text:
    A97A2511.
    POWELL v. THE STATE.
    (494 SE2d 200)
   Johnson, Judge.

Acting pro se, Charlie Lee Powell directly appeals from the denial of his motion to correct an illegal sentence. See Jackson v. State, 223 Ga. App. 471 (1) (477 SE2d 893) (1996); Jefferson v. State, 205 Ga. App. 687 (1) (423 SE2d 425) (1992); McCranie v. State, 157 Ga. App. 110, 111 (2), (3) (276 SE2d 263) (1981).

Powell was indicted on four charges: sale of cocaine, possession of cocaine with intent to distribute, aggravated assault and felony obstruction of a law enforcement officer. Following the presentation of the state’s case, Powell’s trial counsel announced Powell wanted to plead guilty to three of the four charges. The prosecutor informed the court that the parties had reached the following plea agreement: In exchange for a guilty plea as to the cocaine and obstruction charges, the state would enter a nolle prosequi on the aggravated assault charge; and, with the court’s approval, Powell would be sentenced to life imprisonment on the cocaine charges and five years to serve on the obstruction charge. The prosecutor asked the court to run the sentences on various counts concurrently, to run concurrently with a revoked probated sentence from a previous sale of cocaine conviction, and to give Powell credit for time served since his arrest. The trial court made various inquiries about the facts of the case, the plea, and the recommended sentences. The trial court then accepted the plea and imposed the recommended sentences.

1. In several related enumerations of error, Powell argues that the trial court erred in imposing a life sentence because the state did not comply with the provisions of OCGA § 17-10-2 (a). This issue was decided adversely to Powell in Martin v. State, 207 Ga. App. 861 (429 SE2d 332) (1993). “OCGA § 17-10-2 (a) is applicable and the State is bound by its pre-trial notice requirements in cases wherein sentence is to be imposed after a jury trial, a bench trial or probation revocation proceedings for a first offender. . . . OCGA § 17-10-2 (a) is not made expressly applicable to sentences imposed in the context of guilty plea hearings. . . . [E]ven assuming the applicability of OCGA § 17-10-2 (a) in the context of guilty plea hearings generally, [Powell’s] sentences were nevertheless imposed pursuant to a plea bargain agreement. Such an agreement may be considered as a contract. Plea bargain negotiations can serve the same purpose as the giving of notice under OCGA § 17-10-2 (a). That statute does not require written notice, only ‘clear notice.’ When plea bargain negotiations are conducted, the defendant can be given ‘clear notice’ of what the State intends to rely upon in aggravation of sentencing at the guilty plea hearing.” (Citations and punctuation omitted.) Id. at 862.

As in the Martin case, Powell knew the terms of the agreement, chose to truncate the trial after presentation of the state’s case, and knew that if he rejected the state’s offer he could have received an enhanced sentence on the obstruction charge as well as a separate sentence on the aggravated assault charge.

The cases relied upon by Powell in support of his argument that the state failed to comply with the pretrial notice requirements of OCGA § 17-10-2 (a) are distinguishable. In the cases cited by Powell, sentence was imposed after a verdict had been returned after a trial, or conviction entered, not after a negotiated plea had been entered and sentence imposed by the trial court. See Armstrong v. State, 264 Ga. 237 (442 SE2d 759) (1994); Sinkfield v. State, 262 Ga. 239 (416 SE2d 288) (1992); Stephens v. State, 219 Ga. App. 881 (467 SE2d 201) (1996); Payne v. State, 219 Ga. App. 318 (464 SE2d 884) (1995); Ross v. State, 210 Ga. App. 455 (436 SE2d 496) (1993).

2. Powell’s argument that the requirements of OCGA § 17-10-2 (a) are defenses which cannot be waived is also unpersuasive. “A defendant may waive rights which exist for his own benefit, but he may not waive those which belong to the public generally. The [requirements of OCGA § 17-10-2 (a)] do not affect the jurisdiction of the court and [do] not benefit the public generally; the only person who will ever enjoy this protection is a criminal defendant. If that defendant wishes to waive the protection, no other party is harmed. As the protection afforded by [OCGA § 17-10-2 (a)] is statutory in origin, does not affect the court’s jurisdiction, and is personal to an individual defendant, it. . . can be waived.” (Citations and punctuation omitted.) State v. Barrett, 215 Ga. App. 401, 405 (2) (451 SE2d 82) (1994). The requirements of OCGA § 17-10-2 (a) were personal to Powell, could be waived, and, in fact, were waived by his decision to enter a plea and accept a negotiated sentence.

“The parties made a bargain. There is no evidence in the record that the State failed to live up to its part of the bargain. Having accepted the benefit of the bargain with the State and secured the dismissal of [the aggravated assault charge], it is [Powell] who now seeks to avoid living up to his part of the bargain. This he cannot do. Public policy and the great ends of justice require that the arrangement between the public prosecutor and [Powell] be carried out.” (Citations and punctuation omitted.) Martin, supra at 863.

Decided October 28, 1997.

Charlie L. Powell, pro se.

Fredric D. Bright, District Attorney, Gregory L. Bushway, Assistant District Attorney, for appellee.

The sentence imposed was not illegal for the reasons asserted by Powell, and the trial court did not err in denying his motion to correct it.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A97A1089.
    DEPARTMENT OF TRANSPORTATION et al. v. MIKELL et al.
    (493 SE2d 219)
   Blackburn, Judge.

The Georgia Department of Transportation (DOT) and three of its employees, Jerry Dubberly, Shell Hartley, and Shelton Anderson, appeal from a jury verdict in favor of Carolyn Mikell and Betty Burch in Mikell and Burch’s suit for negligence and wrongful death. After their father was killed when his vehicle was struck by a logging truck, Mikell and Burch sued the DOT and the three named employees for negligently designing and maintaining the intersection where the collision occurred. On appeal, the DOT and its employees contend that their motions for j.n.o.v. and new trial should have been granted, as there was no evidence of any negligence on behalf of any of them.

1. When reviewing a trial court’s denial of a motion for j.n.o.v. or new trial, this Court determines if there is any evidence to support the jury’s verdict. Lofty v. Fuller, 223 Ga. App. 95, 97 (2) (477 SE2d 30) (1996). “Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of defendant’s motions for new trial and j.n.o.v. will not be disturbed.” (Punctuation omitted.) Id.

Because this is a pre-Tort Claims Act case, in order to prevail and hold the DOT liable under the doctrine of respondeat superior for negligently designing the intersection where the collision occurred, appellees had to show that the named DOT employees were negligent. See Donaldson v. Dept. of Transp., 212 Ga. App. 240, 241 (441 SE2d 473) (1994); see also Price v. Dept. of Transp., 257 Ga. 535, 536 (361 SE2d 146) (1987) (finding that the “DOT is a defendant and liable in tort, if at all, only because of the doctrine of respondeat superior”). Under applicable law, sovereign immunity was waived to the extent of insurance coverage as there was liability insurance maintained by the DOT on its employees. Accordingly, the case is controlled by general principles of negligence, and this Court reviews the evidence adduced at trial to determine whether or not the motions for j.n.o.v. and new trial were appropriately denied under the law and the evidence. See generally Bob v. Hardy, 222 Ga. App. 550 (474 SE2d 658) (1996) (applying general negligence principles to a pre-Tort Claims Act case).

Viewed most favorably to upholding the verdict, the evidence shows that on August 7, 1989, appellees’ father, Curtis Spivey, drove his pickup truck down county road 194 until he reached its intersection with State Highway 187. Although the evidence is in conflict regarding what Spivey did upon reaching this intersection, the composition of the intersection itself is key to the case. State Highway 187 has a posted speed of 55 mph, and vehicles traveling on that road have the right of way over vehicles traveling on county road 194 at their intersection. There are no electric traffic signals at the intersection of State Highway 187 and county road 194. However, there are a stop sign and warning pavement strips on county road 194, near such intersection.

Although he was on county road 194 and therefore had a duty to stop and yield the right of way before driving into the intersection, whether or not Spivey actually did so was disputed at trial. Mikell and Burch, Spivey’s daughters, and Tony Mikell, Spivey’s grandson, testified that Spivey had lived on State Highway 187, approximately one mile from the intersection, for 25-30 years before his death and that he traversed same nearly every day. The subject collision occurred when, as he pulled into the intersection, Spivey’s vehicle was struck by a logging truck, causing his death.

Plaintiffs alleged that defendants were liable based on four separate acts of negligence with respect to the subject intersection: negligently placing a stop sign on county road 194 too far back from its intersection with State Highway 187; failing to paint a stop line on the county road; failing to reduce the speed limit on State Highway 187 at its intersection with county road 194; and failing to properly maintain the shrubbery adjacent to the intersection, thereby reducing visibility. The jury did not designate for which act or acts it found negligence as to any defendant. Therefore, we must review the evidence as to each of the alleged negligent acts as it would relate to each defendant.

(a) Mikell and Burch contend that the DOT and its employees negligently placed the stop sign on county road 194 too far back from the intersection and failed to paint a white stop line on the road to indicate where to stop. The defendants contend that plaintiffs failed to produce any evidence supporting their claim of negligence by any defendant.

To evaluate plaintiffs’ claims regarding the stop sign and the stop line, we must first determine whether such claims sound in ordinary or professional negligence. Because the plaintiffs are challenging the layout of the intersection itself and the choice of traffic control devices which control it, they are asserting that the intersection is negligently engineered and designed. Where, as here, the engineering design of a road is questioned, this Court has held that “[designing roads requires ‘engineering services’ which have been described as the performance of professional services within the purview of OCGA § 9-11-9.1 [the professional malpractice affidavit statute].” Jackson v. Dept. of Transp., 201 Ga. App. 863, 865 (412 SE2d 847) (1991). Although no such expert affidavit was filed in this case, the defendants did not challenge this failure in its initial responsive pleadings, thereby waiving their right to relief based on plaintiffs’ failure in this regard. Seely v. Loyd H. Johnson Constr. Co., 220 Ga. App. 719, 724 (4) (470 SE2d 283) (1996). Given the need for an expert’s affidavit, the claim is clearly one for professional negligence, and expert testimony would therefore be required at trial for plaintiffs to meet their burden notwithstanding defendants’ failure to raise plaintiffs’ failure to comply with OCGA § 9-11-9.1.

Here, plaintiffs presented no expert testimony regarding the professional engineering judgment exercised by defendants in designing the intersection. They sought instead to rely upon the testimony of two state troopers who were not qualified engineering experts. One trooper testified that the stop sign on county road 194 was located farther back than normal, and that no stop line was painted on the road to tell drivers where to stop. This trooper also testified that a motorist stopped at the stop sign on county road 194 could not see down State Highway 187 to determine what traffic might be coming. The other trooper also testified that the stop sign was located too far back from the intersection. This testimony fails to establish either the standard of care or breach thereof by expert testimony.

Plaintiffs also relied on portions of the Manual on Uniform Traffic Control Devices (MUTCD), which defendants had admitted on deposition was an authoritative manual on traffic issues. The MUTCD states that “[a] STOP sign should be erected at the point where the vehicle is to stop or as near thereto as possible, and may be supplemented with a Stop line. . . . Stop lines should be used in both rural and urban areas where it is important to indicate the point, behind which vehicles are required to stop, in compliance with a STOP sign. . . .If a Stop line is used in conjunction with a STOP sign, it should ordinarily be placed in line with the STOP sign. However, if the sign cannot be located exactly where vehicles are expected to stop, the Stop line should be placed at the stopping point.” (Emphasis supplied.)

Defendants showed by expert testimony of a civil engineering consultant that the MUTCD contains mandatory, advisory, and permissive instructions. While the DOT and its employees are bound by all mandatory instructions contained in the MUTCD, all of the alleged breaches involved permissive or advisory instructions. The expert further testified that the stop sign’s placement complied with the cited requirements of the MUTCD, and that the stop sign was in the most appropriate location possible for safety and preservation. He also testified that the failure to have a stop line painted on the road was not a violation of the MUTCD.

Our review of the record indicates that as the defendants’ expert testified, the MUTCD itself divides its instructions into mandatory, advisory, and permissive categories. Because the stop sign and stop line issues fall within the advisory and permissive range, they are necessarily within the discretion of the DOT engineers and its employees. The exercise of such discretion involves the use of professional engineering judgment, and for that reason, it was incumbent upon the plaintiffs to present expert engineering testimony on this issue in order to establish the applicable standard of care and a breach thereof. This they failed to do.

“The law imposes upon persons performing . . . engineeringt ] and other professional and skilled services the obligation to exercise a reasonable degree of care, skill and ability, which generally is taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by their respective professions. This standard of care properly is the subject of expert opinion. . . . [I]t was necessary here that plaintiffs establish the standard of care applicable to defendants] by the introduction of expert opinion evidence. Expert testimony is required because the court and jury are not permitted to speculate as to the standard against which to measure the acts of the professional in determining whether he exercised a reasonable degree of care.” (Citations and punctuation omitted.) H. Elton Thompson & Assoc., P.C. v. Williams, 164 Ga. App. 571, 572 (298 SE2d 539) (1982) (physical precedent only).

We have noted that “[t]he average layperson is not familiar with design and function features of traffic control devices,” and therefore expert testimony is required to support a claim of professional engineering negligence. Fouts v. Builders Transport, 222 Ga. App. 568, 576 (8) (474 SE2d 746) (1996); cf. Whitley v. Gwinnett County, 221 Ga. App. 18, 19 (1) (470 SE2d 724) (1996). Moreover, “[wjhere and whether to install traffic [devices] were design decisions.” Dept. of Transp. v. Brown, 267 Ga. 6, 7 (1) (471 SE2d 849) (1996). The MUTCD is not “the exclusive source of engineering and design standards” especially as to permissive and advisory instructions. Id. at 8 (2). Therefore, plaintiffs cannot rely solely on the MUTCD to establish the standard of care where permissive and advisory instructions are involved. Plaintiffs have failed to meet their burden to establish the standard of care and the violation thereof by expert testimony which failure is fatal to their case. See id. at 8.

Our decision in Dept. of Transp. v. Blair, 220 Ga. App. 342 (469 SE2d 446) (1996) does not require a different result. Blair was a wrongful death action involving claims that the DOT was negligent in maintaining a stop sign in which judgment against the DOT was affirmed on appeal. In Blair, however, the plaintiff presented expert traffic and engineering testimony as to the hazard created by the subject stop sign and further proved that the sign itself violated the mandatory requirements of MUTCD. Id. at 343 (1) (a). Blair is clearly distinguishable and does not control this case.

(b) Plaintiffs also claim that the defendants negligently failed to reduce the speed limit on State Highway 187, the road on which the logging truck was traveling when it collided with Spivey. Plaintiffs contend that the 55 mph speed limit on State Highway 187 was too high and was a contributing factor in the death of their father.

The only evidence on this issue shows that the 55 mph speed limit on State Highway 187 was mandated by OCGA § 40-6-181 (b) (5). The defendants therefore could only potentially be liable for failing to lower the speed limit from the figure set by statute. Liability for such professional negligence must be shown by expert testimony which plaintiffs have failed to produce.

The MUTCD provides that before the speed limit could be lowered, the DOT must first conduct an engineering and traffic investigation in accordance with established traffic engineering practices. Only after this investigation would the DOT be authorized to lower the speed limit on State Highway 187. OCGA § 40-6-182 also addresses the changing of speed limits in Georgia, and like the MUTCD, it also requires that an engineering and traffic investigation be conducted prior to making any change. What neither the MUTCD nor the statute establishes, however, is when the DOT or its employees are required to initiate a change in the speed limit.

Plaintiffs also failed to establish this alleged breach of engineering standards by expert testimony. Indeed, one of plaintiffs’ state patrol witnesses testified that no problems with the speed limit had ever been reported. The other patrolman also testified that had the logging truck been traveling at the posted speed limit rather than speeding, the accident would not have occurred.

The defendants’ undisputed expert testimony showed that the MUTCD did not require that an engineering and traffic investigation be done absent plans by the DOT to change the speed limit on the subject portion of State Highway 187. The evidence showed that the DOT had no plans to reduce the speed limit in this area requiring a study and had never received any complaints about the speed limit being too high.

(c) At trial, plaintiffs presented evidence that at the time of the wreck, the bushes along State Highway 187 were grown up. They claimed that the DOT negligently failed to keep the bushes cut, and that this failure reduced visibility at the intersection which contributed to the subject collision.

This claim, unlike the stop sign, stop line, and speed limit claims, involves the maintenance of the subject intersection and not its engineering design. We have noted that claims for negligent maintenance do “not necessarily require the exercise of professional skill and judgment.” Adams v. Coweta County, 208 Ga. App. 334, 336 (2) (430 SE2d 599) (1993). Accordingly, plaintiffs were not required to present expert testimony on this issue.

Decided October 29, 1997.

Thurbert E. Baker, Attorney General, George P. Shingler, Deputy Attorney General, C. Latain Kell, Senior Assistant Attorney General, Susan J. Levy, for appellants.

McNatt, Greene & Thompson, Hugh B. McNatt, Troy L. Greene, Berrien L. Sutton, for appellees.

The evidence at trial regarding the bushes at the time of the collision came from the driver of the truck. The driver testified only that “the bushes have got it growed up there” at or near the intersection. No other evidence concerning the bushes at the time of the wreck was introduced.

This evidence, without more, is not sufficient to establish the defendants’ negligent maintenance of the bushes at the intersection or its contribution to the incident. While the DOT had a duty to maintain the bushes in the subject area, the testimony presented that the bushes were “growed up” does not establish a breach of this duty. Without evidence of how high the bushes were, how high they were allowed to be, how often they were supposed to be cut, or to what extent, if any, they interfered with visibility at the intersection, and how the overgrowth of bushes contributed to the incident, no breach of the duty to cut them can be shown. Other evidence showed that neither bushes nor trees obscured a motorist’s vision at the intersection. Plaintiffs’ own witness, one of the state troopers, testified that he had never had any trouble negotiating the subject intersection. Accordingly, the defendants’ motion for j.n.o.v. should have been granted as to the above issues, and the trial court erred in failing to do so.

2. In light of our holding in Division 1, we need not address the defendants’ other enumerated error.

Judgment reversed.

Pope, P. J., and Johnson, J., concur.

       The owner of the logging truck, Griffis Timber Company, and the driver of the truck, Bobby Griffis, did not appeal the jury’s verdict, which was joint and several against all the defendants, but they have joined appellees’ brief seeking to uphold the verdict.

       Due to the presence of insurance in this case, the ministerial/discretionary analysis generally used in sovereign immunity cases to analyze the acts of public officials is inapplicable. See Logue v. Wright, 260 Ga. 206 (1) (392 SE2d 235) (1990), rev'd on other grounds, Merrow v. Hawkins, 266 Ga. 390, 392 (2) (467 SE2d 336) (1996). With respect to the DOT’S liability for its insured employees’ negligence, see Martin v. Dept. of Public Safety, 257 Ga. 300, 301-303 (2) (357 SE2d 569) (1987).

       On appeal, neither party raised the issue of the DOT’s responsibility for the county road portion of this intersection. Pursuant to OCGA § 32-2-61 (e), “[e]xcept for public roads within and leading to state parks, the department [of transportation] is prohibited from maintaining any public road not on the state highway system.” The evidence showed that county road 194 is not part of the state highway system, but is under the jurisdiction of Clinch County, Georgia. However, as there was some testimony regarding DOT rights of way, and as the DOT has not pursued this issue on appeal, we do not address it.


author: Pope, Presiding Judge.

text:
    A97A1560.
    SHOCKLEY PLUMBING COMPANY, INC. v. NATIONSBANK, N.A. (SOUTH).
    (493 SE2d 227)
   Pope, Presiding Judge.

Plaintiff Shockley Plumbing Company, Inc. appeals from the trial court’s grant of summary judgment to defendant NationsBank, N.A. (South) f/k/a Barnett Bank of Fayette County, regarding Shockley’s attempt to enforce a materialman’s lien against NationsBank. Concluding that summary judgment was appropriately granted to NationsBank, we affirm.

Shockley is a grading contractor who contracted with Thompson & Company Mortgage Corporation to provide materials and make certain improvements to a subdivision owned by Thompson. Nations-Bank was the construction lender for the improvement project. After completing its work on the project on December 21, 1990, Shockley submitted its final payment request for $35,402.60 to Thompson on January 15, 1991. Thompson refused to pay for the work and materials that Shockley provided.

On or about March 5,1991, Thompson executed a warranty deed in favor of NationsBank for the subdivision property in lieu of foreclosure. The warranty deed constituted settlement in full of Thompson’s outstanding indebtedness of $850,000 to NationsBank and was recorded on March 6, 1991. At the time the warranty deed was executed, Thompson’s president also executed a property owner’s affidavit representing that all bills for labor, material and recent improvements (defined as those made within the previous 90 days) had been paid, and that title to the property was free and clear of all liens of any character except tax liens for 1990 and NationsBank’s security interest in the property.

Subsequently, on March 20, 1991, within three months after it last furnished labor and materials for the improvement project, Shockley filed a materialman’s lien. See OCGA §§ 44-14-361 (a) (2); 44-14-361.1 (a) (2). Shockley did not, however, at any time prior to filing his lien, file a preliminary notice of lien rights as allowed under OCGA § 44-14-361.3. It is undisputed that NationsBank, as principal and surety, subsequently executed and filed a bond to discharge the lien. See OCGA § 44-14-364. Thereafter, Shockley filed suit against Thompson for the outstanding balance due under its contract with Thompson and against NationsBank for recovery from the bond proceeds of the amount of the materialman’s lien. Shockley and Thompson later entered into a consent judgment finding liability on Thompson’s part. The trial court granted summary judgment to NationsBank, finding that the warranty deed executed in Nations-Bank’s favor, along with the affidavit executed by Thompson’s president, acted to dissolve the materialman’s lien pursuant to OCGA § 44-14-361.2 (a) (2) (A), (B), thereby relieving NationsBank from any liability to Shockley.

1. OCGA § 44-14-361.2 (a), in pertinent part, provides that special liens, such as the materialman’s lien involved in this case, “shall be dissolved if the . . . purchaser from owner[ ] or lender providing construction or purchase money . . . shows that: (2) (A) ... [a] sworn written statement [has been obtained from] the owner when conveying title in a bona fide sale or loan transaction, that the agreed price or reasonable value of the labor, services, or materials [has] been paid or waived in writing by the lien claimant; and (B) [w]hen the sworn written statement was obtained or given as a part of a transaction: (i) [involving a conveyance of title in a bona fide sale; (ii) [i]nvolving a loan in which the real estate is to secure repayment of the loan; or (iii) [w]here final disbursement of the contract price is made by the owner to the contractor [and] there was not of record, at the time of settlement of the transaction[,] a valid preliminary notice or claim of lien which had not been previously canceled, dissolved, or expired.”

Shockley argues that Thompson’s sale to NationsBank of the property in question by warranty deed in lieu of foreclosure cannot be viewed as a bona fide sale, and that without such a sale, Shockley’s lien was not dissolved under OCGA § 44-14-361.2 (a) (2) (A), (B) by NationsBank’s obtainment of Thompson’s affidavit. We disagree. Although “bona fide sale” is not defined by statute in this State, the Supreme Court of Georgia has held that in order for a transfer by a debtor to be considered bona fide and valid, the debtor must receive valuable consideration and the taking or purchasing party must be without notice or ground for suspicion of any intent on the part of the debtor to defraud creditors. Hall v. Hidy, 263 Ga. 422, 423 (1) (435 SE2d 215) (1993); see OCGA § 18-2-22 (2).

In this case, it is beyond dispute that Thompson received valuable consideration for the warranty deed he executed in Nations-Bank’s favor. And we conclude that the mere fact the warranty deed and sale were made in lieu of foreclosure and that NationsBank was the construction lender on the project, without more, is not sufficient to create an issue of fact as to whether NationsBank had any actual or constructive knowledge that Thompson was attempting to defraud its creditors, especially in light of the affidavit supplied to Nations-Bank. Without any admissible evidence of knowledge or collusion on NationsBank’s part, we also know of no public policy that would prevent the transaction in question from being considered bona fide.

In the absence of evidence that Thompson’s sale to NationsBank was not bona fide, Thompson’s affidavit served to dissolve Shockley’s lien even though the affidavit contained false information because “it is the written document rather than the intentions or acts of the affi-ant in executing it, that operates to extinguish the lien.” Walk Softly v. Hyzer, 188 Ga. App. 230, 232 (372 SE2d 500) (1988). See Lowe’s of Ga. v. Merwin, 156 Ga. App. 876 (275 SE2d 812) (1981) (applying prior statutory law). And while the trial court incorrectly stated in its order granting NationsBank’s summary judgment motion that the lien was dissolved pursuant to NationsBank’s filing of bond pursuant to OCGA § 44-14-364, the trial court’s conclusion that the requirements of OCGA § 44-14-361.2 for dissolving liens had been met was correct; thus, so was its determination that NationsBank was entitled to summary judgment regarding Shockley’s attempt to enforce the materialman’s lien. A judgment that is right for any reason must be affirmed. Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991). We will not reverse a trial court merely because it misspoke in stating the reason for its ruling. Bill Parker & Assoc. v. Rahr, 216 Ga. App. 838, 840 (1) (456 SE2d 221) (1995).

Decided October 29, 1997.

Glover & Davis, J. Littleton Glover, Jr., Roy B. Huff, Jr., for appellant.

Parker, Hudson, Rainer & Dobbs, G. Wayne Hillis, Jr., for appel-lee.

2. We find no merit in Shockley’s contention that Thompson’s affidavit did not comply with the requirements of OCGA § 44-14-361.2. Moreover, we note that Shockley failed to raise any challenge to the sufficiency of the affidavit in the court below. Accordingly, Shockley has waived any right to consideration of this issue on appeal. See Dietz v. Becker, 209 Ga. App. 678, 679 (3) (434 SE2d 103) (1993).

Judgment affirmed.

Johnson and Blackburn, JJ, concur.


author: Judge Harold R. Banke.

text:
    A97A1747.
    JONES v. THE STATE.
    (493 SE2d 224)
   Judge Harold R. Banke.

Johann Sebastian Jones was convicted of selling cocaine. In his sole enumeration of error, he challenges the sufficiency of the evidence.

This case arose after an undercover officer met Jones on a road near a community center. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). When the officer told him she wanted “a twenty,” he asked if she was with the police. After she denied any affiliation with the police, Jones arranged for the officer to meet him at a nearby park. Upon the officer’s arrival, Jones and an unidentified man walked up to her car. Then Jones said, “Yeah, go ahead,” and the unidentified man handed a small piece of a substance which subsequently tested positive for cocaine to the officer in exchange for $20. Jones then stated, “It’s straight,” meaning the cocaine was of good quality. This transaction was videotaped. Later that day, another officer arrested Jones. Held:

Decided October 29, 1997.

Leonard M. Tuggle, Jr., Lawrence D. Galehouse, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

The evidence, viewed in the light most favorable to the verdict, was sufficient to allow the jury to find each essential element of the sale of cocaina Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979); OCGA § 16-13-30 (b). The undercover officer testified that Jones arranged for her to meet the unidentified individual who provided the cocaine and he presided over the sale, even vouching for the cocaine’s quality. The jury was instructed on parties to a crime, and we find the evidence was sufficient to authorize Jones’ conviction as a party to the crime of the sale of cocaine. OCGA § 16-2-20 (b) (3); Wrease v. State, 214 Ga. App. 727, 728 (1) (448 SE2d 911) (1994). These facts and Jones’ repeated inquiries about whether the undercover officer was affiliated with the police undermine his assertion that he was merely present at the scene and lacked criminal intent. Woods v. State, 224 Ga. App. 52, 55 (4) (479 SE2d 414) (1996).

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.


author: Birdsong, Presiding Judge.

text:
    A97A1982.
    GIBBS v. DODSON.
    (492 SE2d 923)
   Birdsong, Presiding Judge.

This appeal arises from a suit for damages for breach of fiduciary relationship filed by appellant/plaintiff H. Barry Gibbs and from a counterclaim for imposition of a constructive trust for the benefit of cross-appellant/defendant Charles L. Dodson. Gibbs appeals from the order of the superior court granting summary judgment to Dodson and from the order denying Gibbs’ summary judgment motion. Gibbs enumerates as error the grant of summary judgment to Dodson on all counts of Gibbs’ complaint and the denial of summary judgment to Gibbs as to Count 1 of Dodson’s counterclaim seeking a constructive trust on an insurance policy, which Gibbs claims he owns, insuring Dodson’s life.

Gibbs and Dodson each owned 50 percent interest in a general partnership and in two corporations (Rose Haven Chapel, Inc. and Rose Haven Cemetery, Inc.), which legal entities owned and operated the Rose Haven Funeral Home and the Rose Haven Cemetery. In early 1991, both Dodson and Gibbs purchased life insurance policies naming the other as policy owner and beneficiary; the evidence is in conflict as to the reason for this purchase. In March 1992, both policies were pledged as collateral on an SBA loan; following the sale of the funeral business, the SBA loan was satisfied by Dodson. From date of issue through the first quarter of 1995, both policies were paid for by Rose Haven Chapel, Inc.; thus, for a period of time, Rose Haven Chapel, Inc. paid premiums on the policy on Dodson’s life after Dodson purchased Gibb’s interest in the funeral business. From the inception of the Dodson policy through on or about March 29, 1995, Rose Haven Chapel, Inc. paid premiums on this policy in the amount of $21,645.71. Thereafter, and at least through the date of his affidavit (September 12, 1996), Gibbs paid the premium on the policy on Dodson’s life. (Apparently, after the assignment of these two policies to the SBA, Gibbs allowed the policy insuring his own life to lapse and replaced it with another policy which Dodson did not own. Thus, Dodson was no longer listed as the beneficiary or owner of any policy on the life of Gibbs, while Gibbs remained the listed owner and beneficiary of the policy on Dodson’s life.) In February 1995, after the SBA loan was satisfied and a demand was made on Gibbs for the return of the policy on Dodson’s life, Gibbs asserted a claim of ownership on the policy and declined to return it. In his counterclaim, Dodson asserts inter alia that a constructive trust for his benefit should be imposed on the policy insuring his life.

In late 1993, Dodson informed Gibbs that he wanted Gibbs to give up his interest in the funeral business. On March 4, 1994, Dodson and Gibbs executed a Put/Call Agreement which detailed the procedure for buying out each other’s interest in the business. Gibbs initially controlled the option to purchase Dodson’s business interest under the terms of the agreement. However, on October 2, 1994, the option reverted back to Dodson. Two weeks before Gibbs’ option expired, Stewart Enterprises representatives visited the funeral home unannounced and notified Dodson of its desire to purchase Rose Haven; Dodson had not previously met with these representatives. Dodson informed the agents of Stewart Enterprises that he lacked the power to sell the business at that time but might be able to do so at a later date. Dodson did not inform Gibbs of the inquiry by Stewart Enterprises. Subsequently, Gibbs elected not to exercise his buy-out option; on December 1, 1994, Dodson signed a promissory note with Stewart Enterprises and obtained the financial backing to buy out Gibbs. To facilitate closing, a mutual release was executed by Dodson and Gibbs on December 1, 1994. On February 12, 1995, except for certain assets not here at issue, Dodson sold the funeral business assets to a subsidiary of Stewart Enterprises. As the SBA loan was satisfied as a result of this sale, the SBA released their lien on the policy insuring Dodson’s life. This policy was not listed as an asset excluded from the sale under the terms of the applicable purchase agreement.

Gibbs filed suit averring a breach of fiduciary duty due to Dodson’s failure to inform him of Stewart Enterprises interest in purchasing Rose Haven. Dodson moved for summary judgment averring that there he owed no fiduciary duty to Gibbs. The trial court granted Dodson’s motion for summary judgment as to all of Gibbs’ claims of breach of fiduciary duty on the grounds that there exists no evidence that the parties were joining together to achieve a common business objective and, thus, Dodson owed no duty of disclosure of his intentions to Gibbs. The trial court further denied Gibbs’ motion for summary judgment as to Count 1 of Dodson’s counterclaim, observing that the mutual release executed by the parties on December 1, 1994, effected a release of any claims, known or unknown, arising after that date, and that Gibbs did not assert that the insurance proceeds were his until February 1995. Held:

1. In granting summary judgment to Dodson as to all of Gibbs’ claims, the trial court, citing Kienel v. Lanier, 190 Ga. App. 201 (378 SE2d 359) and Harish v. Raj, 222 Ga. App. 248 (474 SE2d 624), found no evidence that the parties were joining together to achieve a common business objective, and “[therefore, there was no fiduciary duty to fully disclose one’s intentions.” The trial court also found the Put/ Call Agreement was merely an effort to further the parties’ own separate interests.

In Georgia, as a general rule a corporate director or officer occupies a fiduciary relation to corporate stockholders regarding their shares of stock, and this relationship obtains when the director is dealing with an individual shareholder in the purchase of the shareholder’s shares. Quinn v. Forsyth, 116 Ga. App. 611, 617 (2) (158 SE2d 686). “Hence, by virtue of his control of the property, and his fiduciary relation to the shareholder, a director, when dealing with a stockholder for the purchase of shares, is under the same obligation as partners, agents, and other fiduciaries, to make a full disclosure of all material facts relative to the value of the property under his control, known to him and unknown to the stockholder, where the sources of information are not equally accessible to both parties.” (Emphasis supplied.) Oliver v. Oliver, 118 Ga. 362, hn. 6 (45 SE 232). However, merely because a director occupies such position, when buying stock he is not under the fiduciary duty of full disclosure either to the corporation or to the other directors. Harish v. Raj, supra at 251 (1), citing King Mfg. Co. v. Clay, 216 Ga. 581, 586 (1) (118 SE2d 581); accord Lariscy v. Hill, 117 Ga. App. 152, 154 (1) (159 SE2d 443); see Kienel v. Lanier, supra at 202 (2); but compare Childs v. Ric Group, Inc., 331 FSupp. 1078 (N.D. Ga.), aff’d, 447 F2d 1407 (5th Cir.).

King, supra; Harish, supra; Lariscy, supra; and Kienel, supra, are distinguishable from the facts of this case and are not controlling; a fiduciary relation exists in this case, not based upon Dodson’s status as a director, but based upon the clear and unequivocal duty imposed by the Put/Call Agreement. Pursuant to the agreement, Dodson was given the authority to manage the business until closing. Gibbs expressly agreed not to interfere with such management provided Dodson kept him “reasonably apprised” of the entities’ operations and gave him full access to the entities’ books and records. The agreement further provided that neither Dodson nor Gibbs would “take any action to benefit himself, or any action intended to or foreseeably having the effect of adversely affecting the rights of the other [o]wner under this [a]greement.” The agreement on its face establishes the parties’ intent that there would be a continuing fiduciary relationship between Dodson and Gibbs in return for Gibbs’ relinquishment of management control of the entities to Dodson. This agreement violates neither Georgia law nor public policy; parties are free, except as prohibited by statute or public policy to contract on any terms and about any subject matter they so desire. Duffett v. E & W Properties, 208 Ga. App. 484, 487 (2) (430 SE2d 858). The agreement, in effect, prohibited either party from seizing a corporate opportunity for their personal use or benefit. See Quinn v. Cardiovascular Physicians, P.C., 254 Ga. 216, 218 (3) (326 SE2d 460). Further, the doctrine of clean hands has no application in a suit for damages for breach of a fiduciary relationship. Zappa v. Automotive &c. Machinery, 205 Ga. App. 584 (2) (423 SE2d 286). It is for jury resolution whether this fiduciary relation was breached by the acts or omissions of Dodson.

The trial court erred in granting summary judgment to Dodson as to Gibbs’ claims.

2. The trial court denied summary judgment to Gibbs on Dodson’s counterclaim for a constructive trust.

Appellant Gibbs contends that the mutual release, executed by Gibbs, Dodson, Rose Haven Chapel, Inc., Rose Haven Cemetery, Inc., and Dodson & Gibbs (partnership) on December 1, 1994, released him from any liability to Dodson in regard to Dodson’s counterclaim. The mutual release pertinently provides: “THIS MUTUAL RELEASE ... is intended to effect the extinguishment of all claims any party hereto may have against any other party hereto, whether known or unknown, and each party hereto hereby releases, waives, and forever discharges the other parties hereto . . . from any and all claims, demands, damages, costs, expenses, actions, causes of action, known or unknown, related to the parties’ business relationships through and including the date hereof. . . .In addition, this release shall not cover claims based on breach of fiduciary duty, embezzlement or the taking of unlawful actions by any party hereto.” (Emphasis supplied.) The release was executed on December 1, 1994.

In denying grant of summary judgment to Gibbs, the trial court found inter alia that the claim was not asserted by Gibbs until February 1995 and was not barred by the release. A release is subject to the same rules of construction as govern ordinary contracts in writing; a release is to be construed according to the intent of the parties. U S. Anchor Mfg. v. Rules Indus., 264 Ga. 295, 298 (2) (443 SE2d 833). A general release ordinarily does not discharge liability for injury caused by unknown tortious conduct which has already been committed. However, it is possible that a party may intend to discharge liability for injury caused by unknown tortious conduct. An intention to release a party from liability for unknown conduct must be clearly expressed in the release. Id.

The mutual release in this case expressly provided that the parties would be released inter alia from all claims, known or unknown, arising on or before the date of the release. It is of no legal significance that Dodson was unaware that Gibbs subsequently would contend, as the original legal owner of the policy, that it had been obtained for his personal use and benefit to the exclusion of any claim of interest by Dodson or the funeral business. If the claim Dodson asserted in Count 1 of his counterclaim for a constructive trust as to the life insurance policy on his life existed on or before December 1, 1994, it was barred by the mutual release. “A constructive trust arises with respect to property the title to which was acquired by fraud, or where although acquired originally without fraud, it is against equity that the title should be retained by the one who holds it.” (Emphasis supplied.) Kelly v. Johnston, 258 Ga. 660, 661 (1) (373 SE2d 7); accord Williamson v. Echols, 205 Ga. App. 453, 455 (2) (422 SE2d 329).

Dodson’s counterclaim does not aver that Gibbs initially was in wrongful possession of the insurance policy; rather, the counterclaim is grounded on the contention that, after the SBA loan was satisfied, Dodson directed the insurance agent to contact Gibbs and have the policy transferred to Dodson and that Gibbs subsequently refused to cooperate and fraudulently asserted that the policy was created for his personal use and benefit. The gravamen of Dodson’s constructive trust counterclaim and cause of action is that Gibbs, although initially in lawful possession of the policy, subsequently wrongfully retained it and converted it to his own benefit and use thereby violating principles of equity warranting the imposition of a constructive trust. “In this state ‘conversion consists of an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights; an act of dominion over the personal property of another inconsistent with his rights; or an unauthorized appropriation.’ ” Adler v. Hertling, 215 Ga. App. 769, 772 (1) (451 SE2d 91). Gibbs’ refusal to cooperate and assertion of rights hostile to those of Dodson occurred after the date when the mutual release was executed. Dodson’s claim and cause of action for a constructive trust would not become viable until Gibbs asserted a paramount right to the policy thereby engaging in an act of dominion hostile to Dodson’s ownership rights and contrary to equity, which was after the date of execution of the mutual release. Thus, Dodson’s claim and cause of action were not barred by the mutual release; the trial court did not err in so holding and in denying Gibbs’ motion for summary judgment as genuine issues of material fact remained for jury resolution. A denial of summary judgment must be affirmed if it is right for any reason. See Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (5) (431 SE2d 746). Gibbs’ remaining assertions in support of his second enumeration of error are without merit.

Decided October 29, 1997.

Kitchens, Kelley & Gaynes, Mark A. Kelley, for appellant.

Moore, Ingram, Johnson & Steele, Robert D. Ingram, Robert E. Jones, Michael W. Kitchens, for appellee.

Judgment affirmed in part and reversed in part.

Ruffin and Eldridge, JJ., concur.


author: Andrews, Chief Judge.

text:
    A97A2489.
    HEATH v. THE STATE.
    (493 SE2d 225)
   Andrews, Chief Judge.

Anthony William Heath was found guilty in a bench trial of driving while under the influence of alcohol to the extent that he was a less safe driver. OCGA § 40-6-391 (a) (1). On appeal, he claims the evidence was insufficient to support the conviction.

A police officer testified for the State that he was dispatched to investigate a traffic accident. The officer’s investigation revealed that Heath collided with the rear of a car that had stopped in his lane of traffic behind another car making a left turn. The force of the impact caused the car struck by Heath to lurch forward and strike the rear of the left-turning car. The impact was sufficient to cause injury to people in all three cars, including Heath and his passenger who was thrown into the windshield. The officer observed that there were no skid marks on the road, indicating that Heath had not applied his brakes prior to impact. The accident occurred on a clear evening on dry pavement. The officer testified that there were no defects of any kind in the road and that the brake lights on the cars stopped in front of Heath were functioning. He also testified that the road at the location of the accident was straight with a clear view for approaching vehicles of several hundred yards.

The officer testified that he saw Heath and his passenger being transported by ambulance to a hospital emergency room when he arrived at the scene of the accident. At the emergency room, the officer observed that Heath had a strong odor of alcohol about his person and on his breath. The officer also observed that he was belligerent, cursed at the emergency room staff, and had to be physically restrained. Although a blood sample was taken from Heath at the hospital and tested for alcohol content, the trial court refused to admit the test results into evidence because the State failed to lay a proper foundation for admission.

Heath argues that, although there was evidence that he had consumed alcohol prior to driving the car in the accident, the evidence was not sufficient to prove he was under the influence of alcohol to the extent that he was a less safe driver.

There was evidence that Heath was taken to the hospital emergency room after the accident and that at the emergency room, the officer saw him exhibiting signs of intoxication in that he had a strong odor of alcohol and was acting in a belligerent manner. McFarland v. State, 210 Ga. App. 426, 427 (436 SE2d 541) (1993); Bass v. State, 185 Ga. App. 666 (365 SE2d 509) (1988); Johnson v. State, 170 Ga. App. 433, 436 (317 SE2d 213) (1984). In addition to signs of intoxication, evidence of the accident showed that despite good driving conditions, Heath slammed with great force into the rear of a clearly visible car stopped in his lane of traffic without applying his brakes.

“Evidence as to the manner of driving . . . may be taken into account where there is evidence that the defendant has been drinking, for the purpose of determining whether or not his manner of driving shows him to have been affected by the intoxicant to the extent that he drives less safely and carefully than he might otherwise have done. . . .” (Citation and punctuation omitted.) Collins v. State, 177 Ga. App. 758, 759 (341 SE2d 288) (1986). In the present case, there is evidence" authorizing a reasonable inference that only a short time passed between the time of the accident and the time the officer observed Heath in the emergency room exhibiting signs of intoxication. Moon v. State, 211 Ga. App. 559, 560 (439 SE2d 714) (1993). The manner in which the accident occurred, i.e., Heath’s failure to apply brakes prior to the collision, also supports a reasonable inference that, as a result of alcohol consumption, Heath was not as alert or physically capable and was a less safe driver. Marsh v. State, 211 Ga. App. 751, 752 (440 SE2d 478) (1994). It was not necessary for the officer to give his opinion that Heath was a less safe driver “as the court, the trier of fact, could form its own opinion based on the indicia pointing to it.” In the Interest of C. P. M., 213 Ga. App. 761, 762 (446 SE2d 242) (1994). The case of Groom v. State, 187 Ga. App. 398 (370 SE2d 643) (1988), relied upon by Heath is distinguishable. In Groom, there was evidence that the defendant drove a car involved in an accident after he had consumed alcohol, but there was no additional evidence from which the trier of fact could infer that the defendant was under the influence of alcohol to the extent that he was a less safe driver.

Decided October 29, 1997.

Patterson & Patterson, Jackie G. Patterson, Yasma Patterson, for appellant.

Louis J. Kirby, Solicitor, for appellee.

Where the evidence is circumstantial, it must be sufficient to exclude every reasonable hypothesis except that of guilt. Duggan v. State, 225 Ga. App. 291, 293 (483 SE2d 373) (1997). Heath offered no alternative explanation for his condition at the hospital after the accident or for his failure to apply brakes prior to colliding with the car in his path. Id. Accordingly, we find the evidence was both sufficient to exclude every reasonable hypothesis save that of guilt and to support the conclusion that Heath was guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


text:
    A97A2525.
    LAYFIELD et al. v. SOUTHEASTERN CONSTRUCTION COORDINATORS, INC.
    (492 SE2d 921)
   Andrews, Chief Judge.

Southeastern Construction Coordinators, Inc. (Southeastern), sued Charles and Pamela Layfield for the remaining $9,390 owed on a home construction project, plus attorney fees. The Layfields counterclaimed, alleging Southeastern failed to complete the home for the agreed price, acted in bad faith, and defrauded them. A jury rejected the counterclaim and awarded Southeastern the contract amount due plus $3,500 in attorney fees. The Layfields appeal.

1. The Layfields claim Southeastern failed to produce evidence of the reasonable value of its attorney fees, entitling them to a directed verdict on this issue. They base their argument on cases involving OCGA § 13-6-11, which provides for an award of litigation expenses where “the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. . . .” In cases decided under that statute, the appellate courts have consistently required plaintiffs to show the actual attorney fees incurred and the reasonableness of those fees. See, e.g., Hughes v. Great Southern Midway, 265 Ga. 94, 95 (1) (454 SE2d 130) (1995).

The award of fees in this case is not governed by OCGA § 13-6-11; rather, it is governed by a provision in the contract between the parties providing that “[a]ll legal fees incurred by [Southeastern] in the collecting of any monies due for the contract sum will be assessed against [the Layfields].” At trial, one of Southeastern’s owners testified the Layfields had refused to pay the amounts owed, that Southeastern was required to seek legal counsel to enforce the contract, and that the legal fees Southeastern incurred through trial of the case totaled $3,500. This Court addressed a similar scenario in O’Brien’s Irish Pub v. Gerlew Holdings, 175 Ga. App. 162, 165 (4) (332 SE2d 920) (1985), a suit to enforce a real estate commission. As we held there, “[t]he contract at issue, containing a provision in which appellants agreed to pay attorney fees if appellee had to bring a legal action to enforce the contract, was in evidence, as was testimony concerning the amount of fees incurred by appellee. Those facts, when considered with the fact that appellee brought this suit to enforce the contract, were a sufficient evidentiary predicate for an award of attorney fees.” Id. at 165. As in O’Brien’s, we find the evidence here sufficient to support the jury’s award.

2. The Layfields’ second enumeration of error challenges the trial court’s admission of a contract between Southeastern and another party. The parties apparently disputed whether the contract between them was a “cost plus” contract or a “turn key” contract, meaning Southeastern had agreed to complete the entire house for the designated price. In an effort to show Southeastern’s contract was a “cost plus” agreement, one of its principals described without objection the differences between the two types of contracts and detailed the differing provisions each would contain. Later in the trial, the court introduced over a relevancy objection a copy of a typical “turn key” contract Southeastern had used on a different project.

Although OCGA § 24-2-2 generally prohibits the admission of a party’s conduct in other transactions, it does allow for the admission of such evidence where “the nature of the action . . . renders necessary or proper the investigation of such conduct.” Id. Here, the intent of the parties and the meaning of their contract were central questions for the jury, as were the Layfields’ claims that Southeastern intentionally misled them and acted in bad faith. “[Frequently the state of mind accompanying the doing of an act is illustrated by other acts of a similar nature, done or proposed by [the party] in such a way as to indicate a general practice or course of conduct, or as to display motive, knowledge, intent, good faith, bad faith, and a variety of other such things.” (Citation and punctuation omitted.) Candler v. Davis & Upchurch, 204 Ga. App. 167, 169 (3) (419 SE2d 69) (1992). Therefore, even if this evidence were of “doubtful relevancy,” the trial court did not err by admitting it and leaving its weight to the jury. Id.

Decided October 29, 1997.

Charles N. Davis, for appellants.

Morris & Webster, Craig A. Webster, for appellee.

Even assuming the trial court erred by admitting this evidence, it is the responsibility of the plaintiff to show harm as well as error. The Layfields have provided this Court with scanty excerpts from the trial testimony, making it difficult to determine the impact of the alleged error. See Jordan v. Johnson, 223 Ga. App. 875, 876 (479 SE2d 175) (1996); Drummond v. Gladson, 219 Ga. App. 521, 523 (2) (465 SE2d 687) (1995) (physical precedent only). From the partial excerpt of the trial testimony provided, it appears the admission of this document was merely cumulative of the witness’s testimony describing the differences between the two types of contracts. See Pope v. Professional Funding Corp., 221 Ga. App. 552, 556 (6) (472 SE2d 116) (1996).

3. Whatever the merits of the Layfields’ argument that the trial court erred by excluding their counterclaim for punitive damages, any error was rendered harmless by the jury’s verdict in favor of Southeastern. See Parr v. Pinson, 182 Ga. App. 707, 708 (4) (356 SE2d 740) (1987).

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


author: Johnson, Judge.

text:
    A97A1852.
    WHITE v. KFC NATIONAL MANAGEMENT COMPANY.
    (493 SE2d 244)
   Johnson, Judge.

Regina White was hospitalized after consuming KFC National Management Company’s chicken on June 23, 1991. On March 9, 1992, White filed a lawsuit against KFC, alleging KFC was negligent in selling unwholesome, rancid food and that this negligence proximately caused her illness and subsequent damages. White’s first lawsuit was dismissed by the trial court for want of prosecution on January 6, 1995.

White refiled her case on January 19, 1995. White admits this refiling was outside the statute of limitation period and in accordance with the provision of the renewal statute. On November 6, 1995, White voluntarily dismissed her action without prejudice, admittedly outside the statute of limitation period.

White refiled her case on May 3, 1996, within six months of the dismissal. KFC filed a motion to dismiss the refiled action based on the statute of limitation. The trial court granted KFC’s motion, and White appeals. We affirm.

1. White asserts that OCGA § 9-2-61 (a) is unconstitutional because it failed to provide her fair notice that the trial court’s dismissal would be treated as a dismissal for purposes of employing the renewal statute. This enumeration raises the issue of our jurisdiction to consider this appeal and whether this appeal must be transferred to the Supreme Court since sole jurisdiction to consider a challenge to the constitutionality of a statute rests in the Supreme Court. See the Constitution of the State of Georgia, Art. VI, Sec. VI, Par. II (1). However, since the trial court did not rule on the constitutionality of OCGA § 9-2-61 (a), and since we may not address issues on appeal which were not addressed by the trial court, no question as to the constitutionality of OCGA § 9-2-61 (a) has been preserved for appellate review, and this Court has jurisdiction of the appeal. See Dye v. State, 205 Ga. App. 781 (1) (423 SE2d 713) (1992).

2. In her remaining enumeration of error, White contends the trial court erred in counting her January 19, 1995 refiling as a result of the trial court’s dismissal as her one renewal permitted under the renewal statute. We disagree.

While OCGA § 9-11-41 (a) permits a plaintiff to dismiss her action twice without prejudice, OCGA § 9-2-61 (a) controls the refiling of these actions, both within and outside the statute of limitation period. OCGA § 9-2-61 (a) provides as follows: “When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state . . . either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later, . . . ; provided, however, if the dismissal or discontinuance occurs after the expiration of the applicable period of limitation, this privilege of renewal shall be exercised only once.”

Since it is undisputed that both the trial court’s dismissal and White’s voluntary dismissal occurred outside the statute of limitation period, the trial court was correct in granting KFC’s motion to dismiss based on the applicable statute of limitation. See Worley v. Pierce, 211 Ga. App. 863, 864 (1) (440 SE2d 749) (1994); Associated Writers Guild of America v. First Nat. Bank, 195 Ga. App. 820, 821 (2) (395 SE2d 23) (1990).

Decided October 30, 1997

Divida Gude, for appellant.

Fain, Major & Wiley, John K. Miles, Jr., Kim M. Jackson, for appellee.

When White refiled her complaint on January 19, 1995, she exercised her one and only opportunity to validly renew the action under OCGA § 9-2-61. This second action stood on the same footing as to the limitation period as the original action, which was timely filed on March 9, 1992. The statute did not authorize White to refile the instant action on May 3, 1996. White voluntarily dismissed her renewal action on November 6, 1995.

We find no merit in White’s argument that the trial court’s dismissal for want of prosecution, and her subsequent refiling under the renewal statute, should not count against her because it was an involuntary rather than voluntary dismissal of her action. It is well-established that a dismissal by the trial court for want of prosecution is deemed a voluntary dismissal for purposes of OCGA § 9-2-61 (a). Swartzel v. Garner, 193 Ga. App. 267, 268 (387 SE2d 359) (1989); Fowler v. Aetna Cas. &c. Co., 159 Ga. App. 190, 192 (2) (283 SE2d 69) (1981); Douglas v. Kelley, 116 Ga. App. 670 (1) (158 SE2d 441) (1967).

In addition, White admits that she used the renewal statute twice, once after the trial court’s dismissal of her action and once after her own voluntary dismissal of the action. However, the renewal statute explicitly states that it may be used only once if the dismissal occurs after the expiration of the applicable statute of limitation, and there is no dispute that both dismissals in this case occurred after the expiration of the applicable statute of limitation. Accordingly, the trial court did not err in granting KFC’s motion to dismiss based on the statute of limitation defense.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.


text:
    A97A2274.
    WINGFIELD v. THE STATE.
    (493 SE2d 235)
   Johnson, Judge.

A jury found Paul Wingfield, Jr. guilty of rape, two counts of aggravated sodomy, aggravated assault, two counts of burglary and aggravated sexual battery of victim 1 and guilty of rape, aggravated sodomy and burglary of victim 2. Wingfield appeals the convictions entered, and we affirm.

Viewed in the light most favorable to support the verdict, the record shows as follows:

Victim 1

On September 10, 1995, victim 1 fell asleep, around 2:00 a.m., watching television. Although the sliding-glass door to her apartment was closed, the bar used to lock the sliding-glass door was not in place. A noise woke victim 1 and she saw an intruder crawling across the threshold of her bedroom. The television and an aquarium provided light in her bedroom, and victim 1 was able to see that the intruder was under 30 years old, was muscular with a large build, . had hair cut very close to his head, had a short beard and moustache, and was wearing light colored shorts and a dark shirt.

Victim 1 started to get out of the bed and saw that the intruder had a large knife in his hand. She pled with the intruder not to hurt her, and the intruder responded, “I’m not going to hurt you, I just want some butt.” The intruder grabbed victim 1 by the shoulder, held the knife close to her face, forced her to lay face down on the bed, and pulled off her underwear. The intruder forcibly raped victim 1 as he held the knife to her throat and told her to be quiet or he would cut her throat.

The intruder forced victim 1 to turn over and lay on her back, directing that she not look at him and holding a pillow over her face. He then raped victim 1 again. Subsequently, he forced his penis into her mouth, placed victim l’s legs over his shoulders and forced his penis into her anus. The intruder then turned victim 1 onto her stomach, performed oral sex on her, and forcibly inserted his fingers into her vagina and anus.

After the intruder left the apartment, victim 1 noticed that a six-inch knife had disappeared from her kitchen. Victim 1 testified that the intruder did not have permission to enter her apartment and that she did not consent to the acts of rape, aggravated sodomy, and aggravated sexual battery.

Members of the Athens-Clarke County Police Department found two fingerprints on the sliding-glass door and door frame of victim l’s apartment. These prints were positively identified by a forensic fingerprint examiner with the Georgia Bureau of Investigation State Crime Laboratory as Wingfield’s left thumb print.

Helen Frith, sexual assault nurse examiner, examined victim 1 on the date of the rape and sexual assaults. Frith testified that an inspection showed bruising and lacerations of victim l’s external genitalia, bruising of her cervix and bruising on the labia minora and labia majora. She further stated that there was a small laceration on the posterior fourchette, as well as bruising and a laceration next to victim l’s anal area. Frith collected evidence for a sexual assault kit.

Victim 1 was shown books of photographs by law enforcement personnel, but was unable to make a positive identification from these photographs. She was later shown six photographs by an assistant district attorney, but was unable to positively identify Wingfield from the photographs. Victim 1 testified that after she looked at the photographs, she was told that Wingfield’s picture was in the set of photographs. Subsequently, victim 1 made a positive in-court identification of Wingfield as the intruder who sexually assaulted her.

Victim 2

On October 18, 1995, victim 2 locked all the doors to her apartment and fell asleep reading around 10:00 or 11:00 p.m. Shortly before 3:00 a.m. on October 19, 1995, victim 2 was awakened by someone ringing her doorbell. She turned the light on, but did not answer the door. Subsequently, someone began knocking on the sliding-glass door of her bedroom. The person stated he was “security,” “needed help” and requested to use her telephone. Victim 2 told the man to go to the front door.

The hallway light and dining room light were on and the front door was well-lit. Victim 2 described the man as being black and well-dressed, wearing a black and gray striped dress shirt and khaki pants. The man again advised her he was security and needed to use the phone. Victim 2 knew the apartment complex had security guards, but did not know what any of them looked like.

Victim 2 cracked the door to her apartment and handed the phone to the man. He dialed a number, stated that “he was security,” that “something was happening,” and that “he needed help” and gave the address of victim 2’s apartment. He returned the phone to victim 2 and asked if he could wait inside her apartment. Victim 2 told the man he could not. However, as she was leaning over to put down the phone, the man pushed the door open, grabbed victim 2 by the neck and held her against the wall facing away from him. The intruder held a knife or sharp object to her throat.

The intruder told victim 2 to “just do what I say and you won’t get hurt.” He then pushed her into an unlit bathroom and told her to take her clothes off. After victim 2 removed her bathrobe, the intruder pushed her to the bathroom floor and, holding the knife at her throat, demanded that she perform oral sex upon him. Sometime during this act, the lights came on in the bathroom and victim 2 removed her hands from her face. The intruder screamed “no,” put his right hand on her face, squeezed her head and pushed her discarded robe over her face. The intruder then forcibly removed victim 2’s underwear and “used his fingers vaginally on [her].”

The intruder picked victim 2 up by the arm, put his arm around her neck, walked her to the bed, threw her on the bed and raped her. Following the rape, the man picked victim 2 up, pushed her down on the floor and again forced her to perform oral sodomy on him. The man ejaculated on her face.

Victim 2 was then thrown face down on the bed and asked if she had any money. The intruder took a five dollar bill and a pair of binoculars and left.

Members of the Athens-Clarke County Police Department found two window screens missing from victim 2’s apartment near a dumpster adjacent to her apartment. The screens were in place on October 18, 1995. Fingerprints were found on the front doorbell and the front window screen. These fingerprints were positively identified as having been produced by Wingfield’s right middle, right thumb, left middle and left index fingers by a forensic fingerprint examiner. According to the fingerprint examiner, the fingerprint on the doorbell was of such high quality that a match was obtained with Wingfield’s fingerprints on the Automated Fingerprint Identification System computer.

Victim 2 was examined on the date of the incident by Tina Ford, a sexual assault nurse examiner. Ford’s physical examination revealed a superficial laceration on victim 2’s labia, a circular abrasion on the bottom of her cervix, and red dots under the skin along the bottom of the vaginal opening, which indicate the breaking of blood vessels due to force. Using a lamp, Ford also found an area on victim 2’s face where the man had ejaculated. Ford testified that victim 2’s injuries were inconsistent with consensual sexual activity. She collected evidence for a sexual assault kit.

Victim 2 testified she did not give the man permission to be in her home on October 19, 1995 and that none of the sexual acts with the intruder were consensual. Victim 2 made a positive in-court identification of Wingfield as the person who raped and sexually assaulted her.

A search of Wingfield’s vehicle following his arrest revealed the binoculars stolen from victim 2’s apartment. In addition; Wingfield gave a full confession to the burglary, rape and aggravated sodomy of victim 2.

Connie Pickens, employed at the Georgia Bureau of Investigation, Division of Forensic Sciences, tested Wingfield’s blood and the sample of the intruder’s ejaculation taken from the face of victim 2. Pickens testified that the test indicated a match. According to Pick-ens, no more than one in ten billion individuals would exhibit the same DNA banding pattern which was shared between Wingfield’s blood and the semen. She further testified that the DNA in the samples could not belong to anyone except Wingfield.

1. In his first enumeration of error, Wingfield asserts the trial court erred in refusing to sever the September 10, 1995 rape and assault of victim 1 and the October 19, 1995 rape and assault of victim 2. We disagree.

“Joinder is justified when the offenses are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan. [Cit.]” Bickley v. State, 227 Ga. App. 413, 415 (3) (489 SE2d 167) (1997). These incidents involved (1) occurrences within a short time period in the same county, (2) attempts by the intruder to conceal his identity, (3) women residing alone in large apartment complexes, (4) assaults occurring in the early morning hours, (5) occurrences where neither victim knew the intruder, (6) assurances by the intruder that he would not harm the victim, (7) varied and repeated sexual assaults, including rape and oral sodomy, (8) fingers being inserted into the woman’s vagina, (9) the threat or use of a sharp object held to the throat of the victim, and (10) property theft. Based on these facts, the incidents “reached the level of a pattern and . . . therefore constituted parts of a single scheme or plan.” Id. at 416. The offenses were “ ‘so similar as to evidence a common plan or scheme and revealed an identical modus operandi.’ [Cit.] Each would accordingly have been admissible to prove the other, and the trial court did not err in refusing to grant a severance. [Cit.]” Jones v. State, 168 Ga. App. 652 (1) (310 SE2d 17) (1983).

2. In his second enumeration of error, Wingfield contends the trial court erred in refusing to give two requested jury charges concerning his confession, which was admitted at trial. Specifically, these requested instructions directed the jury not to consider his confession related to the October 19, 1995 rape of victim 2 as evidence of guilt of the charges relating to the September 10, 1995 incident involving victim 1. Request number 8 stated as follows: “I charge you that the defendant in this case has been charged with crimes relating to two separate and distinct incidents. In deciding whether the State has met its burden of proof with respect to each and every count of the indictment, you must separately consider the evidence relating to each count. Evidence relating to the first incident alleged in the indictment is not in any manner to be considered by you as proof of, or relevant to, Defendant’s guilt or innocence of the second incident. Likewise, evidence relating to the second incident alleged in the indictment is not in any manner to be considered by you as proof of, or relevant to, Defendant’s guilt or innocence of the first incident.” Request number 9 stated as follows: “I charge you that any statement made by the Defendant in this case with respect to a particular incident charged in the indictment is admissible and should be considered by you only with respect to Defendant’s guilt or innocence of that particular incident. Such statement should not be considered for purpose of deciding Defendant’s guilt or innocence of any other incident charged in the indictment, nor should it be considered in any way as evidence of Defendant’s character in general. Thus, if you find that a statement was made to the police, freely and voluntarily by Defendant in this case, then you may consider the statement as evidence only with respect to the particular subject matter of the statement, and the particular crime about which Defendant was being questioned at the time.”

Wingfield’s requested charges were not supported by any citations of authority, and Wingfield conceded, “I don’t have any citation for it. This is — I think this is a situation that is the general principle that jurors have to consider the evidence for each count.”

The trial court charged a portion of Wingfield’s request number 8 as follows: “I charge you that this Defendant in this case has been charged with crimes relating to two separate and distinct incidents. In deciding whether the State has met its burden of proof with respect to each and every count of the indictment, you must separately consider the evidence relating to each count and to each of the two alleged incidents.” The trial court also instructed the jury fully regarding the findings necessary before Wingfield’s statement could be considered for any purpose.

We are unable to consider the correctness of the requests since Wingfield provided no cited authority for the requested charges, despite being given the opportunity to present such authority. See Woityra v. State, 213 Ga. App. 89 (1) (443 SE2d 867) (1994); Doughty v. State, 175 Ga. App. 317, 322 (7) (333 SE2d 402) (1985). Wingfield has cited no authority, and we can find no authority, for the proposition that an otherwise free and voluntary statement is limited to a specific crime or event. Moreover, “[t]he failure to give requested instructions in the exact language requested, where the charge given substantially covers the same principle, is not a ground for reversal. [Cit.]” Doughty, supra at 323 (7).

3. The trial court did not err in permitting the state to recall victim 1 to the witness stand in order to make an in-court identification of Wingfield where victim 1 testified that her identification had an independent origin other than her view of Wingfield in court and was based on her encounter with Wingfield during the sexual assaults.

After direct and cross-examination, the state was allowed to recall victim 1 and ask her to make an in-court identification of Wingfield after victim 1 volunteered the information that she recognized Wingfield. Wingfield objected that any attempt to elicit an in-court identification should have been made during victim l’s initial examination. The trial court has the discretion to allow a witness to be recalled to present additional evidence even after both sides have closed and even if the witness being recalled has remained in the courtroom and heard other evidence. See Mitchell v. State, 223 Ga. App. 319, 321-322 (7) (477 SE2d 612) (1996); Darby v. State, 192 Ga. App. 668, 669 (2) (385 SE2d 758) (1989). It is clear from the record that victim 1 had been on the witness stand immediately before she was recalled, and the circumstances under which she testified were unchanged. In addition, she testified unequivocally that her identification was based on her recollection of her assailant at the time of the assault.

Although Wingfield argues that any in-court identification would be tainted by victim l’s earlier, impermissibly suggestive identification, Wingfield did not raise this argument at trial. “It is well settled that a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal. [Cits.]” Brantley v. State, 177 Ga. App. 13, 14 (1) (338 SE2d 694) (1985). Moreover, “even where a pretrial identification has been found to be tainted, a subsequent in-court identification is admissible if it does not depend on the prior, tainted identification but has some other, independent basis. [Cit.]” Tiller v. State, 222 Ga. App. 840, 841 (476 SE2d 591) (1996). Victim 1 specifically testified that her in-court identification was based on her memory of the night she was assaulted: “Describing the person that was there that night has been something that I’ve thought about a lot over the past year and some months. In the course of the investigation of this, that was one of the — one of the biggest things I remember being questioned about, what did he look like. And after trying to rack my brain for over a year, trying to find out, you know, in my head; and when I looked over there at that table, I realized that is the face that I’ve been trying to describe for an entire year.” Wingfield’s arguments regarding victim l’s opportunity to view her assailant go to the weight of the evidence and not its admissibility. Accordingly, this enumeration lacks merit. See Sanford v. State, 225 Ga. App. 898 (2) (485 SE2d 233) (1997).

4. In his fourth enumeration of error, Wingfield attempts to combine three separate and distinct enumerations regarding the admission of his confession with respect to the October 19, 1995 rape of victim 2. Pursuant to OCGA § 5-6-40, we may elect to consider all, some or none of the alleged errors in such a case (see Robinson v. State, 200 Ga. App. 515, 518 (2) (b) (408 SE2d 820) (1991)). We will consider all three of the alleged errors here since they are easily distinguished and separated in Wingfield’s brief.

(a) The trial court did not err in admitting into evidence Wingfield’s confession to the October 19, 1995 rape, aggravated sodomy and burglary of victim 2. The trial court held a hearing pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), to determine the voluntariness of Wingfield’s confession and determined that Wingfield’s confession was freely and voluntarily given. At this hearing, the state showed that officers advised Wingfield of his Miranda rights and Wingfield voluntarily waived those rights. At no time during the videotaped statement did Wingfield indicate that he wished to end the interview.

Wingfield does not allege he was threatened or promised anything in connection with his statement. Nor does he allege he did not speak freely and voluntarily. Rather, he argues that a 20-30 minute interruption in the interview, taken at Wingfield’s request so he could use the rest room, renders the balance of the interrogation suspect.

On appellate review, the decision of the trial judge regarding the admission of a custodial statement will be upheld unless the decision is clearly erroneous. Ryan v. State, 226 Ga. App. 180, 181 (3) (486 SE2d 397) (1997). Under the circumstances, where there is absolutely no evidence of coercion or improper communication and no indication at any time that Wingfield desired to end the interview, the trial court’s decision was not clearly erroneous.

(b) Wingfield next contends the trial court effectively prevented him from testifying at the Jackson v. Denno hearing by incorrectly ruling that his testimony at the Jackson v. Denno hearing could be used in the state’s case-in-chief. However, we recently held in Brown v. State, 226 Ga. App. 140, 141-142 (486 SE2d 370) (1997), that a defendant’s testimony at a Jackson v. Denno hearing can be used during the trial of the case. Accordingly, this portion of the enumeration lacks merit.

(c) The trial court did not err in denying Wingfield’s request to redact the following portion of his confession: “WINGFIELD: I mean, I know I was wrong for doing what I did, but it’s not me. It’s just not me there. There’s something going through my body. And I went to ask for help for it. DETECTIVE: Uh-huh [affirmative]. WINGFIELD: And I told the lady exactly what happened and what was going on. It’s just a certain time of the night that I trigger and I don’t know why. DETECTIVE: Okay. It’s just something you’re saying was in you that just snapped? WINGFIELD: It’s something like in my body like that, you know. DETECTIVE: Okay. WINGFIELD: I don’t know — I can remember when my grandma, before she died, she told me that I had some of my father’s blood, and he was the exact same way.”

At trial, Wingfield explained these statements: “Q: [W]hy would your grandmother say that? A: My grandmother just said you have your father’s blood, which we all do. We all inherited our father’s blood; is that true? Q: What does that have to do with your discussing a sexual assault? A: It really doesn’t. That’s just something I brought up.”

Wingfield argues that the portion of his statement regarding his grandmother’s statement to him impermissibly put his character in issue because in the early 1970s Wingfield’s father was convicted of a series of notorious rapes in Clarke County. We find no merit in this argument. There is no evidence that the jury was aware of Wingfield’s father’s record or that such testimony unduly prejudiced Wingfield’s case. We see no error in the trial court’s decision not to redact that portion of the confession.

5. In his fifth enumeration of error, Wingfield contends the trial court erred in quashing his subpoena directed to the GBI Crime Lab. At the hearing, Wingfield’s attorney stated she requested “a copy of any report or audits done of the GBI Crime Lab in Decatur, Georgia, either internal or external, and I would be willing to discuss that, with respect to the lab’s DNA and finger print identification processes including all related processes, protocols and data performed from 1993 until the present, including but not limited to the Twigdam report on DNA work performed by the GBI lab and completed in 1996.” The state moved to quash this subpoena on the grounds that the request was unreasonable and oppressive and sought production of material not subject to subpoena.

“The defense must make a prima facie showing that the requested materials are relevant to his defense and that he has a right to the materials[,] [cit.], and the trial court may properly quash an unreasonable and oppressive subpoena. [Cits.]” Bazemore v. State, 225 Ga. App. 741, 745 (5) (484 SE2d 673) (1997). According to the record, the subpoena at issue was served approximately two weeks prior to trial and requested a broad range of reports or audits performed from 1993 through 1996. Accordingly, the trial court did not abuse its discretion in quashing the subpoena.

Furthermore, Wingfield has failed to show that there is a reasonable probability that, had the specific Twigdam audit report been disclosed to him, the outcome of his trial would have been different. See Ledford v. State, 264 Ga. 60, 66 (13) (439 SE2d 917) (1994). Wing-field’s attorney had the opportunity and, in fact, did cross-examine Pickens, the GBI Crime Lab’s employee who conducted the DNA testing in the present case, regarding her qualifications and her testing procedures, as more fully discussed in Division 6 of this opinion. This enumeration lacks merit.

6. Wingfield’s sixth enumeration asserts that the trial court erred in admitting DNA evidence because Pickens’ qualifications were insufficient to authorize expert status and because Pickens failed to prove the general reliability and scientific acceptance of DNA identification. We disagree.

Pickens was qualified as an expert witness in the field of DNA analysis after testifying that 1) she has been employed at the Georgia State Crime Laboratory for sixteen years; 2) she has a bachelor of science degree in biology from Savannah State College, where she also majored in chemistry; 3) she had extensive training from the director of the crime lab serology unit and from the director of the DNA unit; 4) she has taken numerous workshops and seminars in the fields of forensic serology and DNA analysis, as well as specialized classes in these two fields at the Federal Bureau of Investigation; 5) she is a member of the American Academy of Forensic Scientists and the Southern Association of Forensic Scientists; 6) she is certified as a forensic scientist by the American Board of Criminalistics and is required to take continuing education courses and training to maintain her certification; 7) she has testified as an expert in court over two hundred times in the past sixteen years, although some of her testimony has been in fields other than DNA analysis; 8) she has performed DNA analysis for over three years in connection with seventy-five to eighty cases; 9) all cases she has worked are reviewed by members of her section concerning data and final reports before an official report is issued; 10) persons outside the Georgia Bureau of Investigation have reviewed her work; 11) she has taught junior scientists at the crime laboratory; 12) she performed hundreds of DNA analysis tests during her training; 13) she is given semi-annual proficiency tests in DNA analysis; and 14) she has read numerous scientific articles concerning DNA analysis, including current scientific literature.

Concerning the validity of DNA analysis, Pickens testified that 1) she follows procedures that are generally accepted in the scientific community; 2) through her training and examination of literature, she believes the protocol she uses in testing DNA produces reliable and reproducible results; and 3) based on her training and experience, the general scientific principles of the techniques involving DNA testing are valid and capable of producing reliable and reproducible results and are generally accepted in the scientific community. Based on this testimony, the trial court found that the general scientific principles and techniques involved in DNA testing are valid and capable of producing reliable results and that Pickens had performed the scientific procedures in an acceptable manner.

This Court has repeatedly held that “ ‘[i]t is a matter within the sound discretion of the trial judge as to whether a witness has such learning and experience in a particular profession as to entitle him to be deemed prima facie an expert.’ [Cit.] ... To qualify as an expert, generally all that is required is that a person be knowledgeable in a particular matter; his special knowledge may be derived from experience as well as study, and formal education in the subject is not a requisite for expert status. [Cit.]” Kimbrough v. State, 215 Ga. App. 303 (1) (450 SE2d 457) (1994). We find there was sufficient evidence to support the trial court’s qualification of Pickens as an expert to testify as to the DNA testing and results. Moreover, contrary to Wingfield’s arguments, we find that the state complied with Johnson v. State, 265 Ga. 668 (461 SE2d 209) (1995), in showing the reliability of both the DNA testing and the results in this case. There was no abuse of discretion in the present case.

7. In his final enumeration of error, Wingfield asserts the trial court erred in permitting a police officer to testify as to two other local rapes. At trial, Detective Smith was cross-examined by Wingfield regarding the fact that other rapes by black males occurred in Athens-Clarke County during 1995 and 1996 and the fact that rapes occurred in the county while Wingfield was incarcerated. During redirect, the state questioned Detective Smith about the other rapes being investigated and elicited testimony that Wingfield and one other individual were suspects in two additional rapes, but were exonerated through DNA evidence. According to Wingfield, the officer’s testimony that Wingfield was dropped as a suspect in those rapes as a result of DNA testing impermissibly allowed the state to comment on Wingfield’s guilt in the present case and to bolster the reliability of the state’s DNA evidence in the present case. We disagree.

Contrary to Wingfield’s argument, Detective Smith did not testify as to the ultimate issue in the case. He merely testified as to the way in which the police department handled the other rape cases. It is clear from the record that Wingfield opened the door to testimony regarding the other rapes by questioning Detective Smith regarding the other rapes and implying that the police department was anxious to make an arrest in these rape cases and that another person committed the rape cases presently before us. Clearly, testimony regarding the other rapes and how the department handled the other rapes, including using DNA evidence to rule out certain suspects, was relevant to show that the police department was not charging Wingfield with every rape occurring in the county. In addition, Detective Smith’s testimony regarding the DNA results was not offered to prove the accuracy of the results, but to show the course of action taken by the police department when it received the results. Last of all, Wingfield was not prejudiced by Detective Smith’s testimony that Wingfield was exonerated in another rape case on the basis of DNA evidence. Detective Smith did not testify as to why Wingfield was a suspect in the first place and did not impermissibly place Wingfield’s character in issue.

Accordingly, the trial court did not err in overruling Wingfield’s objections on the grounds of relevance, hearsay and prejudice.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.

Decided October 30, 1997.

Rosemary M. Hathaway, for appellant.

Harry N. Gordon, District Attorney, James D. Love, Assistant District Attorney, for appellee.


text:
    A97A2318.
    MILES v. ANDRESS.
    (493 SE2d 233)
   Johnson, Judge.

We granted the Georgia Department of Public Safety’s (“DPS”) application for discretionary review to review a superior court’s order reversing the final decision of the DPS to suspend Danyale Andress’ driver’s license. The superior court judge ordered the license reinstated because, “it is inequitable to impose the provisions of Official Code of Georgia Annotated § 40-9-60, et seq.” in this case.

When Andress was 16 years old, she was involved in an automobile accident. Andress was driving her mother’s car, which was uninsured. She collided with a car driven by Hollis Thompson, causing property damage and personal injury. Thompson sued Andress’ mother and obtained a default judgment which was discharged in bankruptcy. When Andress reached majority, Thompson sued her, again obtaining a default judgment. Andress has not paid the judgment. Thompson sent the DPS a certified copy of the unsatisfied judgment. The DPS initiated suspension proceedings pursuant to OCGA § 40-9-61. After a hearing, Andress’ license was suspended. Andress appealed this decision to the superior court, which reversed and ordered the license reinstated.

A superior court, when reviewing a DPS decision, sits only as an appellate court. The decision of DPS shall be affirmed so long as there is “any evidence” to support it. Miles v. Carr, 224 Ga. App. 247 (480 SE2d 282) (1997); Bowman v. Palmour, 209 Ga. App. 270 (1) (433 SE2d 380) (1993). The superior court “shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.” OCGA § 50-13-19 (h). Hardison v. Fayssoux, 168 Ga. App. 398, 401 (309 SE2d 397) (1983). When reviewing a superior court’s order in a case under the Administrative Procedure Act, this Court’s function “ ‘is to determine whether the . . . superior court has in (its) own final ruling committed an error of law.’ [Cit.]” Miles v. Carr, supra; DeWeese v. Ga. Real Estate Comm., 136 Ga. App. 154, 155 (1) (220 SE2d 458) (1975).

Here, as in Yancey v. Hall, 265 Ga. 466, 467-468 (1) (458 SE2d 121) (1995), the trial court attempted to invoke its power as a court of equity to see that justice was done. “However, the superior court was not sitting as a court of equity, but as an appellate court. . . . [And] the superior court as an appellate court here has only the jurisdiction of the [Department of Public Safety] which has no equitable powers in such a case.” (Citations and punctuation omitted.) Id. at 468 (1). Therefore, the trial court had no jurisdiction to invoke “equity” in this case, but rather was being called on to apply the law as written. Even if the superior court was authorized to exercise its equity jurisdiction in this case, it was not permitted to ignore the first maxim of equity, that equity follows the law. OCGA § 23-1-6. “[Ejquity cannot supersede the positive enactments of the legislature. [Cit.]” Glover v. Glover, 172 Ga. App. 278, 279 (2) (322 SE2d 755) (1984). No matter how well-intentioned, a superior court may not disregard the law and the applicable standards of review in those instances in which it sits as an appellate court.

Decided October 30, 1997.

Thurbert E. Baker, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Carol A. Callaway, Senior Assistant Attorney General, for appellant.

Altman, Lane & Lilly, Virginia G. Lane, for appellee.

Because the evidence in this case was sufficient to support the DPS’s decision to suspend Andress’ license and its decision was neither arbitrary and capricious nor an abuse of discretion, the trial court erred in reversing it.

Judgment reversed.

Pope, P. J., and Blackburn, J., concur.