text:
    A99A1545.
    CARTER v. THE STATE.
    (523 SE2d 47)
   Smith, Judge.

Jude Carter was convicted on one count of child molestation. The indictment charged him with performing an immoral and indecent act on a child under 16, by touching her buttocks with the intent to arouse and satisfy his sexual desires. His motion for new trial was denied, and he appeals. We affirm.

Construed to uphold the jury’s verdict, evidence was presented that Jude Carter lived in a mobile home with a friend, Steven Carter, along with Steven Carter’s wife and daughter. On December 8, 1996, the victim, a friend of Steven Carter’s daughter, spent the night in Steven Carter’s home. Steven Carter testified that he and Jude Carter had been drinking that day and had consumed “a lot” of beer. He stated that once during the evening, he walked into the living room where his daughter and the victim had fallen asleep and saw Jude Carter “feeling on” the victim’s body. Jude Carter told him he was looking for money the victim had taken. Steven Carter also testified, however, that after he left the room and returned again, Jude Carter “was doing it again, except this time he was rubbing her butt” and that Jude Carter stated that “he wanted some p — .” The victim testified that while sleeping at Steven Carter’s home, she awoke to find Jude Carter “feeling on” her chest and face. He told her he was looking for money, but she did not believe him because, in her opinion, he was touching her in a sexual manner. We also note the testimony of Steven Carter’s daughter that while Jude Carter was playing cards with her and the victim earlier that day, he had solicited sex from the victim by offering her money.

Jude Carter testified, denying any inappropriate actions toward the victim. He stated that he lifted the comforter under which the girls were sleeping to look for “[m]y money, my pesa.” Carter’s sister, who acted as an interpreter because Jude Carter apparently was originally from Pakistan, stated that “pesa” is a Pakistani term for money. Jude Carter also testified that some of his personal belongings and money were stolen from his room. He believed that Steven Carter’s daughter and the victim had stolen his jewelry. He also seemed to imply during his testimony that Steven Carter played some part in the theft of his personal belongings.

Carter contends the trial court erred in failing to charge the jury on circumstantial evidence and that the evidence was insufficient to support the jury’s verdict. In particular, he contends that the only direct evidence of his guilt was given by Steven Carter, who the jury could have concluded was impeached for interest. Relying on a line of cases beginning with Horne v. State, 93 Ga. App. 345 (91 SE2d 824) (1956), Carter contends that a charge on the law of circumstantial evidence was required even absent a request for such a charge.

Even assuming, without deciding, that Steven Carter’s testimony was impeached for interest, we do not agree. Indeed, in Horne, this court concluded that the trial court erred in failing to give an instruction on circumstantial evidence where the trial court instructed the jury on impeachment and the only direct evidence of appellant’s guilt came “from a witness who, the jury was authorized to find, had been impeached.” Id. at 346 (4). Relying on Horne, this court has since held that a trial court’s failure to charge on the law of circumstantial evidence, even absent a request, was reversible error when the only direct evidence of guilt was given by a witness who may have been impeached. See Green v. State, 167 Ga. App. 548, 549 (1) (306 SE2d 354) (1983); Gibson v. State, 150 Ga. App. 718, 719 (6) (258 SE2d 537) (1979).

The Supreme Court modified this rule, however, in Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991). In Robinson, the Supreme Court noted that Horne

stands for the proposition that if the jury could have found that the state’s witnesses had been impeached, such that it was left to determine the defendant’s guilt or innocence solely on the basis of circumstantial evidence in the case, the trial court must charge the law of circumstantial evidence.

(Emphasis in original.) Robinson, supra at 698. Citing Green, supra, the Supreme Court also discussed the theory underlying the rule that a court commits reversible error in failing to charge on circumstantial evidence, upon request, when the only direct evidence comes from a witness who has been impeached:

[W]here both direct and circumstantial evidence of the defendant’s guilt is admitted, and the jury is authorized to find that all the direct evidence, in the form of witness testimony, has been impeached, the jury is left to determine the guilt or innocence of the defendant based solely on the circumstantial evidence, and therefore must have some guidance on the quantum of circumstantial evidence which will authorize a conviction. [Cit.]

Robinson, supra at 699.

But the Supreme Court then addressed a problem inherent in Horne: the impossibility of determining from a jury’s verdict whether the jury found that the state’s witnesses had or had not been impeached. Robinson, supra. The Court observed that “a clear rule” was needed “delineating when the law of circumstantial evidence should be charged.” According to the Supreme Court in Robinson, the “better rule” is that if the state’s case depends, in whole or in part, on circumstantial evidence, the trial court must charge the jury on the law of circumstantial evidence, if such a charge is requested. “This rule will apply whether or not the jury is authorized to find that the direct evidence presented by witness testimony has been impeached.” Id. at 699-700. See also Yarn v. State, 265 Ga. 787 (1) (462 SE2d 359) (1995) (discussing “bright-line” rule set out in Robinson concerning circumstances under which charge on circumstantial evidence as defined by OCGA § 24-4-6 must be given); Mims v. State, 264 Ga. 271 (443 SE2d 845) (1994) (same). Conversely, when the state’s evidence depends on both direct and circumstantial evidence, in the absence of a request to charge on the law of circumstantial evidence as defined by OCGA § 24-4-6, a trial court does not commit reversible error in failing to give such a charge. See Rainey v. State, 266 Ga. 163 (465 SE2d 447) (1996); Stubbs v. State, 265 Ga. 883, 884 (2) (463 SE2d 686) (1995).

Applying these cases here, assuming that Steven Carter’s direct testimony was impeached, the state’s case depended on both direct and circumstantial evidence. Regardless of whether the witness’s testimony was impeached, under the rationale of Robinson and its progeny, a charge on circumstantial evidence as defined by OCGA § 24-4-6 was required only upon request. Carter failed to request such a charge, and the trial court therefore did not err in failing to charge this Code section. Compare Yarn, supra at 788-789 (2) (no error in refusing to give charge on law of circumstantial evidence as set out in OCGA § 24-4-6, when such a charge not requested).

We also note Jude Carter’s argument that because Steven Carter’s testimony may have been impeached, the only credible evidence against him was circumstantial, and the trial court therefore was required to charge on circumstantial evidence. This argument fails. Whether Steven Carter’s testimony was impeached was a jury question, and even if the jury determined that he had been impeached, his credibility was a matter for that jury. Chapman v. State, 263 Ga. 393, 394-395 (3) (435 SE2d 202) (1993). As stated in Chapman, “[t]he impeachment of a witness does not change the direct evidence given by that witness into circumstantial evidence.” Id. at 395 (3). Because direct evidence of Jude Carter’s guilt was presented and because he did not request a charge on circumstantial evidence, the trial court did not err in refusing to give a charge on this issue. And given the direct evidence that Jude Carter touched the buttocks of the victim, as well as the circumstantial evidence of his statement to Steven Carter and his demeanor when the victim awoke to find him touching her chest and face, we cannot say that the evidence was insufficient to support the jury’s verdict.

Decided September 29, 1999.

George A. Waters, for appellant.

J. Thomas Durden, Jr., District Attorney, John A. Dow, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

       OCGA § 24-4-6 provides: “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”

       We note that when the state’s case rests solely on circumstantial evidence, the trial court must charge on the law of circumstantial evidence, and the charge must consist of the language of OCGA § 24-4-6. Stubbs, supra at 884 (1). But here, the state’s case was not wholly dependent on circumstantial evidence.


source: Caselaw Access Project

author: Blackburn, Presiding Judge.

license: Public Domain

text:
    A99A1865.
    DENSON v. THE STATE.
    (523 SE2d 62)
   Blackburn, Presiding Judge.

Following a jury trial, Roy Eugene Denson appeals his conviction of theft by receiving stolen property, contending that the State failed to establish an essential element of the offense and failed to introduce evidence of the value of the stolen property as required by OCGA § 16-8-12. The State proved the offense but failed to prove the value of the stolen property exceeded $500. Therefore, we affirm the conviction, vacate the sentence and remand the case for resentencing as a misdemeanor.

1. Denson contends the State failed to prove the essential elements of the crime.

A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. “Receiving” means acquiring possession or control or lending on the security of the property.

OCGA § 16-8-7 (a). Denson argues that the evidence failed to establish that he “knew or should have known” the property was stolen.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Denson] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Barber v. State, 235 Ga. App. 170 (509 SE2d 93) (1998). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided September 29, 1999.

Thomas E. Stewart, Vincent C. Crawford, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticher, Assistant District Attorney, for appellee.

The evidence at trial showed that late one evening, Denson brought a flatbed trailer to the home of John Privette and asked for help in transporting the trailer to his own home. Denson told Privette the flatbed trailer had been taken from a parking lot. Den-son also asked Privette for some paint so he could paint the trailer to disguise it. This evidence authorized the jury’s finding that Denson knew or should have known the trailer was stolen and was sufficient evidence to support the conviction. See Jackson, supra.

2. Denson also contends that the State failed to produce evidence of the value of the flatbed trailer as required by OCGA § 16-8-12. Value is not an element of theft by receiving, but value is relevant for distinguishing between a misdemeanor and a felony for sentencing. OCGA § 16-8-7; Jackson v. State, 267 Ga. 130, 131 (3) (475 SE2d 637) (1996).

At trial, the owner of the flatbed trailer testified that he purchased the trailer “new” for $850. There was no evidence that the owner was familiar with the value of a flatbed trailer or that particular flatbed trailer. Under these circumstances, the testimony by the owner concerning the purchase price, absent any other evidence of value, is insufficient evidence to establish that the value of the trailer exceeded $500. Baker v. State, 234 Ga. App. 846, 848 (507 SE2d 475) (1998); Searcy v. State, 163 Ga. App. 528 (2) (295 SE2d 227) (1982). However, the evidence supported a finding that the flatbed trailer had some value.

The State is to be commended for its candor in acknowledging the fact that the specific value was not proved and in recommending that the sentence be vacated and the case be remanded for misdemeanor sentencing. For the above reasons, we vacate the sentence herein and remand the case for misdemeanor sentencing. Searcy, supra.

Judgment affirmed, sentence vacated and case remanded.

Eldridge and Barnes, JJ, concur.


text:
    A99A1988.
    CSX TRANSPORTATION, INC. v. WEST.
    (523 SE2d 63)
   Blackburn, Presiding Judge.

In its second appearance before this Court in this matter, CSX Transportation, Inc. appeals the jury’s award of compensatory damages, punitive damages, and attorney fees to Duane G. West due to CSX’s failure to maintain drainage ditches along its railways on West’s property. CSX contends that the trial court erred by denying its motion for judgment notwithstanding the verdict, contending that: (1) the award of punitive damages was not supported by clear and convincing evidence of aggravating circumstances; (2) the award of attorney fees was inappropriate because there was neither evidence of bad faith nor evidence sufficient to calculate such fees to a reasonable degree of certainty; (3) the award of compensatory damages was improper because the evidence was insufficient to calculate such damages to a reasonable degree of certainty; and (4) the verdict was not supported by the evidence. For the reasons set forth below, we affirm.

This action originally came before this Court in West v. CSX Transp., 230 Ga. App. 872 (498 SE2d 67) (1998). There, we described the case as follows:

In this suit alleging continuing nuisance and trespass, Duane West claims his property flooded repeatedly because defendants CSX Transportation and the Polk County Chapter of Georgia Rails Into Trails (“GRITS”) failed to maintain drainage control on a railroad right of way that ran through West’s property. CSX abandoned the line in 1988 and pulled up the rails in 1991. West’s suit claims that when CSX abandoned the right of way, the drainage ditches clogged with sediment and plant growth. Removing the rails, West argues, also channeled water off the right of way and onto his property. In 1995 CSX sold the strip of land to GRITS, a nonprofit recreational group. West claims GRITS is responsible for continuing the nuisance that CSX created. The trial court granted summary judgment to GRITS and CSX. We reverse its judgment on the nuisance claims because the trial court improperly found them barred by West’s failure to provide notice to the defendants and by a statute of limitation. We find that a jury should determine whether the failure of CSX and GRITS to maintain the drainage ditches created a continuing nuisance for which these defendants are responsible.

Thereafter, the case went to trial, and the jury determined that West had been injured by the continuing nuisance which caused flooding and siltation of his property and the resulting death of trees on his land. Although GRITS received a defense verdict, the jury returned a verdict in favor of West and against CSX for $325,000, including $100,000 in punitive damages, $149,000 in compensatory damages, and $76,000 in attorney fees. CSX argued at the trial court level that the verdict against it was improper; however, the trial court denied its motion for j.n.o.v. CSX now appeals this ruling.

1. The “any evidence” standard is applicable to this Court’s review of the denial of CSX’s motion for j.n.o.v.

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.) Dept. of Transp. v. Mikell, 229 Ga. App. 54-55 (1) (493 SE2d 219) (1997). This standard of review requires CSX “to show that there was no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demanded the verdict sought.” (Punctuation omitted.) Grange Mut. Cas. Co. v. DeMoonie, 227 Ga. App. 812 (3) (490 SE2d 451) (1997).

2. CSX contends that the trial court erred by denying its motion for a directed verdict with regard to punitive damages because the evidence was insufficient to support the award.

Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.

OCGA § 51-12-5.1 (b). “[Conscious indifference to consequences] relates to an intentional disregard of the rights of another, knowingly or wilfully disregarding such rights.” (Punctuation omitted.) John H. Smith, Inc. v. Teveit, 175 Ga. App. 565, 568 (1) (b) (333 SE2d 856) (1985). “[R]ecovery of punitive damages may be authorized where the circumstances of the tort show an entire want of care and an indifference to consequences. Wilful and intentional misconduct is not essential.” Hoffman v. Wells, 260 Ga. 588 (1) (397 SE2d 696) (1990).

The evidence shows that CSX was aware of potential flooding problems which would result if the drainage structures along the railroad tracks and ditches across West’s property were not maintained. CSX monitored the drainage structures until 1990, performing weekly inspections and maintenance work including improvement of drainage pipes and controlling the growth of vegetation therein. After 1990, however, CSX took no action to ensure drainage control. Then, in August 1992, West began sending letters to CSX with regard to flooding problems, and, in January 1995, West met with representatives of CSX to discuss the problems. Despite this knowledge of West’s dilemma, CSX, by its own admission, did nothing to repair the ditches or alleviate the flooding problems. Under these circumstances, which show that CSX had knowledge of West’s flooding problems and took no action, the jury was authorized to find that CSX acted with conscious indifference to West’s plight, and the trial court properly denied CSX’s motion for j.n.o.v. Teveit, supra.

CSX’s argument that it did not realize that it had a legal duty to maintain the rails and drainage ditches does not change this result. Ignorance of the law is not an excuse. See, e.g., Graves v. Brown, 237 Ga. App. 589 (516 SE2d 324) (1999).

3. CSX contends that the trial court erred by denying its motion for j.n.o.v. with regard to the imposition of attorney fees pursuant to OCGA § 13-6-11.

(a) CSX first contends that there was no evidence of bad faith on its part which would support an award of attorney fees. However,

OCGA § 13-6-11 allows recovery of attorney fees if the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. It is only necessary to the plaintiff’s recovery that he show any one of these three conditions exists. Further, an award of attorney fees under OCGA § 13-6-11 is to be affirmed if there is any evidence to support it.

(Citations and punctuation omitted.) Southern Med. Corp. v. Willis, 194 Ga. App. 773, 775 (4) (391 SE2d 803) (1990). “Bad faith warranting an award of attorney fees must have arisen out of the transaction on which the cause of action is predicated. It may be found in . . . how defendant acted in his dealing with the plaintiff.” (Punctuation omitted.) Wheat Enterprises v. Redi-Floors, 231 Ga. App. 853, 857 (1) (c) (501 SE2d 30) (1998).

In this case, as discussed above, there was evidence that CSX refused to maintain drainage control around its rails despite its knowledge that West’s property flooded as a result. Therefore, the jury was authorized to find that CSX acted in bad faith by consciously refusing to take any action to alleviate the damage being caused to West’s property, and the trial court did not err by denying CSX’s motion for j.n.o.v. for this reason.

(b) CSX also argues that West provided the jury with insufficient evidence to reasonably calculate the amount of attorney fees levied against it.

Where there is some evidence supporting a finding of bad faith, an award of attorney fees on that basis must be affirmed. . . . Further, contrary to [CSX’s] suggestion, the award of attorney fees is not apportioned to only those attorney fees attributable to the claims on which the plaintiffl ] prevailed. In our view, a party acting in bad faith should pay the full price for losing.

(Punctuation omitted.) Crocker v. Stevens, 210 Ga. App. 231, 238 (8) (435 SE2d 690) (1993).

West’s attorneys provided detailed time sheets recounting the time that they had spent on matters for him. Based on the testimony of West’s counsel, Ann Moceyunas and Steve Astin, their fees totaled approximately $76,680. West also offered evidence that he incurred expenses of litigation totaling approximately $16,938. The jury’s verdict of $76,000 was within the range of the evidence of fees and expenses.

Although CSX argues that West should not have been allowed to receive approximately $10,000 in fees relating to the appeal of his original suit, we need not consider this issue since the jury returned a general verdict awarding $76,000. As CSX failed to request an itemized verdict, it cannot be shown at this time that any sums for the original appeal were included in the jury’s award.

4. CSX contends that the trial court erred in denying its motion for j.n.o.v. with regard to the compensatory damages levied against it. Specifically, CSX argues that the evidence was insufficient to allow the jury to calculate the amount of compensatory damages to a degree of reasonable certainty.

As to damages, a jury must be able to calculate the amount of damages from the data furnished and it cannot be placed in a position where an allowance of loss is based on guesswork. A jury must be able to calculate loss with a reasonable certainty. The party claiming damages carries not only the burden of proving the damages, but also furnishing the jury with sufficient data to estimate the damages with reasonable certainty. It is not necessary, however, that the party on whom the burden thus rests should submit exact figures.

(Citations and punctuation omitted.) Paul Davis Systems &c. v. Peth, 201 Ga. App. 734, 735 (1) (412 SE2d 279) (1991).

[T]he rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages. Mere difficulty in fixing their exact amount, where proximately flowing from the alleged injury, does not constitute a legal obstacle in the way of their allowance, when the amount of the recovery comes within that authorized with reasonable certainty by the legal evidence submitted.

Ga. Ports Auth. v. Servac Intl., 202 Ga. App. 777, 780 (3) (415 SE2d 516) (1992).

In 1987, West planted 183 acres of pine trees on his property pursuant to a U. S. Government Soil Conservation Plan. West, who inspected his property on an ongoing basis, testified that he first noticed significant flooding on his property and the precipitate death of pine trees in 1992. West further testified that, by 1995, approximately 85-95 percent of his total pine tree loss through 1998 had occurred. In addition, three experts testified that the majority, if not all, of the damage to West’s trees took place prior to 1996. West and his forestry expert, Wayne Cauthen, testified that all of the pine trees on 25.6 acres of West’s property had been killed. Partial tree loss occurred on 20.4 additional acres. Using a valuation year of 1995, Cauthen testified that the damages for the entire tree loss were: (1) $11,500 for loss of trees on 25.6 acres; (2) $8,000 for reforestation of 25.6 acres; and (3) $2,040 for partial loss on 20.4 acres.

Furthermore, there was evidence that the flooding caused by CSX’s failure to maintain the rails resulted in siltation damage to West’s property. West testified that, prior to the accumulation of sediment, he had two stock ponds on his property which no longer exist. He also indicated that 75-85 percent of the siltation damage on his property had occurred by June 1995. One expert testified that it would cost approximately $25,813 to remove sedimentation from West’s stock pond, and another expert testified that it would cost $206,464 to remove sediment from West’s property so that it could be used for agricultural purposes.

Decided September 29, 1999.

Casey, Gilson & Williams, James E. Gilson, Sandra Gray, for appellant.

J. Steven Astin, Ann Moceyunas, for appellee.

In this case, even if the jury awarded West only 65 percent of his siltation damages alone, the verdict of $149,000 is within the range of the evidence as to damages, and, as a result, the trial court properly denied CSX’s motion for j.n.o.v. Bull Street Church of Christ v. Jensen, 233 Ga. App. 96, 103 (3) (504 SE2d 1) (1998).

5. Finally, CSX contends that the evidence was insufficient to support the verdict against it. For all of the reasons discussed above, the enumeration of error is meritless.

The fact that GRITS received a defense verdict does not alter this result, as there was some evidence supporting the verdict against CSX. Moreover, although CSX argues that portions of GRITS’ closing argument may have inflamed the jury’s passions, CSX made no objections and, as such, has waived its right to bring such matter up on appeal. Whitley v. Gwinnett County, 221 Ga. App. 18, 24 (10) (470 SE2d 724) (1996).

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


author: Andrews, Presiding Judge.

text:
    A98A1986.
    RICE v. HIGGINBOTHAM.
    (521 SE2d 838)
   Andrews, Presiding Judge.

In Rice v. Higginbotham, 235 Ga. App. 378 (508 SE2d 736) (1998), we concluded that Rice’s caveat was timely and reversed the judgment of the probate court striking the caveat as untimely. In so ruling, we concluded it was unnecessary to address remaining enumerations of error raised by Rice. Id. at 381. In Higginbotham v. Rice, 271 Ga. 262 (517 SE2d 784) (1999), the Supreme Court concluded the caveat was untimely and reversed the judgment of this Court.

On remittitur from the Supreme Court, we conclude that Rice’s remaining enumerations of error were either decided adversely to Rice by the decision of the Supreme Court or are without merit.

Accordingly, the judgment of the Supreme Court is made the judgment of this Court, and the probate court’s judgment striking Rice’s caveat is affirmed.

Decided August 25, 1999

Reconsideration denied September 30, 1999

Stephen F. Carley, for appellant.

Zweifel Law Firm, Gary D. Zweifel, Monica K. Gilroy, Moore, Ingram, Johnson & Steele, Robert D. Ingram, Melissa W. Gilbert, for appellee.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.


author: Ellington, Judge.

text:
    A99A1490.
    EVANS v. THE STATE.
    (522 SE2d 506)
   Ellington, Judge.

Gabriel Evans was indicted by a DeKalb County grand jury on multiple counts and was found guilty by a jury of kidnapping with bodily injury, kidnapping, OCGA § 16-5-40, aggravated assault, OCGA § 16-5-21, and possession of a firearm by a convicted felon, OCGA § 16-11-131. Evans was found not guilty of aggravated assault with a deadly weapon and four counts of possession of a firearm during the commission of a crime. Following the denial of his motion for new trial, Evans appeals enumerating four errors. We conclude that the evidence was sufficient to support his convictions and that Evans waived any claim as to the effectiveness of his trial counsel and, therefore, affirm.

1. In his first enumeration of error, Evans contends the evidence was insufficient to support his conviction on the kidnapping charges because there was no evidence that the victim, Aretha Perkins, was abducted or stolen away.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Evans] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The jury’s verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Kovacs v. State, 227 Ga. App. 870-871 (1) (490 SE2d 539) (1997). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Viewed in this light, the evidence shows that Evans and two other young men went to a known crack and prostitution house where Perkins had been staying for a few days. Perkins, who answered the door, refused to admit the three young men. They later returned, were admitted by another person, and began to beat Perkins in the front room. Evans had a handgun which he gave to one of the other two, Quinton Williams. Williams struck Perkins with the pistol, then Evans took the gun back and also hit her with it. After each of the three men had punched and kicked Perkins, they carried or dragged her out the front door and continued to beat her outside the house. The three men then left in a car, leaving Perkins on the ground. Perkins testified that during the beating she considered trying to escape through the front door; she did not have the opportunity to do so before she was dragged out.

We reject Evans’ contention that he was entitled to a directed verdict of acquittal because the State failed to show any evidence of asportation or any movement of the victim against her will. “A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” OCGA § 16-5-40 (a). Only the slightest movement of the victim is required to constitute the necessary element of asportation. Harshaw v. State, 222 Ga. App. 385, 386 (1) (474 SE2d 226) (1996); Love v. State, 190 Ga. App. 264 (1) (378 SE2d 893) (1989). In establishing the element of asportation, there is no minimum requirement as to the distance a victim is moved, nor is there a minimum requirement as to the time the victim is held. Estes v. State, 234 Ga. App. 150, 151 (505 SE2d 840) (1998); Giddens v. State, 190 Ga. App. 723, 725 (3) (380 SE2d 274) (1989).

In this case, although the movement of Perkins was apparently incidental to the assault since the three men began attacking Perkins before moving her, under the precedent cited here the evidence supported the jury’s finding that Evans and the others moved her against her will. Finally, the fact that Perkins might have wanted to escape her attackers is not inconsistent with the jury’s finding, inherent in their verdict, that she was dragged out of the house against her will.

2. Evans’ trial was bifurcated, and the charge of firearm possession by a felon was tried after the jury returned guilty verdicts on the kidnapping and assault charges. In his second enumeration of error, Evans contends that the evidence was insufficient to support his conviction on the firearm possession charge, specifically because the State did not prove that he was the same Gabriel Evans as the one named in the certified copies of two felony convictions introduced in support of the charge. Witnesses identified Evans as Gabriel Evans on the record. The certified copies of the previous convictions, to which Evans raised no objection, identified the felon by the same name. “Identity of name presumptively imports identity of person, in the absence of any evidence to the contrary.” (Punctuation omitted.) Robinson v. State, 231 Ga. App. 368-369 (1) (498 SE2d 579) (1998). Evans has identified absolutely no evidence which would rebut the presumption of identity. Thus, there existed ample evidence from which the jury could conclude, under the Jackson v. Virginia standard, that Evans was the same person as named in the previous convictions.

Decided September 13, 1999

Reconsideration denied September 30, 1999.

Wilson, Morton & Downs, Robert G. Morton, Shannon P. Lanzone, for appellant.

J. Tom Morgan, District Attorney, Benjamin M. First, Maria Murder-Ashley, Assistant District Attorneys, for appellee.

3. Evans contended in his third enumeration that the trial court failed to instruct the jury that it could consider in the second stage of the bifurcated trial evidence introduced during the first stage. Evans did not request such an instruction and claims no prejudice from the trial court’s failure to give the instruction. Evans argues, rather, that the jury was not authorized to consider the evidence of his identity presented in the first phase of the trial when considering the charge of possession of a firearm by a felon. We find no merit in this argument. Evans may not challenge the trial court’s failure to give a jury instruction he did not request, and in any event, the trial court’s failure to instruct the jury that it could and should consider evidence from the first part of the trial could have only benefited — not harmed — him. Coody v. State, 181 Ga. App. 701, 702 (3) (353 SE2d 618) (1987); Mullins v. State, 144 Ga. App. 22, 23 (240 SE2d 297) (1977). Furthermore, the jury was authorized by law to consider evidence from the first phase of the trial during its deliberations on the charge of possession of a firearm by a felon, and it apparently did so, even without being so instructed. Franklin v. State, 208 Ga. App. 740 (431 SE2d 733) (1993). No error has been shown.

4. Evans, represented by new counsel, did not argue in his motion for new trial that his trial counsel was ineffective. Because his new counsel failed to seize the first opportunity to challenge the effectiveness of trial counsel in the motion for new trial, Evans’ contention that his trial counsel was ineffective is procedurally barred on appeal. Price v. State, 228 Ga. App. 155, 156 (1) (491 SE2d 210) (1997).

Judgment affirmed.

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


text:
    A99A2018.
    CAMPBELL v. THE STATE.
    (522 SE2d 277)
   Blackburn, Presiding Judge.

Solomon Campbell appeals his conviction for cruelty to children, contending that his guilty plea was not freely, intelligently, and voluntarily entered because he was not informed of his right to withdraw the plea prior to sentencing. Campbell also contends that his counsel rendered ineffective assistance because he failed to inform him that his plea could be withdrawn. For the reasons set forth below, we affirm.

1. As we have previously held:

A criminal defendant has the absolute right to file a timely direct appeal from a judgment of conviction and sentence entered after a jury or bench trial. However, [Campbell’s] judgment[ ] of conviction and sentence [ ] were entered after he pled guilty. A criminal defendant has no unqualified right to file a direct appeal from a judgment of conviction and sentence entered on a guilty plea. A direct appeal will lie from a judgment of conviction and sentence entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record.

(Punctuation omitted.) Smith v. State, 266 Ga. 687 (470 SE2d 436) (1996).

In this case, the record shows that Campbell pled guilty to beating his mentally retarded nine-year-old stepson with a pool cue stick. Prior to the plea, the State recommended that Campbell be sentenced to ten years, two of which would be spent in jail. The trial court, however, indicated that it would not accept the State’s recommendation. Instead, the trial court informed Campbell that he would be sentenced to ten years, four of which would be served in jail. After receiving this information, Campbell pled guilty, stating that his plea was voluntary and that he fully understood the nature of the proceedings. The trial court then imposed upon Campbell the sentence it described prior to the entry of his guilty plea.

Citing Fuller v. State, 159 Ga. App. 512 (284 SE2d 29) (1981), Campbell argues that his guilty plea was involuntary and unknowing because the trial court never informed him that he had the right to withdraw his guilty plea prior to sentencing. Based on the facts herein, this argument is misplaced.

[A]t the time a plea is offered, . . . the trial court shall, on the record, inform the defendant personally that (1) the trial court is not bound by any plea agreement, (2) the trial court intends to reject the plea agreement presently before it, (3) the disposition of the present case may be less favorable to the defendant than that contemplated by the plea agreement, and (4) that the defendant may then withdraw his . . . guilty plea as a matter of right. If the plea is not then withdrawn, sentence may be pronounced and the plea cannot thereafter be withdrawn except upon the sound legal discretion of the court.

(Citations and punctuation omitted.) Id. at 513 (1).

In Fuller, the trial court never informed the defendant that it intended to reject his plea agreement with the State prior to imposing a less favorable sentence on him and that the guilty plea could be withdrawn before sentencing. Under such circumstances, the defendant’s conviction based upon his guilty plea had to be reversed. In this case, on the other hand, the trial court informed Campbell that it would reject the State’s recommendation and that it would sentence him to ten years, four of which would be served in jail. The trial court thereafter imposed the exact sentence it described to Campbell at sentencing. Under these circumstances, it is nonsensical to argue that Campbell did not knowingly and voluntarily enter his plea of guilty. Prior to his plea, he had been informed by the trial court what his punishment would be, and he voluntarily and knowingly accepted that punishment.

2. Campbell’s contention that his counsel rendered ineffective assistance because he failed to inform him that his plea could be withdrawn is untenable.

[T]he defendant may not file a direct appeal where the only evidence in the record is the transcript of the guilty plea hearing. Rather, the defendant’s proper remedy is to file a motion to withdraw his guilty plea and appeal the denial of that motion.

Obi v. State, 229 Ga. App. 94, 96 (2) (493 SE2d 246) (1997).

As in Obi and the decisions it cites, the record in this case contains no motion to withdraw [Campbell’s] guilty plea and only the transcripts of his guilty plea hearing and sentencing hearing. Accordingly, [Campbell] cannot raise this issue in this direct appeal of his conviction. See Broadwell v. State, 224 Ga. App. 193, 194 (3) (480 SE2d 215) (1996). And the trial court’s jurisdiction over such a motion to withdraw the guilty plea expired at the end of the term of court in which the judgment of conviction was rendered. Id. [Campbell’s] sole remaining remedy on this claim is habeas corpus, and remand of this case to the trial court for an evidentiary hearing on the ineffectiveness claim is therefore inappropriate.

Decided September 8, 1999

Reconsideration denied October 1, 1999

Michael B. King, for appellant.

J. Tom Morgan, District Attorney, Maria Murder-Ashley, Lawrence Delan, Assistant District Attorneys, for appellee.

Flanigan v. State, 238 Ga. App. 296 (517 SE2d 569) (1999).

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


author: Miller, Judge.

text:
    A99A1579.
    MOBLEY v. BENT TREE COMMUNITY, INC.
    (523 SE2d 69)
   Miller, Judge.

After John Mobley bought land in the Bent Tree Community, the community’s board filed an amendment to its restrictive covenants to require a minimum of 1,250 square feet for newly built homes. Before the court clerk recorded the amendment, Mobley submitted an application to the community’s architectural committee to build a 900-square-foot home. Several days after the amendment was recorded, the committee disapproved Mobley’s application for failure to comply with the 1,250-square-foot minimum. He appealed to the Bent Tree board, arguing that his submitting the application before the court clerk had recorded the amendment precluded the committee from applying the new square footage requirement to his application. The board agreed with the committee and rejected Mobley’s appeal. He filed a breach of contract action with the superior court. The court granted summary judgment for Bent Tree. Holding that the amendment’s status on the committee’s decision date, not on the application submission date, controls, we affirm.

Citing OCGA § 44-2-2 (b) (filing date controls as to deeds, mortgages, and liens), the trial court ruled that the amendment was effective as of the date it was filed. But under the Georgia Property Owners’ Association Act, any amendment to a declaration of restrictions becomes effective only when recorded. Therefore, November 4 controls as the effective date of the amendment.

Though Mobley submitted his application before November 4, the architectural committee could apply a restrictive covenant criterion that was in effect on the date of its decision (November 13). The amendment plainly states that the 1,250-square-foot requirement applies to all applications except those for “dwellings approved for construction by the [architectural committee] or constructed prior to the date of recording of this Agreement. . . .” (Emphasis supplied.) Since the committee did not approve Mobley’s application before the recording date of November 4, the amendment authorized the committee to deny his application under the new criterion.

Decided October 1, 1999.

McGee & Oxford, James B. Crew, Jr., for appellant.

Weissman, Nowack, Curry & Wilco, Derek W. Johanson, for appellee.

The trial court did not err in granting summary judgment to Bent Tree.

Judgment affirmed.

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

       OCGA § 44-3-220 et seq.

       OCGA § 44-3-226 (d).

       Compare Dawson v. Fulton-DeKalb Hosp. Auth., 236 Ga. App. 96 (2) (511 SE2d 199) (1999); Thomas v. Firestone Tire &c. Co., 139 Ga. App. 40, 41-42 (2) (227 SE2d 870) (1976).


author: Eldridge, Judge.

text:
    A99A1591.
    EBERLY v. THE STATE.
    (522 SE2d 294)
   Eldridge, Judge.

A Glynn County jury found John Paul Eberly guilty of driving under the influence of alcohol — less safe driver — and a violation of OCGA § 40-6-272 regarding his duty upon striking a fixed object. Eberly appeals the conviction.

In his sole enumeration of error, Eberly challenges the trial court’s denial of his motion to suppress his refusal to take a State-administered chemical test. In support thereof, Eberly contends that the arresting officer’s incorrect reading of the implied consent notice, OCGA § 40-5-67.1 (b) (2), changed the substance of such notice and misadvised Eberly of his rights under the statute. Apparently, the officer informed Eberly that, following the State’s chemical test, Eberly was entitled to secure an additional chemical test — singular — of his choice at his own expense, while the statute provides that Eberly was entitled to obtain additional tests — plural — of his choice at his own expense.

This issue has been decided adversely to Eberly. State v. Payne, 236 Ga. App. 338, 340 (512 SE2d 292) (1999); Rojas v. State, 235 Ga. App. 524 (509 SE2d 72) (1998). The record shows, and Eberly concedes, that he was informed he could have additional testing done upon request. Thus, there was substantial compliance with the statutory mandates of OCGA § 40-5-67.1 (b), as amended. State v. Payne, supra at 340; Rojas v. State, supra at 527 (1). The trial court did not err in denying Eberly’s motion to suppress.

Decided September 9, 1999

Reconsideration denied October 4, 1999.

Lane & Crowe, Robert L. Crowe, for appellant.

Richard H. Taylor, Solicitor, for appellee.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       As amended, OCGA § 40-5-67.1 (b) states in pertinent part that an implied consent notice “shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged.”


author: Johnson, Chief Judge.

text:
    A99A1811.
    THOMPSON v. ENTERPRISE LEASING COMPANY OF GEORGIA.
    (522 SE2d 670)
   Johnson, Chief Judge.

Enterprise Leasing Company of Georgia sued Patricia Thompson, Travis Grier and Mildred Grier for property damage to its rental car. Subsequently, Enterprise dismissed the Griers. Thompson and Enterprise both filed motions for summary judgment; the trial court granted Enterprise’s motion and denied Thompson’s motion. Thompson appeals. We affirm the grant of summary judgment to Enterprise and the denial of summary judgment to Thompson, but reverse the trial court’s award of pre-judgment interest.

The record shows that Thompson and Enterprise entered into a car rental contract on October 23, 1996. Thompson indicated she would return the rental car by October 28, 1996. The terms of the rental agreement provided that “[r] enter agrees to return car to Owner in same condition as received, on return date stated on reverse or upon demand of Owner, ordinary wear and tear accepted.” The agreement also provided that the renter was responsible for damage to the rental car and that it was a violation of the rental agreement to allow any person to drive the car without written consent of the rental agency.

Several verbal requests for an extension of time for the return of the rental car were made and granted. The last extension was through November 21, 1996. On November 16, 1996, the rental vehicle was damaged while being driven by Travis Grier, Thompson’s cousin. Thompson had given her cousin permission to drive the rental car in violation of the terms of the rental agreement.

Thompson was charged for 25 days rental from October 23, 1996 to November 16, 1996, at the rate of $21.99 per day. Allstate Insurance Company, Thompson’s insurer, paid its portion of the rental charges, and Thompson paid the remaining portion of the rental charges. Thereafter, Enterprise sued Thompson for the property damage to the rental car. Enterprise also sought pre-judgment interest and expenses of collection, including attorney fees, as provided in the rental contract. The trial court granted Enterprise’s motion for summary judgment and entered judgment “in the principal sum of $5,029.82, plus attorney fees of $4,077.36 plus interest at the rate of 1.5% per month from November 21, 1996 plus interest at the legal rate from the date of this judgment plus all costs of court.”

1. Thompson contends the trial court erred in granting Enterprise’s motion for summary judgment and denying her motion for summary judgment because the rental agreement expired on October 28, 1996, prior to the collision which damaged the rental car. According to Thompson, the typed date for the rental car’s return, October 28, 1996, controls the expiration of the rental agreement and its terms. She argues that she cannot be liable on an expired contract. We disagree.

Thompson’s argument totally ignores the fact that she asked for and received extensions of the rental agreement, that she retained the rental car, and that both she and her insurance company paid for her use of the rental car until it was damaged in the collision. Furthermore, Thompson’s contention ignores the fact that the rental agreement specifically stated that she was to return the rental car in the same condition as received “on return date stated on reverse or upon demand of Owner, ordinary wear and tear accepted.” (Emphasis supplied.)

Thompson contends that any evidence of the contract extension is barred by the parol evidence rule, OCGA § 13-2-2 (1), because the contract contains a clause indicating that the terms of the rental agreement could not be altered by another document or oral agreement. Again, this argument ignores the fact that the rental agreement stated the car was to be returned in the same condition on the date listed in the rental agreement or upon demand of the rental agency. Moreover, even if the contract was modified by granting an extension, such a modification was authorized.

Marathon Oil Co. v. Hollis, 167 Ga. App. 48, 49 (1) (B) (305 SE2d 864) (1983), holds that the terms of a written contract may be modified or changed by a subsequent parol agreement between the parties as long as the subsequent agreement is founded on sufficient consideration. This is true even where the initial agreement specifies that the contract may not be changed except by writing. Id. Clearly, Thompson’s retention of the rental car and the fact that both she and her insurance company paid for the use of the rental car until it was damaged in the collision shows the parties intended to and did modify the original rental agreement by extending its term. The trial court did not err in granting Enterprise’s motion for summary judgment and denying Thompson’s motion for summary judgment.

2. The agreement provides that Enterprise is entitled to collect all expenses incurred in the collection of monies due under the agreement or in enforcing any terms of the agreement, including attorney fees and costs. Therefore, based on our holding in Division 1, Enterprise is entitled to collect attorney fees.

3. Thompson correctly asserts that the trial court erred in awarding Enterprise pre-judgment interest. Pre-judgment interest is allowable only where the amount is liquidated, and on a suit to recover the value of property which has been injured or destroyed, a plaintiff cannot be awarded both principal and an additional amount as interest. See Jennings Enterprises v. Carte, 224 Ga. App. 538, 541 (4) (481 SE2d 541) (1997); Marathon Oil, supra. The term liquidated means settled, acknowledged or agreed, a sum which cannot be changed by the proof. Jennings, supra.

While the amount Thompson owed in car rental fees would be a liquidated amount, this cannot be said of the amount Enterprise suffered as a result of the physical damage to the car. Although Enterprise argues that it offered undisputed evidence of the amount of its property damage, and the record is devoid of any evidence introduced by Thompson to dispute Enterprise’s amount of damage, this does not convert unliquidated damages to liquidated damages.

The proof of Enterprise’s damages was the opinion of an Enterprise employee, that is, her estimates of the fair market value of the rental car before and after the collision, the cost of reasonable and necessary repairs to the damaged vehicle, the reasonable towing and storage charges, the reasonable administrative fees incurred, and Enterprise’s loss of use during the period the vehicle was unavailable for rental. This opinion testimony as to value necessarily makes any damage award to Enterprise unliquidated. See Jennings, supra. The trial court erred in awarding Enterprise pre-judgment interest. The case is remanded to the trial court with direction that judgment entered be amended to exclude pre-judgment interest.

4. Enterprise’s request that we impose frivolous appeal penalties against Thompson is denied.

Judgment affirmed in part and reversed in part and case remanded with direction.

Decided September 16, 1999

Reconsideration denied October 4, 1999

George H. Connell, Jr., for appellant.

McCrimmon & McCrimmon, Lisa L. McCrimmon, for appellee.

McMurray, P. J., and Phipps, J., concur.


author: McMurray, Presiding Judge.

text:
    A99A1894.
    WADE et al. v. GEORGIA DIVERSIFIED INDUSTRIES, INC. et al.
    (522 SE2d 746)
   McMurray, Presiding Judge.

Plaintiffs Estelle Wade and Joan W. Mannis, administrators of the estate of Jamie L. Wade, brought this tort action against defendants Georgia Diversified Industries, Inc. and Charles Ivey to recover for the wrongful death of Jamie Wade, who died from injuries received in an automobile accident while she was a passenger in a vehicle owned and operated by defendant Charles Ivey. Defendants jointly moved for summary judgment, arguing a tort action on behalf of an employee against an employer and a co-employee was barred because workers’ compensation provided the plaintiffs’ exclusive remedy under OCGA § 34-9-11 (a). This motion was granted, and plaintiffs appeal. Held:

Because there is conflicting evidence as to whether the fatal injuries to plaintiffs’ decedent Jamie L. Wade arose out of and in the course of her employment with Diversified, we reverse the grant of summary judgment.

Viewed in the light most favorable to plaintiffs as non-movants, the evidence authorizes the following facts:

Diversified admitted that Charles Ivey was its employee who was acting within the scope of his employment at the time of the incident. In fact, Ivey was president of defendant Diversified from its founding in 1980 as a non-profit corporation to his retirement in August 1997, after this incident. Diversified operates in part under a grant from the Georgia Department of Human Resources (“DHR”) and exists to provide employment opportunities for people with disabilities, such as Jamie L. Wade, by performing “packaging services to different companies.” As part of Diversified’s contract with DHR, Diversified received the use of two vans, titled in DHR but driven by Diversified employees. Diversified used these vans to “[pick] up the employees that needed transportation,” but use of the vans was not mandatory. No Diversified employees were paid going to or from work. On an emergency basis, other vehicles were substituted to transport the employees. Wade had ridden in Ivey’s truck on other occasions. Ivey had been reimbursed before for the business use of his personal vehicle, but had not submitted a claim for reimbursement for taking Wade home.

Jamie L. Wade was a Diversified employee who was paid on the basis of her production, that is, the number of packages she sealed. According to Ivey, Wade was dependent upon Diversified providing transportation to and from work unless, for some reason, her mother picked her up early. Any time she was asked to do so, Wade liked to work overtime. On the evening in question, Wade worked late, until 4:00 or 5:00 p.m., whereas her regular shift was from 7:30 a.m. to 2:30 p.m. Ivey used his personal pickup truck to drive three employees home, including Wade. After dropping off two employees, Ivey first intended to take Wade directly home, but then changed his mind and intended to return to Diversified. At that point, Ivey was not intending to do anything for Wade; rather “[s]he was [merely] a passenger in [Ivey’s] car.” In order to return to Diversified, Ivey needed to switch lanes and turn right onto Grassdale Road, but as he approached the intersection, Ivey rammed into the back of a truck stopped at the red light, causing Wade’s injuries.

1. The rights and remedies granted to an employee by Title 34, Chapter 9, the Workers’ Compensation Act provisions,

shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tort-feasor, other than an employee of the same employer. . . .

OCGA § 34-9-11 (a).

So plaintiffs’ tort action against Wade’s employer Diversified and her co-employee Ivey is barred if her injuries amounted to a compensable work-related accident. Dickey v. Harden, 202 Ga. App. 645, 646 (414 SE2d 924). “Whether an injury arises out of and in the course of employment is generally a mixed question of law and fact.” Lee v. Sears, 223 Ga. App. 897 (479 SE2d 196).

2. In this appeal, plaintiffs contend the trial court erred in concluding that Wade’s injuries arose out of the course of her employment because she was injured in a co-employee’s personal vehicle, after her work was completed. Plaintiffs rely on Jose Andrade Painting v. Jaimes, 207 Ga. App. 596 (428 SE2d 640), for the proposition that the employer must furnish a company vehicle as an incident of employment, in order for the injury to be compensable under workers’ compensation. Because the evidence authorizes the inference that Wade’s injuries occurred in the course of employer-supplied transportation, we do not agree with this contention. Nevertheless, because the evidence is conflicting whether Wade was injured within the scope of her employment, we reverse the grant of summary judgment.

Generally, injuries sustained by an employee while going to or coming from his employment are not compensable, except in certain instances such as where the employer furnishes transportation[; or] where doing some act permitted or required by the employer and beneficial to the employer while en route to and from work[; or] where going to and from parking facilities provided by the employer [; or] in instances where an employee is on call and furnishes or is reimbursed for his transportation costs.

(Citations and punctuation omitted; emphasis supplied.) Corbin v. Liberty Mut. Ins. Co., 117 Ga. App. 823 (162 SE2d 226). Accord Indem. Ins. Co. of North America v. Bolen, 106 Ga. App. 684, 687 (1) (127 SE2d 832). But an employee’s gratuitous and permissive ride in the employer’s vehicle, going back and forth between the employee’s home and the employer’s place of work, by mere favor and not in furtherance of the employer’s business, will not justify a conclusion that the right to do so became an implied term of the contract of employment. American Mut. &c. Ins. Co. v. Curry, 187 Ga. 342, 343, hn. 2 (200 SE 150).

In the case sub judice, evidence that the moderately disabled Wade routinely relied on the DHR vans for transportation to and from work authorized a conclusion that employer-provided transportation was an implied term of her contract. And the fact that Ivey, Diversified’s president, substituted his personal vehicle for the DHR van on this occasion because Wade and others worked late that night is evidence that employer-provided transportation home was to the benefit of Diversified and not a mere gratuity or courtesy, authorizing the conclusion that Wade was within the scope of her employment until she exited the employer’s vehicle. Lee v. Sears, 223 Ga. App. 897 (1), supra; Eickhorn v. Boatright, 219 Ga. App. 895, 896 (2) (467 SE2d 214). Conversely, evidence that Wade was paid only for production, not by the hour or day; that she had ended her shift; that she did not take a DHR van home at the regular time; that she was in the personal vehicle of Diversified’s president, who had not been reimbursed for taking these three employees home in his own vehicle; and that it was Ivey’s unilateral decision to return to Diversified before dropping off Wade authorized the conclusion that she was no longer within the scope of her employment at the time of the crash. American Mut. &c. Ins. Co. v. Curry, 187 Ga. at 359 (3), supra. From this evidence, a jury would be authorized to conclude that, as to plaintiffs’ decedent Wade, the ride home by Ivey in his personal vehicle was a mere accommodation by a fellow employee and that Wade’s injuries did not arise out of and in the scope of her employment, sealing packages at Diversified. O’Kelley v. Gates, 160 Ga. App. 400, 401 (287 SE2d 262). The legal consequence of such a finding is that this tort action is not barred by OCGA § 34-9-11 (a). The trial court erred in granting summary judgment to Diversified and Ivey as genuine issues of material fact remain for a jury to resolve.

Decided September 24, 1999

Reconsideration denied October 4, 1999

White & Choate, Harry B. White, for appellants.

Kinney, Kemp, Sponcler, Joiner & Tharpe, Robert A. Cowan, for appellees.

Judgment reversed.

Johnson, C. J., and Phipps, J., concur.

       Defendants’ motion to dismiss this appeal on the ground that plaintiffs’ brief was untimely filed is denied.


text:
    A99A1311.
    HARTFORD INSURANCE COMPANY OF THE MIDWEST v. NATIONWIDE MUTUAL INSURANCE COMPANY et al.
    (523 SE2d 71)
   Miller, Judge.

Hartford Insurance Company sued to require Nationwide Mutual Insurance Company to provide insurance coverage for Ishmael Keys, who, while on a personal errand, was driving a vehicle that injured a person insured by Hartford. The issue is whether the permission given by the vehicle’s owner to Keys’ roommate was broad enough to cover allowing Keys to drive the vehicle on personal errands. The trial court found that the permission did not cover Keys driving the vehicle and denied Hartford’s request for summary judgment and granted summary judgment, sua sponte, to Nationwide. The testimony was equivocal as to the scope of permission given, and on this basis we reverse.

Setting aside the question of whether the court erred in acting sua sponte, we hold that summary judgment was erroneous on the merits. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We apply a de novo standard of review and view the evidence in the light most favorable to the nonmovant.

So construed, the evidence shows that Nancy Brooks employed Rosie Bell to clean her home and care for her ill husband. Since Bell did not have transportation, Brooks allowed her to use one of her vehicles insured by Nationwide. Bell then allowed Ishmael Keys to drive the vehicle. She told him to get gas and that he could use it as long as he brought it back. Keys put gas in the vehicle and drove it to a college campus to watch a talent show. On his return, he collided with a vehicle driven by George Montgomery, Hartford’s insured. Nationwide claims that Keys did not have permission to use the vehicle as defined in the policy and therefore was not an insured, and that Montgomery’s uninsured motorist protection should provide the necessary coverage. Hartford contends that Keys did have permission and that Nationwide should provide coverage for any damages Montgomery incurred.

The policy issued to Brooks by Nationwide contained an omnibus clause which stated that coverage under the policy extends to persons liable for the use of the insured automobile while used with the policyholder’s permission. The “second permittee” doctrine provides that “the permission to use contained in an omnibus clause refers to the purpose for which permission was given and not to the operation of the vehicle.” So, where a third person uses a vehicle with the consent of another person who has permission from the owner, the fact that the third person did not have express or implied permission from the owner is irrelevant. “As long as the use falls within the scope of the permission then it is permissive within the policy terminology.”

If the scope of the permission to use the vehicle granted by Bell to Keys exceeded that granted by Brooks to Bell, then Keys’ use is not permissive and he is not an insured under the policy. Although it is clear that Brooks gave Bell express permission to use the vehicle, the scope of that permission is not clear. Hartford contends that Brooks gave Bell permission to drive the vehicle for any personal use while Nationwide claims that Brooks granted Bell permission only to drive the vehicle back and forth to work.

Decided October 4, 1999.

Karsman, Brooks & Callaway, Stanley Karsman, Timothy J. Haeussler, for appellant.

Brooks’ testimony was equivocal:

A. She asked me. I didn’t bring it up. She asked me would I mind if she used my car to get back and forth to work.
Q. And what was your response?
A. I said, no, I don’t mind you using it just for those purposes, just for that purpose.
Q. Did you specifically restrict her use of the vehicle for to and from work?
A. I don’t, I don’t recall if, if I specifically said that or whether it was just implied.
Q. Okay. Did you determine prior to the time that you made the arrangements for her to use the vehicle whether or not she had a valid Georgia driver’s license?
A. No, I did not. I did not ask to see it. But I, when she asked me could she use the car to get back and forth to work, I assumed that that’s the only purpose that she was to use the car for, was to come to my house then go home.
Q. Do you know whether or not she had that same frame of mind that you did?
A. No, I don’t know. Obviously she thought a lot differently than I did.

Brooks’ testimony does not foreclose the possibility that she may have implied that Bell could use the vehicle for personal purposes. Her vacillating testimony creates some uncertainty and is indefinite as to the scope of permission she gave to Bell, which creates a question of fact for the jury to resolve. This precludes summary adjudication.

Because the evidence is inconclusive as to the scope of permission granted to Bell, the trial court did not err in denying summary judgment to Hartford, but did err in granting summary judgment to Nationwide.

Judgment affirmed in part and reversed in part and case remanded.

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

Kent, Worsham, & Smart, A. Martin Kent, Joseph Y. Rahimi II, for appellees.

       OCGA § 9-11-56 (c).

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

        Ga. Farm &c. Ins. Co. v. Allstate Ins. Co., 190 Ga. App. 593, 594 (1) (379 SE2d 619) (1989).

       Id.

       (Citation and punctuation omitted.) Allstate Ins. Co. v. Wood, 211 Ga. App. 662, 663 (1) (440 SE2d 78) (1994).

       See Prudential Property &c. Ins. Co. v. Walker, 219 Ga. App. 84, 85 (1) (464 SE2d 230) (1995).


text:
    A99A2449.
    NORRIS v. THE STATE.
    (523 SE2d 80)
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of child molestation. This appeal followed the denial of his motion for new trial. Held:

Defendant challenges the denial of his motion for mistrial, contending the trial court improperly bolstered the nine-year-old victim’s credibility in violation of OCGA § 17-8-57. This assertion is based on the trial court’s response to defense counsel’s objection during the following portion of the State’s redirect examination of the victim:

[DEFENSE COUNSEL]: Judge, one or two leading questions is enough but he’s over doing the leading.
THE COURT: This is a child and I’m going to allow a fair amount of leading. But at this point this is a right articulate young lady.
[STATE’S ATTORNEY]: Yes, Your Honor.
THE COURT: And I think that if you ask her what happened, either one of you, you’re going to find out what happened. So just ask her.
[STATE’S ATTORNEY]: Okay.
[DEFENSE COUNSEL]: Your Honor, without any disrespect to the Court I want to object to that last remark because I think it’s an expression of the Court on the credibility of this witness.
THE COURT: Not credibility but she’s capable of telling what happened. I’m not commenting on anything other than with many children of this, these tender years we pull teeth and we pull statements out and the child is curled up and so forth. This is a child that is capable of testifying for herself. That’s what I said and that’s what I meant and I think the jury and everybody else understood that to be the case. Now, ask her a question and see if I’m right or wrong.

Although OCGA § 17-8-57 prohibits a trial judge in any criminal case from expressing or intimating an opinion as to what has or has not been proved or as to the guilt of the accused, the comments which are challenged in the case sub judice do not constitute a statement of opinion either as to proof or as to defendant’s guilt. Nor does it appear, in context, that the trial court’s comments went to the victim’s veracity. It appears the trial court was merely commenting on the nine-year-old victim’s competence to testify as this issue relates to defense counsel’s “leading questions” objection to the State’s attorney’s redirect examination of the victim. A trial judge’s explanation for a ruling on an objection neither constitutes an expression of opinion nor amounts to a comment on the evidence. Corley v. State, 192 Ga. App. 35, 36 (3) (383 SE2d 586); Faulkner v. State, 186 Ga. App. 879, 880 (2) (368 SE2d 820). Since the trial court did not impermissibly bolster the nine-year-old victim’s credibility in the case sub judice, defendant’s motion for mistrial was properly overruled. See Hendricks v. State, 157 Ga. App. 715 (1), 716 (278 SE2d 453).

Decided October 4, 1999.

William J. Mason, for appellant.

J. Gray Conger, District Attorney, Samuel G. Merritt, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.


author: Eldridge, Judge. Blackburn, Presiding Judge,

text:
    A99A1798.
    CLARK v. CHOREY, TAYLOR & FEIL, P.C.
    (522 SE2d 472)
   Eldridge, Judge.

Plaintiff Dannice Clark appeals from the Fulton County State Court’s grant of summary judgment to defendant law firm Chorey, Taylor & Feil, P.C.

The facts, viewed in a light most favorable to Clark as nonmovant, are as follows: In April 1996, co-defendant Wanda Chatham was employed by the law firm of Vincent, Chorey, Taylor & Feil, P.C. (“Vincent Chorey”). At that time, certain lawyers from Vincent Chorey already had decided to leave the firm and establish a new law firm. The new firm already had been incorporated in February 1996 as Vincent, Berg, Stalzer & Menendez, P.C. (“Vincent Berg”), but had not yet opened an office or started serving clients. However, Vincent Berg had hired several employees of Vincent Chorey, including Chat-ham and her co-worker, Marsha Eggert. Chatham and Eggert began working for Vincent Berg in May 1996. Once Vincent Berg started operating as a separate entity, Vincent Chorey was renamed as Chorey, Taylor & Feil, P.C. (“Chorey Taylor”).

On April 26, 1996, while Chatham was still employed with Vincent Chorey, Eggert asked Chatham “if she would be willing to do a favor” for Vincent Berg. At that time, according to Eggert, she was acting in her capacity as an employee of Vincent Chorey. “This favor involved delivering a check to BellSouth for the establishment of phone service for [Vincent Berg, and] Chatham volunteered to take the check to BellSouth.” The check was drawn on the account of Vincent Berg. Chatham left the Vincent Chorey office “shortly before noon” and drove her own vehicle. There is nothing in the record to indicate that Chatham intended to perform any tasks during this trip other than deliver the check to BellSouth. On the way to the BellSouth office, Chatham’s vehicle collided with Clark’s.

In March 1998, Clark instituted a personal injury action against Chatham and her employer at the time of filing the action, Vincent Berg. On April 15, 1998, on Clark’s motion, the trial court issued an order adding appellee Chorey Taylor as a co-defendant in the cause of action under the doctrine of respondeat superior.

Both law firms moved separately for summary judgment. The trial court granted both motions on September 22, 1998. Clark appeals from the grant of summary judgment to Chorey Taylor. Held: In her sole enumeration of error, Clark contends that the trial court erred in granting summary judgment by finding that Chorey Taylor was not liable for damages arising from Chatham’s negligence under the doctrine of respondeat superior.

Under OCGA § 51-2-2, a master is liable for torts committed by its servant “in the prosecution and within the scope of [its] business,” whether the torts are committed intentionally or negligently. Notably,

[t]he expressions “in the scope of his business,” or “in the scope of his employment,” or similar words, have sometimes been given too narrow a meaning. A master rarely commands a servant to be negligent, or employs him with the expectation that he will commit a negligent or wilful tort; but if the act is done in the prosecution of the master’s business, that is, if the servant is at the time engaged in serving the master, the latter will be liable.

(Citation and punctuation omitted; emphasis supplied.) Digsby v. Carroll Baking Co., 76 Ga. App. 656, 658 (47 SE2d 203) (1948). See also Randall Mem. Mortuary v. O’Quinn, 202 Ga. App. 541, 543 (2) (414 SE2d 744) (1992); Curtis v. Kelley, 167 Ga. App. 118, 119 (305 SE2d 828) (1983). An act remains within the scope of employment, even if the act served both the master and some personal purpose of the servant, as long as such act was not a “total departure from the course of the master’s business, so that the servant might be said to be on a frolic of his own,” or otherwise was “entirely personal” to the servant. (Citations and punctuation omitted.) Andrews v. Norvell, 65 Ga. App. 241, 245 (15 SE2d 808) (1941) (finding the master liable for the servant’s practical joke on another). Accord Hobbs v. Principal Fin. Group, 230 Ga. App. 410, 412 (497 SE2d 243) (1998) (finding that a master is not liable when a servant’s tort is “entirely disconnected” from his employment); Coffee Chrysler-Plymouth-Dodge v. Nasworthy, 198 Ga. App. 757 (403 SE2d 453) (1991) (finding that the master is not liable when a servant’s tort occurred during a “purely personal” mission); Curtis v. Kelley, supra at 119; May v. Phillips, 157 Ga. App. 630 (278 SE2d 172) (1981); Sparks v. Buffalo Cab Co., 113 Ga. App. 528, 530 (148 SE2d 919) (1966); Cooley v. Tate, 87 Ga. App. 1, 4 (73 SE2d 72) (1952).

An additional criterion for determining whether an act was performed for the benefit of a master within the scope of employment is whether the master had the power to discharge the servant for failure to perform the task in an acceptable manner. Redd v. Brisbon, 113 Ga. App. 23, 24 (147 SE2d 15) (1966). In fact, the master’s power to control and discharge the servant is one factor that distinguishes a servant from a mere volunteer. Id.

Generally, the question of whether the servant is, in fact, serving the master within the scope of employment at the time of an injury to another is an issue for determination by the jury, except in plain and indisputable cases. Digsby v. Carroll Baking Co., supra at 660; see also Randall Mem. Mortuary v. O’Quinn, supra at 544 (2); Southern Bell Tel. &c. Co. v. Conyers Toyota, 190 Ga. App. 792, 793 (1) (380 SE2d 296) (1989). However, a defendant, as the moving party on a motion for summary judgment, may pierce the plaintiff’s pleadings by demonstrating that there is no issue of material fact as to at least one essential element of the plaintiff’s prima facie case. Garrett v. NationsBank, N.A., 228 Ga. App. 114, 115 (491 SE2d 158) (1997). Even so,

a defendant may not prevail simply by presenting contradictory evidence, as such evidence serves only to create an issue for jury resolution. ... If the defendant is able to pierce the plaintiff’s pleadings . . . the burden of production of evidence shifts to the plaintiff, i.e., the plaintiff will survive summary judgment by presenting any evidence which establishes a jury issue regarding that element. Even slight evidence will be sufficient to satisfy the plaintiff’s burden of production!.]

(Citations and punctuation omitted; emphasis in original.) Id. at 115. See also OCGA § 9-11-56 (c), (e); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); Stuckey Diamonds v. Jones, 195 Ga. App. 351, 352 (393 SE2d 706) (1990). In determining whether the plaintiff, as non-movant, has met such burden,

all inferences, and all ambiguities, and all doubts, are resolved against the movant and in favor of the party opposing the grant of summary judgment. This is true even where the party opposing the motion would have the burden at trial. Furthermore, the respondent’s proof is treated with indulgence. Vague or contradictory testimony must be construed in favor of the non-movant.

(Citations and punctuation omitted.) McCoy v. Southern Bell Tel. &c. Co., 172 Ga. App. 26, 27 (2) (322 SE2d 76) (1984).

In this case, Chorey Taylor asserted on summary judgment that Chatham was not acting within the scope of her employment because (a) Chorey Taylor did not receive any benefit from her attempted delivery of the Vincent Berg check to BellSouth; and (b) Chorey Taylor did not control Chatham’s actions, because she voluntarily performed this act as a “favor” to Vincent Berg.

(a) In reviewing the record, this Court notes that, in her response to Vincent Berg’s motion for summary judgment, the plaintiff asserted that the beneficiary of Chatham’s act was, in fact, Vincent Berg, not Chorey Taylor. However, it is clear from the record that some of the attorneys and other employees who directly benefited from Chatham’s attempt to deliver the check to BellSouth were, at that time, still employed by Chorey Taylor (then Vincent, Chorey, Taylor & Feil, P.C.), although they were in the process of leaving to form Vincent Berg.

(b) Further, it is undisputed that both Chatham and Eggert were employed by Chorey Taylor on the date of the accident. Eggert admitted in her affidavit that, when she asked Chatham to take the check to BellSouth, she acted in her capacity as a Chorey Taylor employee. Eggert also provided the address and location of the Bell-South office to Chatham.

From these facts, one could infer (a) that Chatham’s attempted delivery of the check was not a purely personal pursuit or otherwise “entirely disconnected” from her employment; and (b) that such act was not entirely “voluntary,” since her present employment with Chorey Taylor, as well as her future employment with Vincent Berg, could have been adversely affected if she failed to perform her “favor” properly.

These inferences are sufficient to send to the jury the question of whether Chatham was acting “in the prosecution and within the scope” of her employment with Chorey Taylor at the time of the collision. Accordingly, the trial court erred in granting summary judgment to appellee Chorey Taylor.

Judgment reversed. McMurray, P. J., Barnes and Phipps, JJ, concur.

Johnson, C. J., Pope, P. J, and Blackburn, P. J., dissent.

Blackburn, Presiding Judge,

dissenting.

As I cannot agree that Wanda Chatham was in any way acting for the benefit of Vincent, Chorey, Taylor & Feil, P.C. (Vincent, Chorey) at the time she collided with Dannice Clark, I must respectfully dissent from the opinion of the majority.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

So viewed, the record reveals that at the time of the collision, both Marsha Eggert and Wanda Chatham, who were employed by Vincent, Chorey, had already accepted employment with Vincent, Berg, Stalzer & Menendez, P.C. (Vincent, Berg), a new law firm established by several lawyers who were leaving Vincent, Chorey. In her affidavit, Marsha Eggert avers that she asked Chatham to do a favor for Vincent, Berg (their future employer) in connection with telephone service. Specifically, Eggert states that she asked Chat-ham to deliver a check to BellSouth Communications on behalf of Vincent, Berg. Her affidavit was given on April 3,1998. Eggert began her employment with Vincent, Berg on May 6, 1998. Eggert’s affidavit conflicts with the interrogatory answers of Vincent, Berg, described below, in which it contends that no one asked Chatham to deliver the telephone company deposit.

While performing her task, Chatham rear-ended Clark’s car. All of the evidence in this case establishes that Chatham was performing a favor for a co-worker and Vincent, Berg. Marsha Eggert stated, “I asked Ms. Chatham if she would be willing to do a favor for [Vincent, Berg].”

In its answers to Clark’s interrogatories, Vincent, Berg indicated:

Ms. Chatham had volunteered to deliver a check to Bell-South Communications which represented a deposit for the establishment of [Vincent, Berg’s] phone service for its new office. At the time of the incident, Ms. Chatham was on her way to BellSouth Communications [for Vincent, Berg]. Nobody asked Ms. Chatham to perform this task. Instead, Ms. Chatham volunteered to do so upon learning from Barrie Boyd and Marsha Eggert that [Vincent, Berg’s] deposit check needed to be delivered to BellSouth.

Clark subsequently sued Vincent, Chorey and Vincent, Berg under the doctrine of respondeat superior.

The following facts are undisputed: (1) Chatham and Eggert were employed by Vincent, Chorey at the time of the accident; (2) Vincent, Berg had been incorporated prior to the time of the accident, although it had not officially opened for business; (3) Chatham and Eggert had accepted future employment with Vincent, Berg at the time of the accident; (4) the favor performed by Chatham was for the benefit of Vincent, Berg, not Vincent, Chorey; and (5) less than one month after the accident, Chatham and Eggert began working for Vincent, Berg.

Our Code states that every person shall be liable for torts committed by his servant by his command or in the prosecution and within the scope of his business. OCGA § 51-2-2. But, our appellate courts have followed a long line of authorities citing the general rule that in determining the liability of the master for the negligent or wilful acts of a servant, the test of liability is, not whether the act was done during the existence of the employment, but whether it was done within the scope of the actual transaction of the master’s business for accomplishing the ends of his employment.

(Punctuation omitted.) Wittig v. Spa Lady, Inc., 182 Ga. App. 689, 690 (356 SE2d 665) (1987).

In this case, it is clear that Chatham was not acting on Vincent, Chorey’s behalf at the time of the accident. To the contrary, she was performing a favor which would directly benefit a competitor of Vincent, Chorey with whom she had already accepted employment. This competitor, Vincent, Berg, was an existing corporation at the time of the accident, even though the employees it had hired had not yet left Vincent, Chorey. It was solely for the benefit of Vincent, Berg that Chatham was acting.

If a servant steps aside from his master’s business to do an act entirely disconnected from it, and injury to another results from a doing of the act, the servant may be liable, but the master is not liable. Thus, a tort committed by a servant while engaged in the master’s business is not necessarily a tort committed in the course of his employment and in the prosecution of the master’s business. Where the tort of an employee is wholly personal to himself, it is not within the scope of his employment, and the master is not liable.

(Citations omitted.) Id. at 690.

In this case, Chatham performed a favor to benefit her future employer, Vincent, Berg. The trial court did not err in granting summary judgment to Chorey, Taylor & Feil, PC. (Chorey, Taylor). The court necessarily found that Chatham’s act neither related to the operations of Vincent, Chorey in any way nor benefited that firm. Chatham’s actions were purely personal with regard to Vincent, Chorey, if not Vincent, Berg. No appeal has been taken from the trial court’s grant of summary judgment to Vincent, Berg, the corporation for which Chatham was acting and from which she had accepted employment at the time of the subject collision, and we do not consider the validity of that ruling here. Under the majority’s holding, Chorey, Taylor could be liable in a case in which Vincent, Berg, the corporation whose check was being delivered, has been held not liable as a matter of law. Vincent, Chorey cannot be held liable for Chatham’s act under the doctrine of respondeat superior under the facts of this case. Id.

Andrews v. Norvell, 65 Ga. App. 241 (15 SE2d 808) (1941), which the majority cites to support its argument, does not change this result. In Andrews, the plaintiff sued the employer of a bartender who played a practical joke on him and induced him to sit on a certain stool in the bar covered with a caustic compound. As this practical joke was performed while completing the exact duties for which the bartender was hired, namely greeting customers and serving drinks, this Court concluded that the bartender’s employer could be held responsible for its employee’s act under the doctrine of respondeat superior. Here, in direct contrast, Chatham was performing an act for an entirely separate corporation which related in no way to her duties as an employee of Vincent, Chorey. Andrews has no bearing on the outcome of this case.

Decided September 9, 1999

Reconsideration denied October 5, 1999

Rajan Bhandari, for appellant.

Carr, Tabb & Pope, Eric N. Van De Water, for appellee.

The majority also relies on paragraph 6 of an affidavit prepared and submitted by Vincent, Berg in which its employee Eggert, states:

As part of its preparations to commence business, [Vincent, Berg] needed to establish phone services at its new offices. I asked Ms. Chatham if she would be willing to do a favor for [Vincent, Berg], I did this in my capacity as an employee of Vincent, Chorey. This favor involved delivering a check to BellSouth for the establishment of phone service for [Vincent, Berg]. Ms. Chatham volunteered to take the check to BellSouth.

(Emphasis supplied.)

Specifically, the majority focuses on Eggert’s statement that she was acting in her capacity as a Vincent, Chorey employee when the favor was requested. However, this statement must be viewed in context. Eggert and Chatham had each already accepted employment with Vincent, Berg at the time of this incident. There is no evidence that any agent of Vincent, Chorey either requested or ratified Eggert’s actions in this case, or that there was any benefit to Vincent, Chorey from the delivery. Moreover, Eggert’s employment with Vincent, Chorey at the time of the accident is not controlling. Irrespective of Eggert’s employment with Vincent, Chorey, Chatham was performing a personal favor exclusively for the benefit of her future employer, Vincent, Berg, and, as discussed above, this fact precludes a finding of any liability by Vincent, Chorey.

The trial court properly granted summary judgment to Vincent, Chorey.

I am authorized to state that Chief Judge Johnson and Presiding Judge Pope join in this dissent.

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       There is no evidence in the record that the corporation of Vincent, Chorey, Taylor & Feil, P.C., dissolved upon the departure of the attorneys who subsequently formed Vincent Berg. See OCGA §§ 14-2-1401 et seq.; 14-7-1 et seq. Therefore, one could infer that the corporate entity survived intact and was renamed as Chorey, Taylor & Feil, P.C., the difference being only that certain employees left the firm.

       A prior suit against Chatham in the Superior Court of Paulding County was dismissed without prejudice on January 28, 1998.

       The suit charged Vincent Berg with liability under the doctrines of respondeat superior and borrowed servant.

       As such, the cases cited by both parties regarding Chatham’s status as an independent contractor versus an employee are inapplicable herein. See, e.g., Griffin v. Hardware Mut. Ins. Co., 93 Ga. App. 801, 804 (92 SE2d 871) (1956).


author: McMURRAY, Presiding Judge.

text:
    A99A1126.
    SINGLETON v. THE STATE.
    (522 SE2d 734)
   McMURRAY, Presiding Judge.

Representing himself, defendant Rickey Angelo Singleton was tried before a Richmond County jury in 1995 and found guilty of two counts of theft by shoplifting. Appellate counsel was appointed, and on direct appeal both convictions were affirmed. Singleton v. State, 231 Ga. App. 694 (500 SE2d 411). But in an order entered December 17, 1998, the Superior Court for Dooly County concluded defendant received ineffective assistance of appellate counsel and granted defendant habeas relief in the form of permission to file an out-of-time appeal. Again proceeding pro se, defendant filed a timely notice of appeal, raising 13 enumerations of error. Finding no reversible error, we affirm. Held:

1. Singleton first claims he was denied his constitutional right to trial counsel. On the morning of trial, Singleton released his court-appointed lawyer and proceeded to represent himself, with appointed counsel remaining at the defense table to assist. Singleton invoked the Fourth, Fifth, Sixth, and Fourteenth Amendments in arguing for a severance of the offenses for trial and in support of a motion to dismiss the indictments, but never asked for another appointed attorney. In our view, the trial court was authorized to conclude that, by releasing his appointed attorney on the morning of trial and proceeding with the case by representing himself, Singleton made the functional equivalent of a knowing and voluntary waiver of appointed trial counsel. Phipps v. State, 200 Ga. App. 18, 19 (406 SE2d 493).

2. Count 1 of the indictment alleged that Singleton stole one Admiral compact disc stereo from Montgomery Ward on June 10, 1995, and then stole a Hoover vacuum from the same Montgomery Ward store on July 19, 1995. The trial court did not abuse its broad discretion in overruling Singleton’s oral motion to sever the offenses for trial, since they involve an ongoing scheme involving the same type of crime against the same victim. Agony v. State, 226 Ga. App. 330 (1) (486 SE2d 625).

3. Before the presentation of evidence, Singleton orally requested a “curative instruction as to not to consider evidence in one case as used in another.” Because this oral request did not conform to the procedural rules identified in State v. Stonaker, 236 Ga. 1 (222 SE2d 354), the trial court’s alleged failure to include the substance of this request in its charge to the jury was not error. Barner v. State, 263 Ga. 365, 367 (3) (434 SE2d 484).

4. Although Singleton enumerates the admission into evidence of his custodial statements via the arresting officer, to the effect that “when you’re caught, you’re caught,” scrutiny of the record indicates this was not elicited by the State but occurred during cross-examination of the arresting officer by defendant himself, in response to his open-ended questions. Thus, any error was self-induced and provides no basis for reversal. Tucker v. State, 225 Ga. App. 757, 758 (2) (484 SE2d 793); Fitzgerald v. State, 193 Ga. App. 76, 78 (7) (386 SE2d 914).

5. The fifth enumeration is controlled adversely to Singleton based upon this Court’s ruling in his prior appeal. Singleton v. State, 231 Ga. App. at 695 (2), supra.

6. Singleton took the stand on his own behalf and so was subject to cross-examination as any other witness, except as to his general bad character or prior convictions. OCGA § 24-9-20 (b). It follows that the trial court did not err in permitting the State’s attorney, over an objection that this shifted the burden of proof, to ask defendant whether he attempted to contact anyone at Montgomery Ward who could corroborate his testimony that he entered the store with an allegedly stolen CD player in order to return it. Nor was there any error in permitting the State’s attorney to comment on the absence of corroborating evidence in closing argument. Workman v. State, 137 Ga. App. 746, 747 (3) (224 SE2d 757) (whole court).

7. Acting under the authority of OCGA § 17-7-70.1, the district attorney preferred accusations charging defendant with felony theft by shoplifting. With the assistance of counsel, Singleton pleaded not guilty without submitting a written objection to the form or the substance of these accusations. In so doing, he waived any right to be indicted by the grand jury for felony theft by shoplifting. Crowder v. State, 218 Ga. App. 630, 631 (1) (462 SE2d 754). On the morning of trial, Singleton orally moved to dismiss the accusations as fatally defective on unspecified legal and constitutional grounds, and the denial of that motion is enumerated as error.

All exceptions to the form of the accusations were waived by Singleton’s failure to file written special demurrers before entering a plea on the merits. Dunbar v. State, 209 Ga. App. 97 (2) (432 SE2d 829). Singleton could not admit the allegations that, with the intent to appropriate for his own use specified merchandise belonging to Montgomery Ward and valued at more than $100, he took possession of that merchandise without paying for it and still be innocent of the crime of theft by shoplifting. OCGA § 16-8-14. Therefore, the accusations are good as against a general demurrer, which may be raised orally and at any time. Dunbar v. State, 209 Ga. App. at 98 (2), supra. The trial court correctly refused to dismiss the accusations as requested in defendant’s oral motion. The seventh and tenth enumerations are therefore without merit.

8. The trial court did not violate OCGA § 17-8-57 in explaining the basis for an evidentiary ruling, outside the presence of the jury. Bryant v. State, 268 Ga. 664, 667 (8) (492 SE2d 868).

9. Singleton submitted no written request to charge on any lesser included offenses, and the trial court did not err in failing to instruct sua sponte on misdemeanor theft by taking. State v. Stonaker, 236 Ga. at 2 (2), supra. His equal protection challenge was not raised and ruled upon in the trial court and so presents nothing for review in this Court. Gee v. State, 210 Ga. App. 60, 61 (3) (435 SE2d 275).

10. Next defendant contends the State suppressed exculpatory evidence by failing to produce at trial the stolen merchandise. No discovery motion under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) was filed on Singleton’s behalf. The record reflects that the vacuum cleaner was returned to the store stock. The State does not suppress allegedly exculpatory evidence if that evidence is not in the State’s possession. McBee v. State, 210 Ga. App. 182, 183 (2) (435 SE2d 469). As for the carton containing the Admiral CD player, Singleton has failed to establish the constitutional materiality of that item. Since he testified he was attempting to return the CD player after buying it at a flea market, the carton itself is cumulative and its omission does not establish a reasonable doubt that did not otherwise exist based on that testimony. Brooks v. State, 182 Ga. App. 144 (1), 145 (355 SE2d 435). No new trial is warranted on this ground.

11. The record, as cited to us by Singleton, does not support his claim of undue influence over the presiding judge due to the presence in the courtroom of another judge (purportedly the father of the State’s attorney), watching the proceedings as a member of the public.

12. Singleton was sentenced to serve two ten-year consecutive terms. On appeal, he contends this lawful maximum is disproportionate to the property crimes, where the proven value of the items stolen was only $300. We disagree.

“A sentence is not unconstitutionally cruel and unusual if it is within the statutory limit. This court is without authority to review sentences within the statutory range.” (Citations and punctuation omitted.) Covington v. State, 157 Ga. App. 371 (2) (277 SE2d 744). Any question about the excessiveness of consecutive ten-year sentences, which in this case were within the legal limits at the time defendant was convicted and sentenced, should have been addressed to the appropriate sentence review panel under OCGA § 17-10-6 (a). Robinson v. State, 150 Ga. App. 642, 644 (7) (258 SE2d 294). Since the record in this case does not affirmatively disclose that defendant Singleton was informed of his right to have his consecutive ten-year sentences administratively reviewed by the Superior Court Sentence Review Panel, he shall have thirty days from the date of this judgment to make the appropriate application to the appropriate panel.

Judgment affirmed.

Johnson, C. J, and Phipps, J., concur.

Decided September 24, 1999

Reconsideration denied October 5, 1999

Rickey Singleton, pro se.

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