive answer to a question impacting negatively on the defendant’s character, this does not place the defendant’s character in issue under OCGA § 24-9-20 (b).” (Punctuation omitted.) Caldwell v. State, 237 Ga. App. 568, 569-570 (3) (515 SE2d 868) (1999).

3. Watkins claims error in the trial court’s denial of both his motion for directed verdict and renewed motion for directed verdict.

The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. . . . [0]n appeal the evidence must be viewed in the light most favorable to the verdict, [Watkins] no longer enjoys the presumption of innocence, and the appellate court determines the sufficiency, not the weight of the evidence, and does not judge the credibility of the witnesses.

(Citation omitted.) Coalson v. State, 237 Ga. App. 570 (515 SE2d 882) (1999).

Watkins contends that the evidence was insufficient to support his conviction, because the identification provided by the surveillance police officer, Tim Smith, was “extremely tainted” due to the insufficiency of his description of Watkins. In addition, after Smith called for backup to detain Watkins, he did not again view and identify Watkins as the perpetrator until after Watkins’ arrest.

At trial, however, Tim Smith positively identified Watkins as the man he saw concealing 13.6 grams of cocaine at 1:00 in the afternoon at the incident locale. The allegedly “tainted” nature of Smith’s identification was argued exhaustively to the jury and was a matter for their determination. Such determination was made. We will not go behind it. Officer Smith’s positive identification of Watkins, along with the other evidence presented, was sufficient for a rational trier of fact to have found Watkins guilty as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided November 24, 1999

Reconsideration denied December 3, 1999.

James C. Wyatt, for appellant.

Tambra P. Colston, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

Judgment affirmed.

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

        Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

       See also Hightower v. State, 220 Ga. App. 165, 166 (1) (469 SE2d 295) (1996); Mathis v. State, 204 Ga. App. 244, 245 (3) (418 SE2d 800) (1992); Weaver v. State, 200 Ga. App. 82 (2) (406 SE2d 574) (1991); Glanton v. State, 189 Ga. App. 505 (2) (376 SE2d 386) (1988).


author: Blackburn, Presiding Judge. Barnes, Judge,

text:
    A99A1005.
    RICHARDSON v. BARBER.
    (527 SE2d 8)
   Blackburn, Presiding Judge.

Donald Ray Richardson, the biological father of Zsa Vonn, appeals the trial court’s order which determined that he was not entitled to receive further proceeds from the settlement of Zsa Vonn’s wrongful death suit brought by Zsa Vonn’s mother. The trial court determined that Richardson lacked any meaningful relationship with Zsa Vonn as shown by evidence concerning custody, control, and lack of support and the poor example he set, under the standards of OCGA § 19-7-1 (c) (6). The trial court therefore precluded Richardson from receiving any portion of the remaining proceeds of the settlement of the underlying wrongful death action. The trial court determined that the mother had a meaningful relationship with the child and was entitled to the proceeds of the settlement.

Zsa Vonn’s mother, Janice Barber, filed a wrongful death action against Dr. Homer Breckenridge after Zsa Vonn was killed when Dr. Breckenridge struck him with his car. During the pendency of the wrongful death action, Barber and Richardson entered into a settlement agreement by which they agreed that Barber would control the wrongful death action. The agreement further provided that Barber was entitled to 50 percent of the proceeds from any judgment or settlement with the remaining 50 percent of the proceeds to be held in escrow until Richardson’s rights in the proceeds were determined. Richardson was paid $5,000 upon entering the agreement with the express understanding that if the court determined he was not entitled to further proceeds, such monies were non-refundable.

After Barber obtained a $1,000,000 settlement in the wrongful death action, the parties filed the underlying joint declaratory judgment action for the trial court’s determination of Richardson’s rights in the escrowed $500,000. On appeal from the trial court’s determination of that issue, Richardson raises several enumerations of error.

1. In his first enumeration of error, Richardson contends that the trial court erred by adopting verbatim the proposed findings of fact and conclusions of law prepared by Barber’s attorney prior to announcing the court’s decision regarding such facts and conclusions. Richardson contends that the trial court’s actions effectively deprived him of a thorough consideration of the case.

In their joint complaint, the parties submitted the issues to the trial court based upon the record in the wrongful death action and the depositions and affidavits of the parties and witnesses. They also filed their briefs setting forth their respective positions. Thereafter, the trial court requested that each side present findings of fact and conclusions of law to the trial court and not to each other. The record contains no objection to this request. The trial court adopted the order presented by Barber’s counsel.

Although the practice of adopting orders prepared by counsel has been “greatly disfavored,” it is not reversible error. See PDA, Inc. v. Haas Corp., 185 Ga. App. 785, 786 (366 SE2d 169) (1988); North Fulton Community Hosp. v. State Health Planning &c., 168 Ga. App. 801, 810 (3) (310 SE2d 764) (1983); Pruitt v. First Nat. Bank of Habersham County, 142 Ga. App. 100, 101 (2) (235 SE2d 617) (1977); United States v. El Paso Natural Gas Co., 376 U. S. 651, 656-657, fn. 4 (84 SC 1044, 12 LE2d 12) (1964).

Richardson argues that the order adopted by the trial court contained “inadmissible facts, exaggerations, overreachings, and misquotations from the record.” Specifically, Richardson contends the order’s reference to Richardson’s affidavit as an “ex-parte affidavit . . . prepared by [Richardson’s] lawyer in which he attached a couple of letters from Zsa Vonn” mischaracterized the letters and suggested an impropriety on counsel’s part. Richardson also argues that the order misquotes Richardson when it finds that Richardson described his relationship with Zsa Vonn as, “he was just my boy.” In fact, the record quotes Richardson as saying, “That’s my boy. That was my boy.” And finally, Richardson contends that the order contains inadmissible testimony regarding several matters that were irrelevant.

We do not find that the order’s reference to Richardson’s affidavit mischaracterized the evidence to the extent that it deprived Richardson of a thorough consideration of the case. Additionally, the misquoted language was clearly a scrivener’s error and added little, if anything, to the meaning of the quote. Finally, we do not find that the trial court considered irrelevant evidence. First, the parties themselves in their joint declaratory judgment complaint set forth the evidence that the trial court was to review. There were no objections to the trial court’s consideration of any of the evidence in the record. Second, pursuant to OCGA § 19-7-1 (c) (6), the trial court is allowed to consider any factors it finds to be pertinent to the parent’s relationship to the deceased child. The testimony now considered to be irrelevant by Richardson falls within that allowed by the parameters of OCGA § 19-7-1 (c) (6) and the trial court’s discretion.

2. In his second enumeration of error, Richardson contends that the trial court committed reversible error by apportioning the wrongful death proceeds without considering evidence of the child’s relationship with Barber. We cannot agree that the trial court did not consider sufficient evidence of the child’s relationship with his mother.

The joint petition for declaratory judgment specifically requested that the trial court make a determination as to Richardson’s rights in the $500,000 held in escrow. The joint petition did not request any determination as to Barber’s rights in the settlement proceeds. And, her rights to such proceeds were never contested. Additionally, the record does contain evidence that Barber was the only custodial parent that Zsa Vonn had known. Barber supported Zsa Vonn without the assistance, financial or otherwise, of Richardson.

This enumeration is, therefore, without merit.

3. In his final enumeration of error, Richardson contends that the trial court erred by finding that he had abandoned Zsa Vonn.

Initially, we note that a legal finding of abandonment was unnecessary in order to support the trial court’s determination that Richardson was entitled only to the $5,000 he had already received. Additionally, however, we find that the fact of abandonment was supported by clear and convincing evidence that Richardson had failed to provide for the “care and support of [Zsa Vonn] as required by law or judicial decree.” OCGA § 19-8-10 (b) (2). Despite being ordered to do so, Richardson never voluntarily paid child support on Zsa Vonn’s behalf. Richardson admitted that he paid no support for Zsa Vonn for the 12 months prior to his death.

4. Whether the trial court abused its discretion in determining that Richardson was entitled only to the $5,000 he had already received as proceeds from the wrongful death action on behalf of Zsa Vonn was not specifically enumerated as error by Richardson in his appeal. However, we reach this issue because the dissent seeks to remand this case for the trial court’s reconsideration in light of our recent decision in Wymbs v. Stokes, 236 Ga. App. 742, 744 (2) (512 SE2d 669) (1999).

In Wymbs, we held that the trial court did not err in considering evidence of the relationship of the child with its grandparents in that case. Wymbs created no new law; it simply affirmed the existing trial practices which are mandated by the clear language of OCGA § 19-7-1 (6). Nothing in Wymbs required a trial court, in all cases, to consider such evidence for any purpose except as it may be, in the opinion of the trial court, evidence of the relationship between a parent and a child. Id. at 744.

The dissent incorrectly states that the “law presumes an equal division of the proceeds in cases like this,” citing OCGA § 19-7-1 (c) (2) (C). The present case is governed by OCGA § 19-7-1 (c) (6), which provides that in a post-judgment hearing the judge shall apportion any judgment according to each parent’s relationship with the deceased child. Therefore, upon the filing of a petition under OCGA § 19-7-1 (c) (6), no presumption exists because the trial court is to make a determination after hearing evidence regarding the parent’s relationship with the deceased child. “In making such a determination, the judge shall consider each parent’s relationship with the deceased child, including permanent custody, control, and support, as well as any other factors found to be pertinent.” Id. In Wymbs, we stated that “[c]ertainly, the impact of the relationships between a grandparent and a parent and a grandparent and a grandchild may be pertinent factors in determining the depth and extent of the relationship between a parent and a child in some cases.” (Emphasis supplied.) Wymbs, supra.

We determined that the relationship with the grandparents was not improperly considered as another factor found to be pertinent in that case. Our determination, however, remained focused on the relationship between the parent and the child, not the relationship between the child and the grandparent. Wymbs, supra.

The dissent seeks to remand the case for the trial court to consider the evidence of the grandmother’s relationship with the child in this case. However, just like the trial court in Wymbs, the trial court here has already considered such evidence. Such evidence was introduced without objection through the grandmother’s deposition.

In its order, the trial court specifically stated that it duly considered “the Transcript from the Federal Court Hearing with Judge Sands on June 14, 1996, depositions of the parties and various witnesses, briefs, affidavits, documents and exhibits from both parties.” Only then did it determine that, not only had the child’s father abandoned the child, but also that his lack of a meaningful relationship with the deceased child precluded him from any further rights in the settlement proceeds. It is presumed that the trial court here properly considered all of the evidence before it, just as the trial court had done in Wymbs. Although the trial court did not specifically enumerate every factor upon which it based its decision, there is no requirement that it do so. The trial court specifically stated that it considered the depositions presented, including the grandmother’s, and ruled against Richardson on the only issue on which the grandmother’s relationship with the child would have been relevant. The trial court has already heard evidence of the relationship between the grandmother and the child, and neither OCGA § 19-7-1 nor our opinion in Wymbs requires that the trial court give credit to Richardson for such relationship. The trial court may do so for a limited purpose if it determines that such fact is evidence of a relationship between Richardson and the child. The trial court has considered the evidence, exercised its discretion, and ruled adversely to Richardson on this issue.

The evidence in the record clearly established that the trial court did not abuse its discretion. See OCGA § 19-7-1 (c) (6). Richardson was in jail for the majority of Zsa Vonn’s life. From jail, he provided neither legal support nor emotional support to Zsa Vonn. The record contains ample evidence of Richardson’s criminal life and his life fathering seven children by four different women. While the record contains evidence that Zsa Vonn visited Richardson in jail on occasion and that Zsa Vonn even wrote three letters to Richardson in jail, this evidence shows that contact was initiated by Zsa Vonn and others, not that Richardson sought to establish any relationship with his son. Such evidence is not sufficient to overcome the trial court’s determination that Richardson was entitled to no more than the $5,000 he had already received.

Judgment affirmed.

Johnson, C. J., McMurray, P. J, Andrews, P. J., Ruffin and Ellington, JJ., concur. Barnes, J., dissents.

Barnes, Judge,

dissenting.

As I cannot agree that the trial court did not abuse its discretion by failing to give Richardson a thorough consideration of his case, I must respectfully dissent.

In Wymbs v. Stokes, 236 Ga. App. 742 (512 SE2d 669) (1999), this court held for the first time that the relationship between a grandparent and a deceased grandchild could be considered when determining the division of the grandchild’s estate between the child’s parents. While not changing the law, I think that Wymbs makes clear that this relationship is a factor to be considered under OCGA § 19-7-1 (c) (6): “Certainly, the impact of the relationships between a grandparent and a parent and a grandparent and a grandchild may be pertinent factors in determining the depth and extent of the relationship between a parent and a child in some cases.” Wymbs v. Stokes, supra, 236 Ga. App. at 744. Wymbs cited no authority for this proposition other than the Code section, and I have found no other precedent on point. Therefore, I believe that before Wymbs a trial court would not necessarily know that this evidence could be considered. Moreover, while the trial court’s order recites the text of the Code section, it does not in any fashion refer to the evidence concerning the relationship between the deceased child and his grandmother. In particular, when discussing any “other factors found to be pertinent,” the order focuses only on any possible relationship between Richardson and his son without regard to the evidence concerning the grandmother.

Decided December 3, 1999

Watson, Spence, Lowe & Chambless, Louis E. Hatcher, William Eckhardt, for appellant.

Yearout, Myers & Traylor, W. P. Traylor III, Robert M. Margeson III, for appellee.

Because “appellate courts must apply the law as it exists at the time of the appellate court’s judgment, even though doing so might change the judgment of the trial court which was correct at the time it was rendered,” Sharfuddin v. Drug Emporium, 230 Ga. App. 679 (1) (498 SE2d 748) (1998), we must review this appeal in light of Wymbs. Therefore, I find the trial court abused its discretion by failing to consider evidence of this relationship.

The record shows that Richardson’s mother had frequent contact with the boy, that he visited and stayed with her for a month or so every year, and that she assisted Barber financially when she could. Rather than assuming the trial court would have reached the same result had it considered this evidence under Wymbs, I believe the trial court should be instructed to consider this evidence in apportioning the estate.

Accordingly, I must respectfully dissent.


author: Blackburn, Presiding Judge. Ruffin, Judge, Barnes, Judge,

text:
    A99A1008.
    ROBERTS v. THE STATE.
    (526 SE2d 597)
   Blackburn, Presiding Judge.

John W. Roberts appeals his conviction, following a jury trial, for possession of cocaine. Roberts contends that the trial court erred by allowing the admission of certain similar transaction evidence because: (1) the State failed to give him proper notice of the purpose for which the evidence would be used; (2) the trial court failed to make a determination of the purpose for which the evidence would be used; and (3) the evidence did not tend to prove the offense for which he was being tried. For the reasons set forth below, we affirm Roberts’ conviction.

Construed in the light most favorable to the verdict, the record shows that Special Agent Branham, who was a passenger in a car with two other police officers, witnessed Roberts standing with two other men outside a home in an area known for drug activity. As the police officers drove slowly down the street, Roberts began to approach their car, but after apparently recognizing its occupants, he stopped his approach and dropped an object on the ground. The officers then stopped the car, and Branham walked directly to the object, which turned out to be a baggie containing less than $10 worth of powdered cocaine. Roberts was then arrested and charged with possession of cocaine.

During the trial which ensued, the trial court admitted similar transaction evidence of a prior guilty plea of Roberts for the sale of cocaine. Special Agent Fetter testified that, on April 28, 1995, he was conducting undercover narcotics buys on the street in Valdosta. At that time, Roberts flagged Fetter’s car down. When Fetter pulled over, Roberts offered to sell him approximately $20 worth of cocaine in his possession. It is the admission of this evidence that Roberts complains about in three enumerations of error.

1. Roberts first contends that the trial court erred by admitting the similar transaction evidence because the State failed to give him proper notice of the purpose for which the evidence would be used. Uniform Superior Court Rule 31.3, however, does not require the State to give the defendant such notice, and, indeed, we have held that the State need not set out the lawful purposes for which it intends to use similar transaction evidence in its notice of intent. For example, in Hightower v. State, 210 Ga. App. 386, 387 (2) (436 SE2d 28) (1993), we noted:

The State’s notice of intent does not state any limits on the lawful purposes for which [the similar transaction] evidence may be introduced. Accordingly, appellant was on notice that the scope of the hearing on the admissibility of similar transaction! ] evidence could include any proper purpose.

Likewise, in this case, Roberts was on notice that the scope of his similar transaction hearing could include any proper purpose, and this enumeration of error lacks merit.

2. Roberts next contends that the trial court erred by admitting the similar transaction evidence because it failed to make a determination on the record of the purpose for which the evidence was being introduced. Roberts, however, failed to make any objection on this basis during the proceedings below, and “matters not objected to at trial cannot be raised for the first time on appeal.” Scott v. State, 243 Ga. 233, 234-235 (2) (253 SE2d 698) (1979). Therefore, Roberts has waived bis right to argue this matter before this Court, and we do not consider his second enumeration of error.

3. Finally, Roberts contends that the trial court erred by admitting the similar transaction evidence because it did not tend to prove the offense for which he was being tried. We cannot agree.

This Court should not disturb the findings of the trial court on the issue of similarity or connection of similar transaction evidence unless they are clearly erroneous. Mitchell v. State, 206 Ga. App. 672, 673 (2) (426 SE2d 171) (1992).

The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character. Drug cases are no different from any other cases. If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.

(Citations and punctuation omitted; emphasis supplied.) Hatcher v. State, 224 Ga. App. 747, 752 (3) (482 SE2d 443) (1997).

Here, the defendant is on trial for possessing $10 worth of cocaine while standing near the roadway in a high crime area of Lowndes County. Prior to being arrested, Roberts began to approach the police car with the cocaine powder in his hand, although he dropped the contraband after he apparently recognized the occupants of the vehicle as patrolling officers. The State was allowed to introduce similar transaction evidence of a prior direct hand-to-hand sale of $20 worth of crack cocaine made from a street curb, where, as he did in this case, Roberts approached a car with the contraband in his possession. Although there are differences between these two offenses, it is the similarities and relevance on which we must focus. The same drug was possessed by the defendant in the same city, and, in both cases, the defendant approached a car with the contraband in his possession. As such, the two transactions are similar enough to warrant the admission of the former guilty plea into evidence.

The fact that the two crimes occurred on different streets does not change this result. Geographical location should not be considered as being ultimately decisive in drug sale cases. Moreover, the city in which the crimes took place, Valdosta, is not a sprawling metropolis, but a relatively small city, discounting the importance of any small amount of geographical distance between the sales. See Evans v. State, 235 Ga. App. 577 (510 SE2d 313) (1998). Furthermore, the fact that the prior crime included a sale of cocaine does not render it inadmissible, for

[i]t is the factual similarity of the defendant’s possession of drugs on different occasions which renders it admissible to show his identity, and the differing intent with which he may have possessed the drugs on those separate occasions is not a bar to its admissibility for that limited purpose.

(Punctuation omitted.) Collins v. State, 205 Ga. App. 341, 343 (2) (422 SE2d 56) (1992). Thus, we cannot say that the trial court abused its discretion by finding the prior guilty plea for the sale of cocaine sufficiently similar to Roberts’ current charge and conviction for possession.

Moreover, contrary to the opinion of the dissent, the similar transaction evidence in this case does have substantial relevance to the issues presented to the jury.

[I]t is clear in this case that based upon defendant’s denial of the commission of the subject crime [possession of cocaine], a past conviction involving the [possession and sale of cocaine] would be most helpful to the jury, and therefore the State’s need would have outweighed the prejudice to the defendant.

(Punctuation omitted.) Hatcher, supra at 751-752 (3).

Therefore, because the similar transaction evidence in this case was sufficiently similar to Roberts’ current crime and had substantial relevance to the issues being tried, the trial court’s finding that the similar transaction evidence should be admitted cannot be said to be clearly erroneous. As such, Roberts’ conviction in this case should be affirmed.

Judgment affirmed.

Johnson, C. J, McMurray, P. J, Andrews, P. J., and Ellington, J., concur. Ruffin, J., concurs specially. Barnes, J., dissents.

Ruffin, Judge,

concurring specially.

Although I agree with the dissent’s analysis, I cannot agree with the result. As the dissent notes, evidence of similar transactions should not be admitted unless it is relevant to an issue involved in the case. Such evidence is not admissible simply to establish that a defendant has a criminal nature. Here, Roberts was charged with possession of cocaine. Because I fail to see how either identity or state of mind were at issue with regard to this charge,1 believe that the trial court erred in admitting the evidence of the similar transaction.

But, I cannot agree that the error was harmful. Even if a trial court errs in admitting such evidence, “the error alone is not automatically grounds for a new trial hut is subject to scrutiny for harmless error.” As the dissent recognizes, Roberts’ identity was not at issue because the police saw him drop a plastic bag that contained cocaine. This compelling eyewitness testimony almost certainly would have resulted in Roberts’ conviction even if the similar transaction evidence had not been admitted. I, therefore, fail to see how he was harmed by the admission of this evidence. Accordingly, I am constrained to agree with the result reached by the majority.

Barnes, Judge,

dissenting.

As I cannot agree that the evidence concerning Roberts’ earlier drug conviction was admitted properly, I must respectfully dissent.

In Georgia, “[t]he general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.” OCGA § 24-2-2. The exception to the rule has come to mean that proof of independent and separate offenses is admissible when a logical connection exists between the separate offense and the offense for which the defendant is on trial, so that proof of the separate offense establishes the offense for which the defendant is on trial. Williams v. State, 261 Ga. 640, 641 (409 SE2d 649) (1991). Most commonly, evidence of similar transactions has been allowed to show identity, motive, plan, scheme, bent of mind, and course of conduct. Williams v. State, 257 Ga. 761, 763-764, n. 3 (a) (363 SE2d 535) (1988). Unfortunately, however, as the majority opinion in this appeal illustrates, the exception has swallowed the rule. See Jones v. State, 257 Ga. 753, 757 (363 SE2d 529) (1988), tracing the rule’s development.

Although never a basis asserted for admissibility by the prosecution or found so by the trial court, the majority now finds that this evidence was admissible because Roberts denied that he committed the offense for which he was on trial, and therefore his past conviction “would be most helpful to the jury.” The difficulty with this analysis is that it is exactly the reason that similar transaction evidence is supposed to be inadmissible. See Williams v. State, supra, 261 Ga. at 641.

This “he did it once, he must have done it again reasoning” in fact allows introduction of this evidence solely to show the defendant has a criminal character. That being the case, the evidence is inadmissible. Johnson v. State, 258 Ga. 506, 507 (3) (371 SE2d 396) (1988). Further, in Stephens v. State, 261 Ga. 467, 469 (405 SE2d 483) (1991), our Supreme Court reiterated that a similar transaction is not admissible just because it concerned “a crime of the same sort.”

Further, the majority’s theory of admissibility violates the principle that similar transaction evidence “may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character.” (Punctuation omitted.) Hatcher v. State, 224 Ga. App. 747, 752 (3) (482 SE2d 443) (1997), quoting from Faison v. State, 199 Ga. App. 447, 448-449 (1) (405 SE2d 227) (1991).

We should not abandon the rule that the purpose for which similar transaction evidence is offered must logically connect to some issue in the case being tried, Stephens v. State, supra, 261 Ga. at 469 (6), and the rule that proof of a similar transaction is not admissible unless it is relevant to an issue connected to the offense for which the defendant is on trial, so that proof of the separate offense proves the offense for which the accused is on trial. Williams v. State, supra, 261 Ga. at 641 (2) (a). The purpose for which similar transaction evidence is offered determines whether a logical connection exists, i.e., whether the similar transaction evidence is relevant to an issue in the case. Brockman v. State, 263 Ga. 637, 640 (3) (436 SE2d 316) (1993).

In this case, the similar transaction evidence is not admissible under the traditional rules. Although the State now asserts that the similar transaction evidence was admitted to show Roberts’ identity as the person who possessed the cocaine found by Officer Branham and his “course of conduct and scheme or plan to possess cocaine,” this explanation is not entirely consistent with the trial court’s instructions to the jury on the purposes for which the evidence could be considered.

The trial court’s limiting instruction, given before the similar transaction evidence was introduced, directed the jury that evidence of Roberts’ other offense “may be admissible and may be considered for the limited purpose of showing, if it does, the identity of the perpetrator, the state of mind, i.e., knowledge or intent of a defendant in the crimes charged in the case now on trial” (Emphasis supplied.) Later in the limiting instruction the trial court also instructed the jury that “you are strictly limited in your consideration of the evidence as to the identity, state of mind or other elements charged in this indictment.” (Emphasis supplied.)

In its jury charge, however, the trial court instructed the jury the evidence might be considered to show the “defendant’s identity or state of mind on the subject involved, if you think it does so illustrate it, and for that purpose alone. You are not to consider it for any other purpose.” (Emphasis supplied.)

Reading these instructions in combination, I must conclude that the only purposes for which the trial court found this evidence admissible were to prove Roberts’ identity and state of mind. Considered in that light, the similar transaction evidence should not have been admitted.

The only issue in this case was whether the jury would believe, based upon the police officer’s testimony, that Roberts dropped the plastic bag with the cocaine inside. The reasons found by the trial court for admitting the similar crimes evidence, i.e., identity or state of mind, do not connect logically to issues in this case. The officer’s direct testimony proved who allegedly dropped the ziplock bag. This was not a case in which the identity of the alleged perpetrator was unknown and similar transaction evidence was admitted to prove the perpetrator’s identity. In the same manner, Roberts’ state of mind was not an issue in the case.

Moreover, even if I were to find that identity and state of mind were issues in the case, I do not find the two transactions sufficiently similar to permit the first conviction to be admitted. According to the State, the similarities between the crimes were that Roberts possessed cocaine and approached vehicles in both cases. I acknowledge that admissibility of a similar transaction does not depend on the number of similarities between the prior act and the crime charged, but these two similarities must support the trial court’s decision to admit this evidence, because admissibility depends on whether the similarities tend to show that the former act is relevant to a proper issue in the case. Johnson v. State, 236 Ga. App. 252, 254 (1) (a) (511 SE2d 603) (1999).

The required degree of similarity depends upon the issue the former act is offered to prove. Maggard v. State, 259 Ga. 291, 293 (2) (380 SE2d 259) (1990). When, as in this case, the similar crime is offered to prove identity, a- long list of similarities between the offenses might be necessary to prove the defendant’s “criminal signature.” Id. When introduced to prove another permissible issue, such as motive, intent, or bent of mind, a lesser degree of similarity might suffice. Fields v. State, 223 Ga. App. 569, 571 (2) (479 SE2d 393) (1996).

I cannot agree that the circumstances surrounding Roberts’ prior drug conviction are sufficiently similar to prove any of the issues or purposes identified by the State. Nothing about the other offense showed that Roberts had such an unusual manner of possessing cocaine that he had a “criminal signature.” Indeed, the first offense showed a different manner of possessing a different form of cocaine. Likewise, the alleged “approach” similarity is insufficient to show identity or state of mind. Flagging a vehicle down is a far cry from merely walking in the general direction of a car that happens to be driving past.

Decided December 3, 1999.

Closson & Bass, J. Michael Bass, for appellant.

John W. Roberts, pro se.

J. David Miller, District Attorney, James B. Threlkeld, Assistant District Attorney, for appellee.

In the same manner, nothing about the first offense shows Roberts’ state of mind regarding the offense for which he was being tried. Roberts’ defense was that he did not have and did not drop the cocaine; he did not contend that he did not have the requisite state of mind, i.e., that he was entrapped or unknowingly possessed the cocaine.

Therefore I am satisfied that the trial court erred by allowing the State to introduce the similar transaction evidence. Because I cannot conclude under the circumstances of this case that the introduction of this evidence was harmless, I would reverse the judgment of conviction and remand the case for a fair trial. Beasley v. State, 204 Ga. App. 214, 218 (3) (419 SE2d 92) (1992).

Accordingly, I respectfully dissent.

       Had Roberts been charged with attempting to sell cocaine, his state of mind would be relevant.

       (Punctuation omitted.) Buice v. State, 239 Ga. App. 52, 57 (3) (520 SE2d 258) (1999).