text:
    A91A0361.
    BAILEY v. HALL.
    (405 SE2d 579)
   Birdsong, Presiding Judge.

This is an appeal of an order by the superior court dismissing appellee, Stuart Hall, as a party defendant.

Appellant, Nichola Bailey, was injured in October 1986, when a car driven by her former husband, appellee Hall, collided with a car driven by defendant Walter Roger Bartee.

In October 1987, appellant commenced suit against defendant Bartee and defendant Nationwide Insurance Company. Defendants filed a third-party complaint against appellee Hall. Appellee answered and submitted defensive pleadings. In May 1989, appellant, with approval of the trial court, elected to dismiss the suit without prejudice. In August of 1989, appellant refiled her complaint against the two original defendants and the original third-party defendant Hall. Held:

1. Appellant contends that the trial court erred in ruling that ap-pellee was not subject to the jurisdiction of the superior court. The trial record fails to reflect that the trial court made any such ruling, rather the trial court’s order merely states that after considering the parties’ briefs and cases cited, appellee Hall “should be and is hereby dismissed as a defendant.”

Appellant basically asserts that jurisdiction vests under both the Georgia Nonresident Motorist Act, OCGA § 40-12-1 et seq. and the Georgia Long-Arm Statute, OCGA § 9-10-91 (2). Appellee argues that pursuant to Young v. Morrison, 220 Ga. 127 (137 SE2d 456) the Nonresident Motorist Act does not apply to a “nonresident,” like himself, as he was a Georgia resident at the time the cause of action arose (in this instance at the time of the automobile collision impact giving rise to the injury). The decision in Young v. Morrison, however, was overruled in Crowder v. Ginn, 248 Ga. 824 (286 SE2d 706). Nevertheless, examining the Georgia Nonresident Motorist Act, together with the definition of “Nonresident” contained in OCGA § 40-1-1 (30), we find that the statute applies only to those persons who were in fact nonresidents at the time they were exercising the rights and privileges referred to in OCGA § 40-12-1. The Nonresident Motorist Act, being in derogation of common law, must be strictly construed. Ford Motor Co. v. Carter, 239 Ga. 657, 659 (238 SE2d 361). Its main and controlling purpose “is to provide a ready and efficient remedy in this state for injuries occasioned by the negligent operation of motor vehicles upon the highways of this state by nonresidents having no fixed residence or place of business in this state where they may be readily found and served.” (Emphasis supplied.) Cheeley v. Fujino, 131 Ga. App. 41 (4) (205 SE2d 83). To accomplish this purpose, OCGA § 40-12-1 (a) currently “permits an alleged non-resident tortfeasor involved in any motor vehicle accident to be served with process through the Secretary of State if the non-resident ‘may be involved by reason of the operation by him, for him, or under his control or direction, express or implied, of a motor vehicle anywhere within the territorial limits of the State of Georgia.’ ” (Emphasis supplied.) Hardin v. Wright, 172 Ga. App. 644, 645 (323 SE2d 918). Thus, it appears that at the time of appellee’s involvement in the automobile accident, he must have been a nonresident, within the meaning of OCGA § 40-1-1 (30) to be subject to the existing Georgia Nonresident Motorist Act. As appellee was a Georgia resident at the time of his involvement, jurisdiction could not be obtained over him by utilization. of Nonresident Motorist Act procedures.

However, as appellee committed a tortious act within this state, he is subject to the superior court’s jurisdiction under the state’s long-arm statute, OCGA § 9-10-91 (2). This result obtains as the term “nonresident” for purpose of the long-arm statute is expressly defined to include “an individual . . . who, at the time a claim or cause of action arises under Code Section 9-10-91, was residing ... in this state and subsequently becomes a resident. . . outside of this state as of the date of perfection of service of process as provided by Code Section 9-10-94.” OCGA § 9-10-90. Moreover, the due process clauses of our state and federal constitutions do not preclude defining “nonresident” in such a manner for long-arm statuté purposes. Crowder v. Ginn, supra. As appellee was a resident of Georgia when the cause of action accrued, and thereafter became a resident of another state, he was subject to jurisdiction of the superior court, provided service of process was perfected in accordance with the long-arm statute. Denny v. Croft, 195 Ga. App. 871 (395 SE2d 72); Smith v. Griggs, 164 Ga. App. 15 (296 SE2d 87); Mutual Fed. &c. Assn. v. Reynolds, 147 Ga. App. 810, 811 (250 SE2d 556); see Crowder, supra.

2. Appellant asserts the trial court erred in ruling service upon appellee was improper. The record reflects service of process initially was attempted by mailing a copy of “complaint and process” by certified or registered mail to appellee at a certain Alabama address. Ap-pellee acknowledges receipt of these documents on August 31, 1989, by certified mail. Subsequently, in September 1989, appellee filed both a motion to dismiss and a combined answer and defensive pleading in which he timely challenged the validity of service. On August 30, 1990, appellant/plaintiff filed a motion for special appointment of process server, and personal service of process was made upon appel-lee in Columbus, Georgia on September 12, 1990.

Service under the long-arm statute is governed by OCGA § 9-10-94, which provides that such service is the same as for persons found within the state under the CPA § 4 (OCGA § 9-11-4). Lee v. Pace, 252 Ga. 546 (315 SE2d 417). From the record, including appellant/plaintiff’s affidavit of compliance for service of process upon a nonresident motorist, it is clear that service initially was attempted by forwarding via registered or certified mail a copy of the complaint and process to the appellee, and without publication thereof. The attempted service in this manner was ineffective, because this was a tort action seeking in personam jurisdiction against appellee. Jones v. Cropps, 197 Ga. App. 313, 314 (1) (398 SE2d 295), citing Smith v. Commercial Union Assur. Co., 246 Ga. 50 (268 SE2d 632). Pretermitting the question of whether service can be perfected by publication, pursuant to OCGA § 9-11-4 (e) (1) (in cases in which jurisdiction vests pursuant to the tor-tious act or omission provisions of OCGA § 9-11-91 (2)) (see generally OCGA § 9-10-94) in view of the broad language of OCGA § 9-11-4 (e) (1) (A) (as amended), providing that “[t]his Code section shall apply to all manner of civil actions”) is the posture of this record, which reflects that appellant/plaintiff has failed to comply adequately with the requirements for publication of OCGA § 9-11-4 (e) in regard to the initial attempt at service by mailing in August 1989.

Marbury v. Marbury, 256 Ga. 651 (352 SE2d 564) and Lee v. Pace, supra, are distinguishable from the operative facts regarding service existing in this case.

Further, unlike Lee v. Pace, supra, appellee did not waive the issue of service; and, that he acknowledged receipt of the originally mailed process is immaterial, as the fact he acknowledged receipt in connection with an attempted but invalid service does not suffice to afford the required notice of the action or dispense with valid service. See Denny v. Croft, supra at 872. Acknowledgment of service, without an express waiver of process, does not constitute a waiver of valid service of process. Edison Provision Co. v. Armour & Co., 51 Ga. App. 213, 214 (179 SE 829).

Appellant, however, maintains that subsequent personal service of process upon appellee in September 1990 was timely and constituted valid service. Personal service was effected long after the statute of limitation had expired and approximately one year after appel-lee filed his motion to dismiss based inter alia on grounds of improper service. Nevertheless, appellant, citing Childs v. Catlin, 134 Ga. App. 778 (216 SE2d 360), asserts her subsequent perfection of service would relate back to the August 28, 1989, filing as she acted in a reasonable and diligent manner to assure proper service was made as quickly as possible after discovering appellee “was originally improperly served.” (Emphasis supplied.)

Appellant’s action was refiled several months before the expiration of the six-month period permitted for renewal of a case after dismissal. See generally OCGA § 9-2-61. Assuming without deciding that appellant could utilize the renewal procedure of OCGA § 9-2-61 where appellee was a third-party defendant in the original suit (compare Cox v. Strickland, 120 Ga. 104 (47 SE 912); Cale v. Jones, 176 Ga. App. 865 (338 SE2d 68); McCoy Enterprises v. Vaughn, 154 Ga. App. 471 (268 SE2d 764)), the problem of timeliness of service remains. In Jones v. Cropps, supra at 314 (2), this court held, “[b]ecause an action under the Code section [OCGA § 9-2-61] is de novo, the ‘procedural prerequisites such as filing of a new complaint and perfection of service must be met anew.’ [Cits.] In such circumstances, as in the normal statute of limitation situation, where the suit is filed before but service is beyond the expiration period then service is sustainable only if plaintiff acted in a reasonable and diligent manner in attempting to insure that proper service was made as quickly as possible. [Cit.] Plaintiff acted reasonably in his initial attempts to obtain service but after defendant answered specially and asserted the defenses of lack of service and jurisdiction plaintiff took no action to discover where defendant actually resided until after the time for permissible discovery under USCR 5. This was a clear failure to exercise due diligence and constituted laches on plaintiff’s part. This authorized the trial court to dismiss the complaint for untimely service.” The record before us reflects an inordinate and unexplained delay on the part of appellant in obtaining personal service of appel-lee, particularly after being placed on due notice of the deficiency in her original service. Considering the factual posture of the record, we cannot say the trial court would abuse its discretion by holding appellant failed to exercise due diligence in attempting to perfect timely personal service on appellee. See Forsyth v. Brazil, 169 Ga. App 438 (313 SE2d 138); Smith v. Griggs, supra at 18. A judgment right for any reason must be affirmed. Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673). Granted, “[t]he trial court did not explicitly base its decision upon the failure of plaintiff to act in a reasonable and diligent manner, but unlike Childs, supra, the court did not expressly show that it was not considering those essential factors.” Jones, supra at 314-315. Accordingly, as in Jones, this case need not be remanded. “It is affirmed on the principle that in the absence of a contrary showing, the trial court will be presumed to have followed the law. [Cits.]” Jones, supra at 315.

Decided April 29, 1991.

Beauchamp & Associates, Robert M. Beauchamp, for appellant.

Geer & Rentz, Donald D. Rentz, Cannon & Meyer Von Bremen, William E. Cannon, Jr., for appellee.

In view of our above holding it is not necessary to address appellant’s remaining enumerations of error.

Judgment affirmed.

Pope and Cooper, JJ., concur.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A91A0483.
    SCOTT v. TREMCO, INC. et al.
    (405 SE2d 347)
   Pope, Judge.

Claimant Kendrick Scott commenced this workers’ compensation case by filing a timely claim against his immediate employer, a construction subcontractor, and the general contractor of the construction site where the claimant sustained his injuries. Over one year from the date of claimant’s injury the owner of the premises, which had been added to the proceeding, requested that Tremco, Inc., be added to the proceeding as a statutory employer. The Administrative Law Judge to whom the case was first assigned issued an order dismissing Tremco on the ground it was not a statutory employer and on the ground that the claim against Tremco was barred by the one-year statute of limitation. The record shows the order of dismissal was entered without a hearing only four days after Tremco’s motion to dismiss was filed. The claimant was afforded no opportunity either to be heard or to file a brief in opposition to the motion because the order was issued on the date the claimant received his service copy of the motion in the mail. The ALJ denied claimant’s request to certify the issue for immediate appeal to the full board but noted that an appeal could be filed after a final award was issued pursuant to an eviden-tiary hearing on the merits of the claim.

Before the case came up for an all-issues hearing, the original ALJ transferred the case to another ALJ. In the order granting benefits to the claimant against his immediate employer, the second ALJ declared that Tremco and its insurer had been erroneously discharged and should be added as parties because Tremco was a statutory employer. The order did not grant an award against Tremco or determine Tremco’s liability, nor could the order have done so since Tremco had previously been dismissed and was not represented at the hearing.

More than 20 days after the award was entered, the claimant requested that Tremco and its insurer be added as a party and requested a hearing to determine Tremco’s liability. The second ALJ held a hearing and issued an order holding Tremco liable to the claimant as a statutory employer. In the award against Tremco, the second ALJ concluded that the earlier dismissal of Tremco without allowing the claimant the opportunity to be heard was beyond the statutory authority of the first ALJ and was a violation of the claimant’s right to due process of law. The second ALJ found evidence to support a finding that Tremco was the claimant’s statutory employer and concluded that the claim against Tremco was not barred by the statute of limitation because the claim was brought against the immediate employer within one year, as required by OCGA § 34-9-82. An award was entered directing Tremco to pay all benefits awarded to the claimant which had not been paid by the immediate employer, the attorney fees assessed against the immediate employer plus an additional award of attorney fees as a penalty for the immediate employer’s failure to obtain workers’ compensation insurance coverage. The award was approved by the full board with the exception of the assessment of additional attorney fees as a penalty for failure to obtain insurance.

Tremco appealed the award to the superior court which found that because the claimant failed to file an appeal to the order dismissing Tremco within the time allowed for appealing the award of benefits (20 days pursuant to OCGA § 34-9-103 (a), although the trial court erroneously referred to a 30-day period), then neither the ALJ nor the full board had authority to issue a subsequent order adding Tremco or adjudicating Tremco’s liability. We granted the claimant’s application for discretionary review of the superior court’s order.

1. We agree that if the initial .order awarding benefits had not addressed the issue of Tremco’s earlier dismissal from the proceeding, then the dismissal would have been res judicata after the appeals period expired and neither the board nor the ALJ could have later added Tremco as a party. The order, however, contained a finding that Tremco had been erroneously dismissed. Essentially, this finding was a reconsideration and reversal of the previous dismissal in the case. The controlling issue in this appeal is whether the ALJ had authority to reconsider and reverse a previous ruling.

Pursuant to OCGA § 34-9-103, any time before the expiration of the 20-day period for filing an application for review of an ALJ’s award to the board, an ALJ has “authority to reconsider, amend, or revise the award to correct apparent errors and omissions.” Aetna Cas. &c. Co. v. Barden, 179 Ga. App. 442, 443 (1) (346 SE2d 588) (1986). If this statute permits the reconsideration of a final award, it should be interpreted as also permitting the reconsideration of a preliminary, non-final order issued prior to the final award. A preliminary order, just as much as a final order, is subject to review on appeal within 20 days after the final award. Thus, any order in a case, not just a final order, should be subject to reconsideration during the 20-day period in OCGA § 34-9-103.

OCGA § 34-9-103 (b) only permits an amendment to correct obvious errors and was not intended to open the case for a de novo hearing. Cotton States Ins. Co. v. Bates, 140 Ga. App. 428 (231 SE2d 445) (1976). But here, failure to grant a hearing on the motion to dismiss was an obvious violation of the claimant’s right of due process. The constitutional guarantees of due process grant every party to a lawsuit (or a workers’ compensation proceeding) “the opportunity to be heard and to present his claim or defense, i.e., to have his day in court. . . . These rights are granted to all parties . . . and are applicable in workers’ compensation proceedings. See [OCGA § 34-9-102 (e) (1)].” Hart v. Owens-Illinois, Inc., 165 Ga. App. 681, 682-683 (302 SE2d 701) (1983). See also Miller v. Brunswick Pulp &c. Co., 184 Ga. App. 172 (360 SE2d 754) (1987). Moreover, the dismissal of Tremco on the ground the claim was barred by the statute of limitation was an obvious error of law because the claimant timely instituted his claim against the immediate employer, as required by OCGA § 34-9-8 (c), and thus, pursuant to said statute, also preserved his right to recover compensation against a statutory employer. Thus, the ALJ had authority to reconsider and reverse the initial dismissal of Tremco in the order awarding benefits to the claimant as against the immediate employer. Since the dismissal was reconsidered and reversed within the order awarding benefits, the dismissal was no longer valid and the superior court erred in holding that the order dismissing Tremco became final after the expiration of the time for appealing the award of benefits.

2. The record contains facts supporting the finding that Tremco is liable to the claimant as a statutory employer. As noted above, the claim against Tremco was not time-barred because claimant’s claim was timely commenced against the immediate employer, as required by OCGA § 34-9-8 (c). Cf. McCormick v. Kitchens, 59 Ga. App. 376 (1 SE2d 57) (1939) (in which the claimant filed his claim against a party who was later determined not to be claimant’s employer, then, because the period of limitation had expired, it was too late to bring the claim against other alleged employers). Thus, the superior court erred in holding the ALJ and board erred in adding Tremco as a party and finding Tremco liable to claimant.

Decided April 29, 1991

Greene, Buckley, Jones & McQueen, H. Worthington Lewis, for appellant.

Whitehurst & Frick, Elaine W. Whitehurst, Scott A. Wharton, for appellees.

However, the superior court did not err in reversing the assessment of attorney fees against Tremco. The board eliminated the ALJ’s additional award of attorney fees against Tremco which was imposed as a penalty for the immediate employer’s failure to procure workers’ compensation insurance. It affirmed, however, the assessment against Tremco of those attorney fees originally imposed against the immediate employer for defending the claim without reasonable grounds. The statute authorizing the assessment of attorney fees for bringing an unreasonable defense indicates they may be assessed against the “offending party.” OCGA § 34-9-108 (b) (1). The offending party was the immediate employer. The ALJ expressly found Tremco’s defense of the claim was not unreasonable. Therefore, Tremco could not be liable for claimant’s attorney fees. The award of the board should be reinstated as to Tremco’s liability to the claimant for benefits but not as to the assessment of attorney fees.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Cooper, J., concur.


author: Andrews, Judge.

text:
    A91A0521.
    BUCHANNON v. THE STATE.
    (405 SE2d 583)
   Andrews, Judge.

Buchannon appeals his conviction of motor vehicle theft. His sole enumeration of error is that the evidence at trial was insufficient to convict him.

Viewed in favor of the verdict, Gurlaskie v. State, 196 Ga. App. 794 (397 SE2d 66) (1990), the evidence at trial established that on April 25, 1989, a Cadillac with a Georgia license plate was reported stolen from Albany used car dealer Buddie Craft. Two days later a Florida sheriff stopped the same vehicle for a speeding violation in Osceola County, Florida. When stopped, Albany resident Buchannon was driving the vehicle and Georgian co-defendant Wright and Floridian James Hopper were passengers. When stopped, both Buchan-non and Wright gave false names to the officer.

While running the routine police check on the vehicle, the officer learned that it had been reported stolen in Albany on April 25 and that the Florida license plate on the vehicle had been reported stolen in Tallahassee on the same date. Upon learning that both the vehicle and the tag were stolen, the officer arrested Buchannon and Wright. After his arrest, Buchannon told the deputy sheriff that Wright worked at the car lot and had permission from his boss to borrow the car for the weekend.

Buchannon argues that since the evidence against him was “inferential,” it was insufficient to convict him. This argument ignores the longstanding rule that “ 4 [t] he possession of recently stolen goods, unaccounted for, raises an inference that the possessor is the one who stole the goods, and if the accused does not want this inference to arise in his case, he must account for his possession.’ ” Horton v. State, 228 Ga. 690, 692 (187 SE2d 677) (1972). “ ‘ “To convict a defendant based upon recent possession of stolen goods, it must be shown the goods were stolen and there must be an absence of or an unsatisfactory explanation of that possession.” ’ (Cit.)” Bigby v. State, 184 Ga. App. 94, 95 (360 SE2d 751) (1987). A defendant may be convicted for theft with neither direct proof nor circumstantial evidence, aside from this inference, that he committed the theft. Rautenberg v. State, 178 Ga. App. 165 (342 SE2d 355) (1986); Lockett v. State, 153 Ga. App. 569 (266 SE2d 236) (1980).

In the instant case, both Buchannon and Wright testified at trial that they were unaware the vehicle was stolen and did not know anything about the stolen Florida license plate. Buchannon’s relatives testified that he was at home the entire evening of April 24, the date that the vehicle was stolen from the used car lot. The defendants explained that on the evening of April 25, Wright paid one of Craft’s employees $20 for the use of the car, picked Buchannon up and together the men drove to Florida to visit Buchannon’s relatives. This testimony was corroborated by an independent witness who testified that he had witnessed the rental transaction between Wright and Craft’s employee. Buchannon claimed that the reason he lied to the officer about his name when he was stopped was that he was concerned about violating the terms of his parole.

Although Buchannon offered an explanation for his possession of the vehicle, the jury was not compelled to accept it. After an explanation of possession of stolen goods is offered, the jury may choose whether or not to believe it. The reasonableness of the explanation is a jury question. Warfle v. State, 157 Ga. App. 196 (276 SE2d 689) (1981). “ ‘ “ ‘It [is] within the jury’s province to believe that appellant’s explanation of his possession advanced at trial was not a reasonable or satisfactory one.’ ” ’ [Cit.]” Bigby, supra at 95.

Decided April 29, 1991.

Betty S. Frazer, for appellant.

Britt R. Priddy, District Attorney, Gregory W. Edwards, Assistant District Attorney, for appellee.

Here, Buchannon’s recent possession of the stolen vehicle was not the only evidence that he took the vehicle. The fact that the license tag on the vehicle was stolen and that both Buchannon and Wright gave false names when stopped were further evidence of guilt. Rogers v. State, 185 Ga. App. 211, 213 (363 SE2d 846) (1987). Buchannon’s fictitious tale to the arresting officer regarding the possession of the vehicle is further affirmative supporting evidence of guilt. Faust v. State, 189 Ga. App. 426, 427 (375 SE2d 889) (1988). This is not a case of unexplained possession, but of explained possession where the explanation is not believed.

There was sufficient evidence for a rational trier of fact to have found the essential elements of theft by taking beyond a reasonable doubt. See Koza v. State, 158 Ga. App. 709 (282 SE2d 131) (1981).

Judgment affirmed.

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


author: Sognier, Chief Judge.

text:
    A91A0091, A91A0092.
    CSX TRANSPORTATION, INC. v. BARNETT; and vice versa.
    (405 SE2d 506)
   Sognier, Chief Judge.

James Barnett, a locomotive engineer for CSX Transportation, Inc., filed suit against his employer under the Federal Employers Liability Act to recover damages allegedly arising from an injury incurred on the job. The jury returned a verdict for Barnett, and in the main appeal CSX appeals from the entry of judgment on that verdict. Barnett conditions his cross-appeal on our reversal of the judgment in the main appeal.

The evidence adduced at trial, construed to uphold the jury’s verdict, showed that on June 22, 1987 Barnett was the locomotive engineer on a 120 car CSX train en route south from Atlanta to Manchester. Near Gay, the locomotive engine lost power, rendering the long train unable to climb the steep grade near Manchester. Three coupled engines were dispatched to couple with the disabled train and assist it up the incline. Barnett, who was seated in the stopped locomotive, claimed his back was injured by the tremendous impact of the coupling. A company operating rule prohibits couplings to be made at a speed of more than four miles per hour. Miles Norman Gibbs, the engineer in the lead engine southbound, testified at trial that the speed of the assisting engine was between three and four miles per hour during the coupling. However, documents were introduced showing that Gibbs admitted to a “harder than usual coupling” and accepted company discipline, and that he was disciplined for failure to control the movement of his engine. Barnett testified that the coupling was “certainly made over 4 miles an hour,” and several other railroad personnel present during the coupling testified to speeds ranging from six to ten miles per hour.

Barnett sought damages for pain and suffering, as well as special damages for past and future medical expenses and past and future lost wages. The total amount sought by Barnett was in excess of $326,000. The jury returned a verdict for Barnett in the amount of $150,000, awarding $13,262 for past medical expenses, $36,738 for future medical expenses, and $100,000 for “[g]eneral damages.”

1. CSX contends the trial court erred by failing to give its requested charge on reducing any award of damages for future losses to present value. We find no merit in this contention.

The record shows that CSX requested the trial court to charge the jury that “if you return a verdict, you should include the present value of his [Barnett’s] earnings during the time you decide that he would not [sic] have worked in the future had this accident not occurred — but you must deduct from that sum such amount as you decide from the evidence he would have paid as federal income tax, or state income tax, on such future earnings.” Because it instructs the jury to include in its award an amount Barnett would not have earned had the accident not occurred, this charge is not a correct statement of the law, and consequently the trial court was not obligated to give it. See Brown Realty Assoc. v. Thomas, 193 Ga. App. 847, 850 (6) (389 SE2d 505) (1989).

We note that the trial court did charge the jury that “[a]fter you have determined, if any, future medical expenses and future pain and suffering, you will be authorized to reduce that by 5 percent.” The charge given is not a perfect instruction in that it did not includes future earnings, see OCGA § 51-12-13, and because amounts awarded] for pain and suffering need not be reduced to present value. See Valdosta Housing Auth. v. Finnessee, 160 Ga. App. 552 (1) (287 SE2d 569) (1981). Nonetheless, because harm as well as error must bej shown to warrant reversal, Black & White Constr. Co. v. Bolden Contractors, 187 Ga. App. 805, 806 (1) (371 SE2d 421) (1988), and givers that the jury did not specifically include in its verdict an award fori future earnings, even if the charge was erroneous in part the instruc-| tion given was not harmful to CSX and thus does not constitute reversible error.

Decided April 1, 1991

Rehearing denied April 30, 1991

Webb, Kicklighter & Casey, Robert E. Casey, Jr., James E. Gil- son, for appellant.

2. Although it is possible to construe the award of “general damages” to include compensation for future medical expenses and past and future lost wages, the transcript does not support CSX’s contention that the trial court erred by denying its motions for a directed verdict on those issues because no evidence was introduced by Barnett to support his claim of entitlement to them. “The standard of review of the trial court’s denial of a motion for directed verdict in a civil case is the ‘any evidence’ standard. [Cit.] ” Miller v. Economy Trading &c., 193 Ga. App. 344, 345 (1) (387 SE2d 620) (1989). In the case at bar there was substantial evidence from which the jury could conclude that appellant was entitled to an award for past and future lost wages and future medical expenses.

As to lost wages, Barnett testified that between the date of the injury and the date of trial he had missed a total of 45 days of work, and he testified to the amount he earned in a day. He also testified that despite earning $39,995 in 1985 and $42,425 in 1986, his earnings in the year of the injury were $40,410, and he never returned to the level of earnings he had attained prior to the injury. Barnett testified that in part this was because after his injury he was unable to accept better paying “pool” work, as he had before the injury, but was restricted to “local” jobs, as “pool” work entailed more difficult working conditions and longer periods away from home. He testified that this difference resulted in a loss of between $10,000 and $15,000 of income each year. This testimony was corroborated by Fred Willard, a CSX employee who had less seniority but earned $8,000 more than Barnett the previous year.

With regard to past and future medical expenses, these were detailed by two of Barnett’s treating doctors, who testified that Barnett would probably require treatment once a week for the rest of his life, with the current cost of each treatment at $75 to $125. As the evidence presented was sufficient to have authorized the jury to return an award for past and future loss of earnings and for future medical expenses, the trial court did not err by denying CSX’s motion for a directed verdict on those issues. See Miller, supra.

3. Our affirmance of the trial court’s judgment in the main appeal renders moot the cross-appeal.

Judgment affirmed in Case No. A91A0091. Appeal dismissed in Case No. A91A0092.

McMurray, P. J., and Andrews, J., concur.

Taylor & Harp, J. Anderson Harp, Jefferson C. Callier, for ap-pellee.


author: McMurray, Presiding Judge.

text:
    A91A0111.
    ROBERTS v. COLLINS.
    (405 SE2d 508)
   McMurray, Presiding Judge.

Lois T. Collins (plaintiff) filed a dispossessory action against Virginia B. Roberts (defendant) and Bobby Roberts, alleging that defendant and Bobby Roberts are tenants at sufferance at 702 Tahoe Circle (“the premises”). A default judgment was entered against Bobby Roberts because he failed to answer the dispossessory complaint. However, defendant answered and denied that she is a tenant at sufferance and alleged that plaintiff obtained title to the premises through “fraudulent conduct creating the deeds to secure debt that were the basis of a foreclosure action by plaintiff and [that said] foreclosure ... is fraudulent.” The case was tried before the trial court, without a jury, and the trial court awarded plaintiff a writ of possession. Defendant appeals. Held: .

1. Plaintiff’s motion to dismiss defendant’s appeal and motion for imposition of sanctions are hereby denied.

2. Defendant first contends the trial court erred in granting plaintiff’s motion in limine, excluding evidence of the alleged fraudulent manner in which plaintiff procured title to the premises. This contention is without merit.

“ ‘Claimed defects in the landlord’s title to premises cannot be raised as a defense to a proceeding for possession under (OCGA §§ 44-7-50, 44-7-53). (Cit.)’ McKinney v. South Boston Savings Bank, 156 Ga. App. 114, 115 (2) (274 SE2d 34) (1980). See also OCGA § 44-7-9; Remy v. Citicorp &c. Center, 159 Ga. App. 726, 728 (285 SE2d 76) (1981).” Cotton v. Fed. Land Bank &c., 171 Ga. App. 360 (1), 361 (320 SE2d 235). The trial court did not err in granting plaintiff’s motion in limine.

3. Defendant next contends the trial court erred in failing to continue the dispossessory action until defendant’s action to set aside the foreclosure judgment was concluded in superior court.

“ ‘ “(T)he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.” (Cits.)’ Bloomfield v. Liggett & Myers, 230 Ga. 484, 485 (1981 SE2d 144) (1973).” Cotton v. Fed. Land Bank &c., 171 Ga. App. 360, 361 (2), supra. In the case sub judice, we find no abuse of the trial court’s discretion in denying defendant’s motion to continue the dis-possessory action.

Decided April 1, 1991

Rehearing denied April 30, 1991.

Harold A. Miller III, for appellant.

Lynch & Powell, Gene E. Massafra, for appellee.

4. In her final enumeration, defendant contends the trial court erred “in ruling that [plaintiff] had met her burden and issuing a writ of possession.”

Plaintiff proved that she was granted a second security deed to the premises and that the second security deed was subordinate to a first deed to secure debt. Plaintiff also proved that defendant’s interest in the premises was foreclosed by virtue of the power of sale contained in the second security deed; that she purchased the premises at the foreclosure sale and that she subsequently purchased the premises at a foreclosure sale conducted pursuant to the power of sale contained in the first deed to secure debt. This evidence was sufficient to authorize a finding that defendant became a tenant at sufference by operation of law and that plaintiff had “the right to bring disposses-sory proceedings under Code Ann. § 61-301 et seq. [now OCGA § 44-7-50 et seq.] Redwine v. Frizzell, [184 Ga. 230, 235 (7) (190 SE 789)], and see Uvalda Naval Stores v. Cullen, 165 Ga. 115 (139 SE 810).” McKinney v. South Boston Savings Bank, 156 Ga. App. 114, 116 (4), supra. Nonetheless, defendant argues that the “foreclosure sale” should be set aside because of plaintiff’s alleged fraudulent acts and that plaintiff “acquired title some two months after filing the dispos-sessory [and that she therefore] should have [been required] to refile the action if she intends to proceed under the second deed under power of sale.” These arguments are without merit.

An attack on plaintiff’s title to the premises is not permissible in a proceeding for possession under the dispossessory statutes. Ranger v. First Family Mtg. Corp. &c., 176 Ga. App. 715 (1) (337 SE2d 388). Further, although plaintiff’s title to the premises was subject to the first deed to secure debt at the time she filed the case sub judice, she then had no less authority to remove plaintiff from the premises as a tenant at sufferance. Partin v. Southern Discount Co., 167 Ga. App. 798 (307 SE2d 697).

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A0179.
    GILES v. EVANS.
    (405 SE2d 511)
    Decided April 1, 1991
    Oliver Giles, pro se.

      Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Eddie Snelling, Jr., Assistant Attorney General, for appellee.
   Sognier, Chief Judge.

Oliver Giles, a state prisoner, filed this action against David C. Evans, Commissioner of the Georgia Department of Corrections, seeking monetary damages for Evans’ alleged failure to credit Giles with 821 days of jail time in computing his sentence. The trial court granted Evans’ motion to dismiss, and Giles appeals.

We affirm. The record reveals that prior to instituting the instant action, appellant had filed a petition for mandamus against appellee based on the same allegation. The mandamus petition was denied on the merits. Accordingly, a judgment of a court of competent jurisdiction having been rendered between the same parties on this issue, and there being no evidence that judgment has been reversed or set aside, the prior judgment is conclusive between the parties to this action. OCGA § 9-12-40; see Barnes v. City of Atlanta, 186 Ga. App. 187, 188-189 (1) (366 SE2d 822) (1988). The trial court did not err by granting appellee’s motion to dismiss the instant action on the ground of res judicata.

We find no merit in appellant’s contention that OCGA § 9-12-40 should not be applied here because he was not afforded the opportunity to be present personally before the court when the prior case was decided. “[D]ue process does not grant a prisoner the right to attend court on civil proceedings which he initiates. [Cits.]” Doby v. Green, 184 Ga. App. 729-730 (1) (362 SE2d 492) (1987).

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: Carley, Judge.

text:
    A91A0251.
    POLMA, INC. v. COASTAL CANVAS PRODUCTS COMPANY, INC.
    (405 SE2d 531)
   Carley, Judge.

Appellee-plaintiff brought suit in two counts, seeking to recover] on account or, in the alternative, for the breach of a contract to provide curtains to appellant-defendant. Appellant answered and coun-1 terclaimed against appellee for breach of the contract. The case was tried before a jury but, at the close of all of the evidence, the trial court granted appellee’s motion for a directed verdict and appellant appeals.

1. The trial court did not err in refusing to admit, as a business record, a handwritten note which was shown to be merely a personal paper rather than a record made in the regular course of business and which purported to be merely a non-contemporaneous record of the contents of prior conversations rather than a contemporaneous record of any business act, transaction, occurrence, or event. Anton Intl. Corp. v. Williams-Russell & Johnson, 190 Ga. App. 150 (377 SE2d 688) (1989); Goss v. Mathis, 188 Ga. App. 702 (373 SE2d 807) (1988).

2. The trial court did not err in refusing to admit evidence of a communication to appellee from its attorney indicating that a settlement with appellant might be the “best bet.” OCGA §§ 24-3-37; 24-9-21 (2).

3. Contrary to appellant’s contentions, a summary of business records is admissible even though the summary itself may not qualify as a “business record” under OCGA § 24-3-14. Tyner v. Sheriff, 164 Ga. App. 360 (2) (297 SE2d 114) (1982).

4. At the close of appellee’s evidence, appellant moved for a directed verdict as to the issue of its liability for attorney’s fees pursuant to the “bad faith” provision of OCGA § 13-6-11 and the denial of this motion is enumerated as error.

The record demonstrates that the trial court subsequently directed a verdict for attorney’s fees on the basis of appellant’s purported “stubborn litigiousness,” rather than its “bad faith.” Accordingly, error, if any, in denying appellant’s motion for a directed verdict as to its liability under OCGA § 13-6-11 for “bad faith” attorney’s fees would be harmless at most.

5. The grant of appellee’s motion for a directed verdict as to appellant’s liability on the main action is enumerated as error. The record shows that appellee introduced evidence of its substantial compliance with the terms of the contract and that, in opposition, appellant introduced no evidence of appellee’s material breach of the contract. It follows that the trial court correctly granted appellee’s motion for a directed verdict as to appellant’s liability. Dennard v. Freeport Minerals Co., 250 Ga. 330, 332 (1) (297 SE2d 222) (1982).

6. The grant of appellee’s motion for a directed verdict as to appellant’s counterclaim is enumerated as error.

Contrary to appellant’s contentions, there is no evidence that, under the terms of the contract, appellee was obligated to deliver a specified number of curtains per week. The evidence showed only that there was an agreement to provide a specified number of curtains by a certain date. Although there was evidence that all of the curtains were not delivered by the specified date and that all of the curtains did not conform to the contract specifications, there was no probative evidence as to the amount of damages, if any, that might be recoverable for appellee’s deviation from strict and literal compliance with its contractual obligations. Accordingly, the trial court did not err in granting appellee’s motion for a directed verdict as to appellant’s counterclaim. Toole v. Brownlow & Sons Co., 151 Ga. App. 292, 293 (1) (259 SE2d 691) (1979).

Decided April 9, 1991

Rehearing denied April 30, 1991

George P. Graves, for appellant.

Parker, Johnson, Cook & Dunlevie, Christopher W. Derrick, William C. Tinsley II, for appellee.

7. The trial court did, however, err in granting a directed verdict as to appellee’s recovery of attorney’s fees pursuant to OCGA § 13-6-11. “This was error, as [OCGA § 13-6-11] provides that the question of damages is for the jury, and this has long been the rule. [Cit.] Also, it has long been held by this court that in suits where the expenses of litigation might be recovered as part of the damages, it is error for the trial court to direct a verdict therefor. The matter of such expenses is left solely to the jury. [Cits.]” Tab Sales v. D & D Distrib., 153 Ga. App. 779, 780 (2) (266 SE2d 558) (1980).

8. Appellant enumerates as error the grant of appellee’s motion for a directed verdict as to pre-judgment interest. However, the trial court, having correctly granted a directed verdict as to appellant’s liability on the main action and as to appellee’s non-liability on the counterclaim, did not err in further directing a verdict in favor of ap-pellee as to pre-judgment interest. Buck Creek Indus. v. Crutchfield & Co., 133 Ga. App. 80, 81 (1) (210 SE2d 32) (1974). Unlike an award of attorney’s fees pursuant to OCGA § 13-6-11, pre-judgment interest on a liquidated claim can be awarded by directed verdict. See generally Carnes v. Mobley’s Tire & Recap Svc., 134 Ga. App. 913, 914 (2) (216 SE2d 703) (1975).

9. The judgment is affirmed in all respects except the award of attorney’s fees. In that regard, the judgment must be reversed and a new trial held solely as to the issue of attorney’s fees.

Judgment affirmed in part and reversed in part.

Banke, P. J., and Beasley, J., concur.


author: Birdsong, Presiding Judge.

text:
    A91A0265.
    FENNELL et al. v. MAX RITTENBAUM, INC.
    (405 SE2d 546)
   Birdsong, Presiding Judge.

Appellant Joyce Fennell brought suit for injuries sustained when she was struck by a forklift operated by an employee of appellee Max Rittenbaum, Inc. d/b/a Clean Rite Products (Clean Rite), as she attempted to return to her work site after initiating a phone call to Paulding Enterprises to report the conduct of a retarded person under her supervision. Appellant Jim Fennell, husband of Joyce Fen-nell, joined in the suit averring a loss of consortium claim. This is an appeal of the trial court’s order granting appellee’s motion for summary judgment.

Paulding Enterprises, employer of Joyce Fennell, is a private day-care center that provides a variety of services for eligible mentally retarded persons (“clients”) in Paulding County. Paulding Enterprises (Paulding) is required to conform to certain state policies and procedures. Joyce Fennell is an employee of Paulding. Paulding entered an agreement with appellee Clean Rite to provide “clients” to be hired as employees of Paulding primarily to place and seal cleaning items, usually rags and sponges, properly into plastic bags. The contract also required that “clients” be supervised by a paid employee of Paulding. Appellant Joyce Fennell was that supervisor. Clean Rite is the marketing name by which appellant Max Ritten-baum, Inc., sells automotive cleaning aids; Clean Rite’s distribution is mass merchandisers, automotive distributors and automotive retailers.

It was averred by appellants and admitted in the answer of ap-pellee that Clean Rite “is a corporation which processes, packages, and sells cleaning rags and towels to other companies and businesses,” and that the “clients” were “to pack and put rags into bags for shipment to other businesses.” Clean Rite would inform appellee Joyce Fennell of the work to be done each day, and she would supervise the “clients” to see that it was done properly and that Clean Rite safety policies were followed. Paulding, not Clean Rite, was responsible for “clients’ ” discipline. On occasions, Clean Rite would show Joyce Fennell how to do a task; then she would show the clients. Clean Rite provided all the rags, boxes, and bags used by the “clients.” At the end of the day Joyce Fennell turned in a form to Clean Rite reflecting the number of boxes produced that day. Held:

1. Appellee in essence asserts and the trial court has found that Clean Rite was a statutory employer of Joyce Fennell, within the meaning of OCGA § 34-9-8 (a), and thus the workers’ compensation rights and remedies exclude all other rights and remedies of employee Joyce Fennell on account of her injury at appellee’s plant. If this conclusion is correct, the consortium claim of appellee Jim Fennell likewise would be without merit. See generally Ponder v. Southern Tea Co., 170 Ga. App. 819 (318 SE2d 242); Hiers & Potter, Ga. Workers’ Compensation — Law & Practice (2d ed.), § 8-3.1.

2. Appellants primarily assert that the trial court erred as appel-lee was not a statutory employee under the precedent of Manning v. Ga. Power Co., 252 Ga. 404 (314 SE2d 432) and Modlin v. Black &c. Mfg. Co., 170 Ga. App. 477 (317 SE2d 255). Accord Singleton v. Ga. Pacific Corp., 252 Ga. 557 (315 SE2d 876). These cases hold that a mere owner of the premises where the injury occurred is not a statutory employer. Compare Menard v. Fairchild, 254 Ga. 275 (2) (328 SE2d 721).

We are satisfied that Manning, Modlin, and their progeny are not controlling in this case, as the record establishes without the existence of any genuine issue of material fact to the contrary that appel-lee was not merely in possession or control of the premises but was actively involved in the enterprise in which the employee was injured, and that under the existing circumstances Clean Rite was the statutory employer of appellant Joyce Fennell.

This court held in Western Elec. Co. v. Capes, 164 Ga. App. 353 (296 SE2d 381) that before an owner can be considered a statutory employer, the work the owner had contracted to be done must be an essential part of the owner’s overall business or enterprise. Id. at 356; compare Troxler v. Owens-Illinois, 717 F2d 530 (5) & (6) (USCA 11th Cir.); see generally 21 Ga. St. Bar J. 94. This court has not reversed Capes (Modlin, supra at 479; R. E. Thomas &c. v. Brunswick Pulp &c. Co., 171 Ga. App. 903, 904 (321 SE2d 412)), and Capes has never been reversed by any of the cases cited in appellants’ brief.

In Wright v. M. D. Hodges &c., 183 Ga. App. 632, 633 (359 SE2d 700), this court clarified the intent of its ruling in Modlin, noting that the reasoning in Modlin was adopted by the Georgia Supreme Court, by holding that both the “ ‘contractor/not a contractor bright line rule’ ” and the “ ‘ “owner plus” or “circumstances of the case,” rule’ ” were meant to be applied in a two-pronged test. “If the owner is ‘merely in possession or control’ of the premises upon which the employee of a company under contract to the owner is injured, then the so-called ‘bright line’ rule would apply. In that event, the owner would not be considered the statutory employer of the injured employee unless the owner also serves as contractor ‘for yet another entity’ and has hired the injured employee’s employer to perform work under that contract on the owner’s premises. If, on the other hand, the owner is not ‘merely in possession or control of the premises’ but is actively involved in the enterprise in which the employee was injured, then the circumstances of the particular case should determine whether the owner is a statutory employer of the injured employee.” Accord Winn-Dixie Atlanta v. Couch, 193 Ga. App. 352, 353 (387 SE2d 590); Whitehead v. CHP, Ltd., 192 Ga. App. 417 (385 SE2d 124).

Decided April 11, 1991

Rehearing denied April 30, 1991

Jerry B. Hatcher, for appellants.

Darroch & Obenshain, Robert M. Darroch, Cynthia B. Smith, Daniel N. Meyer, for appellee.

Under the “owner plus” or “circumstances of the case” test, which is here applicable, the issue of whether an entity is a statutory employer under Georgia law is a mixed question of law and fact. See Troxler, supra at 534 (6). The trial court correctly applied the two-prong test of Wright, Whitehead, and Winn-Dixie to the facts of this case, and appellants have not established from the record that the trial court has misapplied the facts in granting appellee’s motion for summary judgment.

We have examined all other cases cited by appellants and find that each is distinguishable factually and not controlling in the disposition of this case. Appellants’ enumeration of error is without merit.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A0278.
    BYRD’S ELECTRIC & PLUMBING, INC. et al. v. JOHNSON.
    (405 SE2d 548)
   Sognier, Chief Judge.

Samuel Johnson sought benefits under the Workers’ Compensation Act, OCGA § 34-9-1 et seq., alleging he had injured his back in a work-related incident. His claim was denied by both the administrative law judge and the Board of Workers’ Compensation. The superior court remanded the case to the Board with direction that it require the ALJ to make certain specific findings. We granted the application for discretionary appeal made by Johnson’s-employer and its insurer.

The ALJ applied the “three-factor ‘Larson’ test” adopted by the Supreme Court in Georgia Elec. Co. v. Rycroft, 259 Ga. 155, 160 (378 SE2d 111) (1989), and determined that appellee, who had sustained a back injury several years earlier in Texas, had purposefully made a false statement in his employment application form regarding his physical condition; that appellant relied upon the false representation and that its reliance thereon was a substantial factor in the hiring of appellee; and that there was a causal connection between the false representation and appellee’s current back injury. After noting statements appellee had made regarding three separate dates for when the pain in his back arose, only one of which corresponded to the work-related incident appellee alleges was the cause of his back injury, the ALJ stated, “From the above one can see that there is some question as to whether he had an accident on the job or whether he aggravated his previous problem. I find that [appellee] is not entitled to recover because of the false application.” (Emphasis supplied.)

On appeal to the Board, the ALJ’s ruling on the first Larson factor was reversed by the Board, which found that appellee’s response on the employment application did not rise to the level of a false statement so as to bar appellee’s receipt of benefits under Rycroft, supra. The Board nonetheless affirmed the ALJ’s decision, based on the ALJ’s finding that appellee’s testimony was incredible and unworthy of belief. The superior court, however, after reviewing the ALJ’s findings, concluded that the ALJ had made no specific ruling on the credibility of appellee and that neither the ALJ nor the Board had found whether appellee did in fact sustain an accidental injury arising out of and in the course of his employment, and remanded the case to the Board with direction that it be sent back to the ALJ to make those specific findings.

We fully understand the basis for the superior court’s judgment, grounded as it is in an order by an ALJ who “feels” instead of “finds” facts and who states legal determinations in phrases such as “I must say I don’t buy that,” and “I don’t believe that is an answer.” However, we agree with appellant that despite the absence of an express statement by the ALJ that he found appellee’s testimony to lack credibility, the ALJ’s findings of fact and conclusion of law were correctly summarized by the Board, which concluded that the ALJ “found” that appellee’s testimony was incredible and unworthy of belief. Therefore, that part of the superior court’s judgment remanding the issue of appellee’s credibility is reversed.

Regarding the issue whether appellee’s back injury arose out of and in the course of his employment, we note that the ALJ, in finding that the third Larson factor in Rycroft, supra at 158, existed, tracked the language used by the Supreme Court in that opinion, i.e., that “[t]here must [be] a causal connection between the false representation and the injury.” The obvious import of the third factor is that there must be a causal connection between the employee’s pre-ex-isting physical condition, regarding which the employee made the false representation, and the injury for which benefits are claimed, since to interpret it otherwise would lead to the ludicrous requirement that the false representation, in and of itself (rather than the subject matter of that representation), be causally connected to the injury. However, while the ALJ’s finding against appellee as to the third factor necessarily constituted a finding that a causal connection of some nature existed between appellee’s 1982 back injury and his current back injury, we are unable to conclude from this finding that the ALJ did, indeed, resolve the issue whether appellee’s current back injury arose out of and in the course of his employment, since the ALJ subsequently noted that “there is some question” whether appel-lee had an accident on the job or whether he aggravated his previous problem, and then failed to resolve that question.

Decided April 11, 1991

Rehearing denied April 30, 1991

Saveli & Williams, John M. Williams, Debra L. Dalton, for appellants.

Larry N. Hollington, for appellee.

Accordingly, based on our review of the findings of fact and conclusions of law submitted by the ALJ, we affirm the superior court’s ruling remanding this case to the Board with direction that the ALJ make a specific finding regarding the second issue.

Judgment affirmed in part, reversed in part.

McMurray, P. J., and Andrews, J., concur.


text:
    A91A0351.
    BRANTLEY v. THE STATE.
    (405 SE2d 533)
   Sognier, Chief Judge.

Daniel Brantley was convicted of DUI, and he appeals from the judgment and sentence entered thereon.

1. Appellant contends that reversal is mandated because the State purposefully destroyed exculpatory evidence. We do not agree with appellant that the State’s conduct requires reversal. Appellant was charged with violating OCGA § 40-5-55 (implied consent to chemical tests) by refusing to submit to a breath alcohol test. This charge was dismissed after the arresting officer testified at an administrative license suspension hearing that he could not remember the circumstances surrounding appellant’s arrest. A police report, which could have been used to refresh the officer’s memory, was unavailable at the time of the administrative hearing. The hearing was tape-recorded, but when appellant subsequently sought production of the tape the State informed him it had been destroyed pursuant to Department of Public Safety policy.

Appellant adduced no evidence at trial showing that the tape recording of the administrative proceedings was destroyed in bad faith. “[Ujnless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Arizona v. Youngblood, 488 U. S. 51, 58 (109 SC 333, 102 LE2d 281) (1988); see Lynott v. State, 198 Ga. App. 688 (4) (402 SE2d 747) (1991). As best we understand it, appellant’s claim that the material on the tape was exculpatory appears to refer to the fact that the implied consent charge was dismissed because the police officer did not remember appellant’s arrest. However, even assuming that fact was exculpatory, the tape was not necessary to establish it, because the officer testified at trial that the implied consent charge had been dropped because of the lack of a police report to refresh his recollection at the administrative hearing.

2. Appellant contends that the State’s failure to allow his counsel access to the police incident report prior to trial required dismissal of the charges against him, a continuance, or at the very least, suppression of the report. We cannot agree, as the document was made available to appellant in time for trial. Even accepting appellant’s argument that the document in issue is a public record within the meaning of OCGA § 50-18-70 (a) and not subject to the exclusion provided by OCGA § 50-18-72 (a) (4), and even assuming that Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963) covers documents such as this, “the mandate of Brady is not violated when the ‘material is (made) available to the defendant during trial, since Brady does not require a pre-trial disclosure of the materials. (Cits.)’ [Cit.]” Assad v. State, 195 Ga. App. 692, 693 (1) (394 SE2d 617) (1990).

3. Appellant’s contention regarding the constitutionality of OCGA § 40-6-391 (a) has been decided adversely to him by the Georgia Supreme Court. See Cargile v. State, 244 Ga. 871, 873-874 (1) (262 SE2d 87) (1979).

4. Appellant enumerates as error the closing argument of the prosecutor, which he claims was replete with errors requiring reversal. We have examined the record carefully, and find that it does not support appellant’s claims that the prosecutor argued facts not in evidence, vouched for the integrity of his witness, or testified himself to the jury as a handwriting expert. Jury arguments impressing upon the jury the desirability of preserving the safety of the community and the necessity of enforcing the law have been upheld by our courts. See, e.g., Nebbitt v. State, 187 Ga. App. 265, 268 (4) (370 SE2d 1) (1988); Waites v. State, 178 Ga. App. 333, 335 (3) (343 SE2d 115) (1986).

5. Contrary to appellant’s assertion that the officer read from the report and did not testify from memory, the record shows that the police officer did not testify at trial that he could remember nothing about the charge and did not read from the report, but rather shows that the report was used twice during the officer’s testimony to refresh his recollection.

6. Appellant contends the trial court erred by overruling his objection to the introduction of evidence regarding the horizontal nys-tagmus test (an observation of any jerking movements of the eyes as a possible result of drug or alcohol consumption; see Mendoza v. State, 196 Ga. App. 627, 630 (396 SE2d 576) (1990) (Deen, P. J., concurring specially)) given to appellant at the time of the incident. Appellant argues that the test has not met the requirement set forth in Harper v. State, 249 Ga. 519, 525 (292 SE2d 389) (1982) that it “has reached a scientific stage of verifiable certainty.” For purposes of deciding this case, however, we need not decide the status of the horizontal nystag-mus test because when appellant interposed his objection to the proposed testimony, the trial court ruled that he would “not allow the witness to go into what the test is. What the scientific reasons for the test are, or anything of this nature. I will allow him to testify as to what he did in giving the test and what the results of the test were.” The officer then testified regarding his observations of appellant when the test was administered, and no further objection was made by appellant. By remaining silent, appellant acquiesced in the limits imposed by the trial court, whether erroneous or not, and waived any complaint regarding the testimony admitted. See generally Nolton v. State, 196 Ga. App. 690, 691 (2) (396 SE2d 605) (1990).

7. Appellant testified that he refused to take a breath test when he was arrested because he believed the test was unreliable and did not understand that he had the right to have an additional test. The State was permitted to question appellant on cross-examination regarding his knowledge of that right by asking if he recalled whether he had been apprised of that right on the previous occasions (in 1981 and 1986) when he had been arrested for DUI and had agreed to a breath test. Appellant bases three enumerations of error on the introduction of evidence of the prior arrests.

(a) The evidence of prior DUI arrests was introduced by the State to impeach appellant on the issue of his reason for refusing to submit to a breath test. “A witness may be impeached by disproving the facts testified to by him.” OCGA § 24-9-82. Although appellant argues on appeal that the State failed to lay the proper foundation for questioning appellant regarding the 1986 arrest, that was not the basis for the objection raised at trial to the introduction of this evidence. “ ‘A ground not raised by objection at trial cannot be raised for the first time on appeal.’ . . . [Cit.]” Thomas v. State, 196 Ga. App. 88, 90-91 (3) (395 SE2d 615) (1990).

(b) Appellant next maintains that the trial court erred by overruling his objection to the introduction of evidence of a 1981 arrest [because he could not have acquired such knowledge from that arrest, las no state statute existed in 1981 conferring upon him the right to an ¡additional test. In addition to. the fact that this argument was not raised in the trial court, appellant is mistaken in his assertion that no such provision existed in 1981. See Ga. L. 1974, pp. 633, 672-673.

(c) Appellant also argues that even if the prior arrests were admissible, they were admissible only for the limited impeachment purpose, and the trial court erred by failing to give a limiting instruction to the jury either before or immediately after the testimony was given. During its jury charge, however, the trial court did instruct the members of the jury that they should “consider the testimony concerning two other arrests of [appellant] for impeachment purposes only, and . . . not to consider whether or not [appellant] is guilt[y] or innocent of the charges in the instant case from those two cases.” The trial court was not requested to instruct the jury on this principle at the time the testimony was given, and it is well established that the failure to invoke a ruling below bars appellant from raising the matter here. See Riley v. State, 196 Ga. App. 148, 149 (1) (395 SE2d 394) (1990).

8. This court has held that charging the jury that “the State of Georgia considers that persons who are under the influence of alcohol while operating a motor vehicle constitute a direct and immediate threat to the welfare and safety of the general public,” taken from the first sentence of OCGA § 40-5-55 (a), “serves to state the purpose for requiring implied consent, and it is proper for the jury to hear.” Trotter v. State, 179 Ga. App. 314-315 (2) (346 SE2d 390) (1986). Accordingly, we find no merit in appellant’s contention that such a charge is argumentative and illegal.

9. Appellant finally contends that in light of the admission into evidence of testimony regarding his prior arrests for DUI, it was reversible error for the trial court to charge the jury that the accusation “would be sufficient as to date if the State should prove to your satisfaction, beyond a reasonable doubt, that the acts alleged in [the] accusation occurred ... at any time within two years prior to the filing of this accusation.” The charge given is a correct statement of the law related to the statute of limitation for the offense charged. See OCGA § 17-3-1 (d). “It is not necessary in considering a charge to assume a| possible adverse construction, but a charge that is sufficiently clear to be understood by jurors of ordinary understanding is all that is required. [Cit.]” Clark v. State, 153 Ga. App. 829, 831 (266 SE2d 577)1 (1980). As it was clear from the evidence in issue that both prior ar-j rests occurred more than two years before the filing of the accusation,! in view of the instruction given the jury regarding proper considera-j tion of the prior arrests for impeachment purposes only, see Division! 7, supra, we find that the charge as given would not have confused thej jury, and consequently was not erroneous. Id. I

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur\|

Decided April 9, 1991

Rehearing denied April 30, 1991

Jennifer L. Wheeler, for appellant.

Ralph T. Bowden, Jr., Solicitor, Ann M. Elmore, Assistant Solicitor, for appellee.


text:
    A91A0528.
    BEECH AIRCRAFT CORPORATION v. JACKSON et al.
    (405 SE2d 518)
   McMurray, Presiding Judge.

This interlocutory appeal arises from a tort action involving an airplane manufactured by appellant Beech Aircraft Corporation. Appellant seeks the reversal of an order compelling the production of certain reports submitted by two of its employees to outside legal counsel. Held:

Appellant resisted the production of the documents at issue on the grounds that they were protected by the attorney-client privilege. Whether this contention is meritorious can be determined by application of the test set forth in Marriott Corp. v. American &c. of Psychotherapists, 157 Ga. App. 497, 505 (277 SE2d 785).

Our review of the appellant’s sole enumeration of error, contending that the trial court erred in ordering appellant to produce the documents in question, requires a review of the evidence before the trial court. However, due to the absence of a transcript it must be presumed that the trial judge correctly ruled on the issues presented. Camp v. Jordan, 168 Ga. App. 339 (309 SE2d 384); Siegel v. Gen. Parts Corp., 165 Ga. App. 339, 340 (2) (301 SE2d 292); Attwell v. Heritage Bank Mt. Pleasant, 161 Ga. App. 193, 194 (291 SE2d 28); Harris v. Clark, 157 Ga. App. 549 (2) (278 SE2d 132). “The affidavit, deposition and oral testimony provisions of [OCGA § 9-11-43 (b)], pertaining to the hearing of motions based on facts riot appearing of record, cannot be used to cure the absence of a transcript of proceedings for post-trial motions or for appellate review.” Wall v. C & S Bank of Houston County, 247 Ga. 216, 217 (2) (274 SE2d 486). We also note that there has apparently been no attempt by appellant to [provide a transcript by any of the methods provided by OCGA § 5-6-41.

Two affidavits, upon which appellant relies heavily, were filed approximately two months following the entry of the order appealed land provided to this court by supplemental record. This amounts to a failure to comply with Rule 6.2 of the Uniform Rules of the Superior ¡Court and a waiver of appellant’s right to present these affidavits in opposition to the motion. Hughes v. Montgomery Contracting Co., 189 Ga. App. 814, 815 (377 SE2d 723); Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595 (370 SE2d 843); Wimberly v. Karp, 185 Ga. App. 571, 572 (1) (365 SE2d 131).

Decided April 3, 1991

Rehearing denied April 30, 1991

Gray, Gilliland & Gold, T. Cullen Gilliland, Barbara B. Evans, for appellant.

Bates, Kelehear & Starr, J. Raymond Bates, Jr., for appellees.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A0618.
    S & W MASONRY CONTRACTOR, INC. v. JAMISON COMPANY, INC.
    (405 SE2d 519)
   McMurray, Presiding Judge.

S & W Masonry Contractor, Inc. (plaintiff) instituted the instant action against Jamison Company, Inc. (defendant) and alleged that defendant executed a $10,000 promissory note in favor of plaintiff and that defendant “defaulted on the payment of said Note and owes [plaintiff] the sum of Ten Thousand Nine Hundred Fifty and No/100 Dollars ($10,950.00) as unpaid principal plus interest through the date of default, December 9, 1989.” (Plaintiff incorporated the promissory note into the complaint and designated it, “Exhibit A.”) Defendant answered and admitted that it executed the promissory note identified as “Exhibit A,” but denied liability because “Exhibit ‘A’ [allegedly] does not contain the entire written agreement between the parties.”

Plaintiff moved for summary judgment and filed undisputed affidavit evidence showing that it entered into a “SETTLEMENT AGREEMENT” with defendant and that plaintiff therein relin-, quished lien rights against real property owned by defendant in exchange for defendant’s execution of a $10,000 promissory note. More specifically, the “SETTLEMENT AGREEMENT” shows that a general contractor hired plaintiff to perform masonry work on defend-l ant’s real property; that the general contractor was unable to payl plaintiff for the masonry services; that plaintiff executed a lienl against defendant’s real property and that defendant and the general contractor executed a $10,000 promissory note in favor of plaintiff ill consideration of plaintiff’s agreement to dismiss a pending lawsuil against the contractor and plaintiff’s agreement “to release its clainf of lien against the property of [defendant] and [agreement] to take all actions necessary to cause the satisfaction of the claim of lien of the records of the Superior Court of Gwinnett County.” Plaintiff further proved without dispute that defendant breached the “SETTLEMENT AGREEMENT” by failing to make “any payment on [the] indebtedness evidenced by the [promissory] Note.” Defendant did not file evidence in opposition to plaintiff’s motion for summary judgment, but argued that it was not liable under the promissory note because plaintiff did not satisfactorily perform the services which were the basis of plaintiff’s lien against defendant’s real property.

The trial court denied plaintiff’s motion for summary judgment. We granted an interlocutory appeal. Held:

“ ‘As written, Code Ann. § 81A-156 (now OCGA § 9-11-56) places the burden on the moving party to show that no material issues of fact exist. The burden of proof can be shifted, however, when a prima facie showing is made that the moving party is entitled to judgment as a matter of law. The opposite party must come forward with rebuttal evidence at that time, or suffer judgment against him. . . .’ [Meade v. Heimanson, 239 Ga. 177, 180 (236 SE2d 357).]” Bradley v. Tattnall Bank, 170 Ga. App. 821, 825 (2), 826 (318 SE2d 657).

In the case sub judice, plaintiff made out a prima facie case by showing that defendant executed a $10,000 promissory note in plaintiff’s favor and that defendant failed to honor its promise to pay the debt evidenced by the note. See Beazley v. Ga. R. Bank &c. Co., 144 Ga. App. 215, 216 (1) (241 SE2d 39). Defendant does not challenge this proof with rebuttal evidence, but contends that genuine issues of material fact remain as to whether there was failure of consideration resulting from plaintiff’s alleged substandard performance in providing masonry services on defendant’s property. This contention is insufficient to rebut the undisputed evidence showing that plaintiff is entitled to recover for the debt evidenced by the promissory note.

“No consideration is necessary for an instrument given in pay¡ment of an antecedent obligation of any kind. General Tire &c. Co. v. Solomon, 124 Ga. App. 308 (183 SE2d 573).” Beazley v. Ga. R. Bank &c. Co., 144 Ga. App. 215, 216 (2), supra. In the case sub judice, plaintiff proved without dispute that defendant executed the promissory note in satisfaction of an antecedent claim against defendant’s [property and that satisfaction of the antecedent claim was the only [basis of consideration under the promissory note. Consequently, the ■question of whether plaintiff adequately performed masonry services bn defendant’s property is irrelevant to defendant’s liability under Ihe promissory note. It therefore follows that the trial court erred in Kenying plaintiff’s motion for summary judgment. See Bradley v. Tattnall Bank, 170 Ga. App. 821, 825 (2), supra.

Judgment reversed.

Sognier, C. J., and Andrews, J., concur.

Decided April 3, 1991

Rehearing denied April 30, 1991

McReynolds & Boyd, Frederic S. Beloin, J. Michael Welch, for appellant.

Greer, Klosik & Daugherty, Frank J. Klosik, Jr., Jeffrey F. Leasendale, for appellee.


text:
    A89A2111.
    PONDER v. THE STATE.
    (406 SE2d 143)
    Decided April 30, 1991.

      Glen A. Cheney, for appellant.

      Dupont K. Cheney, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee.
   Carley, Judge.

In Ponder v. State, 194 Ga. App. 446, 450 (10) (390 SE2d 869) (1990), we did not address the issue of the alleged ineffectiveness of appellant’s trial counsel because we held that that issue had been waived. On certiorari, however, the Supreme Court reversed with direction that we remand the case “to the trial court for the purpose of permitting [appellant] to file a motion for new trial. Because all other issues in this case have been dealt with on appeal, that motion will be limited to the issue of ineffective assistance of counsel.” Ponder v. State, 260 Ga. 840, 842 (2) (400 SE2d 922) (1991). Accordingly, our original judgment is vacated and the judgment of the trial court is hereby affirmed with direction that, within 30 days of the date that this court’s remittitur is filed in the trial court, appellant shall be entitled to file a motion for new trial limited to the issue of the alleged ineffectiveness of his trial counsel. If appellant files a timely motion for new trial as to that limited issue and the trial court finds, after an I evidentiary hearing, that appellant was denied effective assistance of j trial counsel, he will be entitled to a new trial. If appellant files a I timely motion for new trial as to that limited issue and the trial court! finds, after an evidentiary hearing, that appellant was not denied ef-[ fective assistance of trial counsel, he will be entitled to file a notice of| appeal within 30 days of the entry of such an adverse order.

Judgment affirmed with direction.

McMurray, P. J., and Beasley, J., concur.


text:
    A91A0095.
    FARRELL et al. v. DUNN.
    (405 SE2d 731)
   Carley, Judge.

Appellee-plaintiff’s automobile was struck by another automobile that was owned by appellant-defendant Terry Farrell and was being operated by his wife, appellant-defendant Connie Jo Farrell, as a family purpose automobile. As the result of this collision, appellee filed suit against appellants, seeking to recover for personal injuries and property damage. Appellants answered and denied the material allegations of appellee’s complaint. Although the collision apparently had no connection whatsoever with appellee’s employment, appellants served the State Board of Workers’ Compensation (Board) with a request for production of documents pursuant to OCGA § 9-11-34 (c) (1). In this request, appellants sought certified copies of “any and all” claims by appellee for workers’ compensation benefits, including but not limited to “[a]ll medical records, reports [and] narratives.” When the Board objected to complying with this request, appellants filed a motion to compel the Board to produce the records, urging that ap-pellee’s “past, present and future physical condition are directly at issue in this action. ...” The trial court, relying upon OCGA § 34-9-12 (b), denied appellant’s motion to compel, but certified its order for immediate review. Appellants applied to this court for an interlocutory appeal from the trial court’s order, and the instant appeal results from the grant of their application.

OCGA § 34-9-12 (b) provides that the records of the Board “shall not be open to the public but only to the parties satisfying the [B]oard of their interest in such records and their right to inspect them. Under such reasonable rules and regulations as the [B]oard may adopt, the records of the [B]oard as to any employee in any previous case in which such employee was a claimant shall be open to and made available to such claimant, to an employer or its insurance carrier which is called upon to pay compensation, medical expenses, or funeral expenses, and to any party at interest. ...” (Emphasis supplied.)

Obviously, appellants are not parties at interest in “any and all” claims for workers’ compensation benefits that appellee may have I previously filed. They are merely defendants in the instant civil action with an interest in determining whether appellee’s alleged physical injuries may be attributable to some cause other than the vehicular collision that is here at issue. Thus, appellants have no direct interest in the Board’s records as such, but merely have an indirect •interest in those records because they may happen to contain such of [appellee's medical records as have been filed with the Board. Insofar las appellee’s actual medical records are concerned, appellants may pursue the usual means of discovery that is available to any defendant in a civil action. They can depose appellee with regard to her prior medical history and then, pursuant to OCGA § 9-11-34 (c) (2), request production of her potentially relevant medical records directly from the applicable health care providers themselves. Pursuant to OCGA § 34-9-12 (b), however, appellants have no authority to engage in a fishing expedition in the Board’s records simply because the Board may be an alternative source for securing potentially relevant defensive material. The Board is not a general repository of discoverable material for defendants in civil actions, and access to the Board’s records is properly limited to those parties who have a specific interest in the workers’ compensation claim in connection with which the records are maintained by the Board. It follows that the trial court did not err in denying appellants’ motion to compel. Compare McFarlin v. Taylor, 187 Ga. App. 54 (369 SE2d 330) (1988).

Decided April 30, 1991.

Jenkins & Eells, Frank E. Jenkins III, Jeffrey M. Frazier, Cheryl T. Cole, for appellants.

Pruitt & Britt, Glyndon C. Pruitt, for appellee.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    A91A0270.
    HARDAGE et al. v. LEWIS et al.
    (405 SE2d 732)
   Carley, Judge.

Prior to purchasing certain residential real property, appellant-plaintiffs were informed by the sellers that the two stakes located in the backyard indicated that portion of the property which might be taken by the Department of Transportation (DOT) in conjunction with a highway project. In fact, the sellers had already conveyed an easement to DOT, which easement DOT had promptly recorded. Appellants later executed a sales contract and sought financing. They did not, however, have the property surveyed and neither discovered nor were informed of the existence of DOT’s easement until well after closing. When they did discover the existence of DOT’s easement, appellants brought suit against appellee-defendants for professional negligence. Appellees had been engaged by appellants’ lender to survey the property and appellees’ survey for appellants’ lender had not shown DOT’s easement. However, appellants were apparently totally unaware of this survey of the property until closing. Appellees answered and, after extensive discovery, moved for summary judgment. Appellants appeal from the trial court’s grant of this motion.

Appellants’ claim is not necessarily precluded by the absence o: any contractual privity between themselves and appellees. However, appellants nevertheless cannot recover unless they were injured as the result of their reliance upon appellees’ allegedly negligent survey. See Badische Corp. v. Caylor, 257 Ga. 131 (356 SE2d 198) (1987); Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680 (300 SE2d 503) (1983); Walker v. Hurd, 195 Ga. App. 855, 856 (2) (394 SE2d 925) (1990); Hutchinson v. Dubeau, 161 Ga. App. 65, 66 (289 SE2d 4) (1982).

Appellees’ survey for appellants’ lender was not the first instance whereby the existence of the easement had not been disclosed to appellants. Prior to purchasing the property, appellants had seen the stakes and had been told by the sellers that a portion of the property might be taken by DOT. Appellants made no independent effort to verify the sellers’ representations. Accordingly, appellants cannot assert that they were injured as the result of their blind reliance upon the sellers’ representations. Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989). Appellants are “not entitled to recover if [they] had an equal and ample opportunity to ascertain the truth but failed to exercise proper diligence to do so. [Cit.] . . . ‘ “Ordinarily the question whether the complaining party could have ascertained the falsity of the representations by proper diligence is for determination by the jury.” (Cit.)’ [Cit.] However, in the instant case [appellants’] failure to exercise proper diligence appears as a matter of law. [Cit.] It does not appear that there was either a confidential relation between the parties or that [appellants] were prevented, by artifice or fraud, from [determining] the truth or falsity of the alleged representation. [Cit.] . . . [I]t is not disputed that before purchasing the home [appellants] were shown around the property and were aware of the [stakes and their significance with regard to DOT’s plans]. . . . [Cits.] [Appellants] made no independent effort to [determine the significance of the stakes]. Neither the sales contract nor the deed made any specific reference to [the easement], [Cits.] However, the record demonstrates that the [easement was recorded]. . . . [Thus, appellants] had‘notice’ of the [easement]. ‘It is presumed that a purchaser has examined every deed and instrument affecting the title. He is charged with no-I tice of every fact shown by the records, and is presumed to know every other fact which an examination suggested by the records would have disclosed. (Cit.) . . .’ [Cit.] ... In short, the evidence demonstrates that, while [appellants] allege a misrepresentation as to the ¡[existence of the easement] they failed to exercise any diligence to iscertain [such fact] and blindly relied upon the representation as to his matter. [Cit.] [Appellants] accepted title and entered into posses-ion pursuant to a deed which [was made subject to “all . . . ease-nents ... of record” affecting the property]. We, therefore, conclude hat [appellants’] lack of diligence has been shown as a matter of law. . . . [Cit.] The evidence showing that any damage [appellants] may have suffered due to the [existence of the easement] must be charged to their lack of diligence and not to their reliance upon any misrepresentation, they have not suffered any damage ‘as a result of [such reliance].” Zeeman v. Black, 156 Ga. App. 82, 87-89 (273 SE2d 910) (1980).

Decided April 30, 1991.

Frankel, Hardwick, Tanenbaum & Fink, John D. Steel, for appellants.

Arnall, Golden & Gregory, J. Randolph Evans, McCalla, Raymer, Padrick, Cobb & Nichols, Carol V. Clark, Teresa Perrotta, for appellees.

Insofar as appellees’ survey for the lender is concerned, appellants clearly did not rely thereon to determine the truth or falsity of the sellers’ representations. They were unaware of the survey until the closing and then merely used it as belated confirmation that they had not harmed themselves by their own prior lack of diligence in determining the truth or falsity of the sellers’ representations. That there may have been such after-the-fact reliance upon appellees’ special skill and technical knowledge in land surveying is immaterial, since appellants could not have been injured as a result of such reliance. Appellants were damaged by their own reliance upon the sellers’ representations and they have no viable claim against appellees simply because appellees’ survey for the lender did not make the consequences of their own prior lack of diligence manifest at the closing.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    A91A0310.
    PIERSON v. THE STATE.
    (406 SE2d 578)
   Carley, Judge.

After a bench trial, appellant was found guilty of driving under] the influence. He appeals from the judgment of conviction and sen-j tence entered on the trial court’s finding of guilt.

Appellant’s enumerations of error relate only to the denial of hii pre-trial motion to suppress and only a transcript of the hearing o: that motion has been included in the record on appeal. “There bein; no transcript of the evidence adduced upon the [bench] trial, we ca: not determine whether the evidence sought to be suppressed was ac tually introduced . . . , and unless it was introduced, the overrulin¡ of the motion to suppress the evidence was harmless, even if erro: Under these circumstances, the case must be affirmed as to the all leged error in [not] suppresing the evidence. . . . [Cit.]” Stephens v. State, 119 Ga. App. 674 (168 SE2d 333) (1969). See also Gilliam v. State, 124 Ga. App. 493 (184 SE2d 360) (1971).

Decided April 30, 1991.

J. Wayne Moulton, for appellant.

Ralph T. Bowden, Jr., Solicitor, W. Cliff Howard, Paul S. Han, Assistant Solicitors, for appellee.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    A91A0385.
    JORDAN TRUCKING, INC. v. WILEY.
    (405 SE2d 734)
   Carley, Judge.

A simplified statement of the relevant facts in the instant appeal is as follows: Two tractor-trailer trucks collided. One truck was owned by Best Way Trucking Company, Inc. (Best Way) and was being operated by its employee, appellee-plaintiff Larry Wiley. The other truck was owned by Jordan Trucking Company, Inc. (Jordan) and was being operated by its employee. As the result of this collision, two separate lawsuits were eventually filed. In one of these actions, Best Way brought suit against Jordan, seeking to recover for its property damage, and Jordan counterclaimed against Best Way, seeking to recover for its property damage. That action was tried before a jury and resulted in a verdict and judgment in favor of Best Way. In the instant action, Wiley brought suit against Jordan, seeking to recover for his personal injuries, and Jordan counterclaimed against Wiley, seeking to recover its property damage. Wiley subsequently dismissed his complaint and, asserting that the judgment in favor of Best Way was res judicata, moved for summary judgment on Jordan’s counterclaim. The trial court granted summary judgment in favor of Wiley and Jordan appeals.

1. Contrary to Jordan’s contentions, the “entire record” of the [prior proceeding need not be introduced in support of a res judicata [defense. “[A] litigant seeking to prove a res judicata defense need introduce only those parts of the record of the prior proceeding, duly pertified, which are necessary to prove the defense.” Boozer v. Higlon, 252 Ga. 276, 277 (1) (313 SE2d 100) (1984).

2. Wiley was not a party to the action between his employer and ordan and, consequently, his action against Jordan would not be iarred by res judicata or estoppel by judgment. “[T]he master or ser-ant who has never had a day in court cannot be barred by a prior djudication against the other. ‘(A)n agency or master-servant relationship (does not) ipso facto (constitute) privity for purposes of res judicata or estoppel by judgment.’ [Cit.]” Norris v. Atlanta &c. R. Co., 254 Ga. 684, 685 (333 SE2d 835) (1985). See also Hunter v. Embree, 122 Ga. App. 576 (178 SE2d 221) (1970). However, Jordan was a party to the prior action and, consequently, Wiley would be entitled to claim the benefit of the prior adjudication in favor of his employer as res judicata or estoppel by judgment on the issue of his non-liability in negligence for the damage to Jordan’s property. McNeal v. Paine, Webber, Jackson & Curtis, 249 Ga. 662, 664 (2) (293 SE2d 331) (1982). It follows that the trial court correctly granted summary judgment in favor of Wiley on Jordan’s counterclaim for property damage.

Decided April 30, 1991.

Joe W. Rowland, for appellant.

Doremus, Jones & Smith, Julian B. Smith, Jr., Adams, Gardner, Ellis & Inglesby, George L. Lewis, Jones, Cork & Miller, Craig N. Cowart, for appellee.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


author: Beasley, Judge.

text:
    A91A0013.
    RICHARDS v. FIRST UNION NATIONAL BANK OF GEORGIA.
    (406 SE2d 705)
   Beasley, Judge.

Appellee, First Union National Bank of Georgia, was awarded summary judgment, in a detailed order, in its suit against appellant] Richards to recover principal and interest payments, as well as attor ney fees, on three promissory notes in the amounts of $189,819.63,| $38,000, and $70,000.

Richards’ son and daughter-in-law opened a retail clothing store Richards, who had a sizeable retirement-investment account manage by the bank’s trust department, agreed to personally guarantee busi ness loans made to his son and daughter-in-law. Both the $38,000 an $70,000 notes evidenced such business loans and were signed by Rich ards as an accommodation party. See OCGA § 11-3-415. Th< $189,819.63 note was a consolidation and renewal of prior notes fo personal loans made by the bank to Richards.

Richards argues that he should not be held liable on the notes because commercial loan officers of the bank breached an oral agree ment not to make loans to the accommodated parties without Rich ards’ prior knowledge and consent. His signature on the notes sue on, the authenticity of which he does not contest, eliminates this defense. See OCGA § 11-3-307.

Decided April 1, 1991

Rehearing denied May 1, 1991

Harl C. Duffey, Jr., for appellant.

So does the parol evidence rule, which precludes enforcement of such oral agreements. See Bennett v. Adel Banking Co., 144 Ga. App. 282, 283 (1) (241 SE2d 23) (1977). It may not be avoided on the theory of a confidential or fiduciary relationship between Richards and the bank. The bank’s management of trust or agency accounts on behalf of a customer “does not create a confidential or fiduciary relationship which would entitle the party seeking to avoid an obligation to the bank by alleging reliance upon oral communications between the bank [commercial loan] officers and that party which might otherwise vitiate the transaction. See Feltman v. Nat. Bank of Ga., 146 Ga. App. 434, 437 (246 SE2d 447).” Wall v. Fed. Land Bank, 156 Ga. App. 368, 372 (2) (274 SE2d 753) (1980); see also Big Bend Agri-Services v. Bank of Meigs, 174 Ga. App. 493, 494 (1) (330 SE2d 422) (1985).

Further, the evidence fails to support Richards’ contention that such an agreement was ever made. He refers to the loans of which he was unaware as the “secret loans.” They were loans which were not guaranteed by Richards and were thus written off by the bank.

The next defense is that Richards was discharged because the debts were secured by the business’ accounts receivable, inventory, and fixtures, and the bank impaired this collateral by allowing it to be pledged and liquidated in satisfaction of subsequent loans. The only specific loan referred to by Richards is a $48,000 loan which predated the loans he guaranteed. The commercial loan officer’s testimony that Richards’ daughter-in-law had sold some business fixtures and brought the proceeds of the sale to the bank, which applied them toward the business loans, is insufficient to show an “impairment of collateral” within the meaning of OCGA § 11-3-606 (1) (b). See Sadler v. Trust Co. Bank, 178 Ga. App. 871, 872 (1) (344 SE2d 694) (1986); Hurt v. Citizens Trust Co., 128 Ga. App. 224 (2) (196 SE2d 349) 1(1973).

The bank was entitled to judgment. See generally Coleman v. McDonald’s Corp., 185 Ga. App. 628 (365 SE2d 282) (1988); Kelly v. American Fed. Savings &c., 178 Ga. App. 542 (1) (343 SE2d 755) |(1986).

Judgment affirmed.

Banke, P. J., and Carley, J., concur.

Frank H. Jones, for appellee.


text:
    A91A0479.
    WALKER v. THE STATE.
    (405 SE2d 736)
   Sognier, Chief Judge.

Kelvin Jerome Walker was convicted of kidnapping, two counts of aggravated assault, and possession of a firearm by a convicted felon. He appeals.

Appellant contends in his sole enumeration of error that the trial court erred by denying his motion made under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986) challenging the State’s use of peremptory strikes to remove all four of the black prospective jurors on the panel. The transcript reveals that after the prosecuting attorney acknowledged that appellant had established a prima facie case under Batson, she then stated for the trial court and the record the reasons behind the State’s use of its peremptory strikes. She stated that the four black prospective jurors, along with three of the five white prospective jurors struck by the State, were removed because each one knew or was familiar with appellant’s family. (Another prospective juror, a white woman, who was familiar with appellant’s family was not struck because the prosecuting attorney understood j her to say, correctly or otherwise, that the juror also knew the victim’s ¡ sister. The hearing was conducted based upon recollection, and the accuracy of the attorneys’ memories cannot be ascertained because voir dire was not transcribed.) The trial court accepted the prosecut-j ing attorney’s reasons and overruled appellant’s motion.

“In order to rebut a prima facie case of racial discrimination ini the exercise of peremptories, the prosecutor must explain each pe-j remptory challenge of a black prospective juror. The explanation need| not rise to the level justifying exercise of a challenge for cause, but it must be neutral, related to the case to be tried, and a clear and rea-| sonably specific explanation of his [or her] legitimate reasons for ex-[ ercising the challenges. The explanation offered for striking eacl black juror must be evaluated in light of the explanations offered foi] the prosecutor’s other peremptory strikes, and, as well, in light of th« strength of the prima facie case.” (Punctuation and citations omit] ted.) Bess v. State, 187 Ga. App. 185 (1) (369 SE2d 784) (1988).

“The trial court’s findings are, of course, entitled to great deferí ence, and will be affirmed unless clearly erroneous.” (Citations ancj punctuation omitted.) Id. at 186. The challenges here were not base<| upon race, but upon the prominence of appellant’s family in the coi munity, which resulted in the prospective jurors’ acquaintance witl appellant’s family. “The trial court’s ruling cannot be found clearlj erroneous when the challenge is not based upon racial grounds, but upon the racially-neutral grounds that prosecutors use every day in every court of this [S]tate. [Cits.]” Glanton v. State, 189 Ga. App. 505, 507 (2) (376 SE2d 386) (1988). For purposes of rebutting a Bat-son prima facie case, we find that the reason stated by the prosecuting attorney for striking seven prospective jurors, including all four of the black prospective jurors, was sufficiently racially neutral, and the trial court was authorized to make such finding. See Burgess v. State, 194 Ga. App. 179 (390 SE2d 92) (1990) (challenge to prospective juror who knew victim’s mother but was possibly prejudiced against State was racially neutral).

Decided May 1, 1991.

Wayne B. Kendall, for appellant.

William G. Hamrick, Jr., District Attorney, Monique F. Kirby, George F. Hutchinson III, David Oliver, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.