text:
    A90A1355.
    O’KELLY v. THE STATE.
    (397 SE2d 197)
   Beasley, Judge.

Defendant was convicted of five counts of criminal solicitation, OCGA § 16-4-7. He was represented by appointed counsel and sentence was entered on July 20, 1989. A pro se notice of appeal was filed on August 15. New counsel, appointed for the appeal, filed a motion for new trial on August 18, also within thirty days of the sentence. By order of February 16, 1990, the trial court denied the motion and counsel filed the second notice of appeal on March 12.

1. Although not addressed by either party, the pendency of both a notice of appeal and motion for new trial raises the issue of this court’s jurisdiction.

Since each was filed within thirty days of the sentence, both were timely. OCGA §§ 5-6-38 (a) and 5-5-40. The motion for new trial made the notice of appeal premature, but the latter ripened when the denial of the motion was entered. Atkinson v. State, 170 Ga. App. 260 (1) (316 SE2d 592) (1984). Hope v. State, 193 Ga. App. 202, 203 (1) (387 SE2d 414) (1989). The second notice of appeal is a legal nullity.

2. Defendant first enumerates the denial of his motion in limine.

In three counts, defendant was charged with soliciting Officer Haas to murder his ex-girl friend Vinson, soliciting Scott to procure someone to throw acid in Vinson’s face, and soliciting Scott to procure a hit man to murder Vinson. The remaining counts charged soliciting Carroll to pour sugar in the gas tank of Ellis, Vinson’s daughter, and soliciting Carroll to kidnap Ellis and bring her to defendant.

A review of the evidence in favor of the verdict is necessary. Vinson and defendant had lived together for several months, but she left him when he objected to her working. He contacted her relatives trying to find her and called at her sister’s to ask her to return. Ellis was also visited by defendant and asked about her mother.

Defendant approached Carroll, Ellis’ neighbor, and told him he blamed Ellis for the breakup of his relationship with Vinson. He offered Carroll $40 to put sugar in Ellis’ gas tank to disable her car. He gave Carroll two two-pound bags of sugar to use, plus $20, holding the rest until the job was done. He offered Carroll $1,000 to .bring Ellis to him when she asked him for a ride to work. Carroll did not put the sugar in the tank, and when the car continued to run, defendant asked for the reason.

Defendant then called Scott and requested that she ask her fiance if he would kill Vinson for $1,000. He declined. The next day, defendant asked Scott to try to contact Vinson for him and to go to the restaurant where she regularly ate and investigate the exits to see where defendant could grab her. He told Scott if he could not get someone else to do it, he would hurt her himself. Scott called Vinson, whom she did not know, and warned her.

The police contacted Scott, who was on the phone talking to defendant when they arrived. They arranged for Officer Haas to impersonate the hit man and contact defendant. He did so and arranged a meeting with defendant. It was tape-recorded. Defendant said he wanted Vinson killed and the body disposed of. Defendant told Haas where he could locate her and that he would pay $1,000 after the job was complete. He arranged to be at his sister’s house on the planned day for an alibi. He said he had killed two people (his wife and mother-in-law), had spent IO-V2 years in prison, and was on parole.

Vinson staged a photograph showing her shot in the head which Haas took to defendant along with her cigarette case. Defendant went to his truck and was arrested when he returned to Haas with ten $100 bills.

The motion in limine sought to exclude all reference to defendant’s past criminal record and convictions. OCGA § 24-9-20 (b).

In Mosley v. State, 150 Ga. App. 802, 803 (2) (258 SE2d 608) (1979), the evidence objected to was defendant’s having said to his victim: “ T hate to do this, but the law is after me. . . .’ ” While “[generally, in the prosecution for a particular offense, evidence of another offense wholly independent from the one being prosecuted is inadmissible ... if the statement [made] by the defendant forms a part of the same transaction of the one being prosecuted, it is a part of the res gestae and is admissible. [Cit.] The fact that it shows another crime and incidentally places the defendant’s character in issue does not render it inadmissible. [Cit.]” Mosley, supra at 804. Yarbrough v. State, 186 Ga. App. 845, 847 (368 SE2d 802) (1988); Simmons v. State, 174 Ga. App. 171, 176 (11) (329 SE2d 312) (1985).

The admission of such a statement, here the recorded acknowledgment, is in the discretion of the court; it was not abused here. Cooper v. State, 188 Ga. App. 629 (1) (373 SE2d 796) (1988).

3. Defendant enumerates as error the denial of his motion for directed verdict. On review, the question is whether the evidence was sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436) (1984).

Decided September 12, 1990 — Cert, applied for.

Carlton C. Carter, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Assistant District Attorney, for appellee.

The motion was based on the premise that, pursuant to State v. Davis, 246 Ga. 761, 762 (1) (272 SE2d 721) (1980), an essential element of the crime of solicitation is that the solicitation must create a clear and present danger that the person solicited will engage in conduct constituting a felony and that, because none of the people solicited in this case intended to carry through with criminal acts, defendant was entitled to a directed verdict.

Davis is misinterpreted. It dealt with the constitutionality of the statute as measured by the First Amendment and ruled that the statute does not contravene free speech but prohibits “only such language as creates a clear and present danger of a felony being committed.” Id. The inquiry is directed not at the ears of the solicited and whether that person intends to commit the solicited acts, but at the words and intent of the solicitor, as shown by the words, the context, and other circumstances.

Defendant expressed his desire to see Vinson’s daughter killed, provided the means for committing the disabling of her car, and made the following comments concerning Vinson: if he could not get someone else to hurt her, he would; he would do it himself but he had already spent time in prison for killing two others and did not want to return; if someone brought Vinson to him, he would “feed the fish”; “I know myself if I was in the right place at the right time, yes, I would blow her apart . . .”; “you know I want her dead.”

These expressions were sufficient evidence of the solicitation contemplated by OCGA § 16-4-7. Denial of the motion for directed verdict was not error.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Birdsong, Judge.

license: Public Domain

text:
    A90A1358.
    AMERICAN MINI-STORAGE, MARIETTA BLVD., LTD. v. INVESTGUARD, LTD.
    (397 SE2d 199)
   Birdsong, Judge.

This appeal is from the grant of summary judgment to Investguard, Ltd. (“Investguard”), in its suit for collection of amounts due on a note. Held:

1. American Mini-Storage, Marietta Blvd. (“American”), first asserts that the trial court erred by granting summary judgment to Investguard in that Investguard had not filed the required intangible tax returns as required by OCGA § 48-6-32. This contention is without merit. The record demonstrates that the trial court correctly ruled that American waived this defense by not timely raising it in its answer. Beets v. Padgett, 125 Ga. App. 551, 553 (188 SE2d 265).

Decided September 12, 1990.

Marvin P. Nodvin, for appellant.

Valente & Strauss, John J. Strauss, Sakas & Horne, Jeffrey L. Sakas, for appellee.

2. American enumerates as error the failure to grant it judgment because Investguard allegedly accepted a deed to the property securing the debt from American in full satisfaction of the debt. The record shows that this allegation is without factual support. In the course of the litigation, without Investguard’s consent, American prepared and recorded, but did not deliver, a quitclaim deed of the property to Investguard. Then, American attempted to require Investguard either to quitclaim the property back to American, presumedly so that American could argue that Investguard had surrendered its security interest in the property, or by refusing to execute the quitclaim and thus accept American’s quitclaim deed in satisfaction of the debt. After Investguard refused to participate, American contended that the deed had been accepted. The trial court rejected this contention, and now American asserts that this was error. There was no error. Investguard had the right to elect which remedy it would pursue, and American cannot force Investguard to accept the property in satisfaction of the debt. See Trust Inv. &c. Co. v. First Ga. Bank, 238 Ga. 309, 310 (232 SE2d 828); Sadler v. Trust Co. Bank, 178 Ga. App. 871, 872 (344 SE2d 694).

3. American also contends that the trial court erred by awarding Investguard interest as provided in the note since the note was “infected” with usury. See OCGA §§ 7-4-2; 7-4-10; and 7-4-18. The record reveals that the note provided for simple interest at the prime rate plus two percent. This is sufficient to satisfy the requirements of OCGA § 7-4-2 (a) (1). 1600 Capital Co. v. Bankers First Fed. &c. Assn., 187 Ga. App. 504, 506 (370 SE2d 668). Accordingly, this contention is also without merit.

4. American’s final enumeration asserts that the trial court erred by granting Investguard’s motion, and by not granting summary judgment to American. Although American correctly notes that summary judgment can be granted to a non-moving party, for the reasons stated in Divisions 1-3 above, the trial court did not err.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


author: Carley, Chief Judge.

text:
    A90A1380.
    PITTMAN v. THE STATE.
    (397 SE2d 302)
    Decided September 12, 1990.

      Clyde M. Urquhart, for appellant.

      Glenn Thomas, Jr., District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of child molestation. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilt.

1. Appellant enumerates the general grounds.

“There is no requirement that the testimony of the victim of child molestation be corroborated. [Cit.]” Adams v. State, 186 Ga. App. 599 (1) (367 SE2d 871) (1988). “ ‘Nevertheless, the testimony of the victim in this case was corroborated (by testimony concerning the outcry that she made to her [father]).’ [Cit.]” Stander v. State, 193 Ga. App. 212 (1) (387 SE2d 422) (1989). A rational trior of fact could reasonably have found from the evidence adduced at trial proof of appellant’s guilt of child molestation beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant urges that his conviction and sentence are void because his trial was held in the Woodbine City Hall rather than the Camden County Courthouse. However, Woodbine is the county site of Camden County and OCGA § 15-6-18 (a) “contemplates that cases tried at places other than at a courthouse shall be valid. [Cit.]” Davis v. State, 240 Ga. 763, 765 (2) (243 SE2d 12) (1978). A verdict returned in “the superior court. . . by a . . . jury sitting in a building, located at the county site, which has been ‘provided’ by the proper county authorities as the place for holding that term of such court, is not void. . . .” Cook v. State, 119 Ga. 108 (3) (46 SE 64) (1903). There being no showing that the Woodbine City Hall had not been provided by the proper county authorities as a place for holding that term of the Superior Court of Camden County wherein appellant was tried, this enumeration of error is without merit.

Judgment affirmed.

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


text:
    A90A1414.
    DEARMORE v. THE STATE.
    (397 SE2d 200)
   Birdsong, Judge.

Victor Timothy Dearmore appeals his conviction for burglary on Count II of the indictment; he was found not guilty of burglary on Count I.

Count II pertinently avers appellant did on August 1, 1987, “unlawfully enter, without authority, the building of another, to-wit: Gene Ragan, doing business as Ragan Insurance Agency, the same being a place where valuable goods were contained, with intent then and there to commit a theft.”

Witnesses testified that some unknown. person, had forcibly entered the Ragan Insurance Agency and had stolen a privately-owned television set therefrom. An alleged accomplice as to Count I testified that after the commission of that subsequent burglary, appellant importuned him to burglarize the Ragan Insurance Agency; and, in the course of such conversation, appellant stated he had gone in there before and had taken money. Appellant did not tell the accomplice that he had previously taken anything from the agency other than money. In response to the question “[d]id [appellant] ever discuss anything like this with you before?” the accomplice testified, “[breaking in Ragan’s Insurance.”

Appellant subsequently consented to a search of his premises 75 days after the burglary of the insurance agency, and the stolen television was found in plain view in his home. Appellant was living less than 50 feet from the insurance agency at the time of its burglary. The Chief of Police also testified, without timely objection, that the insurance agency had been broken into earlier and cash taken; however, no cash was found during the search of appellant’s premises. Held-.

1. Contrary to the assertions of appellant, this is not a case where the sole evidence of guilt rests upon the inference that may be drawn from the recent possession of stolen goods. Compare Bankston v. State, 251 Ga. 730 (309 SE2d 369) with Chaney v. State, 169 Ga. App. 616 (1) (314 SE2d 457). For example, the alleged accomplice in this case gave testimony concerning a pretrial statement appellant made wherein the latter admitted he had entered the insurance agency previously and had taken money therefrom. This testimony was admissible as an incriminating admission by appellant (see generally Norrell v. State, 116 Ga. App. 479, 486 (2) (157 SE2d 784)), and the fact appellant mentioned only that he had taken money from the agency and made no mention of having taken a television set merely goes to the weight and not the admissibility of the admission.

On appeal the evidence must be viewed in the light most favorable to the verdict, and appellant no longer enjoys the presumption of innocence; moreover on appeal, this court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Robinson v. State, 194 Ga. App. 432, 433 (1) (390 SE2d 652). To support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). Viewing the evidence of this case in a light most favorable to the verdict, we conclude that the jury rationally could have found that it excluded every reasonable hypothesis except that of the defendant’s guilt. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the burglary offense of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Further, our review does not reveal the existence of any reversible errors of law. See, e.g., Divisions 2, 3 and 4, below. Appellant’s enumerations of error 1, 2, and 3 are without merit.

2. Appellant asserts that the trial court’s charge to the jury on the element of intent was improper and violated appellant’s rights under the due process clause and Fourteenth Amendment.

Following the charge to the jury, appellant’s counsel took a specific exception only to the charge concerning recent possession of stolen property. No request for additional instructions was tendered by appellant, nor did appellant take an exception to the court’s charge that: “Our law says that every person is presumed to be of sound mind and discretion, but this is a presumption which may be rebutted. You may infer, if you wish to do so, that the acts of a person of sound mind and discretion are the products of his will, and you may infer, if you wish to do so, that a person of sound mind and discretion intends the natural and probable consequences of his act. Now, whether you make any such inferences is a matter solely within the discretion of you, the jury. . . . [I]ntent is an essential element of any. crime and must be proved by the State beyond a reasonable doubt. ...” The court previously had instructed the jury that, “[t]here is no burden of proof upon the defendant and the burden never shifts to the defendant to prove his innocence.”

When asked by the trial court if he had any exceptions to the charge, an appellant either must state his objections or reserve his right to object on motion for new trial or on appeal; he cannot do both. Pruitt v. State, 258 Ga. 583, 590 (14) (373 SE2d 192). Appellant neither reserved his right to object, within the meaning of Pruitt, supra, nor did he take any specific exception to this charge when the trial court inquired whether he had any objections thereto. As appellant elected not to reserve his objections to the charges, any asserted errors as to charges were waived which were not raised timely when the trial court asked for objections. See Wright v. State, 182 Ga. App. 570 (1) (356 SE2d 531).

Further, the charge relating to the presumption of sanity did not impermissibly shift the burden of proof to appellant. Parker v. State, 256 Ga. 363 (1) (349 SE2d 379); Flynn v. State, 255 Ga. 415 (2) (b) (339 SE2d 259). Taken as a whole, the charge as rendered was not unconstitutionally burden-shifting and did not violate the due process clause. Freeman v. State, 183 Ga. App. 264 (1) (358 SE2d 623); see Parker, supra; see also Dill v. State, 254 Ga. 17 (1) (325 SE2d 765). Moreover, viewing the charges as a whole (see generally Byrd v. Hopper, 234 Ga. 248, 251 (215 SE2d 251)), we are satisfied that a reasonable juror could not have interpreted the instruction as an irrebuttable direction by the court to find intent once convinced of the facts triggering the presumption.

The charge in this case is distinguishable from that found erroneous in Williams v. Kemp, 255 Ga. 380, 388 (338 SE2d 669) (charge error was harmless), citing and discussing Francis v. Franklin, 471 U. S. 307 (105 SC 1965, 85 LE2d 344); Connecticut v. Johnson, 460 U. S. 73 (103 SC 969, 74 LE2d 823), and Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39). Appellant’s other assertions of error concerning this charge are without merit.

3. Appellant asserts that the rule permitting the inference that the defendant is guilty of burglary because he has been found to have stolen goods in his possession violates his rights against self-incrimination secured to him by the Fifth and Fourteenth Amendments to the United States Constitution, and by Art. I, Sec. I, Par. XVI of the Georgia Constitution. Compare Barnes v. United States, 412 U. S. 837, 846 (93 SC 2357, 37 LE2d 380).

Following the charge to the jury, the trial court inquired whether the parties had any objections thereto. Appellant did not reserve his right to object to the charges, but proceeded to make the following specific objection to the recent possession of stolen goods charge: “[F]or the record, I will except to that, because ... it might mislead [the jury] into thinking that the mere possession is, as a matter of law, enough to support an inference of breaking in.” (Emphasis supplied.)

As appellant elected not to reserve his objections to the charges, any asserted errors as to charges which were not raised specifically when the trial court asked if there were any objections to the charges are waived. Pruitt, supra; Wright, supra; see Division 2, above. Accordingly, the error asserted by appellant in his fifth enumeration of error, as to this charge, has been waived.

4. Appellant asserts that the trial court’s instructions to the jury with regard to the inference of guilt from recent possession were insufficient, incomplete, confusing and incorrect as a matter of law.

The court charged the jury as follows: “[I]f you should find beyond a reasonable doubt that the crime . . . has been committed, as charged in the second count of this indictment, and certain personal property as set forth in Count 2 was stolen as the result of such crime — it wasn’t set forth in Count 2 but Count 2 — there has been evidence with respect to Count 2 that there was certain property stolen. And if recently thereafter the defendant should be found in possession of the stolen property, that would be a circumstance, along with all the other evidence, from which the jury may infer guilt as to the charge of burglary as set forth in Count 2 of the indictment, if you see fit to do so.” (Emphasis supplied.)

The issue whether the possession was recent was a question of fact for the jury, notwithstanding that 75 days elapsed from the burglary to the finding of the television in appellant’s possession. Compare Rogers v. State, 185 Ga. App. 211 (1) (363 SE2d 846) (about 52 days) and Brown v. State, 157 Ga. App. 473 (278 SE2d 31); see also Daniel, Ga. Crim. Trial Prac. (1989 ed.), Presenting State’s Case, § 20-8. The instruction on its four corners is couched in terms of a permissive inference, within the meaning of Isaacs v. State, 259 Ga. 717 (386 SE2d 316); and it adequately and clearly placed the issue of recent possession with the jury.

We note that this charge makes no express reference to the requirement that to give rise to the permissible inference the possession must be unexplained or that the inference is rebuttable. See, e.g., Williamson v. State, 248 Ga. 47, 49 (281 SE2d 512).

Regarding the omission in the charge to any reference of “unexplained” possession, we find that the trial court properly tailored the charge to address those issues reasonably raised by the evidence. Review of the record reveals that appellant elected, as is his right, not to testify in his own behalf and to rest his case without calling any witnesses. Accordingly, any evidence existing in this case is to be found during the presentation of the State’s case and the cross-examination of the State’s witnesses by appellant’s counsel. Examining the transcript in toto, we find there exists no evidence which tends to explain appellant’s possession of the stolen property. In such circumstances, although the trial court had the discretion to include within its charge a correct reference to the law relating to the unexplained possession of stolen property (see generally Thomas v. State, 237 Ga. 690, 692 (229 SE2d 458)), it was not obligated to do so sua sponte (Dollar v. State, 149 Ga. App. 97, 98 (2) (253 SE2d 461)). Further, “[a]s the phrase ‘unexplained possession’ would have properly instructed the jury that defendant must offer some explanation to rebut the inference [cit.], and as the defendant did not offer an explanation, the charge actually benefited the defendant by not pointing out the defendant’s failure to offer an explanation.” Dollar, supra. Moreover, as a general rule instructions even though abstractly correct should not be given unless authorized by the evidence. Rozier v. State, 259 Ga. 399 (4) (383 SE2d 113).

Decided September 12, 1990.

Michael P. Katz, for appellant.

Douglas C. Pullen, District Attorney, Bradford R. Pierce, Assistant District Attorney, for appellee.

Appellant, however, in essence asserts that the mere passage of time, in this instance 75 days from the date of the burglary to the date appellant was found to be in possession of stolen property, did, per se, give rise to the proffer of an explanation, thereby necessitating an instruction on the legal principle of “unexplained possession.” “ ‘The nearer the possession to the time of the larceny, the stronger will be the inference of guilt. . . .’ ” Chubbs v. State, 204 Ga. 762, 764 (51 SE2d 851). Conversely, “[t]he longer the period of time since the theft, the more doubtful becomes the inference which may reasonably be drawn from unexplained possession.” (Emphasis supplied.) United States v. Redd, 438 F2d 335, 336 (9th Cir.), cert, den., 402 U. S. 977. The lapse of time clearly was relevant as to the issue of whether the possession was recent at all and, if so, the weight, if any, to be accorded the permissible inference, if any; but standing alone it is, at best, a neutral factor as to the issue of “unexplained possession.” Mere lapse of time does not necessitate a trial court to sua sponte instruct on “unexplained possession,” particularly in view of the obvious detrimental effect such an instruction could have upon a defendant who exercised his rights not to present evidence in his own behalf at trial. Accordingly, we are satisfied that in the absence of a timely written request for such an instruction it was not error to omit it. Cf. Bass v. State, 237 Ga. 710 (2) (229 SE2d 448).

Examining the charge to the jury in its entirety (Hambrick v. State, 256 Ga. 688 (3) (353 SE2d 177)), we find that the permissible inference instruction to the jury on the issue of recent possession of stolen goods was adequately tailored to the case, was a correct statement of law, and was not misleading. Appellant’s assertions in support of this enumeration of error are without merit.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A1421.
    MARTIN v. THE STATE.
    (397 SE2d 301)
   Carley, Chief Judge.

Appellant was tried before a jury on a charge of aggravated assault and was found guilty but mentally ill. She appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict.

Decided September 12, 1990.

Kenneth L. Chalker, Jr., for appellant.

Thomas J. Charron, District Attorney, Charles M. Norman, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Appellant’s sole enumeration urges that the trial court erred in failing to direct a verdict of not guilty by reason of insanity.

“To support a finding that a defendant is not guilty of a criminal act under OCGA § 16-3-3, it must appear: (1) that the defendant was laboring under a delusion; (2) that the criminal act was connected with the delusion under which the defendant was laboring; and (3) that the delusion was as to a fact which, if true, would have justified that act. [Cits.]” Stevens v. State, 256 Ga. 440, 442 (350 SE2d 21) (1986). The evidence in the instant case was conflicting as to whether appellant was acting under a delusional compulsion at the time she committed the act for which she was being tried. Accordingly, the trial court did not err in failing to direct a verdict of not guilty by reason of insanity. “In reviewing a verdict of guilty but mentally ill in a case where the appellant relies on OCGA § 16-3-3, [the appellate] court determines whether, construing the evidence in favor of the verdict, a rational trier of fact could have concluded that the appellant failed to show by a preponderance of the evidence that his will was overmastered by a delusional compulsion which caused [appellant] to commit the act or acts that led to . . . indictment, trial and conviction. [Cit.] This court concludes, under the [evidence adduced at trial], that a rational trier of fact could have concluded that a preponderance of the evidence did not show that [appellant committed aggravated assault] as a result of a delusional compulsion that overmastered [her] will. [Cit.]” Eason v. State, 256 Ga. 701, 704 (1) (353 SE2d 188) (1987).

Judgment affirmed.

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


author: Deen, Presiding Judge.

text:
    A90A1239.
    PRECISE v. CITY OF ROSSVILLE.
    (397 SE2d 133)
   Deen, Presiding Judge.

James L. Precise was a police officer for the City of Rossville from October 10, 1977, until March 23, 1987. A special Rossville City Council meeting was held on March 19,1987, to discuss police personnel matters, and the mayor was directed to meet with appellant to discuss allegations concerning his behavior and conduct as a police officer and to give Precise the option of resigning or having his dismissal considered by the council at a public hearing. At the meeting with the mayor, Precise requested three days to consider his options, and the mayor granted the request. Three days later, appellant tendered a letter of resignation to the mayor. The following day, after consultation with his attorney, Precise prepared a second letter to the mayor and city council attempting to rescind his resignation and requesting permission to return to work. The letter was presented to the mayor on March 25. In his letter of resignation Precise requested two weeks of accrued vacation pay, two weeks of severance pay, and his personnel file. On April 8, 1987, the city council held a special meeting and voted unanimously to reject Precise’s request to be placed on probation and to grant him a full hearing on his additional demands. Another hearing was held on June 10, 1987, and appellant was represented by counsel. Following the hearing, the city council voted unanimously to reject the officer’s revocation of his resignation and to terminate his employment effective the date of his resignation letter.

On March 31, 1989, Precise brought a lawsuit against the city alleging that he had an employment contract with the city based on the city code and personnel policies implementing the code, that the city breached the employment contract, wrongfully refused to provide employment statistics, and wrongfully interfered with a personal recommendation. Precise appeals following the grant of summary judgment in favor of the city.

1. Precise has filed a motion to remand, claiming that on March 2, 1990, he filed a motion requesting the trial judge to recuse himself and to vacate and set aside the order of February 26, 1990, granting summary judgment to the city. He filed his notice of appeal on March 14, 1990. On May 14, 1990, the trial judge filed an order of recusal, but the motion to vacate and set aside is still pending.

The trial court lost jurisdiction of the case once the notice of appeal was filed and could enter no further orders in the case. Turner v. Harper, 233 Ga. 483 (211 SE2d 742) (1975). The appeal was not premature, as the order granting summary judgment was a final order. Appellant’s motion to vacate could only be considered to be a motion to reconsider, which under OCGA § 5-6-38 does not extend the time for filing an appeal. Adamson v. Adamson, 226 Ga. 719 (177 SE2d 241) (1970). Moreover, the motion to recuse was defective in that it was not accompanied by an affidavit as required under State v. Fleming, 245 Ga. 700, 702 (267 SE2d 207) (1980); Riggins v. State, 159 Ga. App. 791 (285 SE2d 579) (1981). As the motion to recuse was invalid because it was not accompanied by an affidavit, the order was of no effect. The. motion to remand is therefore denied.

Decided September 4, 1990

Rehearing denied September 14, 1990 — Cert, applied for.

Robert I. Kiselik, for appellant.

Luther, Anderson, Cleary & Ruth, Kenneth R. Starr, Steven W. Kreitzer, Gleason & Davis, John W. Davis, Jr., for appellee.

2. The suit against the city for breach of an alleged employment contract is barred by the doctrine of sovereign immunity because the hiring and firing of police officers is a governmental function. City of Atlanta v. Fry, 148 Ga. App. 269 (251 SE2d 90) (1978). See also Smith v. City of Atlanta, 167 Ga. App. 458, 461 (306 SE2d 720) (1983).

3. Precise cannot maintain his tort claims against the city, as he did not give the six-month written notice required under OCGA § 36-33-5. Thompson v. City of Atlanta, 219 Ga. 190, 192 (132 SE2d 188) (1963).

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A0730.
    GARRETT v. THE STATE.
    (397 SE2d 205)
   Carley, Chief Judge.

Appellant was tried before a jury on a five-count indictment but was found guilty of only those counts charging him with aggravated assault, discharge of a firearm near a public highway, and criminal damage to property. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

1. After securing new counsel, appellant filed a timely motion for new trial wherein the purported ineffectiveness of his trial counsel was raised as one of the grounds. The trial court’s failure to grant the motion for new trial on this ground is enumerated as error.

We note at the outset that the case was not complex from either a factual or a legal standpoint. Shots which were fired from a vehicle destroyed a streetlamp. When a police officer pursued the vehicle in his patrol car, shots were fired at him. After a high speed chase, the vehicle was abandoned and its three occupants, one of whom was appellant, fled into the woods. They were arrested a few hours later. According to the State’s evidence, appellant was either the actual gunman or he was a party to the crimes. Although appellant did not testify in his own behalf, his defense was that he had not actually fired the shots and that he could not otherwise be considered a party to the crimes because he was in a drunken stupor in the backseat of the vehicle when the shots had been fired. Appellant’s trial counsel developed this defense through cross-examination of the State’s witnesses and by the presentation of two witnesses on appellant’s behalf.

In support of the purported ineffectiveness of representation, the only assertions raised are that appellant’s trial counsel should have tried the case differently. It is urged that he should have filed pretrial motions, produced additional defense witnesses and conducted a more thorough and sifting cross-examination of the State’s witnesses. “Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant’s original representation was inadequate. [Cits.]” Hosch v. State, 185 Ga. App. 71, 72 (2) (363 SE2d 258) (1987). “The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.” Brogdon v. State, 255 Ga. 64, 68 (3) (335 SE2d 383) (1985). Appellant did not subpoena his trial counsel to appear at the hearing on his motion for new trial. Thus, appellant made no affirmative showing that the purported deficiencies in his trial counsel’s representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy.

Moreover, considering the nature of the State’s evidence and appellant’s only available defense, there was no showing of a reasonable probability that, but for trial counsel’s alleged deficiencies, the result of the proceeding would have been different. See Williams v. State, 258 Ga. 281, 286 (7) (368 SE2d 742) (1988). Appellant either was or was not the actual gunman and, even if he was not, he was nevertheless a party to the crimes unless, as the result of his intoxicated condition, he was merely an unconscious bystander while the crimes were being committed. Since appellant’s undisputed flight from the scene and his successful avoidance of capture for several hours strongly evidenced both his guilt and his sobriety, his trial counsel was certainly presented with an unenviable task. The record nevertheless reflects that appellant’s defense was otherwise effectively presented through trial counsel’s cross-examination of the State’s witnesses concerning their personal knowledge of appellant’s inculpatory involvement and through trial counsel’s presentation of defense witnesses who testified as to their personal knowledge of appellant’s exculpatory condition. It is rank speculation to suggest that it is reasonably probable that a more thorough and sifting cross-examination of the State’s witnesses or a presentation of additional defense witnesses would have resulted in appellant’s acquittal. See generally Brown v. State, 180 Ga. App. 361, 363 (1) (349 SE2d 250) (1986), wherein it was held that the failure of trial counsel to adduce “redundant” evidence was “unlikely to have affected the result reached by the jury. [Cit.]”

Decided September 14, 1990 — Cert, applied for.

T. Andrew Dowdy, for appellant.

Michael H. Crawford, District Attorney, E. Jay McCollum, Assistant District Attorney, for appellee.

The burden is on the defendant to establish his claim of ineffective assistance of counsel. Williams v. State, supra at 286 (7); Brogdon v. State, supra at 67 (3). A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. Smith v. State, 256 Ga. 483 (351 SE2d 641) (1986). The trial court’s finding in the instant case is not clearly erroneous. “In fact, counsel was so successful that [appellant] was acquitted on two of the five counts against him.” Thompson v. State, 188 Ga. App. 508, 509 (373 SE2d 292) (1988). It was, therefore, not error to deny appellant’s motion for new trial on this ground.

2. There is no violation of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963) where, as here, certain purported exculpatory material was provided by the State during rather than before trial. Burgan v. State, 258 Ga. 512, 513 (1) (371 SE2d 854) (1988). Likewise, there is no violation of Brady where, as here, certain other purported exculpatory material was never provided to appellant because it was not in the possession of the State before or during the trial. Keller v. State, 253 Ga. 512, 513 (2) (322 SE2d 243) (1984).

3. The evidence showed that the original shot that destroyed the streetlamp was fired in Habersham County and that two of the three subsequent shots that were directed at the officer were also fired in that county. Accordingly, venue in Habersham County was shown.

4. Appellant enumerates the general grounds. The record shows that one of the two other occupants of the car testified for the State. His testimony was otherwise corroborated in significant detail by the pursuing officer at whom the shots had been fired. This testimony of the State’s witnesses, coupled with the evidence of appellant’s flight, was sufficient to authorize a rational trior of fact to have found proof of appellant’s guilt as a principal or as a party to the crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgments affirmed.

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


text:
    A90A1040.
    DEPARTMENT OF HUMAN RESOURCES v. BROWN.
    (397 SE2d 73)
   Carley, Chief Judge.

On August 17, 1983, the Superior Court of Stephens County approved a “consent agreement and order” in which appellee acknowledged that he was the father of E. M. D. and C. D. D. and agreed to pay to the Office of Child Support Recovery certain sums per month as reimbursement for assistance paid to or on behalf of said children. By order entered on October 10, 1985, the court approved an amended consent agreement executed by appellee which acknowledged that he was the parent of the two minor children above named as well as A. M. D. who was born on October 29, 1985. By the terms of this consent order, appellee was required to pay to the Office of Child Support Recovery certain sums per month for the support and maintenance for said children and, in addition, a specified sum per month to be applied to the arrearage accrued as of the time of the entry of that order.

Subsequently, appellant herein filed a motion for contempt alleging that appellee had willfully failed and refused to comply with the previous orders and that, as of the date of the filing of the motion for contempt, the arrearage was in the amount of $7,997.57. Appellee was duly served and a hearing was held before the superior court. At said hearing, appellee orally moved the court for an order requiring that the three minor children, their mother and appellee submit to “paternity blood testing.” The superior court found that there was an arrearage under the previous orders in the amount of $8,717.57 and ordered appellee to resume making payment to the Office of Child Support Recovery in the amount of $65 per week, for current support and for the reduction of the arrearage. However, in addition, the trial court specifically ordered that the three minor children, their mother and appellee submit to paternity blood testing in order to determine if appellee was the father of said children. The order further provided: “If respondent is excluded as the father of any of said minor children, his then existing arrearage shall be reduced accordingly on a pro rata basis.”

The trial court certified its order for immediate review and we granted appellant’s application for appellate review.

1. The previous unappealed and unmodified superior court orders, which were based upon express consent of appellee, adjudged that appellee was the father of the three named children. Thus, the application of the doctrine of res judicata clearly proscribes the trial court’s reconsideration of the issue of paternity. Macuch v. Pettey, 170 Ga. App. 467, 468 (317 SE2d 262) (1984); East v. Pike, 163 Ga. App. 375 (294 SE2d 597) (1982). See also Roberson v. Fooster, 234 Ga. 444 (216 SE2d 273) (1975). Accordingly, the trial court’s order requiring that the minor children and their mother submit to paternity blood testing is erroneous and must be reversed.

Decided September 14, 1990.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, for appellant.

Willie J. Woodruff, Jr., for appellee.

2. Appellants also enumerate as error the portion of the trial court’s order providing for a pro-rata reduction of the child support obligation of the father based upon the results of the paternity testing required by the order. In view of this Court’s determination that the trial court erred in requiring the submission to paternity blood testing, it necessarily follows that the event which would cause such automatic reduction in appellee’s child support obligation as a result of such blood testing will never occur. However, we do observe that, under no circumstances, would the trial court have been authorized, in this contempt proceeding, to modify the previous orders requiring appellee to pay child support. Kaufmann v. Kaufmann, 246 Ga. 266 (271 SE2d 175) (1980).

Judgment reversed.

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


text:
    A90A1176.
    THE STATE v. SMITH.
    (397 SE2d 304)
   Carley, Chief Judge.

Appellee was arrested and charged with driving under the influence in violation of OCGA § 40-6-391 (a) (1). He filed a pre-trial motion to suppress. The trial court granted appellee’s motion and the State appeals.

The officers testified that they had originally stopped appellee’s motorcycle to investigate a possible license plate violation and the trial court correctly found that this stop was authorized. See generally Freeman v. State, 194 Ga. App. 303 (1) (390 SE2d 300) (1990). However, the trial court found that appellee’s subsequent arrest for driving under the influence was illegal because nothing in the manner in which appellee operated his motorcycle had ever given the officers any reason to believe that he was actually a less safe driver.

In granting appellee’s motion to suppress on this finding, the trial court erred. Because appellee’s initial stop had not been based upon probable cause or an articulable suspicion to believe that he was driving under the influence, the officers’ lack of any observations regarding appellee’s manifestation of signs of possible intoxication while operating his motorcycle prior to the initial stop is irrelevant. After stopping appellee to investigate a possible tag violation, the officers testified, without dispute, that appellee was unsteady on his feet and evidenced a strong odor of alcohol. This‘uncontroverted evidence regarding appellee’s condition after the initial stop was sufficient to show probable cause to arrest him for driving under the influence. See generally State v. Greene, 178 Ga. App. 875 (1) (344 SE2d 771) (1986); McElroy v. State, 173 Ga. App. 685 (1) (327 SE2d 805) (1985). The fact that the officers never observed appellee actually operate his motorcycle in a “less safe” manner would be immaterial to the existence of probable cause for his arrest or to his guilt for violating OCGA § 40-6-391 (a) (1). “There is no requirement that the person actually commit an unsafe act. [Cits.]” Moss v. State, 194 Ga. App. 181, 182 (390 SE2d 268) (1990).

Decided September 14, 1990.

Keith C. Martin, Solicitor, Jackie N. Stanton, Assistant Solicitor, for appellant.

John L. Watson, Jr., for appellee.

Judgment reversed.

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


author: Beasley, Judge.

text:
    A90A1494.
    JONES v. THE STATE.
    (397 SE2d 303)
   Beasley, Judge.

Defendant appeals his conviction of trafficking in cocaine, OCGA § 16-13-31 (a) (1) (B).

1. Defendant, who is black, asserts error in the denial of his motion under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). He contends that the State never satisfactorily explained its peremptory strikes of prospective black jurors. That question is not reached. Eight of the twelve jurors who tried defendant were black. Defendant failed to carry his burden of establishing a prima facie showing of discrimination. Thus the State’s explanation is inconsequential. Williams v. State, 257 Ga. 788 (2) (364 SE2d 569) (1988) ; Sweet v. State, 191 Ga. App. 516, 517 (2) (382 SE2d 376) (1989) [physical precedent]; Harris v. State, 186 Ga. App. 756, 757 (2) (368 SE2d 527) (1988).

2. Defendant’s other enumeration of error is that the trial court failed to give his written request to charge the legal doctrine of “equal access.” At trial defendant objected to the omission of his instruction request on equal opportunity. We assume the objection and the enumeration refer to the same subject. Where they do not, nothing is presented for review. Brinson v. State, 191 Ga. App. 151, 152 (2) (381 SE2d 292) (1989). Even so, we cannot consider the merits. No written request to charge is included in the record brought to this court.

Decided September 14, 1990.

Jerry M. Daniel, for appellant.

Michael C. Eubanks, District Attorney, Barbara A. Smith, Richard E. Thomas, Assistant District Attorneys, for appellee.

“[A] requested charge must be legal, apt, and precisely adjusted to some principle involved in the case and be authorized by the evidence.” Mahomet v. State, 151 Ga. App. 462, 466 (3) (260 SE2d 363) (1979). Estep v. State, 181 Ga. App. 842, 844 (2c) (353 SE2d 913) (1987). Defendant has failed to meet the threshold requirement that his requested charge was a correct and complete statement of the law. McRae v. State, 145 Ga. App. 122 (243 SE2d 110) (1978).

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


author: McMurray, Presiding Judge.

text:
    A90A1258.
    PERKINS v. PEACHTREE DOORS, INC.
    (397 SE2d 54)
   McMurray, Presiding Judge.

Plaintiff Perkins was an invitee on the premises of defendant Peachtree Doors, Inc., when she flipped and fell as she was walking down a hallway. This appeal is taken from the grant of summary judgment in favor of defendant. Held:

Plaintiff testified that her fall was caused by wax on the floor that was slippery in the particular area in which she fell. This conclusion was based on plaintiff’s familiarity and experience with wax, the plaintiff testifying that “I’ve seen enough wax, and I know what wax feels like when you, you know, step in wet wax.” Plaintiff also testified that after she fell, she observed an employee slip and nearly fall at the same place she had fallen. While there was evidence that the floor may have been damp mopped shortly before plaintiff’s fall, there is no evidence that the floor was wet at the time of the fall. Defendant presented evidence that the floor was not waxed on the day of plaintiff’s fall and that the wax in use at that time takes no longer than ten minutes after application to dry. Also, there was evidence that shortly after the fall an employee of defendant inspected the floor where plaintiff fell and found it to be “completely clean, dry and free of any foreign substance.”

“Where plaintiff alleges that the fall was because of wax defendant placed on the floor, the principles recited in Alterman Foods [v. Ligon, 246 Ga. 620 (272 SE2d 327)] at 624, apply: ‘(T)he plaintiff may make out a cause of action by showing an act or omission on the part of the defendant which was the proximate cause of his injury and which could not have been avoided by the plaintiff through the exercise of ordinary care. (Cit.)

“ < “(p)r00f 0f nothing more than the occurrence of the fall is insufficient to establish the proprietor’s negligence.” (Cit.) To presume that because a customer falls in a store that the proprietor has somehow been negligent would make the proprietor an insurer of his customer’s safety which he is not in this state. (Cit.) “What the law requires is not warranty of the safety of everybody from everything, but such diligence toward making the store safe as a good business man is in such matters accustomed to use.” (Cits.)

“ ‘Thus the plaintiff must, at a minimum, show that the defendant was negligent either in the materials he used in treating the floor or in the application of them.’ ” Gross v. Frank’s Warehouse Foods, 192 Ga. App. 539, 540 (385 SE2d 688).

Nonetheless, where defendant moves for summary judgment the burden is cast upon defendant to pierce the plaintiff’s allegations before any burden is placed on plaintiff to present evidence in support thereof. Fort v. Boone, 166 Ga. App. 290, 291 (304 SE2d 465). In the case sub judice, defendant has failed to make any showing that it was not negligent in the materials used in treating the floor or in the application thereof. Therefore, no burden was cast on plaintiff to show that there was a genuine issue of material fact for trial. S. S. Kresge Co. v. Blount, 162 Ga. App. 404 (291 SE2d 728). Additionally, plaintiff’s evidence that the floor was slick and felt like wet wax is some evidence of negligent application. Martin v. Sears, Roebuck & Co., 253 Ga. 337 (320 SE2d 174); Dykes v. Toombs County, 192 Ga. App. 856 (386 SE2d 730); Artesiano v. K-Mart Corp., 184 Ga. App. 895 (363 SE2d 177). The superior court erred in granting defendant’s motion for summary judgment against plaintiff. Compare the following cases in which the respective defendants presented evidence they were not negligent in the choice of materials used in treating the floors or the application of them, and the respective plaintiffs did not produce any evidence as to the quality of the material or methods used by the respective defendants in maintaining the floor. Gross v. Frank’s Warehouse Foods, 192 Ga. App. 539, supra; Belk-Hudson Co. of Moultrie v. Patterson, 178 Ga. App. 16 (342 SE2d 2); J. C. Penney Co. v. Smith, 173 Ga. App. 612 (327 SE2d 574); Key v. J. C. Penney Co., 165 Ga. App. 176 (299 SE2d 895).

Judgment reversed.

Carley, C. J., concurs. Sognier, J., concurs in the judgment only.

Decided September 4, 1990

Rehearing denied September 17, 1990 — Cert, applied for.

Dennis C. O’Brien, for appellant.

Vincent, Chorey, Taylor & Feil, Michael A. Cole, for appellee.


text:
    A90A1413.
    TRANSUS, INC. et al. v. CROSBY et al.
    (397 SE2d 135)
   Deen, Presiding Judge.

This appeal is from a judgment in a wrongful death action arising out of a vehicular collision between an automobile driven by the decedent, appellee Crosby’s wife, and a truck belonging to appellant Transus, Inc., and driven by appellee Blair. Mr. Crosby sued individually and as temporary administrator of the estate; he named Transus’ insurer, Protective Insurance Company, as a defendant. He alleged that Blair was an agent, employee, or servant of Transus and that his alleged negligence was therefore imputable to Transus and the latter’s insurer.

Transus and Protective answered, denying that Blair was an employee of Transus; they subsequently moved for summary judgment on the ground that Blair was an independent contractor rather than an employee. Crosby then moved for partial summary judgment, alleging (1) that Blair was operating the truck pursuant to Transus’ permission, consent, and direction and in furtherance of its trucking business; (2) that at the time of the collision Blair and the vehicle were covered under Protective’s insurance policy and bond, with Transus as principal and Protective as surety; and (3) that under pertinent provisions of the Interstate Commerce Carrier Act and the Georgia Public Service Commission, Transus is required to assume full direction and control of, and full responsibility for, its vehicles, and is therefore vicariously liable for Blair’s actions. The trial court denied appellants’ motion and granted that of appellee Blair, finding that Blair was a statutory employee of Transus. This appeal followed, the trial court’s disposition of each of the summary judgment motions being enumerated as error. Held:

1. Scrutiny of the record sub judice leads us to conclude that it is indisputable that at the time of the collision Blair was operating Transus’ truck pursuant to Transus’ permission, consent, and direction, and in furtherance of Transus’ business. This being so, Blair was acting as Transus’ agent, OCGA § 10-6-1, and was acting within the scope of the authority granted him, OCGA § 10-6-50.

It is well settled that when an agent acts within the scope of his authority, the principal is responsible for those acts. In a venerable Georgia case, Maddox & Rucker v. Cunningham, 68 Ga. 431 (1882), defendant/appellants were cotton warehousemen whose business required that bales of cotton be unloaded from wagons on the sidewalk in front of their warehouse and then carried inside; the bales were supposed to remain on the sidewalk for as short a time as possible and were supposed to be placed in such manner as to permit free passage by pedestrians. As plaintiff/appellee was walking along the sidewalk, one of the stacked bales either fell of its own weight or was knocked over by a passing vehicle and struck appellee, causing serious injury. Appellee brought an action in which she alleged, inter alia, that “the accident resulted from the negligent manner in which defendants caused their cotton to be piled on the sidewalk.” Id. at 432. The jury awarded damages to plaintiff/appellee, and the Supreme Court affirmed, holding that the bales of cotton bad been set on the sidewalk at defendant/appellant’s behest and had been negligently placed and allowed to remain there, and that “[w]hat an agent does in the line of duty devolved on him by the superior, will make the latter responsible.” Id. at 434.

As in Maddox, supra, there was no showing of contributory negligence in the case sub judice. Therefore, following the principle set forth in Maddox and affirmed in innumerable subsequent decisions, we find that Transus as principal was responsible for any negligent act of Blair, its agent, in causing the collision with the automobile driven by the decedent.

Furthermore, under OCGA § 33-34-2 (5), “ ‘Insured’ means, in addition to the insured named in the policy, . . . any other person using or occupying the insured vehicle with the express or implied permission of the named insured. ...” It is beyond dispute that Blair was driving the vehicle with express permission of Transus employees authorized to give or withhold permission in such situations. It is clear, then, that Blair was by definition an insured under any insurance policies issued by Protective to Transus.

2. In light of our holding in Division 1, supra, we find it unnecessary (beyond noting that Nationwide Mut. Ins. Co. v. Holbrooks, 187 Ga. App. 706 (371 SE2d 252) (1988), dealt with leased vehicles) to reach the “statutory employee” analysis set forth in the trial court’s order and challenged on appeal by Transus and Protective.

We affirm the decision below under the rule of “right for any reason.” State v. Speir, 189 Ga. App. 254 (375 SE2d 298) (1988).

Judgment affirmed.

Pope and Beasley, JJ., concur.

Decided September 4, 1990

Rehearing denied September 17, 1990 — Cert, applied for.

Dickey, Whelchel, Brown & Readdick, Terry L. Readdick, John E. Bumgartner, for appellants.

Gilbert, Whittle, Harrell & Scarlett, James B. Gilbert, Jr., James E. Graham, Hutto, Palmatary, Magda & Krider, Jack Hutto, Karen M. Krider, for appellees.


text:
    A90A1527.
    CENTRAL OF GEORGIA ELECTRIC MEMBERSHIP CORPORATION v. MILLS et al.
    (397 SE2d 137)
   Deen, Presiding Judge.

The Central of Georgia Electric Membership Corporation (EMC) filed a condemnation petition to secure an easement across a tract of land owned by Roy and Barbara Mills in order to run a power line to property owned by Robert Leverette. The trial court appointed a special master to hear evidence and enter findings of fact and an award. The special master found that the condemnation “was not necessary” and that the property of the Mills should not be condemned, and ordered the petition dismissed. The EMC appealed to the superior court, which conducted a hearing on the necessity for the condemnation and ordered that the property described in the condemnation petition be relieved from the condemnation. The EMC appeals. Held:

The EMC contends that without the condemnation there was no way for it to obtain electric service to Robert Leverette’s residence, and that the trial court erred in substituting its judgment for that of the governing board of the EMC in contravention of OCGA § 22-2-102.1, which provides that it is the “exclusive judge” of the necessities of public need.

The evidence presented to the superior court showed that the Leverettes’ property was on the west side of Wadley Road. (See attached map.) It was bordered on the south by property owned by Hubert Williams. The Williams’ property adjoined the land owned by Roy and Barbara Mills. Six hundred feet of the Mills’ property backed on Wadley Road, and it was maintained as natural woodland and wetlands. The EMC had obtained an easement from Williams and sought to condemn a 15-ft. strip of the Mills’ land in order to run an electric power line to the Leverettes’ from a power pole located on the southeast corner of the Mills’. Across Wadley Road was 571 acres of land owned by Norman Davis. The EMC had an easement across the Davis property for an electric line, which was located approximately 180 feet from Wadley Road. The EMC had previously obtained two 30-ft. wide easements from Davis to run power lines across Wadley Road. One easement was voluntarily given by Davis, and the other was obtained by condemnation. The first easement is considerably north of the Leverettes’ property, and the second runs across the southern part of Davis’ land to a pole which services a meter for a gas pipeline on the southeast corner of the Mills’ land. The EMC wanted to secure a 15-ft. easement to run a line from that pole along 600 feet of the Mills’ property and 211 feet of Williams’ property to the Leverettes’. The appellant, however, presented testimony that it is only 230 feet from the Leverette residence across Wadley Road to the power line running across Davis’ property.

An EMC engineer testified that EMC’s first choice was to run the line the 230-ft. route, but that Davis did not want any more lines on his property, as he had already given an easement to serve a similar residence north of the Leverettes’ and had voluntarily given the easement across the south end of his property. To avoid running another line through Davis’ land, the engineer recommended condemning the land of the Mills and Williams. Although the route chosen by the EMC does not interfere with Davis’ land, it is longer and more expensive to maintain than the alternative route. An expert witness testified that there is no logical reason to run the line as proposed by the EMC, and an EMC witness admitted that the property sought to be condemned was its third or fourth choice for the route of the line.

The trial court found that alternate routes were available to the EMC which might be more troublesome but less expensive. Further evidence showed that all the parties, including Davis and the condemnees, have granted the EMC a blanket easement to come across their respective properties. Even though no specific description appears, the court found that the description was specific enough to be valid. The court further found that the EMC’s proposed route would necessitate passing through uncut timber and would ecologically damage Mills’ property, and that the least ecologically damaging route is across Davis’ land to a connecting pole at the Leverettes’ residence. The court ordered that the EMC provide electrical service to the new customer using the route across Davis’ land for its lines, and that the Mills’ property be relieved from the condemnation.

We have reviewed the deeds placed in evidence and find that the deed conveying the land to the Mills contains a general easement across the back part of the property (on Wadley Road) for utilities, but the extent of the easement is not specified. We cannot agree that Davis has given the EMC a blanket easement across his land. The deeds giving the two easements clearly specify that they are 30 feet in width and are accompanied by a map showing their exact location.

This condemnation action was brought under Title 22 of the Georgia Code. Appellant argues that under OCGA § 22-2-102.1, when the condemning body takes private property or obtains an easement therein, “the condemning body shall be the exclusive judge” of the public need. This rule, however, does not give the condemning authority an absolute right of taking based upon its own determination of necessity. The special master has the authority to hear and determine any legal objections to the taking. Leach v. Ga. Power Co., 228 Ga. 16, 21 (183 SE2d 755) (1971); Wrege v. Cobb County, 186 Ga. App. 512, 514 (367 SE2d 817) (1988). “In the absence of bad faith, the exercise of the right of eminent domain rests largely in the discretion of the authority exercising such right, as to the necessity, and what and how much land shall be taken.” King v. City of McCaysville, 198 Ga. 829 (2) (33 SE2d 99) (1945).

The only method of correcting errors that a special master may have made is by appeal to the superior court, “ ‘which begins again the process of adjudication. On such appeal issues of fact relating to value will be decided by the jury; if there are issues of law erroneously decided by the special master, objections may be made to and readjudicated by the superior court judge.’ (Emphasis supplied.)” Wrege v. Cobb County, supra at 515; City of Savannah Beach v. Thompson, 135 Ga. App. 63, 65 (217 SE2d 304) (1975); Leach v. Ga. Power Co., supra. The court in Wrege, supra, held that the “any evidence” rule as set forth in MARTA v. Central Parking System, 167 Ga. App. 649, 652 (307 SE2d 93) (1983), does not apply to de novo proceedings unless the court adopts the special master’s findings of fact and conclusions of law and makes them the award of the trial court or unless they were otherwise adopted by the court.

Appellees’ citation to Brannen v. Bulloch County, 193 Ga. App. 151 (387 SE2d 395) (1989); and Department of Transp. v. Hudson, 179 Ga. App. 842 (348 SE2d 106) (1986), are not really controlling because they were decided under Title 32 of the Georgia Code, Acquisition of property for transportation. Hudson at 843, holds that “there is no absolute requirement of showing bad faith before an abuse or misuse of discretion be found; otherwise, OCGA § 32-3-11 (b) (3) would obviously be rendered nugatory.” Title 22 does not contain a comparable section by which a condemnation may be set aside if the condemnor abuses or misuses its discretion. The case law applying the provisions of that portion of the Code merely provides that the condemnor may not exercise its discretion in bad faith. The difference in interpretation between these two provisions may seem fairly small, but such distinctions are best left to the wisdom of the legislature, which did not choose to make a similar position for Title 22.

The judgment of the superior court in the instant case is silent as to whether it found that the EMC exercised its discretion in bad faith in condemning appellees’ land, but merely states conclusions from which an abuse of discretion might or might not be found. “When findings [of fact and conclusions of law] are not made prior to judgment to the extent necessary for review, failure of the losing party to move therefor after judgment shall constitute a waiver of any ground of appeal which requires consideration thereof.” OCGA § 9-11-52 (c). The deficiency in the court order by omission of the crucial ingredients for appellate consideration required the appellant to move the superior court to amend its order not later than 20 days after the entry of judgment. Accordingly, the judgment of the trial court must be affirmed.

Judgment affirmed.

Pope and Beasley, JJ., concur.

Decided September 4, 1990

Rehearing denied September 17, 1990 — Cert, applied for.

C. Robert Melton, for appellant.

W. Franklin Freeman, Jr., Hugh D. Sosebee, Jr., for appellees.

F. Robert Raley, amicus curiae.


text:
    A90A1281.
    MORRIS v. SHAH.
    (397 SE2d 207)
   Deen, Presiding Judge.

Appellant F. Leonard Morris brought suit for damages against appellee Dr. Indra Shah, contending that he was the owner of certain lands in Forest Lakes Estates subdivision and joint owner with other residents. Morris alleged that his and the other owners’ land and water rights had been adversely affected by Shah when he altered a portion of property which lay behind the spillway of a dam in the subdivision’s lake; and that as a result of this alteration the dam broke and damaged the road which crossed the dam, causing a lake above the dam to drain and a lake below the dam to become filled with silt and debris. Prior to trial, Shah made a motion to dismiss for failure to join necessary and indispensable parties (the other landowners in the subdivision). The court conducted a hearing and denied the motion. A pre-trial order was entered, setting forth that the trial issues were: (1) whether the defendant was negligent in filling dirt into the overflow line of the spillway of the dam; (2) whether the defendant’s actions were wilful, intentional, or done with such negligence as to indicate a wanton disregard of the rights of others; (3) whether the plaintiff breached his contractual obligations to the defendant; (4) whether the plaintiff inadequately constructed the dam and the spillway.

Morris presented evidence showing that Shah purchased three lake-front lots from him, on which Shah planned to construct a residence. The third lot was considerably cheaper than the other two because the spillway for the dam ran across it. The spillway was located below the dam and was designed to permit the water in the lake to overflow downstream in a designated manner whenever a heavy rain caused the lake level to rise too high. Morris contended that Shah altered the design of the spillway by creating a berm in such a way that it destroyed its design; and that a subsequent heavy rain filled the lake above the dam, causing water to try to run through the spillway in a swirling motion, which resulted in increased pressure on the dam and broke it. There was also evidence that prior to this incident Shah had been warned not to interfere with the design of the spillway when it came to Morris’ attention that Shah was filling in the land on the third lot. Morris brought the engineer who designed the dam to visit Shah and discuss the problem, but Shah refused to curtail his activities. When the dam broke, the road and paving on top of it were destroyed, the lake above the dam drained, the lake below the dam was partially filled with silt, and unsightly weeds, grasses, and bushes grew up in the area formerly occupied by the lake. Morris sought damages to repair the dam and the upper lakebed and to remove silt from the lower lake, and presented evidence of estimates to repair all the damage. He also sought punitive damages and attorney fees.

After Morris rested, Shah made a motion for a directed verdict on the grounds that Morris had not offered any proof of ownership. The trial court reviewed the testimony and granted the motion. Morris made a motion to open the case to present evidence of his ownership of the affected property, which was denied, and he appeals.

At the onset of his testimony, Morris stated that he bought and developed Forest Lakes Estates subdivision, on which he built seven lakes. This was not disputed by Shah either before or during the trial, and no cross-examination was undertaken in this regard. The questions to be tried were set forth in the pretrial order, and Shah never raised a defense that Morris was not the owner of the damaged property. “ ‘A pretrial order limits the issues for trial to those not disposed of by admissions or agreements of counsel. The order, when entered, controls the subsequent course of the action unless modified at the trial to prevent manifest injustice. OCGA § 9-11-16 (b). If a claim or issue is omitted from the order, it is waived.’ (Cits, and punctuation omitted.) Long v. Marion, 257 Ga. 431, 433 (360 SE2d 255) (1987).” King v. Thompkins, 186 Ga. App. 12, 13 (1) (366 SE2d 340) (1988). Accord John H. Smith, Inc. v. Teveit, 175 Ga. App. 565, 566 (1) (a) (333 SE2d 856) (1985).

Moreover, “the directed verdict is not a vehicle to obtain a judgment on the technical grounds that a plaintiff has merely neglected to show some evidence material to his case. Particularly, since the trial court may in its discretion permit the plaintiff to reopen his case and offer some neglected evidence [cit.], in such a case a directed verdict is generally improvident. [Cit.]” Able-craft, Inc. v. Bradshaw, 167 Ga. App. 725, 726-727 (1) (307 SE2d 671) (1983). “The requirements that must be met in a directed verdict situation are very strict and where, as here, there is . . . evidence of waiver, it cannot be said' under the facts of this case and as required by OCGA § 9-11-50 (a) that ‘the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.’ Therefore, it was error to direct a verdict for appellee. A fortiori, since [appellant] requested an opportunity to reopen for additional evidence on the issue of [ownership], which had not been raised in the pre-trial order or in any other pretrial proceedings, the trial court should have allowed the reopening. We realize that reopening evidence is a matter that addresses itself to the sound discretion of the trial court. [Cit.] However, under the facts of this case, ... it would work a manifest injustice not to allow [appellant] to fully address the issue and would constitute an abuse of discretion.” Worth v. Ga. Farm &c. Ins. Co., 174 Ga. App. 194, 196-197 (2) (330 SE2d 1) (1985). Accordingly, the directed verdict in Shah’s favor must be reversed.

Decided September 17, 1990

Morris & Webster, F. Leonard Morris, Jr., for appellant.

Allen & Kelley, Roy Benton Allen, Jr., Sims, Fleming & Swan, John S. Sims, Jr., for appellee.

Judgment reversed.

Pope and Beasley, JJ., concur.


author: Sognier, Judge.

text:
    A90A0889.
    INGRAM v. PETERSON.
    (397 SE2d 141)
   Sognier, Judge.

Brenda Ingram brought suit against Joe H. Peterson to recover for personal injury and property damage resulting from an automobile accident. Judgment was entered on the jury’s verdict in favor of Peterson, and Ingram appeals following the denial of her motion for a new trial.

1. Appellant contends the verdict was contrary to the evidence and strongly against the weight of the evidence. Appellant’s vehicle was hit on the driver’s side by the car driven by appellee. The varying estimates appellant had given at the time of the collision regarding her speed at the time of impact were adduced at trial. Although appellee had entered a guilty plea to the charge of failure to yield the right of way, he testified at this trial that he felt compelled to do so because he had been cited by the police. He also testified that prior to the accident he slowed his vehicle at the traffic light at the intersection, came to an almost complete stop, and eased his car into the intersection to look for oncoming traffic before making a left turn. Despite appellee’s actions, and even though there was no obstruction blocking her view of the intersection, appellant testified that she did not see appellee’s car until the moment of impact. In addition, although appellant asserts in her brief that she sustained serious physical injuries, the transcript reveals that she was released from the emergency room after the collision in good condition, did not seek further medical treatment until three or four weeks later, and did not lose any time from work due to her injuries although her job as a laborer required heavy lifting and carrying.

We find that in view of this evidence, the trial court properly submitted both the issue of negligence and that of damages to the jury, which returned a verdict in favor of appellee. “ ‘In the absence of legal error, an appellate court is without jurisdiction (or authority) to interfere with a verdict supported with some evidence, even where the verdict may be against the preponderance of evidence.’ [Cit.]” Stone v. Cook, 190 Ga. App. 11, 14 (1) (378 SE2d 142) (1989).

2. Our review of the record reveals that no objection was raised at trial to the trial court’s charges on the basic rules of the road, taken from OCGA § 40-6-180, and comparative negligence (other than the charge discussed in Division 3, infra, which appellant characterizes as a charge on “contributory negligence”). “ ‘When a party fails to object to a jury charge at the time of trial [s]he is precluded from alleging error on appeal as to that ground. (Cits.)’ [Cit.]” Carrandi v. Sanders, 188 Ga. App. 562, 564 (2) (373 SE2d 661) (1988).

3. Appellant enumerates as error the trial court’s charge on “contributory negligence.” The trial court charged the jury that “[i]f you should determine from the evidence that [appellant] failed to exercise ordinary care for [her] own safety and that the failure on [her] part was the proximate cause of injury, then [appellant] could not recover.” Appellant argues that had the trial court included the word “sole” before the word “proximate,” the charge would have been proper as a charge on causation, but that as given the charge was a charge on “contributory negligence,” which was confusing to the jury and prejudicial to appellant. We do not agree. Although it would have been preferable to include the word “sole,” as suggested by appellant, viewing the charge as a whole, as we must, see Clemons v. Atlanta Neurological Institute, 192 Ga. App. 399, 401 (384 SE2d 881) (1989), we cannot say that it misstated the law or was confusing to the jury. It is well established that “a plaintiff cannot recover if his [own] negligence is the proximate cause of his injuries. This rule is not [an] exception to the rule [of comparative negligence], because [the doctrine of comparative negligence applies] only to cases where the concurring negligence of the plaintiff and defendant combine proximately to cause the injury.” Willis v. Jones, 89 Ga. App. 824, 825-826 (81 SE2d 517) (1954). In this case, since the portion of the court’s charge objected to was a correct statement of the law, and the jury was immediately thereafter charged completely and adequately concerning comparative negligence, we find no error.

4. Unlike the situation in Meacham v. Barber, 183 Ga. App. 533, 535-536 (2) (359 SE2d 424) (1987), relied on by appellant, in the case sub judice appellant made no written request for the court to charge the jury that the burden was on appellee to establish by a preponderance of the evidence that appellant’s injuries were caused by her own negligence or contributory negligence if he relied on such defense. “There being no timely and appropriate written request to charge as to appellee’s burden of proving appellant’s contributory negligence, no reversible error is shown.” Whitman v. Burden, 155 Ga. App. 67-68 (2) (270 SE2d 235) (1980).

5. We cannot agree with appellant’s contention that the trial court erred by denying her motion for a directed verdict as to the issue of liability. The standard of review for the denial of a motion for a directed verdict is the “any evidence” test. Stratton Indus. v. Northwest Ga. Bank, 191 Ga. App. 683, 685-686 (1) (382 SE2d 721) (1989). This court has held that “[i]t does not follow from the fact that a driver has the right-of-way at an intersection that he is thereby entitled ‘to drive blindly or recklessly across (the) intersection . . . without regard to the conditions and consequences.’ [Cits.] ‘(E)ven if the (other) driver ... is guilty of negligence per se or has otherwise failed to exercise ordinary care in approaching the intersection, this will not relieve the driver having the right-of-way of his own legal duty to exercise ordinary care under the facts and circumstances of the situation. . . .’ [Cit.]” Stroud v. Woodruff, 183 Ga. App. 628, 629 (1) (359 SE2d 680) (1987). In this case, because there was a jury question whether appellant exercised due care in negotiating the intersection, the trial court properly denied appellant’s motion for a directed verdict on the issue of liability.

6. Appellant finally enumerates as error the trial court’s refusal to allow her to call as an adverse witness Taiman Howard, an adjuster for appellee’s insurance carrier. Appellant relies on OCGA § 24-9-81, which permits calling for the purpose of cross-examination an “agent of any person for whose immediate benefit [an] action is prosecuted or defended” as authority for her assertion that Howard was an adverse witness. The record reveals, however, that appellee and the trial court were concerned that questioning Howard would inject into the proceedings the issues of insurance and a settlement offer proposed by Howard. Appellant’s counsel assured the court that he simply wanted to establish some facts through Howard, and would “not ask [Howard] a single thing that has to do . . . with his employment. . . or [the] compromise that he offered.” Appellant was permitted to question Howard freely on that basis, and elicited all the information which counsel stated was desired. Appellant has shown no harm accruing to her from the court’s ruling that Howard must be called as appellant’s witness, nor has she shown that any difference in Howard’s testimony would have resulted had he been called as an adverse witness. Accordingly, we need not decide whether the trial court’s ruling that Howard was not an adverse witness pursuant to OCGA § 24-9-81 was erroneous. “It is an old and sound rule that error to be reversible must be harmful.” (Citations and punctuation omitted.) Kolman, Inc. v. Burns, 191 Ga. App. 758, 759 (382 SE2d 702) (1989).

Decided September 4, 1990

Rehearing denied September 18, 1990 — Cert, applied for.

Peter G. Williams, for appellant.

Kay D. Thompson, for appellee.

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    A90A1049.
    BISHOP v. WESTMINSTER SCHOOLS, INC.
    (397 SE2d 143)
   Banke, Presiding Judge.

The Westminster Schools, Inc., brought this action against W. Kent Bishop seeking to recover approximately $6,500 in tuition allegedly owed by him pursuant to an oral promise to pay for his daughter’s attendance at Westminster during the 1986-87 school year. Bishop filed an answer and counterclaim in which he admitted having made such a pledge but alleged that it was conditioned upon the occurrence of at least one of the following two events, neither of which had yet occurred: (1) The endorsement by his former wife (the child’s mother) of his tuition checks made payable jointly to her and the school, or (2) the rendition of a final decision by the Georgia courts on the issue of whether he was entitled to a credit against child support for tuition payments he had previously made to the school on his daughter’s behalf. Bishop further alleged in his answer that the school’s claim was unenforceable “beyond the amount of $5,000, pursuant to the Georgia statute of frauds embodied in OCGA § 11-1-206.” His counterclaim was predicated on the school’s breach of an alleged agreement “not to take any action to enforce [his] pledge [prior to the resolution of] the issue of whether [he was] entitled to a credit against child support for said payments.”

Bishop filed his original answer and counterclaim on March 21, 1988, and on April 26, 1988, the school filed a motion for judgment on the pleadings. Although Bishop never filed a response to this motion, he did file an amendment to his answer approximately a year later asserting the defense of duress. In an affidavit attached to this amendment, he averred that his daughter had suffered “psychiatric harm” as a result of the “legal entanglements” surrounding his marriage tó her mother; that at a meeting with the school’s president which took place at the school on January 1, 1987, the president had threatened to expel the child “then and there” if he (the appellant) did not pledge to pay her tuition for the 1986-87 school year; and that he was forced to comply with this demand because such expulsion would have caused his daughter “irreversible psychological harm.” The trial court subsequently granted the school’s motion for judgment on the pleadings, and this appeal followed. Held:

1. At the outset, we must reject Westminster’s contention that it was entitled to judgment on the pleadings based on the appellant’s failure to file a response to the motion within 30 days in compliance with Rule 6.2 of the Uniform Rules for the Superior Courts. Just as “[t]here is no such thing as a ‘default summary judgment,”’ McGivern v. First Capital Income Prop., 188 Ga. App. 716, 717 (373 SE2d 817) (1988), neither is there any such thing as a “default judgment on the pleadings.” The issue in a motion for judgment on the pleadings is “ ‘whether the undisputed facts appearing from the pleadings show the [movant] is entitled to judgment as a matter of law.’ [Cit.]” Christner v. Eason, 146 Ga. App. 139 (245 SE2d 489) (1978). The outcome of this inquiry is not affected by whether the opposing party has or has not filed a response to the motion. Cf. Coleman v. State Farm Mut. &c. Co., 192 Ga. App. 285, 288 (3) (384 SE2d 399) (1989).

2. In his counterclaim, the appellant alleges that the school committed a breach of contract by suing him for breach of contract prior to the occurrence of at least one of the alleged conditions precedent to the enforceability of his pledge. The trial court did not err in concluding that this claim was lacking in merit as a matter of law. The notion that the school would contract with the appellant to refrain from suing him for money he did not owe is ridiculous on its face, inasmuch as the duty to refrain from suing another on a meritless claim exists irrespective of any agreement. See generally OCGA § 51-7-80; Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986).

3. The appellee was also entitled to judgment on the pleadings with respect to the appellant’s defense that enforcement of his pledge in any amount beyond $5,000 was barred by the Statute of Frauds set forth at OCGA § 11-1-206. This Code section applies by its terms solely to contracts “for the sale of personal property.” Quite obviously, a school tuition payment is a payment for services rather than for the purchase of personal property. We are not persuaded to the contrary by the appellant’s argument that a material amount of the tuition may have been for such items as “uniforms, lockers, locksets, tennis balls, papers, materials, books, supplies, tickets, meals, publications, snacks, pencils, erasers, college recommendations, admission tickets to athletic events, cultural events, etc.” In the first place, § 1-206 of the UCC applies only “to choses in action, to ‘general intangibles,’ and to transactions excluded from Article 9 on secured transactions.” Anderson, Uniform Commercial Code (3rd ed.), § 1-206:4, p. 429. Moreover, the inclusion of such incidental items in the tuition fee clearly would not, in any event, reduce the essential character of the transaction to a sale of personal property. “When the predominant element of a hybrid contract is that of service, the [UCC] [S]tatute of [F]rauds is not applicable.” Anderson, supra, § 2-201:53, p. 41. Finally, there is no question that the child completed the 1986-87 school year at Westminster, and the Statute of Frauds does not bar enforcement of a contract which has been fully performed on one side. See, e.g., Amax, Inc. v. Fletcher, 166 Ga. App. 789, 790 (1) (305 SE2d 601) (1983).

Decided September 4, 1990

Rehearing denied September 18, 1990 — Cert, applied for.

W. Kent Bishop, pro se.

Howell & Whiting, James S. S. Howell, John C. Whiting, for appellee.

4. The allegations contained in the appellant’s amended answer, as amplified by his attached affidavit, conclusively negate any contention that his pledge to pay his daughter’s tuition was extracted from him under duress within the contemplation of OCGA § 13-5-6. As indicated above, the appellant received and accepted from the school the benefits of his pledge in that his daughter was permitted to remain there throughout the remainder of the school year. Obviously, the school was under no obligation to educate the child free of charge in order to help her deal with the emotional distress she was suffering as the result of her parents’ conduct. See generally OCGA § 13-5-6; Tidwell v. Critz, 248 Ga. 201, 203-5 (282 SE2d 104) (1981).

5. We must conclude, however, that the trial court erred in ruling that the school was entitled to judgment on the pleadings with respect to the appellant’s defense that neither of the alleged alternative conditions precedent to the enforceability of his pledge had yet occurred. While the appellee asserts in its brief on appeal that one of these conditions precedent has now in fact transpired, there is nothing in the record to support this assertion; and a motion for judgment on the pleadings may not, in any event, be based on matters outside the pleadings unless the summary judgment procedures are followed. See OCGA § 9-11-12 (c).

6. The appellee’s motion for the assessment of a penalty against the appellant pursuant to OCGA § 5-6-6 for filing a frivolous appeal is necessarily, though somewhat regretfully, denied.

Judgment reversed.

Birdsong and Cooper, JJ., concur.


text:
    A90A1150.
    ANTIQUE CENTER OF ROSWELL, INC. v. CITY OF ROSWELL.
    (397 SE2d 146)
   Banke, Presiding Judge.

The City of Roswell initiated condemnation proceedings to acquire certain property in which the appellant held a leasehold interest and on which it had been operating a “flea market” and auto auction business. A special master awarded the appellant $485,000 for its interest, and the city appealed. The case was then tried before a jury, which awarded the appellant only $6,500. The appellant brings the present appeal from the denial of its motion for new trial. Held:

1. The appellant, contends that the trial court erred in refusing to give its requested charge that it was entitled to recover its moving expenses and relocation costs incurred as a result of the condemnation, “including its costs to advertise and market its new location.” The business had not relocated at the time the case was tried, and the evidence of the appellant’s prospective relocation expenses consisted, in its entirety, of the following testimony offered by the owner on direct examination: “Q. [W]hen you relocate this, what would you think to be reasonable advertising costs at a new location? A. Well, I put in approximately $185,000 in advertising costs [at the original location]. . . . I would think maybe up to a quarter of a million dollars in the new building will be necessary to get this going again. Q. ... Do you have an opinion as to what it would cost you physically just to move what you have got to any other location? A. I think [for] the physical moving, [ten thousand dollars is] probably in the ball park, ten, fifteen thousand dollars to move it. . . .” Pretermitting whether an award of damages for relocation costs, including advertising expenses, would have been authorized in this case on the basis of proper proof thereof, the foregoing testimony was clearly insufficient to support such an award in that it was wholly speculative in nature.

2. The appellant contends that “[t]he trial court committed reversible error when it limited the measure of . . . damages to the fair market value of the leasehold, when the evidence and the law warranted consideration of other factors.” However, we are cited to no ruling made by the trial court in connection with this enumeration of error. Consequently, it presents nothing for review. Cf. Hall v. State, 180 Ga. App. 881, 882 (2) (350 SE2d 801) (1986).

3. The appellant contends that the jury’s verdict was contrary to the weight of the evidence. This court has no power to disturb a verdict in a civil action on the ground that it is contrary to the weight of the evidence but is limited to consideration of whether there is any evidence at all to support the verdict. See Lane Drug Stores v. Brooks, 70 Ga. App. 878, 885 (29 SE2d 716) (1944); Spivey v. Rogers, 173 Ga. App. 233, 238 (2) (326 SE2d 227) (1984). The city presented expert testimony as to the market value of the leasehold interest, which testimony supported the jury’s verdict in this case. While the appellant complains that the properties considered by the city’s expert in arriving at his opinion of the value of the leasehold interest were dissimilar to the property being condemned, that was itself an issue for jury resolution. “ ‘Exact similarity is not generally attainable, and any dissimilarities in the lands or their transfer are matters which go to the weight to be given by the jury to the evidence. . . .’ [Cits.]” Macon-Bibb County &c. Auth. v. Reynolds, 165 Ga. App. 355, 357 (3) (299 SE2d 592) (1983).

Decided September 4, 1990

Rehearing denied September 18, 1990 — Cert, applied for.

James J. Pirkle, Towery, Thompson, Gulliver & Bunch, Jeffrey D. Bunch, Linda B. Borsky, for appellant.

Weiner, Dwyer, Yancey & Mackin, J. Matthew Dwyer, Jr., for appellee.

4. The appellant contends that the trial court erred in refusing to admit evidence that the city had depressed the value of the leasehold interest prior to the taking by such actions as harassing existing tenants and telling prospective tenants that space in the facility could not be leased due to the prospective condemnation. This enumeration of error is also without merit. A diminution in value which occurs as the result of an anticipated condemnation is not compensable, Josh Cabaret, Inc. v. Dept. of Transp., 256 Ga. 749 (3) (353 SE2d 346) (1987); and it has been held that evidence of such a diminution in value resulting from the alleged conduct of the condemnor cannot be introduced for the purpose of proving bad faith on the part of the condemnor. See Department of Transp. v. Petkas, 189 Ga. App. 633, 638 (5) (377 SE2d 166) (1988). Accord Department of Transp. v. Franco’s Pizza &c., 164 Ga. App. 497, 498 (1) (297 SE2d 72) (1982).

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A90A1350.
    MICKEY v. THE STATE.
    (397 SE2d 148)
   Banke, Presiding Judge.

The appellant was found guilty of following too close, driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (1), and driving with an unlawful blood-alcohol level in violation of OCGA § 40-6-391 (a) (4). However, the first two offenses were merged into the latter for sentencing. The appellant’s sole contention on appeal is that the state failed to prove he was driving the vehicle involved in the incident.

Decided September 4, 1990

Rehearing denied September 18, 1990.

Frank J. Petrella, for appellant.

Patrick H. Head, Solicitor, Victoria Aronow, Beverly M. Hartung, Assistant Solicitors, for appellee.

The appellant and two companions, Frank and Phillip Roupas, were occupying a Bronco automobile which collided with a tractor-trailer truck. By the time the investigating officer arrived on the scene, all three men were standing outside the vehicle. The officer testified that when she asked them who had been driving, the Roupas brothers both pointed at the appellant, and that when she asked the appellant whether he had been driving, he responded in the affirmative. Because the appellant appeared to her to be intoxicated, she then asked him to perform certain field sobriety tests and to submit to an “alcosensor” test. Based on the results of those tests, she arrested him for driving under the influence. The officer testified that as she was placing the handcuffs on the appellant in preparation for placing him in the patrol car, he told her for the first time that he had not been driving. By this time, his two companions had left the scene. At trial, the appellant testified that he had been seated in the back seat of the Bronco at the time of the accident and that Frank Roupas had been driving. Testifying on the appellant’s behalf, the Roupas brothers both corroborated this account. Held:

“The weight of the evidence and credibility of witnesses is for the jury’s determination. . . .” Miller v. State, 163 Ga. App. 889, 890 (296 SE2d 182) (1982). The evidence, construed in the light most favorable to the verdict, was sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of driving a motor vehicle in violation of OCGA § 40-6-391 (a) (4). See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


author: Pope, Judge.

text:
    A90A1076.
    THE STATE v. JONES.
    (397 SE2d 209)
   Pope, Judge.

Defendant Gerald. Dexter Jones was indicted for armed robbery. Subsequently, defendant’s probation officer in a previous criminal case, to which defendant pled guilty, petitioned the state court to revoke the sentence of probation imposed in this earlier case on the ground defendant had violated the terms of his sentence by committing the alleged armed robbery. After an evidentiary hearing the State Court judge refused to revoke probation and entered an order stating: “The Court does not find violation [of the terms of probation].” In the armed robbery case now before us, the superior court granted defendant’s plea in bar and ruled that the adjudication in favor of defendant in the probation revocation hearing serves as collateral estoppel of the issues presented in the case. The State appeals.

This court has previously ruled that a ruling in favor of the accused in a probation revocation hearing does not serve as collateral estoppel to preclude a subsequent trial of the criminal charge which formed the basis of the revocation proceeding. See Teague v. State, 169 Ga. App. 285 (312 SE2d 818) (1983); cf. Harvill v. State, 190 Ga. App. 353, 354 (1) (378 SE2d 917) (1989) (in which we held that issues decided adversely to a probationer in a revocation proceeding do not preclude the individual, as defendant in a subsequent criminal trial, from obtaining a ruling on those issues by the trial court). Defendant argues that the ruling in Teague no longer applies because the quantum of proof necessary to revoke probation has been changed since that case was decided. At the time Teague was decided, only “slight evidence” of violation of the probation sentence was necessary to justify revocation of probation. Teague, supra at (1). Now, pursuant to OCGA § 42-8-34.1 (a), effective April 14, 1988, probation may be revoked only if violation of probation is shown by a preponderance of the evidence. While this new statute imposes a more rigorous standard for revoking probation, it does not affect the rule that a ruling in favor of the probationer, continuing rather than revoking his probation, has no collateral estoppel effect in a subsequent criminal trial. Simply because probation was continued does not necessarily mean the court found no violation of probation. According to OCGA § 42-8-38 (c), the revocation or continuance of probation is still within the discretion of the trial court so long as a ruling to revoke is based on at least a preponderance of the evidence, as required by OCGA § 42-8-34.1 (a). In deciding whether to revoke or continue probation the judge may take into consideration other circumstances and may be “directed by [his own] reason and conscience ... to a just result.” Scott v. State, 131 Ga. App. 504, 505 (206 SE2d 137) (1974).

Here, the trial court which ruled on the petition for revocation stated in its order it did “not find violation.” Even this finding does not serve as collateral estoppel of the issue of defendant’s guilt or innocence of the crime for which he is charged in this subsequent case. What is at issue in a probation revocation hearing “is punishment for the crime for which the defendant was convicted in the first instance. ... At the hearing to determine whether or not the probation should be revoked, the defendant was not on trial to determine whether or not he was guilty [of the subsequently charged crime].” Johnson v. State, 214 Ga. 818, 819 (108 SE2d 313) (1959). “The exercise of . . . discretion in declining to revoke probation should not be viewed as, and is in no way an adjudication of, the allegations sufficient to constitute an acquittal in a criminal prosecution or any form of final judgment which would act as a bar to a subsequent prosecution.” Teague, supra at 286. The trial court erred in granting defendant’s plea in bar.

Decided September 18, 1990.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellant.

Albert M. Pearson III, for appellee.

Judgment reversed.

Deen, P. J., and Beasley, J., concur.