text:
    A98A2013.
    SHORT v. THE STATE.
    (507 SE2d 514)
   Blackburn, Judge.

Brian David Short appeals his conviction by a jury of armed robbery. Through several enumerations of error, Short contends that the evidence was insufficient to support his conviction and that his trial counsel was ineffective. For the reasons set forth below, we affirm Short’s conviction.

1. “On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Short] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Moreover, the test established in Jackson is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence. Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).” (Punctuation omitted.) Jester v. State, 229 Ga. App. 490, 493 (3) (494 SE2d 284) (1997).

So viewing the evidence, it reveals that Kamari Thomas testified that he, John Kirkland, Mike Kirkland, and Short discussed the best place to commit a robbery. The conspirators decided to rob the Pit Stop convenience store with a gun Short had previously provided. John Kirkland and Thomas committed the robbery while Mike Kirkland and Short waited at the Kirkland residence.. The money obtained during the robbery was divided four ways, among Short, Thomas, John Kirkland, and Mike Kirkland.

Short, on the other hand, testified that he was at the Kirkland residence when Thomas said that he was going to go rob the store down the street. Thomas put on all black clothes and left with John Kirkland. Short admitted that he was present when Thomas and John Kirkland returned, but he denied receiving any of the proceeds from the robbery.

Short’s testimony conflicted with the taped and written statements he had given the police during their investigation. In a taped interview with the police, Short denied any knowledge of the robbery other than what he had heard from a neighbor. He also told the police that he had never held a gun except his uncle’s shotgun. After giving his taped statement, Short left the police station, but returned later the same day. At that time, he gave a written statement in which he admitted knowledge of the robbery including specific details, but denied any involvement in the robbery. Short stated that Thomas had told him early on the day of the robbery that he was going to rob the convenience store.

(a) “Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. ... A person is concerned in the commission of a crime only if he . . . [intentionally aids or abets in the commission of the crime; or . . . [intentionally advises, encourages, hires, counsels, or procures another to commit the crime.” OCGA § 16-2-20 (a), (b) (3) and (4). “[Such Code section] embodies the theory of conspiracy insofar as it renders one not directly involved in the commission of a crime responsible as a party thereto. Scott v. State, 229 Ga. 541, 544 (1) (192 SE2d 367) (1972). It is well settled that when individuals associate themselves in an unlawful enterprise, any act done in pursuance of the conspiracy by one of the conspirators is in legal contemplation the act of all, subject to the qualification that each is responsible for the acts of the others only so far as such acts are naturally or necessarily done pursuant to or in furtherance of the conspiracy. Handley v. State, 115 Ga. 584 (41 SE 992) (1902); Wall v. State, 153 Ga. 309, 318 (2) (112 SE 142) (1922); Clarke v. State, 221 Ga. 206, 212 (144 SE2d 90) (1965); Smith v. State, 230 Ga. 876 (199 SE2d 793) (1973).” Shehee v. State, 167 Ga. App. 542, 543 (307 SE2d 54) (1983).

Applying this rule to the facts in the instant case, the jury was authorized to find that Short helped plan the armed robbery and shared in the proceeds thereof. Further, Short provided the gun which was used to commit the armed robbery. “Thus, by helping [Thomas] plan the [armed robbery] and providing him with a gun for that purpose, [Short] was a party to the crime of armed robbery and the evidence was sufficient to support a conviction of that offense.” Shehee, supra at 543.

(b) Short also argues that there was insufficient evidence corroborating the testimony of Thomas, a co-indictee. “In Georgia, a defendant may not be convicted on the uncorroborated testimony of an accomplice. OCGA § 24-4-8. The corroboration must be independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty. However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict. The corroborating evidence may be circumstantial. (Citations and punctuation omitted.) Clanton v. State, 208 Ga. App. 669, 670 (1) (a) (431 SE2d 453) (1993). The sufficiency of corroborating evidence should be peculiarly a matter for the jury to determine. (Punctuation omitted.) Harris v. State, 165 Ga. App. 186, 187 (299 SE2d 393) (1983).” (Punctuation omitted.) Givens v. State, 227 Ga. App. 861, 862 (490 SE2d 530) (1997). In the present case, Short’s testimony regarding his presence during the planning of the robbery and his action of supplying the gun is sufficient evidence to corroborate Thomas’ testimony of Short’s participation. See Shehee, supra at 543.

2. In two enumerations of error, Short contends that he was denied effective assistance of counsel.

Decided October 5, 1998.

Theodore Johnson, for appellant.

Robert E. Keller, District Attorney, Adrian Britt, Assistant District Attorney, for appellee.

“In evaluating an attorney’s performance, judicial review is highly deferential with a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. In considering prejudice, the defendant has the burden of showing a reasonable probability that without counsel’s errors the jury would have had a reasonable doubt concerning guilt.” Yi v. State, 267 Ga. 171, 172 (2) (475 SE2d 623) (1996). “In order to prevail on an ineffectiveness claim, a convicted defendant must show (1) that counsel’s performance was deficient, i.e., that counsel’s performance was not reasonable under all the circumstances, and (2) that this deficient performance prejudiced the defense, i.e., that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The complaining defendant must make both showings. His failure to establish either the performance or the prejudice component results in denial of his Sixth Amendment claim.” (Citations and punctuation omitted.) Holmes v. State, 205 Ga. App. 168, 169-170 (3) (421 SE2d 311) (1992).

Initially, Short argues that his trial counsel did not object to immaterial and irrelevant evidence which connected the co-indictees to the crimes charged. However, the record makes it clear that Short’s trial counsel did object to the introduction of certain evidence connecting the co-indictees to the crimes; however, the trial court ruled that the State was allowed to present its evidence. Next, Short argues that his trial counsel was ineffective because he failed to require the State to reveal the terms of any deal offered to Thomas for his testimony. However, the trial judge and Short’s trial counsel stated, during the hearing on Short’s motion for new trial, that there was no deal between the State and Thomas. Based on the foregoing, our review of the transcript reveals that Short’s trial counsel’s performance was not deficient and that, therefore, the trial court did not err in denying Short’s motion for new trial on this basis.

Judgment affirmed.

McMurray, P. J, and Eldridge, J, concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A98A1058.
    BUNCH et al. v. VINCENT.
    (507 SE2d 239)
   McMurray, Presiding Judge.

This is the second appearance of this action for damages predicated on allegations of legal malpractice and breach of fiduciary duty. In Vincent v. Bunch, 227 Ga. App. 480 (489 SE2d 592), a partial grant of summary judgment in favor of defendants Gary P. Bunch and Gary Bunch, P.C. was reversed, because the superior court did not allow plaintiff Vincent to present oral argument on defendants’ motion for partial summary judgment, and the case was remanded with instructions.

Following remand to the superior court, plaintiff filed a voluntary dismissal without prejudice pursuant to OCGA § 9-11-41 (a). Defendants filed their objection to and motion in opposition to plaintiff’s voluntary dismissal maintaining that plaintiff’s attempted dismissal was ineffective and impermissible in the light of the instructions given by this Court in the decision of the prior appeal that “we reverse the trial court’s ruling on Bunch’s motion for partial summary judgment, and we remand this case to the trial court with instructions that oral argument be held on the motion.” (Emphasis supplied.) Vincent v. Bunch, 227 Ga. App. 480, 481, supra. Defendants’ objection and motion were denied, and the superior court ruled that plaintiff’s voluntary dismissal of the action without prejudice was effective. Defendants appealed. Held:

1. “[A]n action may be dismissed by the plaintiff, without order or permission of court, by filing a written notice of dismissal at any time before the plaintiff rests his case.” OCGA § 9-11-41 (a). We have held “that ‘case,’ as used in the statute, means the entire case so that the effect of the statute is not triggered until [plaintiff] rests as to [all issues].” Pounds v. Hosp. Auth. of Gwinnett County, 197 Ga. App. 598, 600 (2) (399 SE2d 92). The submission of this case for a ruling on a motion for partial summary judgment is analogous to the plaintiff in Pounds resting during the trial of the liability issue only, in that in neither instance did a plaintiff rest his entire case so as to terminate his statutory right to voluntarily dismiss without prejudice. Thus, plaintiff’s voluntary dismissal without prejudice was timely filed within the contemplation of OCGA § 9-11-41 (a).

2. Defendants argue that the plaintiff’s voluntary dismissal was in violation of the Civil Practice Act and public policy since it served to squander scarce judicial resources by allowing plaintiff to relitigate the case in another court. Nonetheless, we find no merit in this contention since it has been repeatedly held that the intent of the legislature in enacting OCGA § 9-11-41 (a) was to give plaintiffs the opportunity to escape untenable positions and relitigate the case. There is no bad faith exception to the right to dismiss and later relitigate, despite whatever inconvenience and irritation this may cause the defendants. Lakes v. Marriott Corp., 264 Ga. 475, 476 (448 SE2d 203); Redman Homes v. Voss, 212 Ga. App. 404, 405-406 (1) (441 SE2d 792); C & S Indus. Supply Co. v. Proctor & Gamble &c. Co., 199 Ga. App. 197 (404 SE2d 346); Pounds v. Hosp. Auth. of Gwinnett County, 197 Ga. App. 598, 600 (2), supra.

Decided September 23, 1998

Reconsideration denied October 6, 1998.

Hawkins & Parnell, H. Lane Young II, Anthony P. Tatum, for appellants.

Gary P. Bunch, pro se.

Cabaniss & Adkins, George M. Cabaniss, Jr., for appellee.

3. Finally, we find nothing in this Court’s instructions, contained in the earlier opinion in this case, which was intended to bar plaintiff’s exercise of his voluntary dismissal rights under OCGA § 9-11-41 (a). While this Court’s instructions were binding upon the lower court and the parties so long as the case remained pending below, there is no indication that the instructions were intended to abridge plaintiff’s rights under OCGA § 9-11-41 (a).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


author: Blackburn, Judge.

text:
    A98A1921.
    WILLIAMS v. DEPARTMENT OF HUMAN RESOURCES et al.
    (507 SE2d 230)
   Blackburn, Judge.

Following the death of his wife, Sheila F. Williams, from metastatic breast cancer, Paul K. Williams brought suit against the Lumpkin County Health Department and the Georgia Department of Human Resources (DHR) for, among other things, Sheila’s wrongful death, contending that a nurse employed by the State committed medical malpractice by failing to properly treat Sheila’s condition. The trial court dismissed Paul’s wrongful death claim, finding that he had failed to give the State appropriate ante litem notice pursuant to OCGA § 50-21-26, and Paul appeals this ruling. As Paul failed to strictly comply with ante litem notice requirements of OCGA § 50-21-26, we must affirm.

Paul alleges that, between the period of March 10, 1994 and August 8, 1994, Sheila visited Nurse Annette Harkins at the Lumpkin County Health Department and asked her about a growing lump in her breast. Paul further alleges that Harkins committed medical malpractice by failing to appropriately investigate Sheila’s complaints and failing to properly treat her condition by performing tests or referring her to a physician. On November 17, 1994, Sheila was diagnosed as having breast cancer, and, as a result of this cancer’s metastasis, Sheila died on January 28, 1996.

OCGA § 50-21-26 provides that tort claims brought against the State must be preceded by notice of such claims in writing within 12 months of the date the loss was discovered or should have been discovered. OCGA § 50-21-26 (a) (1). This notice must be properly delivered to both the Risk Management Division of the Department of Administrative Services (Risk Management) and the State agency alleged to be responsible for the tort. OCGA § 50-21-26 (a) (2). The notice of claim must include: “(A) The name of the state government entity, the acts or omissions of which are asserted as the basis of the claim; (B) The time of the transaction or occurrence out of which the loss arose; (C) The place of the transaction or occurrence; (D) The nature of the loss suffered; (E) The amount of the loss claimed; and (F) The acts or omissions which caused the loss.” (Emphasis supplied.) OCGA § 50-21-26 (a) (5).

Prior to Sheila’s death, Paul mailed a letter meant to serve as ante litem notice to Risk Management and the DHR. This letter was dated November 7, 1995 and stamped “received” by Risk Management on November 13, 1995. This letter stated: “The nature of the loss claimed by Sheila F. Williams is pain, disfigurement, and greatly reduced life expectancy, with a concomitant loss of both the intangible and tangible benefits of life itself, resulting from the denial to her of the benefits of early detection and treatment of breast cancer, including what would have been an increased likelihood of total recovery, a likelihood of longer term survival, and a likelihood of reduced treatment, and suffering. The nature of the loss claimed by Paul K. Williams is loss of consortium” (Emphasis supplied.)

On August 22, 1997, the State filed a motion to dismiss Paul’s wrongful death claim, contending that the ante litem letter was insufficient to put it on notice of this cause of action. On November 12, 1997, the trial court granted the State’s motion and dismissed Paul’s claim, finding: (1) that Paul’s ante litem letter properly put the State on notice of claims for Sheila’s pain and suffering prior to her death; (2) that Paul’s ante litem letter properly put the State on notice of his loss of consortium claim; (3) that Paul’s ante litem letter failed to put the State on notice of his wrongful death claim; and (4) that a claim for wrongful death was premature at the time of the letter because Sheila had not yet died. On appeal of this ruling, Paul contends that the ante litem notice delivered by him was adequate to put the State on notice of a future wrongful death claim brought by him, despite the facts that the notice did not mention a claim for “wrongful death” and Sheila had not yet died.

This Court has previously held that the Georgia Tort Claims Act will be strictly construed. McGee v. State of Ga., 227 Ga. App. 107, 108-109 (1) (487 SE2d 671) (1997) (notice of claims to State’s insurance adjuster inadequate); Howard v. State of Ga., 226 Ga. App. 543-545 (1) (487 SE2d 112) (1997) (notice to State’s insurance company and Attorney General inadequate). “In the State Tort Claims Act of 1992, our legislature attempted to strike a public policy balance between: (1) the ‘inherently unfair and inequitable results’ which occur in the strict application of the doctrine of sovereign immunity, and (2) the necessity to allow the State government ‘flexibility’ in order to provide and perform a broad range of public services with limited exposure to monetary liability, which would deplete the State’s coffers. Ga. L. 1992, pp. 1883, 1884; OCGA § 50-21-21 (a). To this end, the General Assembly specifically provided that the tort liability of this State shall only be ‘within the limitations of this article (OCGA § 50-21-20 et seq.) and in accordance with the fair and uniform principles established in this article.’ OCGA § 50-21-21 (a); Ga. L. 1992, p. 1884. Thus, the State Tort Claims Act, by its own terms, must be strictly construed.” Howard, supra at 543 (1).

Paul argues that his claim for wrongful death should not be barred since the ante litem letter asserted that the nature of the losses Sheila was claiming included losses for “greatly reduced life expectancy, with a concomitant loss of both the intangible and tangible benefits of life itself.” Pretermitting the fact that a wrongful death claim was premature prior to Sheila’s death, such a claim could not be brought by Sheila, only Paul or her survivors. OCGA § 51-4-2. See also Miles v. Ashland Chem. Co., 261 Ga. 726, 727-728 (410 SE2d 290) (1991) (action for wrongful death accrues to heirs at time of death). The ante litem notice succinctly stated, however, “[t]he nature of the loss claimed by Paul K. Williams is loss of consortium.” No mention of any other claim to be brought by Paul was made. We cannot find that the State was put on notice of a future wrongful death claim brought by Paul when the ante litem notice listed Paul’s only claim as a loss of consortium and Sheila was still living at the time. To do so would both strain logic and upset the public policy balance built into the statute by the legislature.

The appellant incorrectly states both that there are no cases construing the Georgia Tort Claims Act’s ante litem notice requirement and that this Court should review cases applying the ante litem notice requirements of OCGA § 36-33-5, applicable to local governments. In Howard, supra at 544 (1), one of a number of cases discussing the provisions of OCGA § 50-21-26, we contrasted the requirements of OCGA §§ 36-33-5 and 50-21-26, finding that substantial compliance might be adequate with the former Code section but not the latter. As such, we find appellant’s arguments with respect to OCGA § 36-33-5 to be misplaced.

Decided September 22, 1998

Reconsideration denied October 6, 1998

Toliver & Gainer, Alvin L. Toliver, Joseph H. King, Jr., for appellant.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Kimberly L. Schwartz, Assistant Attorney General, Hicks, Maloof & Campbell, Bruce M. Edenfield, for appellees.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

       Apparently, Harkins was not employed by the State until August 1, 1994. Appellant discovered this fact after filing his original complaint, which he amended on August 25, 1997 to name Harkins individually as a party.


author: Andrews, Chief Judge.

text:
    A98A0778.
    OASIS GOODTIME EMPORIUM I, INC. et al. v. CAMBRIDGE CAPITAL GROUP, INC.
    (507 SE2d 823)
   Andrews, Chief Judge.

Oasis Goodtime Emporium, Guy Holcomb and Harold Oden (Oasis) appeal from the judgment entered after a bench trial in which the court awarded Cambridge Capital Group (Cambridge) liquidated damages and attorney fees on its breach of contract claim. Oasis argues on appeal that the trial court erred in awarding the liquidated damages under the contract and also argues there was insufficient service of process and improper venue. We find no error and affirm.

The contract at issue is a Loan Commitment for Collateralized Financing agreement (loan commitment) for a loan of 1.3 million dollars from Cambridge to Oasis. The loan commitment was signed by Guy Holcomb as president of Oasis and by Guy Holcomb and Harold Oden individually.

Under the contract, Oasis was to pay Cambridge a travel stipend of $3,500 for an on-site inspection of the collateral, and a loan commitment fee of $50,000. The first installment of the loan commitment fee was $30,000, payable when the parties signed the contract. The second installment of $20,000 was due 30 days after signing the contract. Oasis paid the $30,000 at signing, but did not pay the second installment of $20,000. Holcomb, president of Oasis, testified at trial that Oasis initially wanted to borrow the money from Cambridge because it had a balloon payment due under a loan from another creditor; but, Oasis was able to restructure the loan with the other creditor and therefore no longer needed the loan from Cambridge.

At the close of the bench trial, the court found in favor of Cambridge on its breach of contract claim and ordered Oasis to pay the remaining $20,000 of the loan commitment fee, $50,000 liquidated damages, and $7,025 in attorney fees. This appeal followed.

1. We first address Oasis’s claim that the trial court erred in denying its motion to dismiss for lack of service. The record shows that the specially appointed process server left a copy of the Complaint with Allen Holcomb, the day manager at Oasis Goodtime Emporium. Oasis, in its Answer, stated as its second and third defenses that the court lacked jurisdiction over it because of “insufficient process” and “insufficient service of process.”

Oasis never raised the issue again until after Cambridge finished presenting its case at trial. At that point, counsel for Oasis made an oral motion to dismiss for insufficient service. In looking at the transcript of the hearing on the motion, we find that counsel never presented any argument to the trial court as to why Allen Holcomb was not authorized to accept service of the Complaint. Oasis does make an argument in its brief on appeal; however, since the evidence referred to is unsupported by the record below, we cannot consider it on appeal. Trevino v. Flanders, 231 Ga. App. 782 (501 SE2d 13) (1998). This is a court for the correction of errors of law committed by the trial court. One may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court. Darby v. State, 230 Ga. App. 32, 33 (495 SE2d 146) (1997).

2. Because we hold the court did have personal jurisdiction over Oasis, we need not address the claim that venue was improper as to defendant Guy Holcomb.

3. Counsel for Oasis also appeared to be raising the issue of service on defendant Oden at the motion to dismiss. According to counsel for Cambridge, Oden was never served and the record shows that Oden raised insufficient service of process in his Answer.

After a party has properly raised such a defense, it may be found waived only if the party later engages in conduct so manifestly indicative of an intention to relinquish a known right or benefit that no other reasonable explanation of his conduct is possible. Heis v. Young, 226 Ga. App. 739, 740 (487 SE2d 403) (1997); Ga. Power Co. v. O’Bryant, 169 Ga. App. 491, 495 (313 SE2d 709) (1983). Moreover, contrary to Cambridge’s assertion, pleading to the merits while at the same time raising the defense of insufficient service of process does not constitute a waiver of the defense. Roberts v. Bienert, 183 Ga. App. 751, 755 (360 SE2d 25) (1987).

But, a defendant has the obligation to bring this affirmative defense to the attention of the court at the proper time if he wishes to make an issue of it. Wheeler’s, Inc. v. Wilson, 196 Ga. App. 622, 625 (396 SE2d 790) (1990) (physical precedent only). In Wheeler’s, the defendant pleaded insufficient service of process in its Answer, but did not move for a hearing on the issue until after this Court had ruled on its appeal from the trial court’s denial of its motion for summary judgment.

Here, defendant Oden participated in discovery and waited until midway through the bench trial of the case before raising the issue again. That was not the proper time as “neither the court nor the opponent was put on notice that this waivable preliminary jurisdictional defense would be insisted on.” Wheeler’s, supra at 623. As this Court pointed out in Wheeler’s, the orderly disposition of cases demands this conclusion. Id. at 624.

Therefore, we hold that defendant Oden, by his actions, waived any defense of insufficiency of service of process and thus consented to the jurisdiction of the trial court. The trial court did not err in refusing to grant Oden’s motion to dismiss.

4. In its final enumeration of error, Oasis argues the trial court erred in enforcing the liquidated damages provision in the contract. “Upon appellate review, factual findings made after a bench trial shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. OCGA § 9-11-52 (a). The clearly erroneous test is the same as the any evidence rule. Thus, an appellate court will not disturb fact findings of a trial court if there is any evidence to sustain them.” (Citations and punctuation omitted.) Lyon v. State of Ga., 230 Ga. App. 264 (495 SE2d 899) (1998).

On appeal, Oasis enumerates as error only the trial court’s finding that the liquidated damages provision was enforceable. This provision reads as follows: “In the event that Lender and/or its affiliate is ready, willing and able and is prepared to fund this Loan in accordance with the agreed terms and conditions, and Borrower uses an alternative source (or sources) of financing and/or funding, debt or equity, to otherwise meet the requirements of the herein-described financial transaction, or Borrower is unable to provide Lender with insurable title to the real estate Collateral from a title insurance provider reasonably acceptable to Lender, or Borrower fails to settle this transaction for any other reason, Borrower shall be obligated to pay Lender, simultaneous with such failure to settle, the sum of $50,000.00, exclusive of the Commitment fee and travel and inspection stipend, as liquidated damages, plus any legal fees incurred by Lender in connection with collection of such liquidated damages.”

With regard to contract provisions for liquidated damages, OCGA § 13-6-7 provides: “If the parties agree in their contract what the damages for a breach shall be, they are said to be liquidated and, unless the agreement violates some principle of law, the parties are bound thereby.” In determining whether a liquidated damages provision is enforceable, this Court looks at three factors: (1) whether the injury caused by the breach is difficult or impossible to estimate; (2) whether the parties intend to provide for damages rather than a penalty; and (3) whether the sum stipulated is a reasonable pre-estimate of the probable loss. Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230 (227 SE2d 340) (1976).

Here, Oasis argues the $50,000 was a penalty because it was not a reasonable pre-estimate of probable loss. Cambridge introduced evidence at trial of its losses due to Oasis’s failure to close on the loan. Ronald Hirsch, a senior vice-president for Cambridge, testified as to the actual damages suffered by Cambridge because the loan did not close. He stated that the total loan origination fee would have been $117,000, with the $30,000 already paid by Oasis credited toward that amount as well as the other $20,000 of the loan commitment fee. Hirsch said it would have been difficult to estimate the amount of damages caused by the breach because it was difficult to estimate the amount of money Cambridge would receive over the course of the loan. The loan was a two-year loan with a one-year option with no pre-payment penalty and a fluctuating interest rate with 16.5 percent interest as the floor.

Oasis did not introduce any alternative figures as to what would be a reasonable pre-estimate of the loss and, on appeal, points us to no authority from which we could determine that the amount of liquidated damages constitutes a penalty. The burden is on Oasis as appellant to show the trial court erred in accepting Cambridge’s figures as estimates of the amount of loss. More importantly, the burden is on Oasis, as the defaulting party, to show the provision is a penalty. Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co., 258 Ga. 808, 809 (375 SE2d 222) (1989).

Oasis’s only argument on appeal is that Cambridge “performed precious little” for the amount of money it received. This argument avails it nothing because “[w]here a party seeks damages for violation of a contract, the measure of damages is not what he has suffered by performing his part but what he has suffered by the failure of the other party to perform his part.” Gainesville Glass Co. v. Don Hammond, Inc., 157 Ga. App. 640, 644 (278 SE2d 182) (1981). In other words, it is the amount which will compensate the injured party for the loss which a fulfillment of the contract would have prevented or the breach of it entailed. The injured party, insofar as it is possible to do so with a monetary award, is to be placed in the position he would have been in had the contract been performed. Re/Max of Ga. v. Real Estate Group, 201 Ga. App. 787, 789 (412 SE2d 543) (1991).

Decided October 6, 1998.

Begner & Begner, Alan I. Begner, for appellants.

Tammi M. Berden, for appellee.

Looking at case law, we find no cases directly on point. In a case with similar facts, Oran v. Canada Life Assurance Co., 194 Ga. App. 518 (390 SE2d 879) (1990), this Court held that an agreement allowing the lender to retain the loan commitment fee of two percent of the loan as liquidated damages was a reasonable pre-estimate of the loss and enforceable as a matter of law. Id. at 521. The court in Oran arrived at this conclusion by comparing the facts to those in Liberty Life Ins. Co., supra, in which the court found that allowing the seller in a real estate contract to retain as liquidated damages the purchaser’s earnest money deposit in the amount of ten percent of the sale price was reasonable and enforceable as a matter of law. Oran, supra at 521; Liberty, supra at 809.

Applying Liberty to our facts, ten percent of 1.3 million dollars is $130,000; therefore, even including the $50,000 loan commitment fee as part of the liquidated damages, for a total retained by Cambridge of $100,000, we find this is well within the figure found reasonable and enforceable by the court in Liberty.

In light of this and for the reasons outlined above, Oasis was unable to show the liquidated damages provision was a penalty because it was not a reasonable pre-estimate of Cambridge’s probable loss under the contract. The trial court did not err in enforcing the provision.

Judgment affirmed.

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

       Oasis makes three separate assignments of error under this one enumeration in violation of OCGA § 5-6-40. When an appellant asserts more than one error within a single enumeration, this Court may, in its discretion, elect to review none or one or more of the errors. Toledo v. State, 216 Ga. App. 480, 482 (455 SE2d 595) (1995). Here, we find no merit to Oasis’s second and third arguments and elect to review only the first assertion, that the trial court erred in enforcing the liquidated damages provision because the amount provided for constitutes a penalty.

       This loan commitment fee was to be refunded upon satisfactory delivery of the loan. Oran, supra at 519. Here, the $50,000 loan commitment fee was to be applied at closing to the loan origination fee of $117,000.


author: Judge Harold R. Banke.

text:
    A98A1562.
    CARROLL ANESTHESIA ASSOCIATES, P.C. v. ANESTHECARE, INC. et al.
    (507 SE2d 829)
   Judge Harold R. Banke.

Carroll Anesthesia Associates, P.C. (“CAA”) sued AnestheCare, Inc., Cell Saver, Inc. d/b/a AnestheCare, David Laguardia, Paul Duso, and Roger Bigham (collectively “AnestheCare”). CAA appeals the summary judgment awarded to AnestheCare.

CAA and AnestheCare were business competitors vying to supply anesthesia services to the Tanner Medical Center (“Tanner”) area. For a number of years, CAA enjoyed an exclusive contract with Tanner and remained the primary provider until 1993. With each of its five certified registered nurse anesthetists (“CRNAs”), CAA had executed employment agreements. These employment contracts contained post-employment covenants prohibiting the CRNAs from practicing as nurse anesthetists within varying radii of Tanner for up to a two year period. Notwithstanding these non-compete covenants, when four of the CRNAs left CAA and commenced their employment with AnestheCare in November and December 1993, AnestheCare executed indemnification agreements with each of them. Each “Indemnity Agreement” expressly recited that it was “in consideration of the execution of the employment contract with AnestheCare.” According to Roger Bigham, a principal owner of AnestheCare, AnestheCare’s legal counsel reviewed the indemnification agreements before they were executed.

CAA’s fifth nurse anesthetist, Danny Montgolf, who did not accept AnestheCare’s offer of employment, testified that during the summer of 1993, representatives of AnestheCare urged him to quit CAA as they attempted to recruit all five CAA nurses. Montgolf testified that during this recruitment, the restrictive covenants in the CAA contracts were discussed. CRNA Marshall testified that even while still employed by CAA, she was assured “from the very beginning of the discussions,” that AnestheCare would provide indemnification to protect her from any legal action based on her employment agreement with CAA. Similarly, CRNA Pieratti admitted that her willingness to work for Cell Saver was conditioned on the indemnity agreement.

In May 1994, AnestheCare reassigned the four CRNAs to work at Tanner. Although the CRNAs knew this arrangement would violate the non-compete agreement, they relied upon the indemnification agreement in accepting that risk and upon legal advice provided by AnestheCare that the restrictive covenants were unenforceable. After Schmitz, Middlebrooks, Pieratti, and Marshall breached the terms of the restrictive covenants, CAA sought injunctive relief. In August 1994, when the Superior Court of Carroll County granted injunctive relief to CAA, it determined that the non-compete agreements were, valid and enforceáble. AnestheCare provided the CRNAs with legal representation.

In a separate and subsequent action filed in September 1995, CAA sued AnestheCare but not the CRNAs for tortious interference with contract and business relations. CAA alleged that AnestheCare induced these employees to discontinue their employment and to breach the non-compete agreements in their employment contracts. CAA asserted that by executing indemnification agreements with the four CRNAs and by agreeing to assume liability for any expenses of litigation and any judgment, AnestheCare induced them to breach their non-compete agreements.

After the trial court granted summary judgment to AnestheCare without conducting a hearing as requested by CAA, we reversed due to the violation of USCR 6.3. The opinion, however, did not reach the underlying substantive issues. Upon remand, the trial court held a hearing and finding no material factual issues in dispute awarded summary judgment. CAA appeals. Held:

1. CAA contends that genuine issues of material fact remain to be tried as to AnestheCare’s liability for its tortious interference with contract and business claims. We agree.

To establish a cause of action for wrongful interference with contractual relations, in addition to demonstrating the existence of a valid contract, a plaintiff must show that the defendant: (1) acted improperly and without privilege; (2) acted purposely and maliciously with the intent to injure; (3) induced a third party not to enter into or to continue a business relationship with the plaintiff; and (4) caused the plaintiff some financial injury. Lake Tightsqueeze, Inc. v. Chrysler First Fin. Svcs. Corp., 210 Ga. App. 178, 181 (5) (435 SE2d 486) (1993). “Malice” in this context means any unauthorized interference or any interference without legal justification or excuse. Arford v. Blalock, 199 Ga. App. 434, 441 (13) (405 SE2d 698) (1991). “Persuading a person to break a contract for the . . . purpose of. . . benefiting the defendant at the expense of the plaintiff is a malicious and actionable act if injury arises from it. [Cit.]” Id.

Further, interference with contractual relations, such as inducing one to breach his contract, is an actionable tort. McDaniel v. Green, 156 Ga. App. 549, 550 (1) (275 SE2d 124) (1980). Where the interference retards performance of the duties under the contract, it is actionable. Artrac Corp. v. Austin Kelley Advertising, 197 Ga. App. 772, 774-775 (2) (399 SE2d 529) (1990).

Without question, the post-employment restrictive covenants were legally enforceable and the breach of these terms by the CRNAs triggered an order granting injunctive relief to CAA. Notwithstanding AnestheCare’s claim to the contrary, this is not simply a case involving the hiring of another employer’s at-will employees. See American Bldgs. Co. v. Pascoe Bldg. Systems, 260 Ga. 346, 348-349 (2) (392 SE2d 860) (1990) (competitor’s fair competition privilege can be lost in certain circumstances). Instead, at issue is whether AnestheCare induced and encouraged CAA’s former employees to breach valid post-employment restrictions. Compare Orkin Exterminating Co. v. Martin Co., 240 Ga. 662, 666-667 (1) (242 SE2d 135) (1978) (fair competition privilege not violated by soliciting at-will employees where no interference with contractual rights occurs).

Therefore, a jury must decide whether by indemnifying the CRNAs against any judgment obtained by CAA, AnestheCare interfered with the contracts and encouraged the CRNAs to breach the post-termination terms. The trial court’s entry of judgment on this issue must be reversed. Compare Combs v. Edenfield, 184 Ga. App. 75, 77 (360 SE2d 743) (1987).

Similarly, we find that material issues of disputed fact foreclosed summary judgment on the tortious interference with business claim. AnestheCare had an absolute right to set up a business competing with CAA. Kitfield v. Henderson, Black & Green, 231 Ga. App. 130, 134 (4) (498 SE2d 537) (1998). But the privilege of fair competition protects a competitor who solicits another employer’s at-will employee only when the standards in Restatement of Torts, § 768 are followed. Contractors’ Bldg. Supply v. Gwinnett Sash & Door, 199 Ga. App. 38, 39 (2) (403 SE2d 844) (1991). The privilege is not applicable where a competitor “[destroys] or [inflicts] substantial injury by means of attracting away all or a large percentage of personnel upon whom [the employer] must depend to function, especially if other circumstances [are present].” Architectural Mfg. Co. v. Airotec, 119 Ga. App. 245, 250-251 (2) (166 SE2d 744) (1969).

CAA offered evidence that AnestheCare attempted to persuade the entire nurse anesthetist staff of CAA, upon which CAA relied, to leave en masse and join AnestheCare, a competing firm. See Architectural Mfg. Co., 119 Ga. App. at 248 (1). Compare Orkin Exterminating Co., 240 Ga. at 665. CAA showed that its monthly billings plummeted drastically in 1994 from those of 1993. Dr. Gilbert Maddox testified, without contradiction, that AnestheCare made a concerted effort to deprive CAA of all its employees so that CAA would have nobody left to do the work. Dr. Maddox testified that AnestheCare enticed his employees by assuring them that after CAA was destroyed, AnestheCare would bring them back to work at Tanner. Montgolf attested that it was AnestheCare’s plan to obtain all five of the CRNAs from CAA.

In light of some evidence of a plan or scheme designed to impair CAA’s financial position and to induce breaches of employment contracts, we find that AnestheCare was not entitled to judgment as a matter of law. Compare Contractors’Bldg. Supply, 199 Ga. App. at 40 (2). Notwithstanding AnestheCare’s contention to the contrary, whether Dr. Maddox contributed to the demise of CAA by refusing to join a PPO or by antagonizing members of the medical community, are disputed factual issues.

2. CAA contends that the principles of res judicata and collateral estoppel are inapplicable. We agree.

Notwithstanding AnestheCare’s claim to the contrary, the action in federal district court did not foreclose the underlying action. Collateral estoppel requires the identity of issues and of the parties or their privies in both actions, elements lacking in this case. Wickliffe v. Wickliffe Co., 227 Ga. App. 432, 433-434 (1) (489 SE2d 153) (1997). In the federal diversity case, CAA sued Quorum Health Resources, Inc., the management company of Tanner Medical Center. CAA sought damages from Quorum for, inter aha, fraud and libel. (1:93-CV-2185, N.D. Ga.) The heart of CAA’s complaint pertained to a purportedly libelous statement appearing in a June 1993 hospital publication. In fact, the federal action was filed several months before the four CRNAs resigned from CAA. See Miller v. Steelmaster Material Handling Corp., 223 Ga. App. 532, 533 (1) (478 SE2d 601) (1996) (statutory bar under OCGA § 9-2-5 (a) applies only to same cause of action against same party).

Nor did CAA’s earlier action seeking injunctive relief foreclose the instant suit which was likewise not asserted against the same parties. “Before collateral estoppel will bar consideration of an issue, that issue must actually have been decided.” Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 867 (2) (463 SE2d 5) (1995). No judgment has yet been rendered on CAA’s tort claims.

Decided October 6, 1998.

J. Hue Henry, Christopher L. Casey, for appellant.

Glass, McCullough, Sherrill & Harrold, Geoffrey H. Cederholm, for appellees.

Judgment reversed.

Johnson, P. J., and Smith, J., concur.

       These four CRNAs were Patricia Marshall, Jacqueline Pieratti, Joyce Middlebrooks, and Mark Schmitz. Two contracts specified a five mile radius and an eighteen month post-employment period. Another contract specified a twenty-five mile radius and an eighteen month term while the fourth one provided for a thirty-five mile radius and a two year period.

       Each indemnity agreement provides “WHEREAS, [name of CRNA] and Cell Saver, Inc. d/b/a AnestheCare (“AnestheCare”) desire to enter into an employment agreement. . . and WHEREAS, [name of CRNAJs current employer, H. Gilbert Maddox, Jr., M.D./Carroll Anesthesia Associates, P.C., may initiate litigation against [name of CRNA].... In consideration of [name of CRNAJs execution of the “CRNA EMPLOYMENT AGREEMENT” and other good and valuable consideration; AnestheCare agrees to pay all attorney’s fees, costs and expenses of any kind incurred by [name of CRNA] and any judgment rendered against [name of CRNA] for damages of any kind, arising or resulting from any claim asserted against [name of CRNA] because of the execution of the ‘CRNA EMPLOYMENT AGREEMENT” by H. Gilbert Maddox, Jr., M.D., Carroll Anesthesia Associates, P.C. or any person or entity related thereto, and to indemnify and hold [name of CRNA] harmless from same.”

       The trial court was affirmed without opinion by this Court.

        Carroll Anesthesia Assoc., P.C. v. AnestheCare, Inc., 230 Ga. App. 269, 270 (1) (495 SE2d 897) (1998).


text:
    A98A1584.
    STATE OF GEORGIA v. MILLER.
    (507 SE2d 521)
   Judge Harold R. Banke.

The State served Lawrence Miller, the potential claimant, wdth a complaint for civil forfeiture on November 26,1997. The State sought certain property items based on alleged repeated sales of cocaine by Miller at his place of business to a confidential informant. Miller filed a timely answer on December 29, 1997. Two days later, the State filed a local court form titled “Notice of Stipulation to Active List” in which the State asserted that it was ready for trial. The State also filed and served a separate pleading in which it requested that the case be placed on the next available non-jury calendar and be set for a hearing not later than January 23, 1998. The State’s pleading explained that the civil forfeiture action was filed pursuant to OCGA § 16-13-49, which requires a hearing within 60 days of service unless continued for good cause. Notwithstanding the State’s request, a hearing date was set for January 29, 1998. On the morning of the hearing, the State filed a motion to strike Miller’s answer on sufficiency grounds and moved for judgment, and Miller filed a motion to dismiss the complaint. The trial court found that the State failed to monitor the calendar and should have moved for a continuance. Finding that the hearing was beyond the 60-day deadline under OCGA § 16-13-49 (o) (5), the trial court dismissed the State’s complaint. Deeming the State’s motion to strike Miller’s answer as moot, the court refused to consider it. Held:

In its sole enumeration of error, the State contends that the trial court erred in dismissing its complaint. We agree and reverse. See Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994) (trial court’s application of law to undisputed facts is subject to de novo appellate review).

The statutory procedure for in rem forfeiture provides in pertinent part, “[i]f an answer is filed, a hearing must be held within 60 days after service of the complaint unless continued for good cause.” OCGA § 16-13-49 (o) (5). However, the 60-day time clock is not triggered unless the claimant files a “legally sufficient answer.” State of Ga. v. Alford, 264 Ga. 243, 244-245 (2) (444 SE2d 76) (1994). A legally sufficient answer is “one meeting the pleading requirements of subsection (o) (3).” Rojas v. State, 269 Ga. 121, 122-123 (2) (498 SE2d 735) (1998). By law, the claimant’s response in a civil forfeiture proceeding must be in “strict compliance with the special pleading requirements of OCGA § 16-13-49 (o) (3).” Alford, 264 Ga. at 245 (2) (b).

The legislature expressly directed that a claimant’s answer under subsection (o) (3) “must be verified by the owner or interest holder under penalty of perjury” (Emphasis supplied.) Here, Miller’s verification was not executed under penalty of perjury and merely says, “the facts stated in the foregoing Answer to the State’s Complaint for Forfeiture are true and correct to the best of his [sic] knowledge and belief.” This verification does not comport with the letter and the spirit of that subsection since it neither specifies the mandatory perjury language nor appears to subject Miller to a penalty of peijury.

The statute also mandates that the answer must set forth: “[t]he date, identity of transferor, and circumstances of the claimant’s acquisition of the interest in the property.” OCGA § 16-13-49 (o) (3) (D). Here, Miller’s purported answer makes no mention of when, from whom, or how he acquired the binoculars. As to the two Nextel phones, Miller asserts that he acquired them “several months prior to this incident” from a specified Nextel location. However, the answer failed to specify a particular date or to provide other information to substantiate Miller’s claim of ownership. As to the $712.61 cash, Miller asserts that he “acquired the currency seized from his person from drivers employed by his taxicab service on October 31, 1997.” Again, Miller’s response lacked the required information. It failed to identify the transferors by name nor did it list the amounts allegedly obtained from each driver. Thus, Miller’s purported answer failed to fully and strictly comply with the special pleading rules of subsection (o) (3) including the peijury penalty language required for the verification and including the specific pleading requirements of OCGA § 16-13-49 (o) (3) (D). Because the purported “answer” was not legally sufficient, it did not commence the running of the 60-day time clock. Alford, 264 Ga. at 244-245 (2). Therefore, the trial court erred in dismissing the complaint. State of Ga. v. Adams, 264 Ga. 842 (1) (452 SE2d 117) (1995).

Notwithstanding Miller’s claim to the contrary, State v. Hender son, 263 Ga. 508, 511 (436 SE2d 209) (1993), neither authorizes nor requires a different result. Henderson never addressed the effect of filing a legally insufficient answer, and, instead, resolved the question of whether the 60-day hearing rule requirement was mandatory or directory. Id. at 509. Similarly, Miller’s reliance on Jackson v. State of Ga., 212 Ga. App. 340 (441 SE2d 811) (1994) and Hinton v. State of Ga., 224 Ga. App. 49, 51 (3) (479 SE2d 424) (1996) is misplaced. Neither case dealt with the situation, as here, where a legally insufficient answer had been filed.

Decided October 6, 1998

Robert E. Keller, District Attorney, Rita B. Jackson, for appellant.

Dwight L. Thomas, for appellee.

Judgment reversed.

Johnson, P. J., and Smith, J., concur.

       The State sought to obtain cash in the amount of $712.61, two Nextel phones with chargers and batteries, and one pair of binoculars.


text:
    A98A1619.
    THOMAS v. THE STATE.
    (507 SE2d 523)
   Judge Harold R. Banke.

Charles Alexander Thomas pleaded guilty to aggravated battery, two counts of aggravated assault, two counts of criminal attempt to commit aggravated sexual battery, and false imprisonment. He was sentenced as a recidivist to 30 years incarceration without the possibility of parole. He enumerates three errors on appeal, challenging the trial court’s denial of his motion to withdraw the guilty pleas.

The case arose when Thomas assaulted the victim, who was seven months pregnant with his child. After opening statements and a similar transaction hearing, Thomas decided to change his pleas. At the plea hearing, Thomas testified that he was in fact guilty of the charged offenses, he understood the rights he was waiving by his pleas, and he was waiving them freely and voluntarily. Thomas also assured the court he understood that because he was sentenced as a recidivist, he would serve the entire sentence in prison.

Days after the imposition of his sentence, Thomas filed a pro se motion to withdraw his pleas, asserting that when he entered the pleas he was “not himself” due to stress and manic depression. He also proclaimed his innocence; however, in a subsequent letter to the court Thomas admitted that “one night of drugs and alcohol turned me into a monster.”

The trial court appointed Thomas new counsel, ordered a psychological examination, and conducted a hearing on the motion to withdraw. At the hearing’s end, the trial court denied the motion, concluding that Thomas was mentally competent when he knowingly, intelligently, freely, and voluntarily entered his guilty pleas. Held-.

1. Thomas claims that because he would not have entered the guilty pleas but for his counsel’s ineffectiveness, the trial court abused its discretion in denying his motion to withdraw the pleas. Thomas maintains he lost hope for a fair trial and decided to plead guilty after his counsel admitted during opening argument that Thomas had assaulted the victim.

At the hearing on the motion to withdraw, the trial court found that trial counsel was “very capable and competent” and provided good advice. Trial counsel testified that he mentioned the assault in opening as a matter of strategy because Thomas had sent inculpatory poems to the victim from jail which the State intended to introduce into evidence. Counsel reasoned that he should admit what could not be denied and deny the rest. Counsel also testified that Thomas’ admissions rendered his claim to an alibi defense unethical and ludicrous.

Even tactical errors do not constitute ineffective assistance. Keanum v. State, 212 Ga. App. 662, 664 (3) (442 SE2d 790) (1994). Here, trial counsel’s strategy could not be characterized as deficient considering the circumstances of this case. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590) (1987). This fact precludes a finding that the trial court clearly erred in rejecting Thomas’ claim of ineffectiveness or abused its discretion in denying the motion to withdraw. Beck v. State, 222 Ga. App. 168 (473 SE2d 263) (1996) (after imposition of sentence, a ruling on a motion to withdraw a guilty plea lies within the sound discretion of the trial court and will not be disturbed absent a manifest abuse of such discretion); see Jones v. State, 230 Ga. App. 65, 66 (495 SE2d 327) (1997). We need not reach Thomas’ argument that the trial court erred by failing to ask him if he and his counsel had resolved their disagreement because it was not raised in the enumeration. Guest v. State, 229 Ga. App. 627, 628 (1) (494 SE2d 523) (1997).

2. Thomas claims that the trial court’s failure to determine whether he knew of his ineligibility for parole requires reversal. His argument lacks both legal and factual support.

This Court has held that the trial court has no duty to advise defendants of the parole consequences of a sentence agreed to as part of a plea bargain. Smith v. State, 174 Ga. App. 238, 240 (329 SE2d 507) (1985) (physical precedent only); Davis v. State, 151 Ga. App. 736, 737 (261 SE2d 468) (1979). Eligibility for parole is merely a collateral legislative consequence of the plea. Smith, 174 Ga. App. at 240.

Notwithstanding Thomas’ contention to the contrary, Hutchison v. State, 230 Ga. App. 143, 144 (495 SE2d 618) (1998) is distinguishable on its facts. Trial counsel in Hutchison was unaware of an applicable sentencing statute and was therefore unable to correctly advise his client of the alternatives he faced. Here, unlike Hutchison, trial counsel was not ineffective.

Decided October 6, 1998.

James B. McGinnis, Martin C. Jones, for appellant.

J. Tom Morgan, District Attorney, Stephen D. Sencer, Maria Murder-Ashley, Sheila A. Connors, Noah H. Pines, Assistant District Attorneys, for appellee.

Nor did trial counsel fail to inform Thomas of his ineligibility for parole. The record shows that prior to trial, trial counsel advised Thomas of the ramifications of a guilty plea, explaining that he qualified as a recidivist and the provisions of OCGA § 17-10-7 could apply. Thomas admitted as much at the motion to withdraw hearing. Further, during the plea hearing, Thomas informed the court that he understood he would be sentenced to 30 years to serve. Thomas answered in the affirmative when the court asked him whether he understood that being sentenced under the recidivist statute meant he would serve all his time in prison. In these circumstances, we cannot say the trial court abused its discretion in rejecting Thomas’ argument. Neal v. State, 216 Ga. App. 223, 224 (453 SE2d 807) (1995).

3. Nor did the trial court abuse its discretion in finding Thomas competent to tender his pleas. The record shows that Thomas voluntarily and intelligently entered his pleas in open court, with the assistance and advice of counsel, whose representation Thomas described as satisfying. See Boyette v. State, 217 Ga. App. 593, 595 (2) (458 SE2d 397) (1995). At the motion hearing, a court-appointed psychologist testified that Thomas “was very articulate and well spoken, logical, coherent, organized, [and] showed no signs of mental illness.” Thomas’ condition was so clearly normal that the psychologist saw no need for formal testing. This evidence authorizes the trial court’s finding that Thomas entered his guilty pleas knowingly, intelligently, freely, and voluntarily. Vaughn v. State, 228 Ga. App. 185, 186 (491 SE2d 426) (1997).

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.


author: Ruffin, Judge.

text:
    A98A1039.
    SHELNUTT v. THE STATE.
    (506 SE2d 643)
   Ruffin, Judge.

A jury found Dennis Shelnutt guilty of child molestation. Shelnutt appeals, asserting that there is insufficient evidence to support his conviction and that the trial court made erroneous evidentiary rulings. For reasons which follow, we affirm.

The record shows that, according to the victim, Shelnutt provided his daughter and the victim, a 15-year-old friend of Shelnutt’s daughter, alcoholic beverages during a Friday night sleepover at Shelnutt’s home. After becoming intoxicated, the victim went upstairs to use the bathroom. After using the bathroom, the victim went into a spare bedroom and fell asleep. The victim testified that she was wearing a shirt, shorts, underwear and a bra at the time she fell asleep. When the victim awakened during the night, she discovered that Shelnutt was sitting beside her on the bed. Her legs were propped up and Shelnutt “had his hands inside of me.” The witness testified that this meant her vagina. She told Shelnutt to leave her alone and tried to move away from him. Shelnutt told her to relax and be quiet. The victim then blacked out or went back to sleep. When she awakened a second time, Shelnutt was doing the same thing and she tried to get away from him before blacking out or falling asleep again. When the victim woke up the next morning, she was wearing only a shirt and underwear. Her shorts were at the foot of the bed and her bra was lying on the floor beside the bed. The victim reported these events to her mother, uncle and the police the next day.

Shelnutt denied molesting the victim. According to Shelnutt, he checked on the victim several times after she went to sleep in the spare room. On several of these occasions, the victim stated that she felt sick and Shelnutt assisted her to the bathroom. Shelnutt testified that during one of the visits to the bathroom, the victim started to unfasten her pants to go to the bathroom. He claims that he stepped outside and then heard a thump. He entered the bathroom after he asked the victim if she was okay and received no response. The victim was sitting on the floor slumped over and had urinated on the floor. Her shorts and underwear were pulled down around her ankles. Shelnutt reached under her arms, placed her back on the toilet and stepped out of the room again. He waited a minute, knocked on the door and received no response. He then entered the bathroom and picked up the victim to take her back to bed. He pulled up her underwear and kicked her shorts off because it was difficult to drag her back to the spare room with her shorts around her ankles. After placing the victim in bed for the last time, Shelnutt went to sleep. He claims that he did not ask his girlfriend, who was asleep in another room, to assist the victim in the bathroom because “I’m the one that takes care of the kids. I mean, I do everything for the kids. I felt like I could handle it.”

1. Shelnutt contends that the trial court erred when it refused to allow him to present witness evidence of his experience in caring for young girls. During the testimony of Daphne Jenkins, a friend of Shelnutt’s girlfriend, Shelnutt’s attorney asked Jenkins if Shelnutt had ever been around her six-year-old daughter. The state objected on relevancy grounds. A colloquy ensued between counsel and the court, during which Shelnutt’s attorney related that he sought to explain, through Jenkins and other witnesses, that Shelnutt was a nurturing “Mr. Mom” type who had raised and cared for girls. According to Shelnutt’s attorney, this evidence would explain Shelnutt’s alleged conduct in personally assisting the victim in the bathroom, instead of asking his girlfriend to do it. The trial court excluded this evidence on the grounds that character witnesses for the defense cannot testify about specific instances of conduct by the defendant during direct examination.

We find no abuse of discretion by the trial court in disallowing this evidence. See O’Neal v. State, 254 Ga. 1, 3 (3) (325 SE2d 759) (1985). “OCGA § 24-2-2 limits character evidence to evidence of reputation. Proof of [Shelnutt]’s conduct in other transactions by evidence of specific instances of such conduct is not authorized by OCGA § 24-2-2, but amounts to self-serving declarations of non-culpability to prove a trait of character. This court has previously held that exclusion of specific acts to prove a general trait of character is a wise rule. Stanley v. Hudson, 78 Ga. App. 834, 836 (52 SE2d 567).” Baine v. State, 181 Ga. App. 856, 858 (2) (354 SE2d 177) (1987). See also Ware v. State, 191 Ga. App. 896, 897 (3) (383 SE2d 368) (1989) (holding trial court properly prohibited character witness of defendant from testifying “concerning his reputation for [not] molesting children”).

Moreover, “[h]arm as well as error must be shown for reversal. [Cit.] Because other testimony bearing on this issue was admitted, [through Shelnutt,] we find it highly probable that the exclusion of . . . [Shelnutt’s experience in caring for young girls] did not contribute to the jury’s verdict. [Cit.] Consequently, even if the trial court’s ruling was error, it was harmless.” Perguson v. State, 221 Ga. App. 212, 217 (4) (470 SE2d 909) (1996).

2. Shelnutt contends that there is insufficient evidence to support his child molestation conviction. “ ‘On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant ... no longer enjoys a presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility, but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Conflicts in the testimony of the witnesses, including the State’s witnesses, is a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury verdict’s will be upheld.’ [Cit.]” Howard v. State, 227 Ga. App. 5, 8 (6) (a) (488 SE2d 489) (1997). We find that there was sufficient evidence to convict Shelnutt. Id.

3. Shelnutt contends that the trial court erred because he was not permitted to introduce evidence that he cooperated with a Department of Family & Children Services investigation. The evidence sought to be admitted, the trial court’s alleged ruling and any objection by Shelnutt’s counsel are not a part of the record. “ ‘ ‘Where the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41. (Cit.)” ’ [Cit.]” Ney v. State, 227 Ga. App. 496, 499 (3) (489 SE2d 509) (1997). Accordingly, the issue raised in this enumeration is deemed abandoned based upon Shelnutt’s failure to supplement the record. Id.

4. Shelnutt contends that the trial court erred when it permitted hearsay testimony from the victim about statements made by her doctor. However, the record shows that Shelnutt elicited this testimony during cross-examination of the victim and failed to object to the victim’s response. “[M]atters not objected to at trial cannot be raised for the first time on appeal.” Scott v. State, 243 Ga. 233, 234-235 (253 SE2d 698) (1979). Likewise, self-induced error cannot be complained of on appeal. Spearman v. Ga. Building Auth., 224 Ga. App. 801, 805 (2) (482 SE2d 463) (1997); Levin v. State, 222 Ga. App. 123, 125 (3) (473 SE2d 582) (1996).

5. Shelnutt contends the trial court erred in excluding Defendant’s Exhibit 2. This exhibit consists of a photocopy of the first page of a document titled “Complaint for Modification of Child Support and Visitation.” This document appears to have been filed in the Henry County Superior Court Clerk’s office by Shelnutt’s ex-wife on September 25, 1996. It is incomplete because the last line ends mid-sentence and there are no signatures.

After reviewing this partial complaint, we find the trial court did not err by excluding it from consideration by the jury. “[T]he question of relevance is for the trial court and its determination to exclude evidence will not be disturbed on appeal absent an abuse of discretion. [Cit.]” Lowry v. Hamilton, 268 Ga. 373 (489 SE2d 827) (1997). We find no abuse of discretion here, particularly when this complaint was filed by Shelnutt’s ex-wife almost four months after the victim spent the night at Shelnutt’s home.

Decided July 30, 1998

Reconsideration denied October 7, 1998.

Ballard & Ballard, Scott L. Ballard, for appellant.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, James L. Wright III, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.

       Although Shelnutt’s counsel initially failed to provide a record cite for Exhibit 2, a record citation was provided on motion for reconsideration. See Court of Appeals Rule 27 (c) (3) (i).


text:
    A98A1156.
    WILLIAMSON v. THE STATE.
    (507 SE2d 765)
   McMurray, Presiding Judge.

Defendant Williamson appeals his conviction of four counts of child molestation. Held:

1. Defendant maintains that his convictions should be reversed because of the ineffectiveness of trial counsel. “In order to show he was denied the constitutional right to counsel, [defendant] must show that his trial counsel’s actions fell below ‘an objective standard of reasonableness and that, but for the alleged ineffective act, there is a reasonable probability that the result of the proceeding would have been different. (Cits.)’ Lajara v. State, 263 Ga. 438, 440 (3) (435 SE2d 600) (1993).” Sorrells v. State, 267 Ga. 236, 241 (9) (476 SE2d 571). The record shows that the issue of ineffective assistance of trial counsel was raised in a timely fashion in the motion for new trial filed by defendant’s appellate counsel and that the motion for new trial was denied after a hearing. However, no transcript of the hearing on the motion for new trial has been included in the record on appeal. Under these circumstances, we must assume that defendant failed to meet his burden of proving the ineffectiveness of his trial counsel and that the trial court correctly denied the motion for new trial on that ground. Id.

2. Defendant contends the trial court erred in allowing the victim’s grandmother to bolster the testimony of the nine-year-old victim by standing behind the victim while the victim testified. Prior decisions have recognized a broad discretion on the part of the trial court in controlling the trial of a case, have allowed a great deal of latitude in the examination of young, timid, or otherwise disadvantaged witnesses, and have generally found no abuse of discretion in permitting a familiar person to sit or stand near a young witness during their testimony. Davis v. State, 204 Ga. App. 657, 658 (5) (420 SE2d 349); Boatright v. State, 192 Ga. App. 112, 114 (5) (385 SE2d 298); Benton v. State, 184 Ga. App. 684, 686 (4) (362 SE2d 421). In this instance, the grandmother was also a witness in the case and the trial court resolved any sequestration issues by requiring the grandmother to testify first.

Decided August 21, 1998

Reconsideration denied October 7, 1998.

Robert H. Baer, Adam S. Poppell, for appellant.

Dupont K. Cheney, District Attorney, John T. Durden, Jr., Assistant District Attorney, for appellee.

The case sub judice adds a further issue in that during the cross-examination of the victim, defendant’s trial counsel raised a contention of misconduct on the part of the grandmother. The grandmother had been instructed to make no comment or statement during the testimony of the victim. Nonetheless, defendant’s trial attorney stated in his place that in response to a question the grandmother shook her head and whispered “no” to the victim, who then answered “no” to the pending question. The victim denied hearing her grandmother tell her the answer to the question. And the trial court noted on the record that it was seated three feet from the grandmother and had heard no comment. The position of the grandmother was changed before cross-examination resumed and no further remedial action was requested by defendant’s trial counsel. We see no reason that any contended misconduct on the part of the grandmother should affect our review of the trial court’s exercise of discretion to accommodate the young witness, particularly since there is no issue raised on appeal as to the sufficiency of the remedial action taken by the trial court. Under these circumstances, we find no abuse of discretion in permitting the grandmother to stand near the victim as the victim testified.

Judgment affirmed.

Blackburn and Eldridge, JJ., concur.


text:
    A98A1565.
    RE/MAX EXECUTIVES, INC. v. VACALIS et al.
    (507 SE2d 235)
   Blackburn, Judge.

Re/Max Executives, Inc. appeals the trial court’s denial of its motion for summary judgment, contending that DeMetri and Dena Vacalis, as purchasers, breached their contractual obligation to pursue and obtain financing for the subject real property, and thereby preventing the closing of the sale. As a jury question remains as to whether the Vacalises diligently pursued their financing obligations under the contract, we affirm.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant [or denial] of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

1. The record shows that the Vacalises, as. buyers, executed a purchase and sale agreement contingent upon them obtaining financing. Paragraph 2 (1) of the sales agreement provides that the Vacalises’ obligation to close the transaction was contingent upon their ability to obtain a loan in the amount of 80 percent of the $330,000 purchase price (i.e., $264,000), with an interest rate not greater than 8.25 percent. Paragraph 2 (7) of the agreement, required purchasers to also close the sale if they selected alternative financing. It provides that: “Buyer shall be obligated to close this transaction if Buyer has the ability to obtain a loan with terms as described herein and/or any other loan for which buyer has applied and been approved.” The contract further provides that purchasers will be liable to Re/Max for its commission if purchaser’s breach of the contract prevents the closing thereof.

On or about September 26, 1996, the Vacalises applied to Sun America Mortgage, Inc. for a loan. Mr. Vacalis testified that his intention was to apply for a $264,000 loan which would satisfy the primary financing contingency of the agreement. Vacalis further testified that he signed the application for this loan in blank, pursuant to Sun America’s request, and that Sun America later completed the application to reflect a request for $200,000 without informing him and against his instructions. On or about October 1, 1996, Vacalis terminated his dealings with Sun America in writing, stating: “The main reason in my decision to transfer my application file is your unwillingness to factor in my moral and ethical monetary support obligation to take care of my ill parents and to ensure that my son receives a quality college education.” Thereafter, the Vacalises unsuccessfully applied for a loan with another institution to which Sun America transferred their file.

Sun America disputes the Vacalises’ version of the loan application process. According to Ted Harrison, Sim America’s Executive Vice President, the Vacalises applied for a $200,000 loan at an interest rate of 7.875 percent. Harrison further testified that Sun America would have approved this loan application. Furthermore, we note that Syd Howel, a senior loan officer at Sun America, testified that the Vacalises signed a fully completed loan application in her presence for a loan in the amount of $200,000. Howel further indicated that, had the Vacalises applied for a $264,000 loan, they would have qualified therefor. However, Howel’s affidavits were filed after the trial court entered its order in this case, and, as such, these affidavits could not have been considered by the trial judge in rendering his decision.

Decided September 22, 1998

Reconsiderations denied and dismissed October 7, 1998.

Lefco & Blumenthal, Stanley M. Lefco, for appellant.

Wilson Law Firm, L. Matt Wilson, Anthony O. Lakes, for appellees.

Weissman, Nowack, Curry & Zaeleon, Seth G. Weissman, Frances R. Mathis, amici curiae.

2. “Every contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement. In the specific context of a financing contingency in a real estate sales contract, for example, we have held that the purchaser has an implied duty to diligently seek to have the contingency take place, and that this implied duty must be exercised in good faith.” (Citations and punctuation omitted.) Century 21 Mary Carr & Assoc. v. Jones, 204 Ga. App. 96, 97 (418 SE2d 435) (1992). Whether in the amount of $264,000 or $200,000 and whether pursuant to paragraph 2 (1) or 2 (7) of the sales agreement, it is undisputed that the Vacalises filed a loan application with Sun America which they unilaterally terminated because Sun America refused to consider speculative obligations which the Vacalises might incur in the future. It is also undisputed that Sun America would have approved this application if it had not been withdrawn. In light of these facts, a jury must determine if the Vacalises acted diligently in attempting to satisfy their financing obligations under the sales contract. “Whether [the Vacalises’] actions were reasonable or exhibited the good faith or diligence implied in the contract was clearly a material issue of fact.” Id. Accordingly, as issues of fact remain in this case, we affirm the trial court’s denial of Re/Max’s motion for summary judgment.

Judgment affirmed.

McMurray, P. J, and Eldridge, J., concur.


author: Johnson, Presiding Judge.

text:
    A98A1809.
    CITY OF LAFAYETTE v. BATES.
    (507 SE2d 252)
   Johnson, Presiding Judge.

J. W. Bates, a retired City employee, sued the City of Lafayette for breach of contract, seeking payment for the unused sick leave which he had accumulated at the time of his retirement. The City of Lafayette moved for summary judgment on the pleading contending that the claim was barred by the six-year statute of limitation applicable to simple contracts. OCGA § 9-3-24. The trial court denied the motion and the City filed this appeal following our grant of its application for interlocutory review.

Bates was hired by the City in 1963. In 1984, the City promulgated a sick leave policy providing that “employees who are retiring under the City’s retirement plan shall be eligible for pay for accumulated unused sick leave (up to 90 days) at their regular rate of pay at time of retirement.” However, on February 8, 1988, the City Council voted to phase-out this sick leave policy beginning on January 1, 1989, so that by January 1,1993, retirees would no longer be entitled to payment for unused sick leave. Bates retired on July 11, 1997. He filed this lawsuit on August 11, 1997, approximately nine-and-one-half years after the City Council voted to phase-out the policy.

On appeal, the City contends that Bates was required to file suit within six years of the date when the City Council voted to phase-out the unused sick leave policy. Bates contends he could file suit within six years of his retirement date. For the following reasons we reverse the ruling of the trial court.

Assuming without deciding that the 1984 sick leave policy contained language on its face which shows that a contractual relationship was created between the City and its employees, it was not an executory contract. Thus, Piedmont Life Ins. Co. v. Bell, 103 Ga. App. 225, 233 (3) (119 SE2d 63) (1961), and its progeny, cited by Bates, are distinguishable from the facts of this case. The 1984 sick leave policy vested in all City employees who would thereafter retire an immediate right to receive payment for up to 90 days of unused sick leave. The City’s obligation to pay for unused sick leave would have arisen effective upon the date of the policy’s enactment. However, the exact amount of payment would be calculated at the time of the employees’ retirement and payment would be made at that time. The employees were given this benefit gratuitously.

Contrary to Bates’ contention, the unused sick leave policy was a part of the City’s overall sick leave plan and was not a part of its separate and distinct retirement policy. While Bates contributed to his retirement, nothing in the record reveals that he made any form of monetary contributions to the City’s sick leave benefit plan, and the unused sick leave policy reflects on its face that he was not required to do so. Thus, Bates’ reliance on Swann v. Bd. of Trustees &c., 257 Ga. 450 (360 SE2d 395) (1987), to establish that the City Council’s ultimate revocation of the unused sick leave policy was an ultra vires act and void, is misplaced.

Decided September 25, 1998

Reconsideration denied October 7, 1998

Elarbee, Thompson & Trapnell, J. Lewis Sapp, Laura K. Johnson, Ronald R. Womack, for appellant.

Cunningham & Mullinax, William D. Cunningham, for appellee.

This case is controlled by our decision in Gamble v. The Lovett School, 180 Ga. App. 708 (350 SE2d 311) (1986). “In contract actions the time of the breach controls, not the time the actual damages result or are ascertained.” Id. at 710; see Mobley v. Murray County, 178 Ga. 388 (1) (173 SE 680) (1933). Although the City’s 1988 policy phased-out the 1984 policy over an extended period of time, any breach of contractual duties occurred when the 1988 policy was enacted on February 8, 1988. Thus, the six-year statute of limitation period began running on February 8, 1988. See Gamble, supra. The trial court erred in denying the City’s motion for judgment on the pleadings.

Judgment reversed.

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


author: Eldridge, Judge. BLACKBURN, Judge,

text:
    A98A1825.
    THOMAS v. BAXTER.
    (507 SE2d 766)
   Eldridge, Judge.

This appeal arises out of an incident which occurred when the “T-top” came off of the vehicle Angela Baxter, defendant/appellee, was driving and struck the windshield of the vehicle in which Debra Thomas, plaintiff/appellant, was a passenger, causing injuries to Thomas. The case was tried before a jury in the Superior Court of Dodge County. At the close of Thomas’ case, Baxter moved the trial court for a directed verdict. After hearing arguments, the trial court granted Baxter’s motion and subsequently entered judgment in her favor. Thomas appeals.

On the evening of May 27, 1995, Baxter was driving a Monte Carlo owned by her boyfriend Vincent Horne. Horne was a passenger in the Monte Carlo and was sitting in the back seat. This was not the car Baxter normally drove. However, Baxter had her own set of keys to the Monte Carlo, and she had driven it frequently during the past month when her car was not running. Sometimes, Baxter would drive Horne to work at approximately 1:00 p.m. and pick him up between 9:00 or 9:30 p.m., so that she would have the use of the vehicle.

Baxter testified that, as she was driving along Antioch Church Road, a car drove up from behind her with only one headlight. She stated that the vehicle was very close to her rear bumper. Baxter testified that initially she started to pull over, but then decided to speed up. As she increased her speed, she hit a place in the road where there were several dips or irregularities in the pavement. Baxter then testified that she had previously driven over these dips on Antioch Church Road and was aware that they were there. Baxter further testified that, in her opinion, the dips were not deep enough to do any damage and that a regular car could drive right over them. Baxter stated that when she hit the dips the night of the incident, it was “just like a normal dip. You fall down in a dip. It’s not like your car is bouncing all over the street.” She went on to testify that the bouncing action caused by the dip was not a hard bounce. Baxter testified that she did not know when the T-top came off the Monte Carlo, but she thought it probably came off when she hit one of the dips.

Vincent Horne testified that a vehicle came up behind them with bright lights and that he told Baxter to speed up. Horne stated that Baxter was going about 40 mph when the car came up behind them and increased her speed to no more than 50 or 55 mph; there was no testimony as to the posted speed limit. Horne testified that, when the Monte Carlo hit the dips in the pavement of the road, the car bounced hard and jerked up and down, but that the jerking motion was not enough to make his head hit the top of the car. Horne stated that he and Baxter had driven on that portion of Antioch Church Road previously and, even though they usually tried to avoid the dips, sometimes they could not.

Horne further testified that the T-top is secured to the Monte Carlo with a latch and had previously never come off when they were driving. Horne stated that he had previously driven the Monte Carlo from the opposite direction over these dips at the same speed without any problem with the T-top. Horne went on to testify that he had not noticed that the T-top was loose; that he had not heard the T-top rattling or had any indication that the latch was loose; and that he had no reason to think the T-top would come off as they were driving. Horne testified that he usually did not take the T-top off in May, that it had been a week since it had been removed, and that he was the last person to remove and replace the T-top.

Horne testified that Baxter did not perform any maintenance on the Monte Carlo, nor was she responsible for having such maintenance performed, that he did all of the maintenance on the car, and that he had not performed any maintenance on the T-top. Horne further testified that, when he had the T-top replaced by a mechanic, the Monte Carlo did not have to be repaired to make the T-top fit.

Horne did not know when the T-top came off the Monte Carlo. He testified that he knew the T-top was in place prior to the car going over the dips in the pavement. After they had gone over the dips and had proceeded up the road, Horne felt wind, looked up, and the T-top was gone. At his deposition, Horne testified that he did not know when the T-top came off, but presumed it came off when they drove over the dips.

Thomas testified to the following: On the night of the incident, her family was driving down Antioch Church Road at approximately 10:50 p.m. She was a passenger in a car driven by her husband, and they were a reasonable distance behind the car in front of them. Thomas saw a flash, and something hit the windshield, breaking it. Thomas’ husband stopped the car, instructed her to put pressure on her face, and drove her to the hospital. The muscles in her right arm were severed, she had multiple cuts and abrasions on her body and face, and had to have stitches in her chin, the corner of her mouth, and her tongue. Thomas was hospitalized for four days.’

Thomas further testified that Horne and Baxter had been visiting her brother-in-law, who lived next door to her, on the day of the incident. When the Thomas family left their home, she observed Horne’s Monte Carlo leave her brother-in-law’s house, traveling in the same direction they were traveling. When they stopped at the intersection of Zion Hill Church Road and Antioch Church Road, there was a security light, and Thomas was able to see Horne’s Monte Carlo turning onto Antioch Church Road in the same direction that her family’s car was turning.

Trooper Glenn Renew of the Georgia State Patrol investigated the incident. He spoke with Mr. and Ms. Thomas at the hospital and with Baxter and Horne at the National Guard Armory where they were attending a dance. Trooper Renew could not recall either Baxter or Horne mentioning a dip in the road or that a vehicle came up behind the Monte Carlo at a high rate of speed with bright lights. Trooper Renew testified that he thought Horne gave him an explanation of why the T-top came off, but he could not remember what the explanation was. Trooper Renew went on to testify that he thought Horne might have said the T-top was not properly fastened.

1. In her first enumeration of error, plaintiff/appellant alleges the trial court erred when it allowed defendant/appellee to cross-examine witness Vincent Horne and ask questions outside the subject matter of plaintiff/appellant’s examination when plaintiff/appellant had called the witness during her case for cross-examination under OCGA § 24-9-81.

Where a witness has been called for cross-examination under OCGA § 24-9-81, it is within the discretion of the trial court to allow such witness to be questioned by the attorney for the opposite party at the conclusion of the calling party’s examination. CSX Transp. v. Levant, 200 Ga. App. 856 (410 SE2d 299) (1991), rev’d on other grounds, 262 Ga. 313 (417 SE2d 320) (1992); Southeastern Metal Products v. DeVaughn, 99 Ga. App. 569 (109 SE2d 305) (1959). The general rule is that, if an “adverse party or agent as specified in OCGA § 24-9-81 ... is called, and a timely announcement is made by the calling party that the witness is being called for cross-examination, the calling party may cross-examine the witness and the [opposite] party may question him only by direct examination.” Colwell v. Voyager Cas. Ins. Co., 251 Ga. 744, 747 (309 SE2d 617) (1983).

However, while leading questions are generally allowed only in cross-examination, it is within a trial court’s discretion to grant “the right to the party calling the witness and in refusing it to the opposite party when, from the conduct of the witness or other reason, justice shall require it.” OCGA § 24-9-63; Hicks v. Doe, 206 Ga. App. 596, 597 (426 SE2d 174) (1992); Clary Appliance &c. v. Butler, 139 Ga. App. 233 (228 SE2d 211) (1976). “For example, it is purely within the discretion of the [trial] court as to whether the State’s counsel should be permitted to lead the witness, or to cross-examine his own witness.” (Citation and punctuation omitted.) Snelling v. State, 215 Ga. App. 263, 265 (1) (b) (450 SE2d 299) (1994). Likewise, when a witness is called for cross-examination pursuant to OCGA § 24-9-81, the trial court has the same discretion to allow counsel for the opposite party to cross-examine the witness and ask leading questions. See Barton v. Strickland, 208 Ga. 163 (65 SE2d 602) (1951).

“[T]rial courts exercise wide discretion in the admission of evidence and in whether to allow leading questions, and reversible error only occurs when trial courts abuse that discretion to the extent that there is prejudice and injury. Moreover, such an abuse of discretion will not constitute reversible error unless palpably unfair and prejudicial to the complaining party.” (Citations and punctuation omitted.) Hicks v. Doe, supra at 597 (1). After examining the record, we find no abuse of discretion under the facts and circumstances of this case, where the witness was the husband of the defendant and not a party to the action and was listed as a “may call” witness for both parties.

Further, “[t]he right to a thorough and sifting cross-examination extends to all matters, relevant and material to the controversy, within the knowledge of the witness. [Cits.]” Corley v. Harris, 171 Ga. App. 688, 689 (2) (320 SE2d 833) (1984). “‘The purpose of cross-examination is to provide a searching test of the intelligence, memory, accuracy, and veracity of the witnesses, and it is better for cross-examination to be too free than too much restricted.’ [Cit.]” Snelling v. State, supra at 265 (1) (a). “Moreover, the scope of cross-examination rests within the trial judge’s sound discretion. [Cit.]” Timley v. State, 268 Ga. 611, 612 (2) (492 SE2d 214) (1997). There was no abuse of the trial court’s discretion in allowing the defendant/appellee’s counsel to question Horne about who had performed any maintenance on the Monte Carlo and who was responsible for having such maintenance performed, when there had been no questions or testimony on the subject matter of the car’s maintenance during the course of plaintiff/appellant’s examination of the witness under OCGA § 24-9-81.

2. Plaintiff/appellant also alleges that the trial court improperly granted a directed verdict to the defendant/appellee.

“A motion for directed verdict should be granted only when there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a particular verdict. OCGA § 9-11-50 (a). All evidence must be construed most favorably to the non-movant. Before the trial court can direct a verdict for the movant, he must find from the evidence that there is no evidence of any kind supporting the non-movant’s position.” (Citations and punctuation omitted; emphasis in original.) Quality Control Elec. v. Electronic Security Svcs. Co., 225 Ga. App. 671-672 (484 SE2d 696) (1997).

Contrary to the assertions of the dissent, the evidence presented at trial construed most favorable to the plaintiff/appellant, as the party opposing the motion for directed verdict, fails to show any negligence on the part of the defendant/appellee. Even though there was testimony that the T-top probably came off when Baxter drove over the dips and irregularities in the roadway, this does not, by itself, show negligence on Baxter’s part. “Negligence is not to be presumed, but is a matter for affirmative proof.” (Citations and punctuation omitted.) Cagle v. Ameagle Contractors, 209 Ga. App. 712 (434 SE2d 546) (1993).

Evidence that Baxter increased her speed to more than 40 mph, but not more than 50 or 55 mph, prior to driving over the dips and irregularities in the roadway does not show negligence on her part without some further evidence of what the speed limit was for that area of the roadway or that such increase in speed was somehow negligent. Such evidence was not present. Also, Baxter’s testimony that she had driven over this section of the roadway previously and knew its condition, and Horne’s testimony that both he and Baxter usually tried to avoid going over the dips in the roadway and that when the car went over the dips in the roadway, it jerked up and down (but not enough to make his head hit the top) does not show that Baxter was negligent. Further, negligence on the part of Baxter is not shown by Horne’s testimony in his deposition, which was introduced for impeachment purposes, that he had never gone over the dips in the roadway at that speed. In addition, Trooper Renew’s testimony that, based upon his conversation with Baxter and Horne, he determined that “the T-top [came] out of the vehicle and hit the windshield of the vehicle that was following them” and that he believed Horne explained the accident by saying that the T-top was not fastened down properly does not show that Baxter was negligent, especially in light of Horne’s testimony that he was the last person to remove the T-top and replace it. Most importantly, there was no evidence that the appellee/defendant knew or should have known that the top latch was malfunctioning or defective so that hitting a bump could dislodge the T-top.

“In the absence of affirmative proof of negligence, we must presume performance of duty and freedom from negligence. Where (as here) plaintiff simply fails to prove [her] case, the direction of a verdict is proper.” (Citations and punctuation omitted.) Kicklighter v. Jones, 202 Ga. App. 654, 655 (415 SE2d 302) (1992).

Judgment affirmed.

Andrews, C. J, McMurray, P. J, Johnson, P. J., Smith, J., and Senior Appellate Judge Harold R. Banke concur. Blackburn, J., concurs in part and dissents in part.

BLACKBURN, Judge,

concurring in part and dissenting in part.

I concur fully with Division 1 of the majority; however, I must respectfully dissent from Division 2 because there is a question of fact for jury determination as to whether Baxter was driving too fast for conditions and whether her conduct caused the accident.

The standard of review in this Court requires that if there is any evidence supporting the non-movant’s position or any question of fact concerning such evidence, the motion for directed verdict should be denied. “A motion for directed verdict should be granted only when there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a particular verdict. OCGA § 9-11-50 (a). All evidence must be construed most favorably to the non-movant. Before the trial court can direct a verdict for the movant, he must find from the evidence that there is no evidence of any kind supporting the non-movant’s position.” (Citations and punctuation omitted; emphasis in original.) Quality Control Elec. v. Electronic Security Svcs. Co., 225 Ga. App. 671-672 (484 SE2d 696) (1997).

Decided September 16, 1998

Reconsideration denied October 7, 1998

Dozier & Sikes, Cheryl A. Sikes, for appellant.

Construing the evidence most favorably to Thomas, as the nonmovant, there was evidence presented which supported Thomas’ claims. Both Baxter and Horne testified that Baxter sped up prior to driving over a section of the road which contained several dips and irregularities. Baxter was driving more than 40 mph, but no more than 50 or 55 mph. Additionally, Baxter had driven over this section of road before and knew its condition. Baxter also testified that she thought the T-top came off when she hit one of the dips in the road. Horne testified that he and Baxter usually tried to avoid going over the dips in the road, but that on the night of the incident, Baxter sped up and went right over the dip, and that is when the T-top came off. Horne also testified that when the car went over the dip in the road, it bounced hard enough to jerk the car up and down. In his deposition, which was introduced for impeachment purposes, Horne testified that he had never gone over the dips in the road at that speed. Trooper Renew testified that based upon his conversation with Baxter and Horne, he determined that “the T-top [came] out of the vehicle and hit the windshield of the vehicle that was following them.” Baxter told Trooper Renew “[t]he T-top come out and hit the vehicle behind her.” Trooper Renew further testified that he believed Horne explained the accident by saying that the T-top was not fastened down properly. A jury could determine that Baxter was driving too fast for the condition of the road and that such conduct caused the T-top to come off.

“[Q]uestions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain and indisputable cases. . . . [E]ven where there is no dispute as to the facts, it is usually for the jury to say whether the conduct in question met the standard of the reasonable man.” (Citations and punctuation omitted.) Cunningham v. Nat. Svc. Indus., 174 Ga. App. 832, 836 (331 SE2d 899) (1985). Whether Baxter drove too fast over the rough road, and whether the T-top came off as a result thereof and caused the incident is a jury question. The trial court erred in granting Baxter’s motion for directed verdict.

Newton, Smith, Durden, Kaufold & Rice, Wilson R. Smith, for appellee.

       Home, who is now Baxter’s husband, was not a party to this action.

       Trooper Renew’s specific testimony was that he was not sure what Home’s explanation was, and that he had not made a notation of Horne’s explanation in his report. However, Trooper Renew thought “it was something to do with it [the T-top] not being properly fastened down.”