author: Smith, Judge.

text:
    A97A1265.
    WILCOX v. THE STATE.
    (493 SE2d 724)
   Smith, Judge.

Larry Wilcox was charged by accusation with the offense of possession of cocaine. After Wilcox was found guilty by a jury and his motion for new trial was denied, this appeal ensued. Wilcox contends that his motion for new trial was erroneously denied because the State failed to rebut his defense of entrapment and because the trial court erred in allowing the accusation to be amended during jury deliberations. We disagree with both contentions and affirm.

Construed in favor of the verdict, evidence was presented that on September 14, 1995, undercover officers set up a “reverse” drug operation at a residence where they had just executed a search warrant. These officers posed as drug dealers selling crack cocaine. The State presented evidence that sometime around dark, Wilcox approached the residence looking for a person named Stacy Matthews. Wilcox stated that he had arrived at the residence because Matthews wanted to purchase Wilcox’s car. Officer Thomas told Wilcox that Matthews was not there, and on Thomas’s inquiry, Wilcox stated that he would sell the car for $500. Thomas testified that he told Wilcox that the car was not worth that amount and that he “jokingly” said to Wilcox that he would give him ten “rocks” for it. According to Thomas, Wilcox replied that he would not sell the car for ten rocks, but that he would sell it for twenty rocks, which was equivalent to $200 worth of crack cocaine. Wilcox did not make the “sale”; however, he left the residence because he wanted to give Matthews the first opportunity to purchase the car. He was told to return later.

Wilcox did return for a second time that evening, again looking for Matthews. Thomas told Wilcox that Matthews was not present and to go clean out the car and return with the title. Wilcox left and returned for the third time around 11:00 p.m. Thomas and another officer walked toward Wilcox’s car and asked whether he was “ready to do the deal.” At about the same time, Matthews approached, and Wilcox asked him whether he was “ready to do this.” Matthews walked away and replied that he did not know what Wilcox was talking about. Matthews also told Wilcox, in response to Wilcox’s statement that Matthews was “supposed to do the deal,” that Wilcox had to “deal with” the officers. After Matthews walked away Wilcox stated that he did not want to trade his car but that he did want to buy a piece of crack cocaine for $5. The officers acted as if they did not want to sell a $10 cocaine piece for $5, but Wilcox persisted in his efforts to buy the cocaine for that amount. The officers eventually agreed to sell a piece to Wilcox for $5. Wilcox handed Thomas $5, and Wilcox held out his hand and took possession of a piece of cocaine from another undercover officer. Wilcox was then arrested. The evidence presented by the State was that Wilcox was not threatened or forced at any time during the course of the evening by the officers but that he participated freely and voluntarily in the transaction.

Wilcox testified that he intended to sell his car to Matthews. He stated that when he arrived the first time at the residence, Thomas told him that Matthews was not present and to return in 30 minutes. On this first visit, according to Wilcox, Thomas did not mention selling the car for drugs. Wilcox testified that he returned a short time later, that Thomas asked him whether he would sell his car for cocaine, and that he replied he would not because he wanted money for his car. He stated that Thomas again told him to return in 30 minutes and said Matthews would be present. Wilcox returned for the third time and saw Matthews, who stated that he did not want to purchase the car. Wilcox stated that he attempted to back out of the yard but that Thomas told him to come and talk to him. According to Wilcox, Thomas asked him how much money he had, and he replied that he had no money but that he ran his “hand in [his] pocket” and it came out with $5 in it. Wilcox stated that Thomas reached over and took the $5 out of his hand without his permission and that cocaine was not mentioned at the time. According to Wilcox, Thomas then indicated to Wilcox to follow him toward the house and that two or three other men appeared. Wilcox stated that he did as directed by Thomas, and that he opened his hand “like I was going to get my $5 back,” and that one of the men “put the thing in my hand” and grabbed him.

1. Wilcox first argues that the evidence showed a prima facie case of entrapment, which the State failed to rebut. We disagree.

Three elements comprise the defense of entrapment: “(1) the idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime. [Cits.]” Keaton v. State, 253 Ga. 70, 72 (316 SE2d 452) (1984); OCGA § 16-3-25. The defendant’s lack of predisposition is the key element of the defense. Keaton at 72. When a defendant raises this defense and testifies to it at trial, it. is the State’s burden to disprove the defense beyond a reasonable doubt. State v. Royal, 247 Ga. 309, 310 (275 SE2d 646) (1981). Usually, “the determination of whether the State has met its burden rests with the jury. [Cit.] However, where there is no conflict in the evidence, and the evidence introduced, with all reasonable deductions and inferences therefrom, demands a verdict of acquittal, the trial court . . . must direct a. verdict of acquittal. [Cits.]” Id. at 309-310. “The government’s burden is far greater than merely impeaching the accused, it must go further and contradict this witness’ testimony as to the affirmative defense.” (Punctuation omitted.) Hill v. State, 261 Ga. 377 (405 SE2d 258) (1991).

It is questionable whether Wilcox’s testimony even raised a prima facie case of entrapment. He stated that he did not purchase cocaine; he testified that his money was taken from him and cocaine was placed in his hand without his consent. But even assuming that his testimony and the testimony presented by the State did indicate entrapment, this evidence did not demand a finding that Wilcox was entrapped. “A distinction must be made between evidence which raises a defense of entrapment and which would require that the jury be charged as to the law of entrapment and the burden of proof thereon, and evidence which . . . would demand a finding of entrapment and, therefore, a directed verdict of acquittal.” (Footnote omitted; emphasis in original.) Royal, supra at 310.

Here, it is true the State’s evidence showed that the idea to sell cocaine to unwitting customers originated with the State. But Thomas’s request that Wilcox sell his car for cocaine, without more, is not necessarily indicative of “undue persuasion.” Entrapment does not occur when an officer or agent “merely furnishes an opportunity to a defendant who is ready to commit the offense.” (Citations and punctuation omitted.) Evans v. State, 209 Ga. App. 340, 341 (433 SE2d 426) (1993). Even without considering the State’s evidence that Wilcox immediately began bargaining when Thomas offered to buy the car for “ten rocks,” the State’s evidence also showed that after he renounced his desire to sell his car to the officer, Wilcox himself indicated that he wished to initiate a different transaction and purchase cocaine for $5. And when the officers acted as if they did not wish to sell cocaine for this amount, Wilcox persisted in his effort to purchase cocaine. Evidence therefore was presented showing that Wilcox was willing and ready to purchase cocaine.

As for the key element of “predisposition,” Wilcox stated that he was not a “rock” smoker and that he did not go to the residence to purchase a rock but instead to sell his car. We recognize that the State did not present any direct evidence in response to this statement. But this does not automatically mean that Wilcox was entitled to a directed verdict. Evidence was introduced that Wilcox had knowledge of the Value of a “rock” of cocaine, as shown by his negotiations with Thomas. In addition, predisposition may be shown by the ready commission of a criminal act. As discussed above, although Wilcox indicated he did not wish to sell his car, he did indicate his desire to purchase cocaine. He readily purchased the cocaine, and this, along with his conversation with Thomas, was sufficient to submit the issue of predisposition to the jury and to authorize a rational trier of fact to determine that entrapment had not occurred. See Haralson v. State, 223 Ga. App. 787, 789-790 (1) (479 SE2d 115) (1996). See also Jackson v. State, 206 Ga. App. 98 (424 SE2d 83) (1992) (evidence, when viewed in totality, sufficient to show appellant’s predisposition to commit criminal act).

We note Wilcox’s reliance on Hill v. State, supra. He argues that the State erroneously relied on the “ongoing deception” of Thomas’s offers to purchase his car in exchange for cocaine to show his predisposition to commit the crime. Hill does state that “[i]f the creative activity of the law-enforcement official generates criminal acts that are not independent acts subsequent to the inducement but part of a course of conduct which was the product, of the inducement, those criminal acts cannot be used to show predisposition. If those acts could be used to show predisposition, the entrapment defense would be worthless.” (Citations and punctuation omitted.) Id. at 377. But Hill is distinguished from this case on its facts. The police officers in that case used an elaborate scheme to persuade Hill to participate in a cocaine deal. Hill v. State, 197 Ga. App. 260, 261 (398 SE2d 226) (1990). In fact, Hill did not wish to participate in the transaction but was persuaded to do so following “calls and visits” from the police informant. Id. at 261. Here, despite evidence concerning the car negotiations, evidence was presented that it was Wilcox’s idea to make the cocaine purchase, and the jury could have reasonably inferred that the officer merely provided him with the opportunity to commit the offense. The jury was authorized to conclude that this was an “independent act” and did not constitute entrapment. See, e.g., Mason v. State, 194 Ga. App. 152, 153 (390 SE2d 246) (1990).

In summary, this case presented factual issues as to entrapment for the jury’s determination. When all the evidence was considered, it certainly did not demand a finding of entrapment. Venable v. State, 203 Ga. App. 517, 518 (3) (417 SE2d 347) (1992). See also Royal, supra at 311-312. Whether Wilcox was predisposed to possess cocaine and whether the officers used “undue persuasion” were issues for the jury to decide. The jury was appropriately charged on the law of entrapment, and it returned a guilty verdict against Wilcox, a verdict that was authorized under the evidence presented. The trial court therefore did not err in denying Wilcox’s motion for new trial based upon his entrapment defense.

2. Wilcox also contends the trial court erroneously amended the accusation during jury deliberations. In response to a question by the jury, the court amended an error in the affidavit which listed the offense date as September 14, 1994 instead of 1995. Wilcox’s counsel objected without explanation to the amendment.

“An accused is entitled to an indictment or accusation perfect in form as well as substance if he timely raises the question in writing on special demurrer. [Cits.]” (Emphasis supplied.) King v. State, 176 Ga. App. 137, 139 (2) (335 SE2d 439) (1985), overruled on other grounds, Copeland v. White, 178 Ga. App. 644 (344 SE2d 436) (1986). But here, Wilcox’s counsel never objected to the error until it was brought to his attention by the jury. His objection was not timely.

Decided November 6, 1997.

Leighton R. Berry, Jr., for appellant.

Charles H. Weston, District Attorney, Kimberly S. Schwartz, Assistant District Attorney, for appellee.

Moreover, even if the trial court committed error by amending the affidavit, the record does not show that Wilcox was prejudiced by the amendment. See King, supra at 139. The accusation charged Wilcox with “unlawfully possessing] and having] under his control, cocaine, a controlled substance in Schedule II of the Georgia Controlled Substances Act.” Although the date may have been incorrect on the accusation, it does not appear that Wilcox relied on that date in preparing his defense or that it otherwise misled him. The evidence was undisputed that the offense occurred in September 1995, and Wilcox even submitted his own evidence concerning the events of that date. Wilcox has shown no prejudice due to the incorrect date.

Guess v. State, 155 Ga. App. 14 (270 SE2d 255) (1980), relied on by Wilcox, is distinguished from this case. In Guess, the affidavit on which the accusation was based was unsworn when filed. The jurat was added after defendant’s first trial. Stating the rule that “[accusations are amendable to the time that issue is joined,” id., this Court overturned defendant’s conviction. Wilcox, however, did not timely move for correction of any error in the affidavit. More significantly, the error in Guess was one of substance. The accusation was not properly sworn before trial. Here, the exact date of the offense was not material; OCGA § 16-13-30 makes it unlawful for a person to purchase, possess, or control cocaine. Wilcox was sufficiently notified of the charges against him, and as discussed above, he presented evidence on his own behalf concerning the correct date. The trial court consequently did not err in refusing to grant a new trial on this ground.

Judgment affirmed.

Beasley, J, and Senior Appellate Judge Harold R. Banke concur.

       The record does not indicate that Matthews was involved in the undercover operation. The residence from which the officers operated belonged to Matthews’s sister.

       We note Wilcox’s testimony that he would not have returned to the residence if the officers had told him that Matthews would not return. There is no indication in the record, however, that any statements by the officers concerning Matthews’s return were untrue. In fact, he did return to the residence.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A97A1282.
    HELLVIG v. GENERAL MOTORS ACCEPTANCE CORPORATION.
    (493 SE2d 620)
   Johnson, Judge.

This action arises out of the breach of a contract for the purchase of an automobile. The trial court granted summary judgment to General Motors Acceptance Corporation (“GMAC”), and Roy Hellvig appeals. For reasons which follow, we affirm.

The record shows that Hellvig signed a Retail Installment Sale Contract (hereinafter “the contract”) with Bill Heard Chevrolet Company on December 22, 1993. The contract was assigned for value to GMAC by Bill Heard Chevrolet Company. Hellvig signed the contract as “Co-Buyer” and Scott Briggs signed the contract as “Buyer.” The contract defined a co-buyer as “a person who is responsible for paying ■ the entire debt.” Under a separate heading entitled “NOTICE TO COSIGNER,” separately signed by Hellvig, the contract stated: ‘You are being asked to guarantee this debt. Think carefully before you do. If the buyer doesn’t pay the debt, you will have to. Be sure you can afford to pay if you have to, and that you want to accept this responsibility.

“You may have to pay up to the full amount of the debt if the buyer does not pay. You may also have to pay late fees or collection costs, which increase this amount.

“The creditor can collect this debt from you without first trying to collect from the buyer. The creditor can use the same collection methods against you that can be used against the buyer, such as suing you, garnishing your wages, etc. If this debt is ever in default, that fact may become a part of your credit record.

“This notice is not the contract that makes you liable for the debt.”

The Bill of Sale prepared by the dealership identified both Hellvig and Briggs as the “CUSTOMER.” The credit application identified Hellvig and Briggs as joint applicants. Likewise, a credit life and disability insurance policy financed through the contract appears to identify the two as joint obligors. In addition, the vehicle was jointly titled in the names of both Hellvig and Briggs.

In March 1994, the contract went into default. Briggs filed for Chapter 13 bankruptcy protection in Alabama in May 1994. On January 13,1995, Hellvig’s attorney asserted Hellvig was a surety on the contract and demanded by letter that GMAC commence legal action against Briggs within three months or lose its right to pursue Hellvig. This demand letter notified GMAC that Briggs was residing in California. The demand letter also notified GMAC of the pending bankruptcy action. GMAC admitted it failed to bring any action against Briggs within three months of the demand letter. However, GMAC argues that Hellvig is not relieved of liability under the note because he is not a surety and, therefore, cannot use the demand statutes available to a surety to relieve himself of liability.

On September 25, 1995, GMAC filed suit against Hellvig for the balance due on the contract. GMAC also filed an action in California against Briggs. Hellvig and GMAC both filed motions for summary judgment in the case before us, and the trial court granted GMAC’s motion.

Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). Hellvig does not dispute the amount of the outstanding balance due GMAC under the contract, but asserts that as a surety, his debt was discharged by the January 13, 1995 demand letter. According to Hellvig, the “NOTICE TO COSIGNER” provision in the contract defines Hellvig as a guarantor or surety and, therefore, his motion for summary judgment, and not GMAC’s, should have been granted. We disagree.

The record establishes that this indebtedness was incurred jointly by Hellvig and Briggs and that both of them are equally liable to GMAC. Hellvig has not contracted to pay the debt of Briggs, but has contracted to pay the joint debt of himself and Briggs. Every document presented as evidence lists Hellvig as a co-buyer, customer or joint applicant. Moreover, it is undisputed that Hellvig received proceeds from the note: the car was jointly titled in his name. See generally Kerr v. DeKalb County Bank, 135 Ga. App. 154, 155 (1) (217 SE2d 434) (1975). In addition, there is no evidence in the record that GMAC knew that Hellvig was signing the note as a surety. See Northcutt v. Crowe, 116 Ga. App. 715, 717-718 (158 SE2d 318) (1967).

“Where two persons sign a note apparently as joint principals and there is nothing in the face of the note to indicate that one is principal and the other is surety, the law presumes that both are principals. . . . [T]he burden is on those asserting suretyship to establish it. [Cits.]” United States v. Frost, 149 FSupp. 386, 389 (2-4) (M.D. Ga. 1957); see Northcutt, supra. Hellvig has failed to establish suretyship in this case.

While the first sentence of the Notice to Cosigner states that the cosigner is being asked to “guarantee” the debt, the notice specifically indicates that the creditor can collect from the cosigner without first trying to collect from the buyer and that the notice is not the contract that makes the cosigner liable for the debt. Contrary to Hellvig’s contention, the mere use of the word “guarantee” in the notice does not create a suretyship.

Under either Georgia or Alabama law Hellvig is not excused from payment of this debt. See Salter v. AmSouth Bank, 487 S2d 927, 929 (5, 6) (Ala. Civ. App. 1985) (“all persons whose names appear on a promissory note as ‘makers’ or ‘borrowers’ are primarily and unconditionally liable. ... As between themselves, comakers occupy the relation of principal and surety but both are liable as principals to the holder of the note.”); Johnson v. King, 20 Ala. 270 (1852) (a person who signs his name to a note is presumed to be a joint maker in the absence of anything to the contrary on the face of the note).

Based on the foregoing, the trial court did not err in granting GMAC’s motion for summary judgment and denying Hellvig’s motion for summary judgment.

Decided November 6, 1997.

Page, Scrantom, Sprouse, Tucker & Ford, James K. Sheek IV, for appellant.

McCullough & Pane, John G. McCullough, for appellee.

Judgment affirmed.

Pope, P. J, and Senior Appellate Judge Harold R. Banke concur.


author: Ruffin, Judge.

text:
    A97A1562.
    GLOVER et al. v. ALLSTATE INSURANCE COMPANY.
    (493 SE2d 612)
   Ruffin, Judge.

Sandra Glover was an innocent bystander who was shot during an altercation between Dandy Lee and four other individuals. Lee was criminally prosecuted and convicted of four counts of aggravated assault and a violation of the Georgia Firearms & Weapons Act. Following Lee’s conviction, Glover and her husband, George Glover, sued Lee, his parents, and the other individuals involved in the altercation for damages resulting from the shooting (“underlying action”). At the time of the shooting incident, Lee’s parents, Yongkil and Soon-tok Lee, were insured under a homeowner’s insurance policy issued by Allstate Insurance Company (“Allstate”). Allstate filed the instant declaratory judgment action against the Lees, the Glovers, and other insureds to determine, inter alia, whether it was obligated to provide coverage to the Lees in the underlying action. The Glovers moved to dismiss the declaratory judgment action on the ground that Yongkil Lee was a necessary and indispensable party who was never served with Allstate’s complaint. The trial court denied the Glovers’ motion and granted Allstate’s motion for summary judgment concerning its coverage obligations to Soontok and Dandy Lee. The Glovers appealed, and for reasons which follow, we affirm the court’s judgment in both instances.

1. The joinder of necessary and indispensable parties is addressed by OCGA § 9-11-19. Subsection (a), which concerns “[p]ersons to be joined if feasible[,]” provides that “[a] person who is subject to service of process shall be joined as a party in the action if: (1) In his absence complete relief cannot be afforded among those who are already parties; or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may [prejudice his own interests or the interests of the persons who are already parties as stated in the statute].” Although OCGA § 9-11-19 (a) requires joinder of such persons if feasible, it does not require dismissal if an individual described in the subsection cannot be joined. See also Altama Delta Corp. v. Howell, 225 Ga. App. 78, 80 (3) (483 SE2d 127) (1997). Rather, OCGA § 9-11-19 (b) addresses situations in which a party described in subsection (a) cannot be joined and the court must decide whether to proceed or dismiss the case.

OCGA § 9-11-19 (b) provides that if a person described in subsection (a) “cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it or should be dismissed, the absent person being thus regarded as indispensable.” The statute then lists five factors a trial court should consider in determining whether the action should proceed or be dismissed because the absent person is an indispensable party. OCGA § 9-11-19 (b) (1) through (5). The decision of whether to join such parties is within the trial court’s discretion. See Zappa v. Automotive Precision Machinery, 205 Ga. App. 584, 585 (5) (423 SE2d 286) (1992).

In this case, Allstate alleged in its complaint for declaratory relief that Yongkil Lee was an insured under a homeowner’s insurance policy issued by Allstate. Allstate also alleged that it was placed on notice that Yongkil Lee was seeking coverage and a legal defense in the underlying action. According to the complaint, Allstate filed for declaratory relief “in order to resolve an actual controversy between Allstate and the defendants [including Yongkil Lee] involving the rights and obligations of the parties under the policies of insurance issued by Allstate to Yongkil Lee [and the other defendants].”

Although we have found no Georgia authority addressing whether an insured in Lee’s position is, under OCGA § 9-11-19 (a), a necessary, party to a declaratory judgment action filed by the insurer, in Florida Intl. Indem. Co. v. City of Metter, 952 F2d 1297, 1302, n. 22 (11th Cir. 1992), the Eleventh Circuit cited with approval an Illinois appellate case in which the court recognized the necessity of allowing an insurance claimant to participate in such actions. See id., citing Reagor v. Travelers Ins. Co., 415 NE2d 512 (Ill. App. 1980). We find that in light of Allstate’s complaint, it is clear that the current parties could not be afforded complete relief without Yongkil Lee’s join-der. Not only are Lee’s own interests in coverage likely to be prejudiced, but also at stake are Allstate’s coverage obligations. Considering Yongkil Lee’s express rights of coverage under the Allstate policy at issue, we believe he and Allstate have such interests that, if possible, need to be resolved. See Florida Intl., supra.

Intermitting the issue of whether Lee could have been served, we first address the issues of whether he was an indispensable party under OCGA § 9-11-19 (b), and whether the trial court erred in granting Allstate summary judgment concerning its duty to provide coverage to Soontok and Dandy Lee.

In light of the factors presented in OCGA § 9-11-19 (b), we have found that “ £[t]here are two essential tests of an indispensable party: (1) can relief be afforded the plaintiff without the presence of the other party? (2) can the case be decided on its merits without prejudicing the rights of the other party?’ ” Southern Farm &c. Ins. Co. v. Douglas, 193 Ga. App. 476, 477 (388 SE2d 67) (1989). Under the first test we find that although a judgment will not completely adjudicate Allstate’s claims, relief can be afforded to the current parties. Furthermore, the alternative of dismissal for nonjoinder will leave Allstate with uncertainty regarding its obligations to the remaining insureds who are currently parties in the action, and those insureds will likewise be left with uncertainty concerning their rights to coverage. See OCGA § 9-11-19 (b) (4) (addressing factor of “[wjhether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder”).

Under the second test, it is clear that the trial court’s ruling that Allstate is not obligated under the policy to provide coverage to Soon-tok and Dandy Lee, prejudices Yongkil Lee because the same policy provisions govern Allstate’s coverage obligations to Yongkil Lee. By the same reasoning, however, because Yongkil Lee’s two other family members are currently parties representing interests identical to Lee’s, their presence substantially mitigates the prejudice caused by his absence. See 4 Moore’s Fed. Practice, Par. 19.05 [2][b] (3rd ed.), citing Travelers Indem. Co. v. Dingwell, 884 F2d 629, 636 (1st Cir. 1989).

Finally, we note that Yongkil Lee could have avoided any prejudice from his nonjoinder if he had simply informed Allstate of his whereabouts and allowed service to be perfected. See OCGA § 9-11-19 (b) (5) (addressing factor of ££[w]hether and by whom prejudice might have been avoided or may, in the future, be avoided”). Lee could similarly avoid any future prejudice by taking the same action now. See id.

Accordingly, under the foregoing tests, we conclude that the trial court did not abuse its discretion in denying the Glovers’ motion to dismiss because Yongkil Lee is not an indispensable party.

2. We also conclude that the trial court did not err in granting Allstate summary judgment concerning its duty to provide coverage to Soontok and Dandy Lee.

For Allstate to prevail at summary judgment on the coverage issue, it must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the Glovers, warrant judgment as a matter of law. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), citing OCGA § 9-11-56 (c). The question of “[w]hether an insurer is obligated to defend an action against its insured ‘is determined by the contract; and since the contract obligates the insurer to defend claims asserting liability under the policy; even if groundless, the allegations of the complaint are looked to to determine whether a liability covered by the policy is asserted. Thus, the issue is not whether the insured is actually liable to the plaintiffs; the issue is whether a claim has been asserted which falls within the policy coverage and which the insurer has a duty to defend.’ [Cits.]” (Emphasis omitted.) Penn-America Ins. Co. v. Disabled American Veterans, 224 Ga. App. 557, 558 (481 SE2d 850) (1997).

In the underlying action, the Glovers alleged that prior to the shooting incident in which Sandra Glover was injured, four individuals assaulted Dandy Lee in an attempt to steal his pickup truck. Their attempt was unsuccessful, and the individuals fled in a car. Lee followed in pursuit, and during the chase he shot a semi-automatic handgun at the car containing the four assailants. The Glovers further alleged that when the fleeing vehicle suddenly stopped, Lee pulled his truck alongside and continued to fire his handgun into the vehicle as its occupants “were then attempting to exit said vehicle.” Simultaneously, Glover was exiting her place of employment and one of the bullets fired by Lee struck her in the abdomen. Lee and the four other individuals fled the scene, but were later taken into police custody.

Based on these allegations, the Glovers asserted the following causes of action against the Lees. First, the Glovers claimed that Dandy Lee “unlawfully, intentionally, and without provocation or justification, committed an assault and battery” on Glover. Second, the Glovers asserted that Lee’s negligence was the cause of their injuries. Third, the Glovers contended that Yongkil and Soontok Lee are liable for their injuries under the family purpose doctrine. Finally, George Glover alleged that as a result of Dandy Lee’s actions, he suffered a loss of consortium.

The family liability provisions of the Lees’ homeowner’s insurance policy required Allstate to “pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an accident and covered by this part of the policy.” (Boldface omitted.) The policy excluded coverage, however, for bodily injury or property damage resulting from “any willful act or omission committed by an insured . . . which is a crime pursuant to the Georgia Criminal Code. However, this exclusion shall not apply if such act or omission was for the preservation of life or property.”

It is clear on the record before us that Dandy Lee’s wilful action in firing the handgun (1) constituted a crime under Georgia law, (2) was not for the preservation of life or property, and (3) resulted in the Glovers’ injuries. OCGA § 16-11-103 provides that “[a] person is guilty of a misdemeanor when, without legal justification, he discharges a gun or pistol on or within 50 yards of a public highway or street.” It is undisputed that Dandy Lee wilfully fired a handgun under these proscribed circumstances. And, although the Glovers assert in their brief, without citation to the record, that a fact question remains concerning whether Dandy Lee fired the handgun in the preservation of life or property, Dandy Lee stated in an affidavit that he fired the handgun “in an effort to apprehend [his] assailants.” In fact, the Glovers alleged in their complaint that Dandy Lee fired the shots into the other vehicle as his assailants “were attempting to exit said vehicle.” Accordingly, it is clear that Lee’s use of force was not necessary because his life or property was in imminent danger, but rather was directed exclusively at apprehending his assailants. Under these circumstances, Lee’s alleged firing of the handgun could not constitute a justifiable use of force as a matter of law. See Bell v. Smith, 227 Ga. App. 17, 19 (488 SE2d 91) (1997). Because the Glov-ers asserted that their injuries resulted from Lee’s discharge of the handgun, and the shooting was unlawful, the trial court did not err in granting summary judgment to Allstate based on the exclusion. See id.; Horace Mann Ins. Co. v. Drury, 213 Ga. App. 321 (1) (445 SE2d 272) (1994).

Decided November 6, 1997.

Edward J. Bauer, for appellants.

3. Returning to the issue of whether it was feasible to serve Yongkil Lee under OCGA § 9-11-19 (a), a search of the record reveals only one entry of service for Yongkil Lee, showing that service was not perfected at Soontok Lee’s residence and stating that, according to Soontok Lee, he no longer lived at that address. Without deciding whether such evidence established that service was unfeasible, under the circumstances of this case we can discern no reason to require further attempts to serve Yongkil Lee. From our discussion above, it is apparent that the rights and obligations of both Allstate and Lee have, for all practical purposes, been determined. Consequently, although Lee could still allow himself to be served and assert his rights individually, inasmuch as we have decided that his interests were addressed by the court and that he is not an indispensable party, we conclude that the action may continue in his absence.

Judgment affirmed.

Birdsong, P. J, and Eldridge, J., concur.

Webb, Carlock, Copeland, Sender & Stair, Leslie B. Zacks, Frederick M. Valz III, for appellee.


text:
    A97A1637.
    ECHOLS v. WHISKER’S FOOD & SPIRITS, INC.
    (493 SE2d 722)
   Smith, Judge.

Helen Echols brought this action against Whisker’s Food & Spirits, a restaurant, after she fell down a step. She alleged that the step was not observable to her because the restaurant was poorly lit, the carpet covering the step was dark, and no warning signs were posted that a step down was approaching. The trial court granted summary judgment to Whisker’s. Because the record shows that Whisker’s did not have knowledge of a dangerous condition superior to that of Echols, we affirm.

Construed in Echols’s favor, evidence was presented on motion for summary judgment that Echols and her two daughters entered Whisker’s during the afternoon of March 12, 1995. They ordered lunch, and Echols drank about a half-glass of beer. It is undisputed that all three women successfully negotiated a step up to reach their table. When they began to leave the restaurant about an hour later, they went down the same step they had previously climbed, and Echols fell, injuring herself.

To avoid summary judgment, it was incumbent upon Echols to show that Whisker’s had superior knowledge of the alleged defect. Souder v. Atlanta Family Restaurants, 210 Ga. App. 291, 292 (1) (435 SE2d 764) (1993). She failed to do this. Notwithstanding Echols’s claim that she could not see the step because of poor lighting and dark carpeting, it is uncontroverted that in walking to her table, Echols successfully negotiated the same step that she attempted to descend when walking from her table an hour later. She therefore cannot show superior knowledge on the part of Whisker’s. “When a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom. [Cit.]” Id. See also Williams v. Sing Bros., 226 Ga. App. 657 (487 SE2d 445) (1997); McCrary v. Bruno’s, Inc., 219 Ga. App. 206, 209 (464 SE2d 645) (1995); Steinberger v. Barwick Pharmacy, 213 Ga. App. 122 (444 SE2d 341) (1994).

We recognize that in some cases we have held summary judgment to the proprietor to be inappropriate, even when the plaintiff may have recently traversed the area where he or she fell. For example, in Newell v. Great A & P Tea Co., 222 Ga. App. 884 (476 SE2d 631) (1996), just moments before her fall plaintiff traversed the same torn mat that allegedly caused that fall, and we reversed summary judgment to defendant. Noting that the defect was a “static” one, we reversed on the ground that the defect was not readily discernible. Testimony was presented that the tear in the mat was observable only on “close inspection.” Id. at 885. It is true that one of Echols’s daughters testified that the restaurant was dark and “dingy” and that “unless you are bent over looking at it, you could miss that step in a heartbeat.”

But here, the defect was a step. It was not an alleged hazardous condition of which an individual might not necessarily have been aware, such as a small tear in a mat, as in Newell, or an invisible sheet of “black ice,” as in Martin v. Dunwoody-Shallowford Partners, 217 Ga. App. 559, 561 (2) (b) (458 SE2d 388) (1995). In Martin, plaintiff claimed he was not aware of the presence of the sheet of ice on which he slipped. Defendant argued that he could not recover because he had successfully negotiated the ice after leaving his car. Id. at 561. We stated that it was not plaintiff’s “burden to present evidence showing that the hazardous condition . . . was so severe that it would invariably cause imbalance or injury to a person traversing it while ignorant of its existence.” (Emphasis in original.) Id. We also pointed out that plaintiff took a different route to his vehicle from the path he had previously taken.. Id. Here, unlike the plaintiff in Martin, Echols traveled the same path to and from her destination. And to reach her table, Echols could not have been ignorant of the step’s existence but was inevitably required to negotiate it. This evidence speaks of the “readily discernible” nature of the step. This case is therefore distinguished from cases such as Newell and Martin, and Echols cannot recover.

We note testimony by Echols and her daughters that a Whisker’s customer told them he had seen several people fall in the same manner that Echols fell. This hearsay testimony does not show knowledge on the part of Whisker’s of any such falls, nor does it negate the fact that Echols successfully traversed the step only about an hour before she fell. Summary judgment in favor of Whiskers was therefore appropriate.

Judgment affirmed.

Senior Appellate Judge Harold R. Banke concurs. Beasley, J, concurs in the judgment only.

Decided November 6, 1997.

Macklyn A. Smith, for appellant.

Bovis, Kyle & Burch, Stuart S. Busby, for appellee.

       Although Echols testified during her deposition that she did not recall ascending the step as she walked to her table, she acknowledged “from a logical standpoint” that if she fell down a step, she must have ascended it at some time. In addition and more importantly, the testimony of at least one of her daughters shows that all three women walked up the same step which they descended about an hour later.


author: McMURRAY, Presiding Judge.

text:
    A97A1711.
    MORROW v. THE STATE.
    (493 SE2d 616)
   McMURRAY, Presiding Judge.

Defendant was tried before a jury and found guilty of three counts of violating the Georgia Controlled Substances Act (Counts 3, 4, and 5) for two sales of cocaine and for possession of cocaine with the intent to distribute. The evidence adduced at his jury trial revealed that Detective J. B. Lamphier with the City of Duluth Police Department, identified State’s Exhibit 3 as “that substance [Detective Lamphier purchased] from [defendant] over in what [is sometimes] referred to as the Carver Circle area in an investigation,” on January 31,1994. Similarly, State’s Exhibit 4 was identified as coming “[f]rom a purchase from [defendant] at the Carver Circle area,” on February 16, 1994. A videotape of one sale with audio was identified by Detective Lamphier and played for the jury.

Investigator N. J. Neal, a police officer with the City of Law-renceville, also identified defendant as the person who sold suspected crack cocaine to Detective Lamphier. Investigator Neal has known defendant for 20 years because they grew “up in basically the same area, [and went to] the same school, same high school.” Gregory Smith, a forensic scientist at the State Crime Laboratory, identified State’s Exhibits 3 and 4 as containing .05 grams of chunky white material and that each was “positive for cocaine. . . .” Sergeant Jose Diaz, with the Gwinnett County Police, gave evidence of defendant’s similar transactions in April 1991, where “the Defendant came up to [Sergeant Diaz’s] car and basically said, what are you looking for? [Sergeant Diaz] said a 20 cent piece, which is $20 worth of crack cocaine. [Defendant] opened his hand. In his hand there [were] two or three pieces. [Sergeant Diaz] picked one, handed [defendant] $20 and drove off.” Investigator T. G. Bartick of the Gwinnett County Police Department related similar instances from May 1991.

Defendant’s motion for new trial was denied. His subsequent motion for an out-of-time appeal was granted. Held:

1. Defendant moved in limine to “exclude any testimony . . . regarding the examination and the testing of the substance[s] . . . done at the State Crime Lab,” on the ground that written test results had not been produced pursuant to defendant’s pre-arraignment demand under former OCGA § 17-7-211. According to Gregory Smith from the State Crime Laboratory, he first tested the cocaine in February 1994. His notes indicate that he forwarded the written test results on State’s Exhibits 1 and 2 to “[t]he County Police Department in Gwinnett County, Gwinnett County D.A. Superior Court and Gwinnett County Solicitor State Court.”

On the Thursday before trial, Smith “was notified that [he] would have to re-analyze [the white chunky] substances [in State’s Exhibits 3 and 4].” In the presence of his supervisor, Terry Mills, Smith retrieved “the evidence out of the vault. . . .” These samples had been assigned to Patricia Caldwell, another forensic scientist. But Patricia Caldwell left the employ of the State Crime Laboratory before this trial. “She’s been gone about 15 months. . . .” Smith completed his own analysis “[e]arly Tuesday morning [and had] not issued any written or oral report.” That is, Smith was called to testify “without having had an opportunity to complete a [written] report.”

The motion in limine was granted in part, excluding the 1994 test results on State’s Exhibits 1 and 2, effectively eliminating Counts 1 and 2. But the trial court concluded there was no attempt by the State’s attorney to circumvent the discovery rules and denied the motion regarding test results performed by Gregory Smith shortly before trial on State’s Exhibits 3 and 4, where his test results had not been reduced to writing. Although Smith was on the original witness list supplied to the defense by the State, the trial court granted the defense an approximate two-hour continuance to interview the witness from the State Crime Laboratory.

In two related enumerations of error, defendant contends the trial court first “erred in allowing the testimony from a GBI chemist regarding tests of substances allegedly seized from [defendant] which [test results] were not reduced to writing.” Second, he contends the trial court further “erred in allowing testimony from [that same] GBI chemist regarding tests of substances allegedly seized from [defendant] which [test results] were not produced for [defendant] before trial, but [were] available for twenty-six months.”

(a) Former OCGA § 17-7-211 applied only where there was a written report. Law v. State, 251 Ga. 525, 528 (2) (307 SE2d 904). With respect to State’s Exhibits 3 and 4 in the case sub judice, there was none. “The statute [did] not prohibit the prosecution from introducing evidence of scientific tests performed immediately prior to or during the trial absent a showing that the prosecution attempted to circumvent the discovery process. Carey v. State, 257 Ga. 134 (3) (356 SE2d 507) (1987) and cit.; Perry v. State, 255 Ga. 490 (3) (339 SE2d 922) (1986).” Wellborn v. State, 258 Ga. 570, 571 (1), 572 (372 SE2d 220). The trial court’s determination that the prosecution had not attempted to circumvent the discovery process is amply supported by the record. Consequently, defendant’s first enumeration is without merit.

(b) A scientific report subject to exclusion for the State’s failure to make pretrial disclosure under the mandate of former OCGA § 17-7-211 meant “ ‘reports that would be used as scientific evidence by the prosecution in its case-in-chief or in rebuttal against the defendant.’ ” Law v. State, 251 Ga. 525, 526 (1), supra.

Inasmuch as the trial court excluded test results performed by Smith in 1994 on State’s Exhibits 1 and 2, because those results were not forwarded to the defense, defendant’s second enumeration is not supported by the record. The contention that Smith’s testimony of his own analysis of State’s Exhibits 3 and 4 should be excluded because reports obtained by the former employee, Patricia Caldwell, were not disclosed is without merit. This is especially so, since defendant made no attempt to interview Smith before trial yet the trial court granted a brief recess and gave defense counsel ample time to interview Smith before he testified. Neither is there any contention that Smith’s analysis differed in any material way from Caldwell’s.

2. Defendant’s third enumeration contends the trial court erred in admitting the cocaine purchased from him, over his “chain of custody” objection.

“Where the State seeks to introduce evidence of a fungible nature, it must show a chain of custody which is adequate to preserve the identity of the evidence as that seized and show that there has been no tampering or substitution.” Staples v. State, 209 Ga. App. 802, 805 (5) (434 SE2d 757). The State is not required to show that the substance was guarded every minute. Sims v. State, 213 Ga. App. 151 (1), 152 (444 SE2d 121). In the case sub judice, the State Crime Laboratory procedures for identifying, handling, and securing evidence adequately showed the chain of custody, and so, in the absence of some physical evidence of tampering or substitution, the trial court did not err in admitting the cocaine over this objection. Id.

3. Defendant complains the trial court erred in failing to instruct the jury on chain of custody. For aught that appears of record, however, defendant filed no supplemental written request to instruct the jury on anything regarding chain of custody.

Uniform Superior Court Rule 10.3 requires all requests to charge be submitted in writing before trial. Although Rule 10.3 “includes an exception for ‘additional requests ... to cover unanticipated points which arise thereafter,’ it.does not provide that such requests may be oral.” Bullock v. State, 202 Ga. App. 65, 66 (1) (413 SE2d 219). Consequently, the trial court did not err in failing to charge on chain of custody. Accord Henry v. State, 265 Ga. 732, 737 (6) (462 SE2d 737) (failure to submit written request for charge on felony murder as lesser offense included within indicted crime of malice murder).

Decided November 6, 1997.

Carla E. Brown, for appellant.

Daniel J. Porter, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.

4. The jury had been sworn (and so jeopardy had attached) by the time the trial court ruled that Gregory Smith’s analysis of State’s Exhibits 1 and 2 was not admissible. The State was barred by the double jeopardy provisions of the Georgia and U. S. Constitutions from pursuing Counts 1 and 2. Although the trial court charged that the indictment itself is not evidence of guilt, nevertheless, these two additional (and now extraneous) accusations pointed to defendant like unauthorized similar crimes evidence, impermissibly reflecting on defendant’s character. Consequently, in our view, the trial court erred in refusing to redact the indictment to remove reference to Counts 1 and 2 before sending the indictment out with the jury to deliberate on Counts 3, 4, and 5. But we must test for harm as well as error.

“ ‘(The Supreme Court of Georgia) has adopted the highly probable test when determining if an error is harmless. If it is highly probable that the error did not contribute to the judgment then the error is harmless. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).’ Owens v. State, 248 Ga. 629, 631 [(284 SE2d 408)]. ‘The proper test to determine whether error is harmless (due to overwhelming evidence of guilt) is not whether there is sufficient other evidence to convict but whether “it is highly probable that the error did not contribute to the judgment” (Cit.)’ Ragan v. State, 264 Ga. 190, 192 (3) (442 SE2d 750).” Snelling v. State, 215 Ga. App. 263, 266 (1) (c) (450 SE2d 299). In the case sub judice, defendant was identified in court by Detective Lamphier, was captured on videotape, was identified by Investigator Neal, who is an acquaintance of defendant’s from high school, and was further identified as the subject in previous petty drug sales via admissible evidence of similar transactions. We conclude this overwhelming identification evidence rendered harmless the erroneous failure to redact the indictment, in that it is highly probable that error did not contribute to the jury’s verdicts. Bohannon v. State, 208 Ga. App. 576, 580 (2) (d) (431 SE2d 149).

Judgment affirmed.

Smith, J., and Senior Appellate Judge Harold R. Banke concur.


author: Andrews, Chief Judge.

text:
    A97A1752.
    NUNERY v. THE STATE.
    (493 SE2d 610)
   Andrews, Chief Judge.

Michael Haywood Nunery was found guilty by a jury of two counts of selling methamphetamine (OCGA § 16-13-30 (b)); two counts of trafficking in methamphetamine (OCGA § 16-13-31 (e)); and possession of a firearm during the commission of a felony (OCGA § 16-11-106 (b)).

1. Nunery claims the evidence was insufficient to support the convictions.

The State presented evidence of two separate sales of methamphetamine by Nunery to an undercover Georgia Bureau of Investigation (GBI) agent. The GBI agent testified that a friend and former accomplice of Nunery informed him that Nunery was selling methamphetamine and introduced him to Nunery for the purpose of setting up an undercover purchase. The agent testified that on November 22, 1995, Nunery sold him a powdered substance suspected to be methamphetamine for $2,000. A State Crime Lab chemist tested the substance and found that it was a mixture containing methamphetamine with a total weight of 55.1 grams. The agent further testified that on November 30, 1995, Nunery sold him another powdered batch of suspected methamphetamine for $3,000. The crime lab chemist tested this substance and found that it was a mixture containing methamphetamine with a total weight of 55 grams. The State produced audio recordings of both drug transactions made by a portable recording device carried by the GBI agent.

The State also presented evidence that, during a portion of the drug transaction on November 22, 1995, Nunery had a firearm in his possession in violation of OCGA § 16-11-106 (b).

Although Nunery testified and admitted that he sold the substances to the agent on both occasions, he claimed that he lacked the requisite criminal intent to sell or traffic in methamphetamine because he thought the substances were counterfeit and contained no methamphetamine. Nunery testified that the friend who introduced him to the agent approached him with the idea of selling counterfeit methamphetamine and splitting the profits; that the friend brought him what he thought to be counterfeit substances containing no illegal drugs; and that he sold them to the agent believing them to be counterfeit. In support of this defense, Nunery presented evidence of a similar transaction in which he was previously convicted of selling counterfeit drugs. See OCGA § 16-13-30.1.

On appeal, the evidence is viewed in the light most favorable to the jury’s guilty verdict. Parker v. State, 220 Ga. App. 303 (469 SE2d 410) (1996). The jury, not the appellate court, resolves conflicts in the evidence and determines the credibility of the witnesses. Id. The evidence was sufficient for a rational trier of fact to find Nunery guilty of the charged offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

We conclude, however, that the convictions on the two counts charging violation of OCGA § 16-13-30 (b) for selling methamphetamine on November 22 and November 30 were lesser included offenses of the convictions for trafficking in methamphetamine on those dates in violation of OCGA § 16-13-31 (e) and, therefore, merged into the trafficking convictions. See Hancock v. State, 210 Ga. App. 528, 531-534 (437 SE2d 610) (1993); Gilbert v. State, 208 Ga. App. 258, 260-261 (430 SE2d 391) (1993); Iglesias v. State, 191 Ga. App. 403 (381 SE2d 604) (1989). The judgment of conviction entered on the guilty verdicts for violation of OCGA § 16-13-30 (b) must be reversed and the sentences imposed as to these two counts vacated. Since both of the sentences imposed on the convictions for violation of OCGA § 16-13-31 (e) were dependent on (concurrent to) a vacated sentence imposed on one of the reversed convictions, the sentences for violation of OCGA § 16-13-31 (e) are likewise vacated and the case remanded for resentencing as to these convictions. Duffey v. State, 222 Ga. App. 802, 803 (476 SE2d 89) (1996).

2. Nunery contends that the trial court erred by charging as part of its general charge on various methods of impeachment that a witness may be impeached by proof that the witness has been convicted of a crime involving moral turpitude. He claims this charge may have misled the jury to believe that his testimony could be impeached by evidence of his prior conviction for selling counterfeit drugs to which he testified as similar transaction evidence.

We agree that the trial court erred by giving this charge. Although Nunery testified at trial and admitted his prior conviction for selling counterfeit drugs, this did not place his character in issue. Howard v. State, 202 Ga. App. 574, 575-576 (415 SE2d 45) (1992); Peterson v. State, 212 Ga. App. 147, 149-153 (441 SE2d 481) (1994). Moreover, the conviction was admitted as similar transaction evidence for the sole purpose of showing common scheme, plan, course of conduct, or motive. Accordingly, a charge on impeachment by a prior conviction was not authorized by the evidence and could not be properly considered by the jury for the purpose of impeaching Nunery’s testimony. Id. at 150.

However, after the charge was given on the unavailable method of impeachment, it was followed by instructions as to viable methods of impeachment and by a subsequent charge that Nunery’s prior conviction could be considered only for the limited purposes applicable to similar transaction evidence. In the context of the entire charge, the erroneous instruction was no more than a passing general reference and any likelihood of harmful effect was mitigated by subsequent instructions. Sultenfuss v. State, 185 Ga. App. 47, 49-51 (363 SE2d 337) (1987). Considering the charge as a whole and given the overwhelming evidence of Nunery’s guilt, we conclude the erroneous charge was harmless because it is highly probable that it did not contribute to the judgment. Id.; Mitchell v. State, 221 Ga. App. 183, 184 (470 SE2d 771) (1996); Peterson, supra at 150.

Decided November 6, 1997.

Bergin & Collins, Michael E. Bergin, for appellant.

Peter J. Skandalakis, District Attorney, Lynda S. Engel, Assistant District Attorney, for appellee.

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

Johnson, J., and Senior Appellate Judge Harold R. Banke concur.


author: Blackburn, Judge.

text:
    A97A1767.
    WORLD CHAMPIONSHIP WRESTLING, INC. v. CITY OF MACON.
    (493 SE2d 629)
   Blackburn, Judge.

This appeal involves the interpretation of a lease agreement between World Championship Wrestling, Inc. (WCW) and the City of Macon (the City). William T. Redford and his minor daughter, Tasha Redford, filed the underlying action against WCW and the City to recover damages for personal injuries Tasha allegedly incurred while attending a WCW event at the Macon Coliseum. The City filed a cross-claim against WCW alleging that WCW leased the Macon Coliseum from it on the night of the incident and was required to purchase liability insurance for the City’s benefit. The trial court granted the City’s motion for summary judgment and determined that the City should be fully exculpated by WCW up to $500,000 in the underlying action.

On appeal from a trial court’s grant of summary judgment, this Court conducts a de novo review of the evidence. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993). “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “The movant has the original burden of making this showing. Once the movant has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the respondent to come forward with rebuttal evidence.” (Punctuation omitted.) Kelly v. Pierce Roofing Co., 220 Ga. App. 391, 392-393 (2) (469 SE2d 469) (1996). In rebutting this prima facie case, “an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in [OCGA § 9-11-56] must set forth specific facts showing that there is a genuine issue for trial.” OCGA § 9-11-56 (e). See also Lau’s Corp., supra.

The lease required WCW to procure $500,000 of public liability insurance naming the City as a named insured. The lease further provided that WCW “agrees to indemnify, defend and hold harmless the [City] from all demands, claims, suits, actions, or liabilities resulting from injuries or death to any persons or property damage or loss by [WCW], [the City] or any persons, howsoever caused, during the period in which this agreement covers for use of the leased space, or occurring as a result of the use of such space during the agreed period.” Although such a clause standing alone might be against public policy pursuant to OCGA § 13-8-2 (b), combined with the lease provision requiring insurance, the lease validly “shifts the risk of loss to the insurance company regardless of which party is at fault.” (Punctuation omitted.) McAbee Constr. Co. v. Ga. Kraft Co., 178 Ga. App. 496, 498 (343 SE2d 513) (1986). However, in the present case, WCW failed to purchase the required insurance, and the City seeks to enforce the indemnification clause directly against WCW. See Myers v. Texaco Refining &c., 205 Ga. App. 292 (422 SE2d 216) (1992) (enforcement of indemnity provision affirmed despite indemnitor’s failure to provide insurance required by contract).

WCW contends that it is not responsible for Tasha’s injuries because it leased only the “arena” and not the concourse level where Tasha was injured at a concession stand. The lease provided that the “Lessor grants to Lessee permission to use the portions of the Macon Coliseum known as ARENA.” Therefore, we must determine what area is encompassed by the term “ARENA” as used in the lease.

Gary Desjardins was the general manager of the Macon Coliseum at the time of the incident. Desjardins deposed that two places can be rented at the Coliseum — the Monument Room or the arena. He explained that the arena is “everything that goes with the Coliseum, from the time [sic] of the lobby, the handicapped entrance, the restrooms, the dressing rooms, the arena floor, the seating area, the concourses, the concession stands, although we retain the rights to the concession stands, and we don’t let anybody just walk into our box office.” Desjardins also explained that when locating people within the Coliseum he would refer to the arena as the seating area; however, in the course of running the building, the arena “basically is the Coliseum.”

Decided November 6, 1997.

Dermer & Black, Richard W. Brown, for appellant.

Marcus & Moskowitz, Todd K. Maziar, Drew, Eckl & Farnham, James M. Poe, James K. Creasy III, for appellee.

WCW contends that Desjardins’ testimony regarding the definition of the arena is inconsistent and must be construed against the City pursuant to Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986). We do not agree. Desjardins maintained consistently throughout his deposition testimony and his affidavits that when referring to leased space, the term “ARENA” included the entire Coliseum except the area known as the Monument Room. He also consistently explained that when employees of the Coliseum identify particular locations of the Coliseum they refer to the arena as the seating area. We find that this testimony is not inconsistent, but merely explanatory.

“The construction of a contract is a question of law for the court. OCGA § 13-2-1; see also Kennedy v. Brand Banking Co., 152 Ga. App. 47, 53 (4) (262 SE2d 177) (1979). The cardinal rule of construction to be applied in the interpretation of contracts is to ascertain the intention of the parties.” (Punctuation omitted.) Fleet Finance v. Countryside Estates, 217 Ga. App. 371, 372 (1) (457 SE2d 246) (1995).

In the present case, the only evidence in the record regarding the definition of the leased space is Desjardins’ deposition and affidavits. His testimony clearly indicates that the leased space includes the space in which Tasha was injured. WCW has failed to come forward with any evidence in support of its position or in opposition to the City’s position. Therefore, we find that the trial court did not err in granting the City’s motion for summary judgment. See Lau’s Corp., supra.

Judgment affirmed.

Johnson, J, and Senior Appellate Judge Harold R. Banke concur.

       We have previously determined that such Code section is applicable to commercial leases. See Barnes v. Pearman, 163 Ga. App. 790 (294 SE2d 619) (1982), aff’d, 250 Ga. 628 (301 SE2d 647) (1983).


author: Beasley, Judge.

text:
    A97A1848.
    BASKIN v. ROGERS.
    (493 SE2d 728)
   Beasley, Judge.

Michael Baskin sued Brenda Rogers for slander arising out of her allegedly telling various people that Baskin, a married man, had had extra-marital affairs and that he was currently having an affair with Malissa Bush. Rogers was awarded summary judgment. The issues are (a) whether accusations of adultery are slanderous per se, (b) whether the evidence shows publication, and (c) whether Rogers’ statements to Malissa Bush were privileged as a matter of law.

1. “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). So construed, the evidence shows Rogers made at least the following statements.

Gary Bush (Malissa’s husband) approached Rogers, whom he regarded as a friend, and who he knew worked at Clark Atlanta University with Baskin, about concerns he had that Baskin and Malissa (another university employee) were having a sexual relationship. Rogers told Mr. Bush that (a) Rogers had heard Baskin had had affairs with women other than Malissa, and (b) when asked about them, Baskin had responded that as long as condoms were made, he had no need to worry.

Mr. Bush hired an investigative firm to surveil his wife. The investigator called Rogers, who volunteered that Baskin was a “womanizer” and often left school with a female during lunch.

Rogers twice approached Malissa and told her (a) she knew Mal-issa was having an affair with Baskin; (b) Rogers had told her mother and colleagues about it; (c) Baskin had had such liaisons with other university employees, including a Janice Smith; and (d) the Atlanta School Board had refused to offer a position to Baskin because he was a “womanizer.”

Rogers confronted Baskin with her accusation concerning Mal-issa and Janice Smith and stated she had told unidentified colleagues and her mother of both affairs. Without identifying the source of their information, Baskin’s university colleagues later told him they had heard of the liaisons.

Rogers admitted both that she discussed the supposed Malissa affair with her mother and told her husband and Gary Bush she believed that Malissa and Baskin had engaged in sexual intercourse. Rogers was also seen exiting a building with Alex Williams (another university employee) immediately after Williams phoned Malissa to tell her he knew of her affair with Baskin and that he had heard Bas-kin had had such relationships with other women at the university.

Baskin denies any extra-marital affairs and denies the school board position was lost because of “womanizing.”

2. “Slander or oral defamation consists in [ijmputing to another a crime punishable by law,” OCGA § 51-5-4 (a) (1), which adultery is. OCGA § 16-6-19. “Words charging a person with illegal sexual intercourse with another impute a crime and are actionable per se. [Cits.]” Ivester v. Coe, 33 Ga. App. 620 (1) (127 SE 790) (1925); see Melton v. Bow, 241 Ga. 629, 630-631 (247 SE2d 100) (1978) (imputing crime of theft is actionable per se). Accusing Baskin of having sexual relations with any person other than his wife constitutes slander per se, meaning no special damages nor malice need be shown. OCGA § 51-5-4 (b); Ivester, supra, 33 Ga. App. at 620 (2).

Rogers attempts to differentiate the terms “having an affair” and “having sexual relations.” She claims an “affair” refers to a short-lived intense relationship that may not include sex. But an “affair” commonly refers to an illicit sexual relationship. See Kluge v. Renn, 226 Ga. App. 898, 901 (4) (487 SE2d 391) (1997); Kurtz v. Williams, 188 Ga. App. 14 (371 SE2d 878) (1988); Sparks v. Thurmond, 171 Ga. App. 138, 141 (2) (319 SE2d 46) (1984); compare Meyer v. Ledford, 170 Ga. App. 245, 246 (1) (316 SE2d 804) (1984). Even if the term were ambiguous, a jury could ascribe the illicit meaning to the word and find slander. Davis v. Copelan, 215 Ga. App. 754, 763-764 (1) (452 SE2d 194) (1994); Schecter v. Strickland, 189 Ga. App. 82, 83-84 (2) (375 SE2d 93) (1988).

Rogers argues that Baskin cannot identify the specific words constituting the slander (see Davis, supra, 215 Ga. App. at 764 (3) (must have evidence of “specific words or statements”); ITT Rayonier v. McLaney, 204 Ga. App. 762, 765 (2) (420 SE2d 610) (1992)), but the evidence recited above, if believed, is otherwise.

Claiming she only told others that she had heard of the affairs, not that the affairs were fact, Rogers contends this does not constitute slander. But “ ‘[t]alebearers are as bad as talemakers.’ Every repetition of a slander originated by a third person is a wilful publication of it, rendering the person so repeating it liable to an action, and it is no defense that the speaker did not originate the slander, but heard it from another, even though he in good faith believed it to be true. [Cits.]” Ivester, supra, 33 Ga. App. at 621 (6); see Davis v. Macon Telegraph Publishing Co., 93 Ga. App. 633, 640 (4) (92 SE2d 619) (1956); see also Richardson v. Roberts, 23 Ga. 215, 220 (3) (1857) (rumor cannot serve to show truth of slander).

3. Rogers defends summary judgment as proper because she did not publish the slander. “Publication is indispensable to recovery for libel or slander. [Cits.] A defamatory matter is published as soon as it is communicated to any person other than the impugned party. [Cits.]” Roberts v. Lane, 210 Ga. App. 10, 11 (1) (435 SE2d 227) (1993); see OCGA §§ 51-5-1 (b), 51-5-3; Kurtz, supra, 188 Ga. App. at 15 (3).

The evidence described above shows Rogers communicated the slander to her mother, her husband, the investigator, Malissa Bush, Gary Bush, and possibly Alex Williams. The mother’s and Williams’ denials of the conversations simply present issues of credibility that are disputed by Rogers’ own testimony and the testimony of others. Even though the investigator was unsure if Rogers was the source of the “womanizer” statement to him, he believed it was Rogers, and the “womanizer” term was the same term Rogers used in speaking to Malissa. Evidence supports the element of publication.

Decided November 6, 1997.

Swift, Currie, McGhee & Hiers, W. Ray Persons, Bradley S. Wolff, Monique R. Walker, for appellant.

Fitzgerald & Schultz, John K. Fitzgerald, Carter & Ansley, Keith L. Lindsay, for appellee.

4. Rogers contends the statements to Malissa were privileged under OCGA § 51-5-7, but this ignores the statements made to Gary Bush, Alex Williams, Rogers’ husband, Rogers’ mother, and the investigator. Even the statements to Malissa were not necessarily privileged.

“Statements made in good faith in the performance of a legal or moral private duty” and “[statements made with a good faith intent on the part of the speaker to protect his or her interest in a matter in which it is concerned” are privileged and not subject to a slander action. OCGA § 51-5-7 (2), (3). “Generally the question of whether a communication was privileged is a jury question. To make the defense of privilege complete^] good faith, an interest to be upheld, a statement properly limited in its scope, a proper occasion, and publication to proper persons must all appear. On summary judgment the issue is simply whether defendant. . . established as a matter of law that he made privileged statements.” (Citations and punctuation omitted.) Kennedy v. Johnson, 205 Ga. App. 220, 223 (3) (421 SE2d 746) (1992).

Aside from consideration of the other criteria, the record contains no evidence supporting a good faith belief by Rogers that (a) the Atlanta School Board denied Baskin a position because he was a “womanizer”; (b) Baskin had earlier affairs with various women at the university; or (c) Baskin had an affair with Janice Smith. Yet Rogers made all these statements to Malissa Bush. Summary judgment was error. Kennedy, supra, 205 Ga. App. at 223-224 (3) (summary judgment inappropriate where good faith not shown as a matter of law).

Judgment reversed.

McMurray, P. J, and Senior Appellate Judge Harold R. Banke concur.


text:
    A97A1872.
    In the Interest of K. A. C. et al., children.
    (493 SE2d 645)
   Blackburn, Judge.

Curtis A. Crecelius appeals the trial court’s termination of his parental rights to his biological children: K. A. C., age four years old, J. W. C., age two and one-half years old, and J. L. C., age two and one-half years old. Crecelius asserts several enumerations of error.

1. In his first enumeration of error, Crecelius contends that the trial court erred in denying his motion to dismiss the termination petition, noting that the only grounds for termination alleged in the petition were parental misconduct and inability based on his failure to communicate with the minor children or provide for their care and support. OCGA § 15-11-81 (b) (4) (C) (i) and (ii) provide that parental failure to provide support and communicate with the children are considered as factors in determining sufficiency of parental misconduct or inability only when such failure is for a year or longer. In the present case, the trial court found that Crecelius paid $200 in child support in February 1996. Less than one year later, the petition for termination of parental rights was filed October 17, 1996. Crecelius argues that because the petition was filed less than one year since his last support payment, the trial court should have dismissed it.

In In the Interest of B. L., 196 Ga. App. 807 (1) (397 SE2d 156) (1990), we addressed an argument similar to Crecelius’ but with regard to OCGA § 15-11-81 (b) (4) (C) (iii). That subsection allows the court to consider “whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: . . . (iii) To comply with a court ordered plan designed to reunite the child with the parent or parents.” We determined “[t]he time limitation in OCGA § 15-11-81 (b) (4) (C) clearly is designed to give the parent whose rights are subject to termination sufficient time and opportunity to demonstrate his or her ability to comply with the terms of the court’s order.” Id. at 808. We held that because the hearing was held over 15 months after the reunification plan was implemented, the intent of the statute was clearly served. Id.

In the present case, although the petition was filed before a year had expired from Crecelius’ last communication with his children or payment of support, the hearing was not held until February 18, 1997, after the expiration of one year. Therefore, the intent underlying the time limitation in the statute was also clearly served in this case, and Crecelius’ first enumeration of error is without merit. See id.; see also In the Interest of C. D. P., 211 Ga. App. 42 (438 SE2d 155) (1993).

2. Crecelius contends that the trial court erred in terminating his parental rights based on his history of drug use and instability of residency, because such factors were not clearly and concisely alleged in the petition for termination. However, Crecelius failed to raise this issue in the trial court, and we will not address an issue raised for the first time on appeal. Cf. In the Interest of S. J. M., 225 Ga. App. 703, 705 (484 SE2d 764) (1997) (appellant waived issue of insufficient service of process by failing to raise it in trial court).

3. In his final enumeration of error, Crecelius contends that the trial court was presented with insufficient evidence for a rational trier of fact to find by clear and convincing evidence that there was a likelihood of future deprivation of, and serious injury to, the children involved herein.

“OCGA § 15-11-81 provides a two-step analysis for determining whether a parent’s rights should be terminated. In the Interest of D. I. W., 215 Ga. App, 644, 645 (1) (451 SE2d 804) (1994). First, the court determines whether there is clear and convincing evidence of parental misconduct or that the parent is unable to care for and control the child. Id. Second, the court determines whether termination is in the best interest of the child. Id. In determining whether a parent’s misconduct or inability warrants a termination of parental rights, a court must consider whether (1) the child is deprived; (2) the lack of proper parental care or control is the cause of the deprivation; (3) the cause of the deprivation is likely to continue or will not be remedied; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. Id.

“On appeal, we must view the evidence in a light most favorable to the juvenile court’s order and determine whether a rational trier of fact could have found by clear and convincing evidence that the parent’s rights should have been terminated. In the Interest of M. N. L., 221 Ga. App. 123 (470 SE2d 753) (1996); In the Interest of D. I. W., supra at 645. We do not weigh the evidence and must defer to the trial judge as the factfinder. In the Interest of A. L. L., 211 Ga. App. 767, 769 (5) (440 SE2d 517) (1994).” In the Interest of J. M. D., 221 Ga. App. 556 (472 SE2d 123) (1996).

Viewed in this light, the record shows that on October 26, 1995, the trial court entered an unappealed from order in which it found that the children were deprived. The trial court granted temporary custody to the petitioners in the present case, the children’s maternal grandfather and his wife. In such order, the trial court found that Crecelius had limited contact with the children and had provided little or no support for the minor children since April 1995. The court directed Crecelius to pay child support of $100 per week. The court further directed that Crecelius was required to sustain a period of stability, including consistency in employment, residence, absence of substance abuse, and support and contact with the children, before the court would consider reunification.

On January 26, 1996, the trial court held a hearing in this matter and determined that the children were deprived. The court awarded permanent custody of the children to the petitioners in the present case. The trial court further determined that Crecelius had failed to comply with its temporary order having failed to pay the required child support. The court ordered Crecelius to pay $90 per week in child support and $10 per week on the arrearages incurred. Again, the trial court ruled that Crecelius was required to demonstrate a sustained period of stability prior to the court considering reunification.

At the hearing on the present petition, the undisputed evidence showed Crecelius saw the children only twice for a few hours each visit during the first two weeks in February 1996. Crecelius made only two $100 child support payments in the beginning of February 1996. After that time, the petitioners did not hear from or see Crecelius. Although there was evidence of past drug use, there was no evidence of recent drug use, and Crecelius testified that he had not taken drugs for a year and a half. Dr. Jack Farrar, a licensed clinical psychologist, testified that he believed the children were deprived when in Crecelius’ custody and that such deprivation would likely continue if they resided with Crecelius. He based his recommendation on information regarding Crecelius’ drug use, his incarceration for DUI, his failure to comply with the probation requirements, his failure to maintain a steady residence, and his failure to support or contact the children. Although Dr. Farrar testified that if Crecelius was rehabilitated his opinion would be different, the credibility of Crecelius’ testimony was for the trial court to determine.

Crecelius testified that he resides in a two-bedroom trailer with his fiancee and her two little girls. At the time of the hearing, he had lived at such address for one week. He is self employed as a mason. He estimated that his income for the past year was approximately $14,000. He testified that he had been with his fiancee for almost two years. Crecelius admitted that he did not try very hard to visit with his children and that he did not pay the required child support. He stated that if he had to do it over again he would “make every effort at whatever cost.” He stated that he currently has insurance and a valid driver’s license. He further stated that he is working hard in his business. He requested more time to work on his visitation with the children.

Decided November 6, 1997.

Martin C. Jones, for appellant.

Harrison & Harrison, Stephen P. Harrison, Kelley S. Powell, R. Victor Page, Jr., Sharon S. Whitwell, for appellee.

We are bound by the trial court’s findings that the children are deprived and that such deprivation was caused by Crecelius in its unappealed orders. See In the Interest of J. M. D., supra at 558. We further find that the evidence was sufficient to show that such deprivation was likely to continue. Crecelius admitted that he had not paid child support in a year and that he had not visited with the children. Furthermore, “he did not offer any justifiable cause or other satisfactory explanation for his failure to provide financial support for his children. The juvenile court was well within its discretion to give great weight to the father’s failure to provide support in its decision to terminate his parental rights.” In the Interest of C. G. A., 204 Ga. App. 174, 175 (1) (418 SE2d 779) (1992). Although Crecelius contends that he has now changed, “judging the credibility of [his] good intentions was a task for the juvenile court. The decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” (Punctuation omitted.) In the Interest of M. L., 227 Ga. App. 114, 117 (2) (488 SE2d 702) (1997).

Under the present circumstances, we must also conclude that there was sufficient evidence to support the trial court’s finding that the continued deprivation “is likely to cause serious physical, mental, emotional, or moral harm to the [children].” OCGA § 15-11-81 (b) (4) (A) (iv). “[T]he juvenile court was authorized to consider the children’s need for a stable home situation and the detrimental effects of prolonged foster care.” M. L., supra at 117 (2). “Deprivation of love and nurture is equally as serious as mental or physical disability.” In re Levi, 131 Ga. App. 348, 352 (206 SE2d 82) (1974). The juvenile court did not err in terminating Crecelius’ parental rights.

Judgment affirmed.

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

       OCGA § 15-11-81 (b) (4) (C) provides, in pertinent part, “where the child is not in the custody of the parent who is the subject of the proceedings, in determining whether the child is without proper parental care and control, the court shall consider, without being limited to, whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) To communicate or to make a bona fide attempt to communicate with the child!; and] (ii) To provide for the care and support of the child as required by law or judicial decree.”


text:
    A97A2123.
    FOLLMER v. PERRY et al.
    (493 SE2d 631)
   Blackburn, Judge.

Fred C. Follmer appeals the trial court’s entry of default judgment, contending that the default should have been opened pursuant to OCGA § 9-11-55 (b). He also contends the court erred in failing to allow a jury trial on the issue of damages.

Charles R. Perry and Brigitte M. Perry were tenants of a condominium they allege was owned by Follmer and managed by Sheridan, Solomon & Kernaghan, Inc. (SS&K). On September 25, 1996, Charles Perry sued Follmer and SS&K, alleging that the Perrys’ property was damaged in a fire at the condominium caused by the defendants’ negligence. Brigitte Perry was later added as a party plaintiff upon the motion of SS&K. Follmer was served with the complaint on October 2, 1996.

Follmer failed to timely file an answer, and Perry moved for a default judgment on December 19, 1996. On April 22, 1997, Follmer filed a motion to open the default, claiming that the failure to file an answer was due to excusable neglect. The next day, he filed a demand for jury trial on the issue of damages. On May 1, 1997, the trial court entered default judgment against Follmer.

1. “Under OCGA § 9-11-55 (b), a prejudgment default may be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense.” (Punctuation omitted.) Pinehurst Baptist Church v. Murray, 215 Ga. App. 259, 261 (1) (450 SE2d 307) (1994). “The question of whether to open a default on one of the three grounds noted above rests within the discretion of the trial judge.” (Punctuation omitted.) Id. at 262 (2); Muscogee Realty Dev. Corp. v. Jefferson Co., 252 Ga. 400, 401-402 (314 SE2d 199) (1984).

“The sole function of an appellate court reviewing a trial court’s [denial] of a motion to open default is to determine whether all the conditions set forth in OCGA § 9-11-55 have been met and, if so, whether the trial court abused its discretion based on the facts peculiar to each case.” Majestic Homes v. Sierra Dev. Corp., 211 Ga. App. 223, 224 (1) (438 SE2d 686) (1993). Follmer contends that the court erred in refusing to open his default, arguing that his failure to file an answer was caused by excusable neglect. The Perrys do not challenge the existence of the four conditions, but contend that Follmer has not demonstrated excusable neglect.

In his verified motion to open the default, Follmer contended that the condominium was owned by a partnership in which he was a partner. He claimed that, upon receipt of the complaint, he gave the complaint to one of the other partners to deliver to the partnership’s local insurance agent, Joe Mullendore. He stated that the complaint was delivered to Mullendore within one week to ten days of service, and that he attempted to contact Mullendore on at least three occasions, but that Mullendore did not return his calls. He claimed that he did not become aware of the default until March 1997, when his wife informed him that she had been contacted by the Perrys’ lawyer. Prior to that time, according to the motion, he believed the insurance carrier had hired an attorney and that the case was being handled appropriately.

Follmer contends that this case is controlled by a line of decisions in which we have found excusable neglect where a defendant delivered pleadings to his insurance carrier and believed the carrier was taking the necessary steps to defend the lawsuit. See Pinehurst Baptist Church, supra; Cobb County Fair Assn. v. Boyle, 143 Ga. App. 754 (240 SE2d 136) (1977); Sears, Roebuck & Co. v. Ramey, 170 Ga. App. 873 (318 SE2d 740) (1984); American Erectors v. Hanie, 157 Ga. App. 687 (278 SE2d 196) (1981); Powell v. Eskins, 193 Ga. App. 144 (387 SE2d 389) (1989). However, we have recognized that “[i]n cases such as this, no two are alike and each must stand on its own merits. The facts in each case are different and you must look at each in the light of the facts peculiar to that particular case.” Cobb County Fair Assn., supra at 756; Pinehurst Baptist Church, supra at 261 (1); Sears, Roebuck, supra at 875.

The present case is distinguishable from the cases relied upon by Follmer. A primary rationale for such decisions was that “a litigant should not unnecessarily be forced into default as a consequence of having reasonably relied upon the word of his fellow.” Cobb County Fair Assn., supra at 756; Pinehurst Baptist Church, supra at 262-263; Sears, Roebuck, supra at 875. Consequently, such decisions have focused on the defendant’s diligence and the insurer’s assurance that it is handling the case. See, e.g., Pinehurst Baptist Church, supra at 262 (defendant contacted insurance agent on five occasions, provided documents to agent, and was repeatedly assured that nothing else was required of defendant); Cobb County Fair Assn., supra at 754-756 (defendant led to believe co-defendant’s insurance carrier was assuming defense of defendant).

In this case, however, there is no evidence of such diligence or assurances. Although Follmer had the complaint delivered to the partnership’s insurance agent, he never spoke with the agent or received assurance that the insurer was proceeding with the defense. Furthermore, the complaint did not name the partnership as a defendant and alleged that the condominium was owned by Follmer individually. Therefore, it is not clear that the partnership’s insurance carrier would have been obligated to provide a defense to a suit naming only Follmer individually. Follmer did not introduce the insurance policy into evidence or otherwise present evidence that the insurer was obligated to provide a defense. Nor did he provide an affidavit from the insurance agent stating that he had led Follmer to believe the carrier was providing a defense.

Decided November 6, 1997.

Lane & Jarriel, Thomas F. Jarriel, for appellant.

Stone & Baxter, Stephen L. Dillard, for appellees.

Moreover, although Follmer claims that he became aware of the default status sometime in March, he did not file a motion to open the default until April 22 and did not offer an explanation for his delay. Compare Pinehurst Baptist Church, supra at 262 (2) (“defendant filed its motion to open default within one day of learning of the default”); Sears, Roebuck, supra at 874-875 (defendant took steps to open default the day after learning that suit papers had not been forwarded by insurance agent to carrier); Cobb County Fair Assn., supra at 756 (defendant obtained attorney and filed motion to open default “[ijmmediately upon learning that the attorneys for [co-defendant] had not filed an answer for” defendant). The trial court could take Follmer’s unexplained delay into consideration as a factor in determining whether to exercise its discretion to open the default. See Ga. Farm Bldgs. v. Willard, 170 Ga. App. 327, 330 (4) (317 SE2d 229) (1984). Under these circumstances, and given the minimal amount of evidence presented by Follmer, it cannot be said that the trial court abused its discretion in refusing to set aside the default on grounds of excusable neglect.

2. Follmer also contends the trial court erred in failing to submit the issue of damages to the jury. OCGA § 9-11-55 (a) provides that “in the event a defendant, though in default, has placed damages in issue by filing a pleading raising such issue, either party shall be entitled, upon demand, to a jury trial of the issue as to damages.”

Follmer placed damages in issue by filing his motion to open default with his proposed answer and by filing a demand for jury trial on the issue of damages. Accordingly, he was entitled to a jury trial with respect to damages, and the court erred by entering judgment upon a bench trial. The judgment is therefore vacated, and this case is remanded to the trial court for further proceedings consistent with this opinion.

Judgment affirmed in part, vacated in part, and case remanded.

Johnson, J, and Senior Appellate Judge Harold R. Banke concur.


author: Birdsong, Presiding Judge.

text:
    A97A2176.
    HERRIN v. THE STATE.
    (493 SE2d 634)
   Birdsong, Presiding Judge.

Harvey Christopher Herrin appeals his conviction of three counts of aggravated assault and two counts of false imprisonment. He enumerates three errors. Held:

1. Appellant enumerates that the trial court erred in allowing the State to present similar transaction evidence because the similar transaction notice was only a “general notice.” The notice identified numerous prior acts of violence but stated only general time periods during which various acts were asserted to have occurred. Appellant further contends that the State had the knowledge to make its notice more specific as to the dates of the incidents but did not do so to appellant’s detriment. At trial and during the State’s case-in-chief, the State made a proffer as to the nature and dates of the various prior acts of violence committed against the wife by having the wife testify under oath outside the presence of the jury. The wife was able to identify, with more specificity than given in the original notice, the dates of certain of the many violent acts committed against her; however, appellant made no attempt to elicit on the record when this information became known to the State. After the wife’s testimony, appellant renewed his mistrial motion but did not request a continuance in order to prepare for any disclosures made at the hearing. Appellant has failed to demonstrate affirmatively by the record that, at the time it issued the notice of intent to introduce similar transaction evidence, the State possessed more detailed information as to the dates of the similar transactions in issue and concealed such knowledge from the defense to the harm of appellant. Both error and harm must be affirmatively shown by the record to warrant a reversal. Robinson v. State, 212 Ga. App. 613, 616 (2) (442 SE2d 901). This enumeration is without merit; the notice given was adequate. Willett v. State, 223 Ga. App. 866, 873 (3) (b) (479 SE2d 132); accord Tidwell v. State, 219 Ga. App. 233, 235 (2) (c) (464 SE2d 834); Bohannon v. State, 208 Ga. App. 576, 578 (2) (a) (431 SE2d 149).

2. Appellant asserts the trial court erred during its recharge as to the offenses of aggravated assault and battery by failing to charge the jury that a battery could be committed by use of an object, thereby taking away the jury’s option of returning a verdict of guilty for the misdemeanor offense of battery. As conceded by appellant in his brief, the trial court’s initial charge to the jury was proper and was not objected to by appellant. However, the jury subsequently requested a recharge as to the difference between assault and battery; in response the trial court recharged the jury on the offenses of aggravated assault and battery; part of the aggravated assault charge contained a definition of assault. Thereafter, one juror indicated that the recharge did not answer the jury’s question, as “some of [the jurors] felt like that the assault was with an object,” and asked whether it made “sense” that “[b]attery is by hand or foot or something without an object.” After the trial judge indicated he could not answer the question without commenting on the evidence, other than by giving the definitions of the offenses again, the juror stated that he had no difficulty understanding the definitions given. It was then stated by a juror that the question was whether “the charge of battery is from injuries caused by another person’s body or person not using a weapon” or “[a]n object period.” The trial court then instructed the jury to listen closely and repeated the recharge. Additionally, the trial court instructed the jury that aggravated assault was charged in Counts 1, 2, and 3; that the jury was to consider first the aggravated assault charge in each count; and if there existed a reasonable doubt as to the defendant’s guilt of aggravated assault in each count, and only in that event, would the jury move to the lesser included charge of battery. The jury was returned to the deliberation' room and did not thereafter request any farther instructions before returning its verdict.

When the jury requests more instructions upon a particular phase of the case, the trial court is under a duty to instruct them in a plain, clear manner so as to enlighten rather than confuse them. Kimmel v. State, 261 Ga. 332, 334 (3) (404 SE2d 436). The trial court in its discretion may recharge the jury in full, or only upon the point or points requested. Bowley v. State, 261 Ga. 278, 280 (3) (404 SE2d 97). Moreover, the trial court does not have to engage in a question- and-answer session with the jury or instruct the jurors individually on how to apply the law to the facts. Kimmel, supra. In this case, the charges both as originally given and as repeated upon the recharge were legally sufficient and not misleading. “In determining whether the recharge contained error, it is fundamental that we must look at not only the recharge but the original charge as well, as jury instructions must be read and considered as a whole in determining whether the charges contain error. [Cit.] Where a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as could be desired, a reviewing court will not disturb a verdict amply authorized by the evidence.” Taylor v. State, 195 Ga. App. 314, 315 (1) (393 SE2d 690). The charge and recharge in this case were not misleading; the charges did not imply that a battery could not be committed with an object or weapon; and the jury would not be misled as to this issue by the wording of the charge. We conclude, viewing the charges in their totality, that the recharge would not mislead a jury of average intelligence. Under the circumstances here attendant, the trial court did not commit error as enumerated.

3. Appellant contends the evidence was insufficient to sustain his conviction of the false imprisonment offenses. Both appellant’s wife and child testified that appellant told them to go to the well house or hayloft and cover up with hay so the police would not see them; appellant also told his wife not to do or say anything or he would kill her — he would fill the structure full of holes. After they entered the structure, appellant locked in his wife and child by securing the door with a nail. When securing the door, appellant told his wife and child they would die if they opened the door or came out of the structure. Appellant’s child was afraid; neither appellant’s wife nor child wanted to be in the structure. Although the child subsequently removed the nail and opened the door in an attempt to secure water for his injured mother, he saw approaching lights and, recalling appellant’s threats, relocked the door and remained hidden under the hay. The child and his mother did not leave the structure until the police arrived. “A person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.” OCGA § 16-5-41 (a). This statute on its face does not require that the imprisonment be for a specific length of time; all that is required is there be an arrest, confinement or detention of the person, without legal authority, which violates the person’s personal liberty (i.e., against his or her will). Compare Mayorga v. State, 225 Ga. App. 496 (484 SE2d 292); Lucas v. State, 183 Ga. App. 637, 639 (2) (360 SE2d 12). At the point when that occurs, the offense is complete notwithstanding that the victim may thereafter be left unattended with his will to escape overborne by fear, temporarily regain his personal liberty, or effect an escape. Compare Grier v. State, 218 Ga. App. 637 (463 SE2d 130) (left alone but will to escape overborne by fear of brutal beatings victim had sustained). On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the false imprisonment offenses of which he was found guilty. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided November 6, 1997.

Thomas M. Rego, for appellant.

James R. Osborne, District Attorney, Cari K. Johanson, Fred A. Lane, Jr., Assistant District Attorneys, for appellee.

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.