author: Judge Harold R. Banke.

text:
    A96A1696.
    SHROPSHIRE v. THE STATE.
    (476 SE2d 859)
   Judge Harold R. Banke.

Burner Shropshire was convicted of two counts of sale of crack cocaine. Following the denial of his motion for new trial, Shropshire enumerates two errors, contending the evidence was insufficient to prove his identity in the underlying drug sales and contesting the admission of similar transaction evidence.

Viewed in a light most favorable to the verdict, the evidence disclosed that while Georgia Bureau of Investigation Agent Benjamin Collins was participating in an undercover drug operation, Shropshire approached him, asked what he wanted, then sold him $20 worth of crack cocaine. Approximately five minutes later, Collins and Shropshire completed a second hand-to-hand drug transaction when Collins purchased $40 worth of crack cocaine. About one and one-half hours later, Collins identified Shropshire from a photographic array consisting of ten-twenty photographs of suspected local narcotics dealers. As similar transaction evidence the State offered Shropshire’s guilty plea to another cocaine sale also involving a hand-to-hand transaction. Held:

1. We reject Shropshire’s contention that his identity as the drug seller was not established beyond a reasonable doubt.

Identity is a question for the trier of fact and where a witness identifies a defendant, the jury, not the appellate court, must determine the credibility of such identification. Lowe v. State, 185 Ga. App. 606, 607 (2) (365 SE2d 479) (1988).

Even assuming arguendo that the pre-trial photographic array was so suggestive as to cast doubt upon the reliability of the Collins’ in-court identification, it passes a totality of circumstances review. Askew v. State, 193 Ga. App. 61 (2) (387 SE2d 25) (1989). Collins had the opportunity to observe Shropshire closely on two occasions, spoke with him directly, very little time had elapsed between the commission of the crimes and Collins’ identification, and Collins expressed certainty as to Shropshire’s identity. Id.

2. Shropshire contends that the trial court erred in admitting his prior drug conviction because he had not put his character in evidence. According to the transcript, Shropshire did not voice any objection to the admission of this conviction as similar transaction evidence. Failure to object to the introduction of similar transaction evidence in cases like this one where a Uniform Superior Court Rule 31.3 (B) hearing was held precludes appellate consideration of alleged error in admitting that evidence. Buckner v. State, 219 Ga. App. 71, 72 (2) (464 SE2d 11) (1995). Issues not raised at trial cannot be raised for the first time on appeal, as they are deemed waived. Clark v. State, 206 Ga. App. 10, 12 (2) (424 SE2d 310) (1992); Jacobson v. State, 201 Ga. App. 749, 751 (2) (b) (412 SE2d 859) (1991).

Decided October 9, 1996

Reconsideration dismissed December 4, 1996.

Martin & Martin, Harold E. Martin, for appellant.

Tommy K. Floyd, District Attorney, James L. Wright III, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A96A1853.
    CRAWFORD et al. v. CRUMP.
    (476 SE2d 855)
   McMurray, Presiding Judge.

Plaintiff-debtor Kenneth L. Crump, Sr. instituted this petition for injunctive relief, alleging that defendant-creditors Harold R. Crawford and Mary F. Crawford were wrongfully attempting to foreclose on collateral securing a series of loans, pursuant to powers contained in security deeds. Plaintiff admitted the existence of a “verbal agreement between plaintiff and defendant Harold Crawford providing] for the payment of ten percent per annum as an interest rate[; but contended that he] owes to the defendants [only] $64,352.32 plus interest from April 22, 1994[,]” rather than the $127,940.91 as alleged in the notice of foreclosure. The plaintiff further alleged “there is a genuine dispute as to the amount owed to the defendants.” The complaint also included an allegation that defendants had “acted in bad faith, have been stubbornly litigious, and have caused plaintiff unnecessary trouble and expense,” and demanded expenses of litigation, including attorney fees. Defendants denied the material allegations, although “agreeing] with the allegations of paragraph 9 of plaintiff’s complaint that there is a genuine dispute as to the amount owed.” Defendants also raised a “cross claim” as to plaintiff’s default on the loans. Defendants alleged “that when you take into account actual monies had and received by plaintiff, deduct payments made at the time made, and apply the correct interest rate, then the correct amount owing to defendants as of July 27, 1994, is $127,940.91. This was the amount of defendants’ demand, is the amount secured by the realty and the amount due defendants as of that date. Defendants are entitled to additional interest from that date.”

The trial court rendered a partial judgment in favor of defendants on their counterclaim, to the extent of the $64,352.32 plaintiff admitted owing, while reserving for trial plaintiff’s liability, if any, for the claimed amounts exceeding that sum. The trial court also reserved plaintiff’s claim for expenses of litigation and attorney fees. In defending against further liability, plaintiff sought to show that the series of loans, never totally memorialized by promissory notes, had been rendered into an “account stated” by a purported statement signed by defendant Harold R. Crawford. Plaintiff’s Exhibit 1, dated at the top “4-23-84,” appears to be a receipt and recites that defendant Harold R. Crawford had “[rjeceived [plaintiff] Kenneth L. Crump Payment of Seventy-Five Thousand and no/100 ($75,000.00) as Partial Payment on Original Note of $100,000.00. [SIGNED] Harold R. Crawford.” This writing further recites: “Balance Due . . . 25,000.00 Plus any accrued interest at rate of 10%. [SIGNED] Kenneth L. Crump[, plaintiff].” Below plaintiff’s signature is the handwritten date: “4-23-84” and the signature “Doris C. Barfield, Notary Public.” There also is a signature “Patsy M. Bond, Witness.”

Defendant confirmed that he signed this document and that Ms. Doris Barfield notarized his signature, but denied that this was a statement of account, and contended that, in 1982 when he signed, the date was blank. Defendant considered the document a fraud on himself. Nevertheless, subsequent to signing this document, defendant loaned plaintiff “another $12,000. . . .” When called by defendants, Doris C. Barfield testified that she “did not date it that day. If it was ever dated, it had to be after that, and [she did] not recall ever dating [Plaintiff’s Exhibit 1].” Together, plaintiff and defendant Harold R. Crawford “brought the paper in and asked — asked [Doris C. Barfield] to notarize the paper. . . . [She] was asked by them to leave the date out.”

Ten years later, in 1994, “the first thing that [plaintiff knew] about [defendant Harold R. Crawford] wanting his money was [when plaintiff] walked to [his] desk one day and [t]here [was] a computer printout off of Doris’ calculator . . . and it [came] to $111,000. He[, defendant,] brought it in, [threw] it on [plaintiff’s] desk and left it. . . . Two or three moAths later he[, defendant, came] in with another paper showing $117,000. And, then, he just want[ed] to talk to [plaintiff] about what [plaintiff owed] him.” When plaintiff denied owing defendant as much as $129,000, “all he [defendant] could do was call [plaintiff] a ‘G— d— liar.’ ”

Plaintiff also introduced the testimony of Arthur T. Anthony, an expert in the field of “forensic document examination.” Mr. Anthony concluded that “Doris Barfield prepared the date directly above her name[, . . . but that] the evidence indicated that Doris Barfield did not prepare the date in the upper right ... of Plaintiff’s Exhibit Number 1.” Mr. Anthony confirmed that his “examination [would not purport to] reveal when the date was written on thgt document.” (Emphasis supplied.) The parties also stipulated, as proof of the reasonable value of plaintiff’s counsel’s attorney fees, that counsel’s “legal fees are $150,00 per hour, and that based upon the trial work and the time needed to prepare this case [was] 100 hours [so] the value of [his] services would be some $15,000.” Other expenses of litigation were $2,000 in expert witness fees, $85 in court costs, and $372.10 for the cost of the court reporter or depositions, bringing the total expenses claimed to $17,457.10.

The jury concluded that plaintiff “owes nothing to Defendants on the original debt, and . . . further [found] Plaintiff is entitled to recover of the Defendants $25,000.00 as expenses of litigation including reasonable attorney’s fees.” Defendants’ motion for new trial was denied, and this appeal followed. Held-.

1. Defendants first contend the trial court “erred in permitting the issue of [OCGA § 13-6-11] expenses of litigation, including attorney fees, to go before the jury.” Although this enumeration does not specify any ruling of the trial court alleged to be erroneous, it is apparent that defendants complain of the overruling of their motion for directed verdict.

(a) At the close of plaintiff’s case and at the close of all the evidence, defendants moved for a directed verdict as to any damages in the form of expenses of litigation and attorney fees, as purportedly based on the alleged wrongful foreclosure attempt, arguing that plaintiff failed to fulfill a condition precedent, namely a tender in cash or certified funds of the approximately $64,000 plaintiff admittedly owed to defendants.

There was evidence from which the trier of fact could have concluded that plaintiff’s tender of the money admittedly owed would have been futile in forestalling litigation. Moreover, it is undisputed that plaintiff made a pre-trial payment of these funds after consenting to a judgment in that amount. The effect of defendants’ argument would be to require plaintiff to make a second tender in cash or its equivalent of a substantial sum of money, even though that amount was already paid. In our view, it was not necessary, in order to satisfy the law, to make such an onerous second tender of $64,000. “This would be nonsense. People would laugh at the law if it required any such thing.” Fletcher Guano Co. v. Vorus, 10 Ga. App. 380, 382 (73 SE 348). See also Dept. of Transp. v. Gilmore, 209 Ga. App. 656, 657 (2), 658 (434 SE2d 114).

(b) Defendants further contend there was a bona fide controversy precluding an award of OCGA § 13-6-11 damages on the ground that defendants had been stubbornly litigious, and that there is no evidence of bad faith in the transaction.

The record in the case sub judice contains evidence that defendants employed sham documents in the course of their transaction with plaintiff, and sought from plaintiff a total of approximately $129,000 although plaintiff never received more than $47,000 total from the series of loans.

“ £(T)he elements of bad faith which will authorize expenses of litigation in an ex contractu action are those acts relative to the conduct of entering into a contract or to the transaction and dealings out of which the cause of action arose ((cits.)), but do not have reference to the motive with which the defendant defends an action after a cause of action has occurred. (Cit.)’ Edwards-Warren Tire Co. v. Coble, 102 Ga. App. 106, 111 (2), 113 (115 SE2d 852).” Kemira, Inc. v. Williams Investigative &c. Svcs., 215 Ga. App. 194, 199 (3), 200 (450 SE2d 427). “Since there was some evidence to support a finding that [defendants] acted in bad faith in . . . fraudulently overcharging [plaintiff] under the terms of the [partially parol] contract, the award of attorney fees must be affirmed. See Clark v. Aenchbacher, [143 Ga. App. 282, 284 (1) (238 SE2d 442)]; St. Holmes v. St. Holmes, 169 Ga. App. 283, 284 (2) (312 SE2d 370) (1983); Glenn v. Fourteen West Realty, [169 Ga. App. 549, 551 (313 SE2d 730)]; Mansell v. Benson Chevrolet Co., 165 Ga. App. 568, 570 (5) (302 SE2d 114) (1983).” Harrell v. Gomez, 174 Ga. App. 8, 11 (6) (329 SE2d 302). This enumera tion is without merit.

2. Next, defendants contend the trial court erred in refusing to reduce the jury’s award of OCGA § 13-6-11 expenses of litigation to the amount as stipulated by the parties or else proved by uncontested evidence. Plaintiff replies that the jury is not- bound by the stipulated opinion evidence as ’to the reasonable amount of attorney fees. In our view, this enumeration has merit.

“[A] stipulation by the parties upon which a resolution of [some] issue [is] to be made . . . [is] binding even though it might in some

manner contradict or conflict with the pleadings. Southern R. Co. v. Hodgson Co., 148 Ga. 851 (98 SE 541); Traylor v. Gormley, 177 Ga. 185 (4) (169 SE 850). Evidence contrary to the stipulation is not

admissible; since it is binding, it may not be disproved. Walden v. Camp, 206 Ga. 593, 602 (58 SE2d 175); School Boy Sportwear Corp. v. Cornelia Garment Co., 106 Ga. App. 99, 101 (2) (126 SE2d 248), and citations.” Goolsby v. Allstate Ins. Co., 130 Ga. App. 881, 882 (1), 883 (204 SE2d 789). In the case sub judice, the jury’s award of $25,000 exceeds the outermost range of the evidence, as stipulated by plaintiff. He is as much bound by that stipulation as the defendants. The judgment of the trial court is affirmed on condition that, within 20 days of the receipt of the remittitur, plaintiff agrees to write down the judgment for OCGA § 13-6-11 expenses of litigation to $17,457.10, the greatest amount authorized by the evidence. Otherwise, the judgment stands reversed.

Decided October 9, 1996.

Thomas & Settle, Ronald B. Thomas, for appellants.

John R. Thigpen, Sr., for appellee.

3. Our disposition in Division 2 renders defendants’ remaining contention moot.

Judgment affirmed on condition, otherwise reversed.

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


author: Blackburn, Judge.

text:
    A96A1914.
    McGHEE v. THE STATE.
    (476 SE2d 853)
   Blackburn, Judge.

J. C. McGhee appeals his conviction for possession of cocaine and for operating a vehicle under the influence of cocaine to the extent it was less safe for him to drive, asserting that the evidence was insufficient to support his conviction.

Viewing the evidence in the light most favorable to the verdict, an officer of the Calhoun Police Department stopped McGhee’s vehicle after it was observed weaving ánd making a wide turn. McGhee, the vehicle’s sole occupant, had trouble speaking and responding to the officer’s questions. His balance appeared to be impaired, and McGhee was unable to perform one of the field sobriety tests administered by the officer. A consensual search of McGhee’s vehicle revealed a pipe hidden under the driver’s seat floor mat. It was warm to the touch, and expert chemical analysis revealed that it contained cocaine residue. The arresting officer requested that McGhee submit a drug test of his urine. Despite being informed pursuant to OCGA § 40-5-55 that failure to cooperate in the administration of such a test could be used as evidence against him, McGhee would not permit the test to be performed. At trial, McGhee claimed that he had purchased the vehicle the day prior to his arrest and that the pipe must have been present in the vehicle at the time he bought it. He also claimed that his demeanor and his failure to adequately perform a certain sobriety test at the time of his arrest were caused by a medical condition and not by the influence of cocaine.

Decided October 9, 1996.

William R. Thompson, Jr., for appellant.

T. Joseph Campbell, District Attorney, Donald S. Smith, Assistant District Attorney, for appellee.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The jury’s verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citations and punctuation omitted.) Powell v. State, 218 Ga. App. 556, 557 (462 SE2d 447) (1995).

With regard to the charge of possession of cocaine, we find the evidence sufficient to support McGhee’s conviction. See Knox v. State, 216 Ga. App. 90, 92 (453 SE2d 120) (1995) (pipe encrusted with cocaine residue found in automobile where defendant was sole occupant was sufficient to support charge for possession).

With regard to the charge that McGhee was driving under the influence of cocaine to the extent he was a less safe driver, the record reveals that McGhee’s driving was erratic just prior to his arrest; a pipe containing cocaine residue with indications of recent use was found in his possession; he demonstrated the physical manifestations of a party under the influence of cocaine; and he refused to submit to a drug test. See Brooks v. State, 187 Ga. App. 194, 195 (369 SE2d 801) (1988) (refusal to submit to a drug test “may be considered as positive evidence creating an inference that the test would show the presence of the prohibited substance”). “A conviction for driving . . . under the influence of intoxicants may be based on circumstantial evidence. The circumstantial evidence need not exclude every hypothesis save that of guilt, but only reasonable hypotheses, so as to justify a finding of guilt beyond a reasonable doubt. We have no yardstick to measure consistency or reasonableness, save the opinion of the jurors, whose function it is to determine credibility of witnesses and questions of reasonableness.” (Citations and punctuation omitted.) Posey v. State, 215 Ga. App. 565, 566 (451 SE2d 463) (1994). The evidence is sufficient to support the jury’s verdict on McGhee’s DUI charge. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Beasley, C. J., and Birdsong, P. J., concur.


text:
    A96A2101.
    ANDERSON v. THE STATE.
    (476 SE2d 852)
   Judge Harold R. Banke.

Raymond Anderson was convicted of possession of cocaine with intent to distribute and obstruction of a law enforcement officer. Following the denial of his motion for new trial, Anderson enumerates two errors, contesting the voluntariness of his confession and challenging the sufficiency of the evidence.

Viewed in a light most favorable to the verdict, the evidence disclosed that at approximately 12:30 a.m., two police officers stopped their unmarked patrol car in an area known for excessive street level drug dealing and asked Raymond and Matthew Anderson what they were doing. When the brothers immediately fled without responding, the police gave chase on foot. While in pursuit, Detective Tracy Howard saw them suddenly fall and disappear into a ditch. Matthew Anderson continued to run, but Raymond Anderson had broken his kneecap and was unable to proceed. During an inspection of the ditch, police discovered a plastic ziplock bag containing crack cocaine lying near Raymond Anderson’s driver’s license.

Less than two hours later as Anderson awaited treatment at the hospital, he signed a waiver of rights form and gave a tape-recorded statement to police. In his statement, Anderson admitted possessing the cocaine and intending to sell it. Anderson acknowledged that he made his statement freely and was not coerced or promised any benefit. Nor was he under the influence of any drugs or alcohol or medication. At trial, Anderson did not assert that his incriminating statement was involuntarily or unknowingly made. Instead, he claimed that he made the statement in order to protect his younger brother from going to jail. Held:

1. Anderson contends that his statement to police made after Miranda warnings was inadmissible because he was in excessive pain and being denied necessary medical treatment.

Whether a waiver of rights and a subsequent statement have been voluntarily and knowingly made depends on the totality of the circumstances. Williams v. State, 238 Ga. 298, 302 (1) (232 SE2d 535) (1977). At the Jackson-Denno hearing, Anderson admitted that he had not requested any pain medication prior to giving his statement and testified that he made the statement freely and not because he wanted to protect his brother. The transcript shows that the interrogation was brief and Anderson was coherent. Also, Anderson was in his twenties, had completed 11 years'of school, understood the charges, and displayed an obvious willingness to speak with the investigating officer. In weighing the applicable factors and considering the totality of the circumstances, the trial court did not commit clear error in finding that Anderson waived his constitutional rights and made a knowing and voluntary statement to the police. Reinhardt v. State, 263 Ga. 113, 115 (3) (b) (428 SE2d 333) (1993). See Bright v. State, 265 Ga. 265, 279-280 (5) (b) (455 SE2d 37) (1995).

Decided October 9, 1996.

Jones, Osteen, Jones & Arnold, Linnie L. Darden III, for appellant.

Dupont K. Cheney, District Attorney, Ross H. Pittman III, Assistant District Attorney, for appellee.

2. The evidence was sufficient for a rational trier of fact to find all the essential elements of the crimes of possession of cocaine with intent to distribute and obstruction of a law enforcement officer. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, R J., and Blackburn, J., concur.


text:
    A96A0986.
    DEPARTMENT OF HUMAN RESOURCES v. PRUITT.
    (476 SE2d 764)
   Blackburn, Judge.

The Department of Human Resources (DHR) appeals the trial court’s decision to dismiss its petition filed pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA). OCGA § 19-11-40 et seq. The DHR, acting on behalf of Ohio resident Donald Gordon, was seeking to collect child support and arrearages from Georgia resident Barbara Pruitt based on a child support order that Gordon obtained in an Ohio court. The trial court dismissed the petition on the grounds that the Ohio court lacked personal jurisdiction over Pruitt when it entered the order. We granted the DHR’s application for discretionary appeal.

Interstate URESA actions begin when an out-of-state parent, guardian, or child support collection agency attempting to collect support files a URESA application in the county of the state where the obligor resides (responding state). OCGA §§ 19-11-50 through 19-11-54; 19-11-60. The responsibility for prosecution generally rests on the district attorney of that county. OCGA § 19-11-53. In Georgia, the district attorney acts with the assistance of the DHR. OCGA § 19-11-58.

URESA provides two different types of actions for obtaining child support that may be used either separately or in conjunction. First, if the duty of support is based upon a child support order obtained in a foreign state, the responding state may seek to register that foreign order. OCGA §§ 19-11-77 through 19-11-81. The second type of URESA action is an independent proceeding for support where the support decision is made by the responding court employing the law of the responding state. See Dept. of Human Resources v. Westmoreland, 210 Ga. App. 603 (436 SE2d 706) (1993) (this type of URESA action is not “merely a collection action, but is an independent proceeding for support”).

In responding to a registration attempt, the local obligor may raise “only matters that would be available to him as defenses in an action to enforce a foreign money judgment.” OCGA § 19-11-80 (a). One such defense would be the foreign court’s lack of in personam jurisdiction. See Okekpe v. Commerce Funding Corp., 218 Ga. App. 705, 706 (463 SE2d 23) (1995). Should the trial court in the responding state permit its registration, the foreign support order may be collected on the same terms as a support order entered in the responding state. OCGA § 19-11-81. In the present case, however, the DHR did not check the designated box on the pre-printed petition form indicating that it was attempting to register the Ohio support order. Moreover, even if registration was the DHR’s intent, such an attempt would fail as the petition did not contain all of the materials mandated for registering a foreign support order. See OCGA § 19-11-79 (a) (3).

Rather, the DHR was pursuing the second type of URESA action in which the court of the responding state makes its own independent determination regarding whether support is owed as well as its own determination as to what amount of support is appropriate. See Brookins v. Brookins, 190 Ga. App. 852, 853 (380 SE2d 494) (1989) (this type of URESA proceeding is not comparable to a “traditional” action on a foreign judgment). In this type of URESA action, the trial court of the responding state determines whether the obligor owes a duty of support applying the support laws of the state where the obligor was present during the period for which support was sought. OCGA § 19-11-49. In the absence of other evidence, the obligor is presumed to have been present in the responding state during the period for which support is sought. Id. If the responding court finds that such a duty of support exists, it enters its own support order in an amount that it determines to be appropriate. Specifically, the obligor “may be required to pay for this support a fair and reasonable sum according to his means, as may be determined by the [responding] court.” OCGA § 19-11-43 (1).

Consequently, in this case, the Georgia trial court must make its own determination, after applying Georgia law, as to whether Pruitt owes a duty of support. If the Georgia trial court finds such a duty, then it must make its own decision as to what amount of support Pruitt must pay. While a responding court may enforce an existing order pursuant to OCGA § 19-11-63, it is also free to “enter a support order that is greater than, as well as less than, a prior judgment.” State of Ga. v. McKenna, 253 Ga. 6, 9 (315 SE2d 885) (1984). Because the Georgia trial court exercises its own discretion on these issues, the arguments about whether the Ohio court had jurisdiction over Pruitt when it entered its order are misplaced as the Georgia court is in no way bound by the pronouncements of the Ohio court. See id. at 8-9 (independent URESA proceeding “does not affect, and is not bound by, prior foreign judgments”); see also Brookins, supra at 853 (in a URESA action for child support arrearages, “the foreign judgment does not constitute the gist of the action, but is merely evidence from which the extent of the child support obligor’s default . . . can be quantified”).

Our finding that jurisdictional attacks against an order of a foreign court are inappropriate in this type of proceeding is consistent with the purpose of URESA. Prior to the statute’s enactment, a complaining parent or guardian who lived in a state different from the obligor often faced expensive and inefficient battles to collect support. See Westmoreland, supra at 603. URESA established an alternative method of collection that was uniform and reciprocal as to all participating states. OCGA § 19-11-41. Clearly, one purpose in creating such a scheme was to eliminate some of the jurisdictional battles often attendant to interstate support actions. To dismiss this type of URESA action based on a jurisdictional attack against the order of a foreign court would impair, not effectuate, the purpose of this type of URESA proceeding which is to enforce duties of support — not prior support orders.

In light of the above, the trial court erred in dismissing the DHR’s petition based on the Ohio court’s lack of jurisdiction over Pruitt. This matter is hereby remanded so that the trial court may make its own determination as to whether Pruitt owes a duty of support and, if so, what amount of support would be appropriate, employing those precepts outlined in OCGA §§ 19-11-43 and 19-11-49.

Decided August 21, 1996

Reconsideration denied October 10, 1996.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Stephanie M. Baldauff, Kevin O’Connor, Assistant Attorneys General, for appellant.

Michael D. Reynolds, for appellee.

Moreover, we note that the Ohio court order obtained by Gordon is not rendered meaningless as a result of this decision. By its own design, a URESA action is an alternative remedy for collecting support — not the exclusive one. The URESA statute expressly provides: “[a]ny order of support issued by a court of this state when acting as a responding state shall not supersede any previous order of support issued in a divorce or separate maintenance action, but the amounts for a particular period paid pursuant to either order shall be credited against amounts accruing or accrued for the same period under both.” OCGA § 19-11-71. Consequently, if Gordon is unhappy with the amount awarded or collected in this URESA action, barring a double recovery, he is free to pursue “any number of [other] remedies” seeking satisfaction of the Ohio judgment. State v. Overstreet, 170 Ga. App. 635, 636 (318 SE2d 65) (1984); see Baird v. Herrmann, 181 Ga. App. 579 (353 SE2d 75) (1987) (URESA action in which Georgia responding court awarded less support than prior Michigan decree did not bar claimant from domesticating Michigan decree and seeking the discrepancy).

Judgment reversed and remanded.

Beasley, C. J, and Birdsong, P. J., concur.

       As part of its appeal, the DHR asserts that the Ohio judgment should be given full faith and credit under 28 USC § 1738B which specifically addresses when full faith and credit may be accorded to child support orders. However, because the applicability of this statute was never raised in or addressed by the trial court, this Court cannot review the issue on appeal. Professional Practices Comm. v. Brewer, 219 Ga. App. 730, 732 (466 SE2d 651) (1995) (failure to raise issue in trial court precludes appellate review).

       “The purposes of the URESA are to improve and extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto. . . . URESA was designed to facilitate collection of support from parents residing in distant states without compelling the custodial parent to incur excessive transportation and litigation expenses. We must dispose of this issue with a view toward facilitating the legislative purposes of URESA.” (Citations and punctuation omitted.) Westmoreland, supra at 603.


author: Smith, Judge.

text:
    A96A1228.
    FULLER v. PERRY et al.
    (476 SE2d 793)
   Smith, Judge.

Walter S. Fuller, Jr. brought this action against Claude G. Perry, Jr., Longstreet Press, Inc., and L.S.P., Inc., claiming fraud and breach of fiduciary duty and seeking rescission, an accounting, attorney fees, and punitive damages. Fuller contended he was fraudulently induced by Perry to execute an employment agreement with Longstreet in May 1992, superseding an earlier one-page agreement executed in June 1991. A third agreement was negotiated and signed in the summer of 1993. Fuller resigned from Longstreet in October 1993 and filed suit in February 1994.

Perry, Longstreet, and Longstreet Press, Inc. answered and counterclaimed, seeking, among other things, indemnity under the May 1992 agreement. After discovery, they moved for and were granted summary judgment. Because it found that the June 1991 agreement contained no term of duration and therefore was terminable at will, the trial court held that no cause of action could lie for its termination.

Fuller contends that the trial court erred in this decision because the June 1991 agreement gave him an equity ownership interest in Longstreet, which he was fraudulently induced to forego in executing the May 1992 agreement. Longstreet, on the other hand, characterizes the June 1991 agreement as an independent contractor arrangement with compensation of both salary and a percentage of net profits. The terms and nature of the June 1991 agreement are immaterial to this decision, however, because it is undisputed that in the May 1992 agreement, the parties identified the June 1991 agreement as the “Prior Agreement” and expressed their intention to cancel it and enter into an employer/employee relationship. Fuller agreed to “cancel and terminate the Prior Agreement” and to release and indemnify Longstreet from all claims arising out of it.

It is undisputed that the May 1992 agreement was entered into in furtherance of a pending sale of the assets of Longstreet to Cox Communications, Inc. Fuller acknowledged that he was aware of the negotiations between Longstreet and Cox in early 1992. A Cox representative expressed concern to Perry that the June 1991 agreement might prove an obstacle to the sale. As a result, Perry opened negotiations with Fuller regarding a revision of the June 1991 agreement. Fuller contends that Perry made certain fraudulent statements to him in the course of these negotiations; these allegations of fraud form the basis of Fuller’s attempts to rescind the May 1992 agreement. Because we find that Fuller failed to show an actionable misrepresentation, we do not reach the issue on which the trial court’s decision was based. A grant of summary judgment, however, must be affirmed if it is right for any reason. Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (5) (431 SE2d 746) (1993); see Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991).

1. In his deposition, Fuller listed Perry’s alleged statements, which he contended took place at one meeting during May 1992 at a Cobb County restaurant. First, Fuller contended he understood “[t]hat the total sales price or offer, however it was made, was for $1,600,000.” Fuller acknowledged, however, that “at that point . . . the deal had not been made.” He also contended Perry had represented to him that Perry “stood to make nothing from this,” and that “Longstreet would likely cease to exist or somebody there would lose their jobs- or something like that” if the Cox purchase did not take place. Again, Fuller acknowledged that his only reason to dispute Perry’s statement was “some discussion that, you know, maybe that wouldn’t have happened. I don’t know.” He stated there was no other representation by Perry that he contended was fraudulent. He acknowledged that no one other than Perry made any alleged misrepresentations to him.

“The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff. For an action for fraud to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort.” (Citations and punctuation omitted.) Cobb County School Dist. v. MAT Factory, 215 Ga. App. 697, 700-701 (2) (a) (452 SE2d 140) (1994). Because summary judgment is appropriate if only one essential element of Fuller’s claim is eliminated, Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), “we need not address all the issues raised on appeal or in the motion for summary judgment to resolve this appeal.” Real Estate Intl. v. Buggay, 220 Ga. App. 449, 451 (2) (469 SE2d 242) (1996).

It is axiomatic that a false representation made by a defendant, to be actionable, must relate to an existing fact or a past event. Marler v. Dancing Water Lakes, 167 Ga. App. 99, 100-101 (1) (305 SE2d 876) (1983). “Fraud cannot consist of mere broken promises, unfilled predictions or erroneous conjecture as to future events. [Cits.]” Riddle v. Driebe, 153 Ga. App. 276, 281 (265 SE2d 92) (1980) (attorney’s representations regarding future effect of legal documents). “Representations concerning expectations and hopes are not actionable. [Cit.]” Smith v. McClung, 215 Ga. App. 786, 788 (452 SE2d 229) (1994) (father’s alleged intention to deed land to daughter).

Fuller acknowledged that he knew the agreement between Cox and Longstreet had not been finalized at the time of his restaurant meeting with Perry. Accordingly, it was apparent that Perry’s alleged statements regarding the price and structure of the ultimate agreement and his possible compensation were at best promissory or speculative. See Allen v. Sanders, 176 Ga. App. 647, 650 (2) (337 SE2d 428) (1985) (predictions as to future value of tax loss under partnership mere expressions of opinion and not actionable).

It is true that claims of fraud arising from a representation of a future event made with knowledge that it is false or intention not to perform may be actionable. Seligman v. Savannah Wholesale Co., 185 Ga. App. 250, 252 (363 SE2d 785) (1987). But Fuller’s attempts to show prior knowledge or fraudulent intent on Perry’s part are unsupported by the record. Fuller contends that he would never have agreed to sign the May 1992 contract if he had known that Perry would receive money from the completed sale. Evidence of the amount of back salary or commissions that Perry eventually received from the completed sale, however, does not constitute proof that Perry knew at the time of his conversation with Fuller, before negotiations were completed, what Cox’s ultimate decision or his own compensation would be. As Fuller acknowledges, Perry’s predictions regarding the possible fate of Longstreet absent the Cox transaction were also purely speculative in nature. Fuller’s witness, who predicted that Longstreet would have been able to continue operations despite cash flow and capital problems, agreed on cross-examination that this was merely a “subjective opinion,” stating “there is no proof for or against.” “ ‘It is elementary that no one has a right to rely on a statement of another as to what could and would take place in the future. The activities of life are too uncertain for anyone to depend on such representations. And the law recognizes no actionable right in the event one does rely upon such uncertainties.’ [Cit.]” Marler v. Dancing Water Lakes, supra at 100.

Fuller’s assertion of a fiduciary relationship with Perry does not alter the character of the alleged representations. Assuming without deciding that such a relationship existed, Perry “cannot be held liable for failing to disclose what [he] did not know and could not have foretold. [Cit.] [Any] duty of diligence and good faith cannot be held to include an obligation to predict accurately or guaranty the future financial condition or performance of a third party. Accordingly, the trial court correctly granted summary judgment to appellees on the claim for breach of fiduciary duty.” Garcia v. Unique Realty &c. Co., 205 Ga. App. 876, 878 (2) (424 SE2d 14) (1992).

Since Perry’s statements regarding the proposed Cox transaction related entirely to future events involving a third party and consisted entirely of opinions, predictions, and conjectures, they cannot form the basis of a claim for fraud or breach of fiduciary duty. Accordingly, the trial court did not err in granting summary judgment in favor of Perry, Longstreet, and Longstreet Press, Inc.

2. Because Fuller’s attempt to invalidate the May 1992 agreement on the basis of fraud fails for the reasons stated in Division 1, it follows that the trial court did not err in granting summary judgment on appellees’ counterclaim for indemnification based on the terms of that agreement.

Decided September 27, 1996

Reconsideration denied October 10, 1996

Decker & Hallman, Richard P. Decker, Peter V. Hasbrouck, for appellant.

Dow, Lohnes & Albertson, James W. Kimmell, Jr., Sean R. Smith, Perrie, Buker, Stagg & Jones, Robert E. Stagg, Jr., for appellees.

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.

       Longstreet Press, Inc., a Georgia corporation, changed its name to L.S.P., Inc. on June 17, 1992, upon the formation of appellee Longstreet Press, Inc., a Delaware corporation owned by Cox. These changes are immaterial to this appeal, and L.S.P., Inc. is referred to as “Longstreet,” its name at the time of the relevant events.

       Fuller also contends that the Delaware corporation, Longstreet Press, Inc., is liable as a successor in interest to the Georgia corporation, L.S.P., Inc. This is an incorrect statement of Georgia law. See Bullington v. Union Tool Corp., 254 Ga. 283, 284 (328 SE2d 726) (1985). Moreover, Fuller’s claim against Longstreet Press, Inc. is derivative of and dependent upon his claim against L.S.P., Inc., and therefore must fail.


author: Birdsong, Presiding Judge.

text:
    A96A1383.
    PETERS v. KEVIN MOODY CONSTRUCTION et al.
    (476 SE2d 772)
   Birdsong, Presiding Judge.

We granted this discretionary appeal to determine whether a workers’ compensation claimant who is himself an employer in his own business and has exempted himself from workers’ compensation coverage which he procures for his own employees (see OCGA § 34-9-2.2) in his own business may nevertheless be a covered employee of another employer. In reversing an award of the Workers’ Compensation Board, the trial court held that such an exempt employer is estopped to claim that he is a covered employee of another employer. Held:

1. OCGA § 34-9-2.2 provides: “Any sole proprietor or partner of a business whose employees are eligible for benefits under this chapter may elect to be included as an employee under the workers’ compensation insurance coverage of such business if he is actively engaged in the operation of the business and if the insurer is notified of his election to be so included. Any such sole proprietor or partner shall, upon such election, be entitled to the employee benefits and be subject to the employee responsibilities prescribed in this chapter.” (Emphasis supplied.)

The words which we have emphasized in reciting this provision speak for themselves. The entire provision directs itself to the election of a person in his capacity as employer in his own business to exempt himself from coverage as an employee of “such business” Where such a person is acting as an employee of another business, nothing in OCGA § 34-9-2.2 estops him from claiming under his employer’s workers’ compensation coverage in that other employer’s business.

Decided September 13, 1996

Reconsideration denied October 10, 1996

Mallard & Wilson, Emmett E. Mallard, Jr., Merritt J. Wilson, for appellant.

John G. Vlahakis, for appellees.

A person may wear two hats even under the Workers’ Compensation Act. He may be exempt from coverage in his own business, but covered as an employee in another’s business. He is obviously estopped from making a claim against his own company when he has exempted himself from coverage as an employer, not an employee, under OCGA § 34-9-2.2; but when he is not the employer against whom his claim is being made and the business in which he makes the claim is not the business as to which he exempted himself as not being a covered employee, nothing in OCGA § 34-9-2.2 estops him from making his claim. To hold otherwise would be illogical and, moreover, would penalize him from availing himself of the provisions of OCGA § 34-9-2.2 as an employer of his own business. Compare Barbree v. Shelby Mut. Ins. Co., 105 Ga. App. 186, 188 (123 SE2d 905).

2. Appellee contends the issues are entirely different than they appear: that in fact claimant misled appellee as to his workers’ compensation status and should be estopped to recover benefits as appellee’s employee under its policy and that the Board misapplied the facts and legal issues to conclude that this claimant was under the “control” of this employer. Be that as it may, the trial court erred in its conclusion upon the legal issue which it identified. The ruling of the trial court is reversed, and the case is remanded to the Board for determination of any questions as to whether this claimant in fact misled the appellee employer as to his status as an employee or as an independent contractor who was covered under his own workers’ compensation insurance.

Judgment reversed and remanded.

Beasley, C. J, and Blackburn, J, concur.


text:
    A96A1862.
    RHODES v. ABC SCHOOL SUPPLY, INC.
    (476 SE2d 773)
   Blackburn, Judge.

Thomas A. Rhodes, Sr. appeals the grant of summary judgment on his claim for breach of an oral employment agreement against ABC School Supply, Inc. (ABC). Rhodes sued ABC for wrongful termination and for unpaid commissions.

Rhodes originally initiated his proceedings against ABC’s president, Larry Gross, and its past president, Charles W. Williams, Jr. Shortly after the complaint was served, Gross and Williams repeatedly informed Rhodes that he was an employee of ABC, a corporate entity, and that any claims he had should have been brought against the company. However, when plaintiff refused to dismiss the complaint and did not amend it to add ABC, Gross and Williams moved for summary judgment. At that point, Rhodes moved to add ABC as a party; however, at his subsequent deposition, Rhodes continued to maintain that his contract — which he likened to a joint venture agreement — was with Williams, and later Gross, acting in their individual capacities. The trial court subsequently granted Gross and Williams summary judgment, determining that they had acted in their corporate capacities when they dealt with Rhodes. Contemporaneously, the trial court granted Rhodes’ motion to add ABC as a party to the litigation.

ABC subsequently moved for summary judgment based on Rhodes’ previous testimony that he had no contractual agreement or understanding with ABC. In response to ABC’s motion, Rhodes filed an affidavit averring that: “In making the agreements sued upon, I dealt with [Williams and later with Gross]. . . . Our agreements were oral and I couldn’t be certain whether Williams or Gross acted individually or on behalf of ABC. . . . Because of their dismissal from this case, I am now compelled to agree that they acted on behalf of ABC and intended to do so.” This was the only evidence offered by Rhodes that his alleged agreement was with ABC. Construing Rhodes’ contradictory testimony against him, the trial court found no evidence of an employment agreement with ABC and entered summary judgment against Rhodes. Rhodes appeals.

1. In Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), the Supreme Court held that where the favorable portion of a party’s self-contradictory testimony is the only evidence of his right to recover, the opposing party is entitled to summary judgment unless a “reasonable explanation” is offered for the contradiction. On appeal, Rhodes asserts that he offered a reasonable explanation for his contradictory testimony about who the other party was to his employment agreement — particularly that he was uncertain as to what capacity corporate officers were acting in when they allegedly agreed to his employment contract.

Decided September 17, 1996

Reconsideration denied October 10, 1996

Arthur F. Millard, for appellant.

The Supreme Court’s ruling in Prophecy was intended to remove any incentive for witnesses responding to a motion for summary judgment to “tailor” their “statement to meet the needs of the occasion without regard to the truth.” Id. at 30. Accordingly, “[t]he burden rests upon the party giving the contradictory testimony to offer a reasonable explanation, and whether this has been done is an issue of law for the trial judge.” Id. A trial judge’s determination as to the reasonableness of such an explanation will be upheld unless clearly erroneous. McCurley v. Whitaker Oil Co., 193 Ga. App. 527, 531 (388 SE2d 412) (1989); see also State of Ga. v. Mozley, 182 Ga. App. 871, 874 (357 SE2d 313) (1987).

In light of the procedural posture of this case, we find the timing of Rhodes’ contradictory statement does not make his explanation for the contradiction seem reasonable. “To be reasonable, the explanation must show that an honest mistake has been made in the first statement.” (Punctuation omitted.) Merritt v. State Farm Fire &c. Co., 218 Ga. App. 652, 654 (463 SE2d 42) (1995). While Rhodes claims he was confused as to whether Williams and Gross were acting in their corporate capacities, he did not admit to such confusion either when he learned of ABC’s corporate identity or when he was faced with substantial evidence that he was employed by ABC. To the contrary, in spite of this evidence, he continued to unequivocally maintain that his contract was with Williams and Gross, apart from ABC.

Had Rhodes admitted to confusion earlier, his explanation may have been perceived differently. However, Rhodes claimed to be confused on the capacity issue only after Gross and Williams received summary judgment and his claim against ABC was jeopardized by his prior statements. Based on this record, the evidence supports a finding that Rhodes’ contradictory statement was not reasonably explained. Accordingly, the trial court’s determination to strike the favorable portions, of Rhodes’ contradictory testimony based on Prophecy was not clearly erroneous, and its consequent entry of summary judgment in favor of ABC does not demand a reversal.

2. Based on our holding in Division 1, that no evidence of an employment contract exists on this record, it is not necessary to address Rhodes’ arguments concerning whether the alleged contract was terminable at will.

Judgment affirmed.

Beasley, C. J., and Birdsong, P. J., concur.

Parker, Johnson, Cooke & Dunlevie, Everett W. Gee III, for appellee.

       The summary judgment awarded to Gross and Williams was affirmed by this Court in an unpublished opinion which the Supreme Court declined to review. Rhodes v. Gross, 217 Ga. App. XXVII (1995). Rhodes sought additional review of his claims against Williams and Gross in the present appeal. However, upon the motion of Williams and Gross, said claims were previously dismissed. See OCGA § 9-12-40; see also OCGA § 9-11-60 (h).


author: Eldridge, Judge.

text:
    A96A2116.
    DUNN et al. v. LIGHTLE.
    (476 SE2d 776)
   Eldridge, Judge.

Appellee filed an action to quiet title to an 8.14-acre parcel of land in Tift County to which he held a warranty deed with unclear metes and bounds. Appellants challenged appellee’s claim to part of the land adjoining appellants’ land, to which they held a quitclaim deed. The trial court appointed an arbitrator to hear the boundary line dispute; the arbitrator concluded that appellee had title to the disputed property based on acquiescence for a period in excess of seven years under color of title. Appellants challenge the arbitrator’s decision, which was adopted and made the judgment of the trial court. In reviewing the trial court’s decision, “[t]he findings of a judge acting as a jury will not be disturbed if there is any evidence to support the judgment.” Adams v. Crowell, 157 Ga. App. 576 (278 SE2d 151) (1981); Collins v. Brayson Supply Co., 157 Ga. App. 438, 439 (278 SE2d 87) (1981).

1. The first enumeration of error is that the trial court erred when it awarded appellee the property at issue under the acquiescence rule of OCGA § 44-4-6, which provides that “[acquiescence for seven years by acts or declarations of adjoining landowners shall establish a dividing line” for allocating disputed property. Although appellants assert that the deeds in evidence establish the boundaries of the disputed property and that acquiescence will not establish a divisional line in disregard of definite boundaries fixed by deeds, see Gauker v. Eubanks, 230 Ga. 893 (199 SE2d 771) (1973), the arbitrator found that neither of the extensive chain of deeds that the parties presented at the hearing conclusively established a boundary line for the disputed property. Therefore, since no dividing line was established by the deeds, appellants’ acquiescence to appellee’s use of the land openly and adversely for the statutory period serves to establish the boundary line for the disputed property.

This finding is supported by evidence presented at the hearing, including the unchallenged testimony of the appellee that appellee’s family had used and maintained the land bordered by the “Dunn fence”; had stabled horses on the land; and had made uncontested statements of ownership regarding the land to appellants’ family during the period from 1973 until 1987. In addition, appellants admit that their family had used and maintained the land north of the fence as a pasture, but used the disputed property south of the fence only for drainage. Further supporting the arbitrator’s findings is uncontested evidence that both parties agreed to a specific boundary line along the fence after driving out to the property together, and appellants marked the boundary of the land by cutting tree limbs with a hatchet.

Decided September 19, 1996

Reconsideration denied October 10, 1996.

Herbert W. Benson, for appellants.

Allen, Kelley & Sowell, Gregory C. Sowell, for appellee.

Therefore, there is sufficient competent evidence to support the trial court’s finding that appellee acquired the disputed land by the acquiescence of appellants for the statutory period pursuant to OCGA § 44-4-6.

However, appellants assert that one cannot obtain title to disputed property through acquiescence. Gauker, supra. While it is true that title will not be established based on acquiescence alone, “where a proved title, by a fair construction, will embrace the lands up to the line established by acquiescence, then . . . title comes from the source proved, and the acquiescence fixes the dividing line.” Veal v. Barber, 197 Ga. 555, 563 (30 SE2d 252) (1944).

In the case sub judice, the arbitrator found that “[n]one of the warranty deeds in either [parties’] chain of title are sufficient in and of themselves to establish title to the disputed property.” (Emphasis supplied.) However, appellee’s 1973 deed did encompass the disputed land, thereby establishing title through the deed, while the exact parameters of the property could be established through acquiescence or, alternatively, through agreement by appellants’ undisputed physical marking of the property line. Therefore, title to the disputed property can be properly found in the appellee.

2. Further, appellants assert that the trial court erred when it awarded appellee damages, since the subject property did not belong to appellee. The arbitrator found that appellee was entitled to $60 damages for the removal of 15 trees from his property. Since there is evidence to support the trial court’s determination that appellee owned the land, as well as the value of the trees that were removed from the land, then this Court will not disturb the award of damages to appellee.

Judgment affirmed.

Andrews and Smith, JJ, concur.


text:
    A97A0279.
    BOTTS v. GIVENS et al.
    (476 SE2d 816)
    Decided October 1, 1996
    Reconsideration denied October 10, 1996.
    Lonnie G. Botts, pro se.

      Michael J. Bowers, Attorney General, Mark A. Basurto, Assistant Attorney General, for appellees.
   McMurray, Presiding Judge.

Plaintiff Botts commenced this civil action against several individuals concerning the medical treatment he received as an inmate at the Hancock Correctional Institute. On June 12, 1996, the trial court granted summary judgment for some of the defendants and dismissed the action against the remaining defendants. Plaintiff then filed this direct appeal on July 8, 1996. Held:

Under OCGA § 42-12-8, appeals in all civil actions filed by prisoners now require the discretionary procedures set forth in OCGA § 5-6-35. Plaintiff’s failure to comply with those requisite discretionary procedures deprives this Court of the jurisdiction to consider the case. This appeal must be dismissed.

Appeal dismissed.

Beasley, C. J., and Smith, J., concur.


text:
    A96A1107.
    MANNING et al. v. ROBERTSON et al.
    (476 SE2d 889)
   Birdsong, Presiding Judge.

After our grant of an interlocutory appeal, J. Robert Manning and Kim Conroy appeal the trial court’s order dismissing their cross-claim against L. Taylor Robertson, Robertson-Loia, PC., and Robertson-Loia-Roof, PC. The issues in this appeal concern the authority of a plaintiff to dismiss one of several defendants from the action without permission from the trial court and the actions necessary to assert a cross-claim against other defendants.

Manning and Conroy are Gwinnett County employees who, as alleged by plaintiffs below, Nancy Hunt on behalf of her daughter and by the daughter, Jessica Lane, failed to remedy or warn the public of a dangerous situation involving storm water runoff on a street in Gwinnett County. L. Taylor Robertson, Robertson-Loia, PC., and Robertson-Loia-Roof, PC. (collectively “the Robertson defendants”) designed the allegedly defective storm water drainage and retention systems implemented in an adjacent shopping center. Hunt and Lane sued Manning, Conroy, and the Robertson defendants after Lane suffered a broken neck in an automobile accident that occurred during a period of heavy rainwater runoff.

Subsequently, the Robertson defendants settled with the plaintiffs and Hunt and Lane purported to dismiss their claim against the Robertson defendants on March 27, 1995. Manning and Conroy, on May 19, 1995, filed a pleading that purported to restate and by amendment cross-claim against the Robertson defendants claims for indemnity and contribution, which cross-claims allegedly appeared in their affirmative defenses portion of the original answer. The Robertson defendants moved to dismiss these amendments asserting that Manning and Conroy’s original pleadings were not sufficient to put them on notice that a cross-claim was being asserted against them.

The trial court concluded that Manning and Conroy’s original answers did not assert cross-claims against the Robertson defendants because the pleadings did not contain demands for judgment against the Robertson defendants for the relief to which Manning and Conroy deemed themselves entitled. See OCGA § 9-11-8 (a) (2) (B). Thus, the trial court concluded there were no cross-claims to amend, and based upon this premise, the trial court viewed the purported amendments to the cross-claim as invalid attempts to assert original cross-claims against persons who were no longer parties to the case. Therefore, the trial court dismissed the pleadings filed on May 19, 1995.

Manning and Conroy now appeal from that order. They contend the trial court erred by dismissing their cross-claims for contribution and indemnity asserted against Robertson-Loia in their first responsive pleading because the cross-claims met the minimum requirements of notice pleadings even though they were mistakenly designated as affirmative defenses. They further assert the trial court erred by dismissing their cross-claims for contribution and indemnity because the Robertson defendants were not effectively dismissed as parties to the action at the time Manning and Conroy amended their answers to state more specifically their cross-claims. They also allege the trial court erred by construing their cross-claims as statements of law rather than cross-claims for contribution and indemnity because such a construction failed to do substantial justice and would effectively deny them any remedy against the Robertson defendants because of the Statute of Ultimate Repose, OCGA § 9-3-51. Held:

1. Although not raised by the parties or the trial court, under OCGA § 9-11-21 parties are added or dismissed from an action by order of the court, and this Court has previously held that the dropping of parties requires the exercise of discretion by the trial court. Cartin v. Boles, 155 Ga. App. 248, 254 (270 SE2d 799). OCGA § 9-11-41 (a), relied upon by appellees, allows for the voluntary dismissal of a party’s complaint (Smith v. Mem. Med. Center, 208 Ga. App. 26, 29 (430 SE2d 57)); it does not provide for the voluntary, unilateral dismissal of a party’s claims against some but not all of the parties to an action. See Young v. Rider, 208 Ga. App. 147, 148 (430 SE2d 117). “The adding or dropping of parties requires the exercise of a discretion by the court, and, without the requirement that leave of court be obtained in doing so, there could be no exercise of discretion. It is important that the status of parties not be altered or changed save under the supervision of the court. Obtaining leave of court is a requisite.” (Citation and punctuation omitted.) Dollar Concrete Constr. Co. v. Watson, 207 Ga. App. 452, 453 (428 SE2d 379). Although many cases interpreting OCGA § 9-11-21 concern the adding of parties, we perceive no reason why the same standards should not apply to the dropping of parties. Further our Supreme Court has recognized that “there is a distinction between the provisions of the Georgia rule and the federal rule which suggests that [OCGA § 9-11-41 (a)] could be interpreted to allow a voluntary dismissal only of the entire action. If so, a voluntary dismissal of less than all of several defendants must be accompanied by a ruling of the trial court under [OCGA § 9-11-21] to be effective.” State of Ga. v. Golia, 235 Ga. 791, 795 (222 SE2d 27).

Although Smithloff v. Benson, 173 Ga. App. 870, 875-876 (4) (328 SE2d 759) appears to authorize the dropping of parties without court approval, that case failed to consider the requirements of OCGA § 9-11-21. Thus Smithloff v. Benson, supra, is not precedent that OCGA § 9-11-21 does not require court approval to drop parties. Gordy Tire Co. v. Dayton Rubber Co., 216 Ga. 83, 89 (114 SE2d 529). See also Young v. Rider, 208 Ga. App. 147 (430 SE2d 117). Therefore, it is not a correct statement of our law, and to the extent that Smithloff v. Benson, and cases relying upon that case, allow the dropping of parties in a multi-party case without the approval of the trial court, they must be overruled.

Accordingly, we find that as the trial court had not approved the dropping of the Robertson defendants before Manning and Conroy filed their amendments to their answer, the trial court erred by finding that the case had been dismissed as to these defendants before the amendments were filed. Thus, the trial court erred by dismissing the amended cross-claims of Manning and Conroy on this basis.

2. Moreover, we also find that the trial court erred by finding that the affirmative defenses raised in the original answers did not assert cross-claims against the Robertson defendants.. In their affirmative defenses, the answers stated claims for indemnification, as follows: “If, in fact, plaintiff has suffered any damage by reason of the facts stated in the plaintiff’s complaint or under any theory of liability set forth in said complaint and any and all liability of [Manning- and Conroy] having been expressly denied by [Manning and Conroy], any negligence alleged was the act of negligence of Jessica Lane and/ or [the Robertson defendants or other defendants], and the negligence on the part of [Manning and Conroy], if any, was passive. Accordingly, [Manning and Conroy] have a right of indemnity over and against plaintiff [and the other defendants] for any judgment in favor of plaintiff rendered by a jury against [Manning and Conroy].”

The answers also stated the following claims for contribution: “Alternatively, should it be concluded that [Manning and Conroy] were actively negligent and [that Manning and Conroy’s] acts of negligence combined and joined with the acts of negligence of [the plaintiff and the Robertson defendants and other defendants] to produce the alleged event and the alleged damages, if any, then in that event, [Manning and Conroy] are entitled to contribution from [the plaintiff, the Robertson defendants or other defendants] as joint tortfeasors.” Also, the ad damnum clauses in both answers in addition to seeking dismissal and costs, contained demands for such other relief as the trial court deemed appropriate.

It is difficult to determine what more the appellees demand of Manning and Conroy in order to state a claim for indemnification or contribution other than declaring a right to such relief and labeling their claims as a “cross-claim.” There is no magic in nomenclature, however, in describing pleadings. Girtman v. Girtman, 191 Ga. 173 (4) (11 SE2d 782). Under our rules of pleading, it is substance and not mere nomenclature that controls (McDonald v. State, 222 Ga. 596 (151 SE2d 121); Jones v. Spindel, 128 Ga. App. 88, 103 (196 SE2d 22)); pleadings are judged by their function and not the name given by a party. Holloway v. Frey, 130 Ga. App. 224 (202 SE2d 845). Therefore, we do not find that the name given in the original answer was determinative of this issue. Under our notice system of pleading, only a statement of Manning and Conroy’s claims was required (OCGA § 9-11-8 (a)), and the pleadings were required to be “construed as to do substantial justice.” OCGA § 9-11-8 (f). A claim need not be perfect; it is sufficient if it puts the other party on notice of the claim against him. See Evans v. City of Atlanta, 189 Ga. App. 566 (377 SE2d 31). Viewed in this manner, we find that the original answer sufficiently stated cross-claims under our law (see T. V. Tempo v. T. V. Venture, 182 Ga. App. 198, 201 (355 SE2d 76): the trial court did not err by treating mistakenly-designated “defenses” as counterclaims), and this trial court erred by concluding otherwise.

Judgment reversed.

Beasley, C. J., McMurray, P. J., Pope, P. J., Andrews, Johnson, Blackburn, Smith, Ruffin and Eldridge, JJ, concur.

Decided October 10, 1996

Boyce, Ekonomou & Atkinson, Peter F. Boyce, Richard A. Carothers, John E. Underwood, Sr, Caryl Sumner, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Gregory H. Wheeler, for appellees.


text:
    A96A1549.
    SMITH v. YELLOW CAB COMPANY OF CHATHAM COUNTY, INC.
    (476 SE2d 887)
   Birdsong, Presiding Judge.

Willie E. Smith filed suit against Charles E. Maskevich and Yellow Cab Company of Chatham County, Inc., for injuries sustained by Smith when his vehicle was struck by a Yellow Cab driven by Maskevich. The trial court granted summary judgment to Yellow Cab, holding that it could not be respondeat superior because Maskevich was an independent contractor rather than its employee. Smith appeals. Held:

Maskevich signed an agreement stating he was an independent contractor. He could set his own hours, had no duty to report to the dispatcher or to Yellow Cab at any time, and was not required to answer a particular call and had the discretion to decline to transport any intended passenger after answering a call. Moreover, Maskevich was not paid by Yellow Cab; rather, Maskevich paid a set lease fee to Yellow Cab and this fee included the use of Yellow Cab’s dispatcher service. He paid for his own gasoline and returned the car to Yellow Cab with a full tank; Yellow Cab did not withhold income tax or file tax forms for Maskevich; he received no vacation or bonus pay from Yellow Cab; and, Yellow Cab did not control the time, manner, method or means by which Maskevich performed his work as a taxicab driver. The lease agreement by which Maskevich leased the vehicle also provided that Maskevich indemnifies and holds harmless Yellow Cab for any and all claims arising out of or caused by his use, operation or maintenance of the vehicle.

Smith contends this case is controlled by the fact that the only city business license issued for operation of this taxicab was issued to Yellow Cab, and that Maskevich had only a “driver’s permit” but did not obtain a business license in order to operate his own taxicab company. He thus contends Maskevich cannot be considered the real operator of this cab and that Yellow Cab is estopped to deny Maskevich was its employee because it allowed Maskevich to operate its cab under its own business license and without obtaining a business license for himself as operator of a taxicab. See West End Cab Co. v. Stovall, 98 Ga. App. 724 (106 SE2d 810). However, the issue is whether the employer retains the right to exercise control over the time, manner and method of the work performed. BellSouth Telecommunications v. Helton, 215 Ga. App. 435 (451 SE2d 76). Even construing the evidence in respondent Smith’s favor on Yellow Cab’s motion for summary judgment (Bishop v. KFC Nat. Mgmt. Co., 222 Ga. App. 1 (473 SE2d 218)), we find that the undisputed evidence shows Yellow Cab did not retain control of the time, manner and method of the work performed by Maskevich. Thus, no genuine issues of material fact remain as to whether Yellow Cab may be liable as respondeat superior in this case. This case is controlled by Loudermilk &c. v. Hurtig, 214 Ga. App. 746 (449 SE2d 141) and Brunson v. Valley Coaches, 173 Ga. App. 667 (327 SE2d 758); and see Fidelity &c. Co. v. Windham, 209 Ga. 592 (74 SE2d 835). West End Cab Co., supra, is inapposite because that cab was subject to the supervision and control of the carrier.

Decided October 10, 1996.

Cronk & Hardeman, Harold J. Cronk, for appellant.

Parkerson, Shelfer & Groff, David B. Groff, for appellee.

Judgment affirmed.

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


text:
    A96A1574.
    WILSON v. CITY OF ATLANTA et al.
    (476 SE2d 892)
   Smith, Judge.

Michelle Wilson brought this action to recover for personal injuries she sustained when the automobile in which she was a passenger was struck by a vehicle being driven by Timothy Lucas. Alleging that the collision was a proximáte result of the pursuit of Lucas by Officer M. M. McCain of the City of Atlanta Police Department, Wilson named McCain and the City of Atlanta as defendants, as well as Lucas. She amended her complaint to allege that the actions of McCain and the City constituted a nuisance and also violated 42 USC § 1983. The trial court dismissed the § 1983 claim in response to the motion to dismiss filed by McCain and the City but denied their motion to dismiss the negligence and nuisance claims. Subsequently, however, the trial court granted summary judgment to the defendants on those claims. Wilson appeals the grant of summary judgment to McCain and the City, contending that issues of fact exist as to whether McCain was negligent in the performance of his duties and whether a nuisance was created and maintained by the City.

We must examine McCain’s pursuit of Lucas’s vehicle in light of the Supreme Court’s ruling in Mixon v. City of Warner Robins, 264 Ga. 385 (444 SE2d 761) (1994). There, plaintiff sued an individual police officer, as well as the City and the criminal suspect who collided with plaintiff’s decedent while being pursued by the officer. Evidence was presented that the officer saw the suspect commit a minor traffic violation. When the officer began to pursue the suspect, the suspect did not “accede to the show of authority” and accelerated, ultimately reaching 55-60 mph and colliding with plaintiff’s dece-

dent. Id. at 390. The evidence in Mixon also showed that the officer was “ ‘right up on [the suspect’s] bumper’ ” mere seconds before the collision. Id.

In its review of OCGA § 40-6-6 (d), the Supreme Court in Mixon embarked upon a lengthy discussion concerning the tension between law enforcement’s professional duty to pursue criminal suspects and the corresponding duty to drive with due regard for the safety of other drivers. At the time of the collision in Mixon, OCGA § 40-6-6 (d) stated that a driver of an authorized emergency vehicle was not relieved from the duty to drive with due regard for the safety of all persons. The Supreme Court identified the purpose of that statute: “to protect the public on highways . . . from reckless disregard of their safety by the drivers of pursuing law enforcement vehicles.” (Citation and punctuation omitted.) Id. at 387. The Court held that “if a vehicular pursuit is undertaken or performed without the requisite due regard for the safety of all persons and an injury occurs as the consequence, the officer can be held civilly liable.” Id. at 388 (1). Whether the officer in Mixon drove with requisite “due regard” for the public’s safety sufficient to authorize the grant of summary judgment depended on whether the evidence “demanded a finding that [he] properly balanced the risk to the safety of other drivers” during his pursuit of the criminal suspect. Id. at 389 (2). Based on the evidence in Mixon that the officer engaged in a high-speed pursuit in a residential area after the suspect committed only a minor traffic offense, the Supreme Court concluded that a jury would be authorized to find that the officer “failed to balance the risk to the safety of other drivers . . . [and] failed to act in accordance with his duty under OCGA § 40-6-6 (d).” Id. at 391.

The Supreme Court distinguished the facts in Mixon from the “plain and undisputed” facts in Sammor v. Mayor &c. of Savannah, 176 Ga. App. 176 (335 SE2d 434) (1985), a case in which summary judgment was appropriately granted to the police officer. In Sammor, the officer saw a vehicle driving unreasonably fast in city traffic and initiated pursuit by activating his emergency lights and siren, notifying headquarters about the incident, and following the vehicle. According to the Supreme Court, “[u]nder the undisputed evidence in Sammor, the risk of injury to other drivers from the speeding vehicle was already present before the officer determined to initiate pursuit in an attempt to ameliorate that existing risk. Thus, the officer’s ‘pursuit’ did not heighten any risk to other drivers and, as a matter of law, could not be a proximate cause of the ensuing collision.” (Emphasis in original.) Mixon, supra at 390.

On motion for summary judgment in this case, McCain stated in his affidavit that on May 6, 1993, at approximately 5:15 p.m., he heard a “fight, snatch thief” report over his radio giving the license number and description of the occupants of the vehicle involved in the incident. About twenty minutes later, he observed an automobile with that license number and two suspects matching the description of the suspects given in the earlier report. After McCain followed the vehicle at a normal rate of speed along three different streets, the vehicle “dramatically increased” its speed as it approached an intersection. McCain radioed an emergency call, turned on his blue lights and sirens, and pursued the suspect vehicle.

During the chase, McCain saw the vehicle disregard red lights and a stop sign and drive for a short time the wrong way down a one way street. McCain stated that during this portion of the pursuit, the traffic was “medium to light,” and he slowed his car as he passed through intersections. When McCain saw the traffic become “medium to heavy,” he “discontinued the high-speed pursuit, resumed a normal speed and maintained visual contact with the suspects.” Also according to McCain, he “called in the streets and directions as often as possible while maintaining visual contact with the suspects.” After abandoning the high-speed pursuit and resuming a normal speed, McCain saw the Lucas vehicle swerve left of the double yellow centerline and crash head on into the car in which Wilson was a passenger. Based on the foregoing, McCain stated that “[a]t all times during [his] pursuit of the Lucas . . . vehicle, [he] balanced the risk to the safety of other drivers and acted accordingly” and added that he never followed the suspects so closely that his “vehicle was right up on the suspects’ vehicle’s bumper.” Wilson presented no evidence refuting McCain’s testimony.

The facts in this case are more akin to those in Sammor than to those in Mixon. The evidence did not reveal that McCain, like the officer in Mixon, violated the purpose of OCGA § 40-6-6 (d) by “recklessly disregarding” the safety of the driving public. In Mixon, the risk to the public posed by the suspect’s slowly driving through a stop sign was not appreciable. We do note that the suspect vehicle seen by McCain may not have been speeding initially, as was the vehicle in Sammor. Nonetheless, as in Sammor, a heightened risk to the public was already present when McCain decided to initiate pursuit.

In this case, only minutes before the pursuit began, the occupants of the vehicle were involved in violent criminal activity; despite the fact that McCain did not actually see that activity, McCain had received fairly positive identification of the vehicle and a description of two of its occupants shortly before he observed the vehicle. In an attempt to ameliorate the already present risk to the public of further criminal activity, and all the while balancing the risk to other drivers, McCain initiated a pursuit that did not escalate into a high-speed pursuit for several blocks. When the suspect vehicle did “dramatically increase” its speed, McCain, like the officer in Sammor, activated his blue lights and sirens and maintained contact with the police department. Unlike the officer in Mixon, he did not follow the vehicle so close as to be “on its bumper” but instead slowed at intersections and at all times monitored the traffic conditions. Most importantly, when he determined that the risk to the driving public became too great, he discontinued the high-speed chase and resumed a normal speed, unlike the officer in Mixon, who followed closely behind the suspect vehicle until seconds before the crash. Mixon, supra at 390.

Decided October 10, 1996.

William R. Hurst, for appellant.

Edith M. Shine, for appellees.

In contrast to Mixon, where no evidence showed that the officer balanced the risks to the public and where a fair inference from the evidence could be drawn that he drove with reckless disregard for the safety of others, evidence was presented in this case supporting McCain’s statement that he balanced the risks involved in his pursuit of the Lucas vehicle. Furthermore, under the evidence presented, McCain did not violate the principle of OCGA § 40-6-6 (d), recognized in Mixon, by driving in reckless disregard for the safety of the driving public. To survive summary judgment, it was Wilson’s duty as respondent to point to or come forward with facts showing that McCain failed to properly balance the risks inherent in the pursuit of a fleeing suspect and that he violated OCGA § 40-6-6 (d). Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). This Wilson failed to do. The evidence presented therefore reveals no basis for imposition of liability upon McCain, and summary judgment in his favor was appropriately granted.

As for Wilson’s nuisance claim against the City, because McCain was not liable, no basis of liability exists. Moreover, even if McCain had been negligent, Wilson has not pointed to evidence on which a nuisance claim may be based, namely that the City maintained a dangerous condition on a regular basis over a period of time and took no action to correct the condition after learning of it. See City of Bowman v. Gunnells, 243 Ga. 809, 811 (2) (256 SE2d 782) (1979). It follows that no basis for imposition of liability exists against the City, as well as against McCain.

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.

       Although Wilson argues in her brief that the trial court erroneously dismissed her § 1983 claim, she failed to designate the order dismissing her § 1983 claim in her notice of appeal. In fact, she specifically recited in her notice of appeal and enumeration of error that the trial court erred in granting summary judgment and made no mention of the dismissal. Under these circumstances, even though she argues against the dismissal in her brief, Wilson waived this issue on appeal. “Matters not enumerated as error will not be considered on appeal. An enumeration of error cannot be enlarged at the appellate level by statements in the briefs of counsel to include issues not made in the enumeration.” (Citations and punctuation omitted.) Sentry Ins. v. Majeed, 194 Ga. App. 276, 277 (390 SE2d 269), aff’d, 260 Ga. 203 (391 SE2d 649) (1990). We therefore do not consider Wilson’s contentions regarding this claim.

       After Mixon was decided, and after the date of the collision at issue here, the legislature modified OCGA § 40-6-6 (d). That statute now specifically incorporates its purpose of discouraging reckless conduct by law enforcement officers in pursuit of fleeing suspects. Subsection (d) (1) still provides that an emergency vehicle driver must “drive with due regard for the safety of all persons.” Newly added subsection (2) recites: “When a law enforcement officer in a law enforcement vehicle is pursuing a fleeing suspect in another vehicle and the fleeing suspect damages any property or injures or kills any person during the pursuit, the law enforcement officer’s pursuit shall not be the proximate cause or a contributing proximate cause of the damage, injury, or death caused by the fleeing suspect unless the law enforcement officer acted with reckless disregard for proper law enforcement procedures in the officer’s decision to initiate or continue the pursuit. Where such reckless disregard exists, the pursuit may be found to constitute a proximate cause of the damage, injury, or death caused by the fleeing suspect, but the existence of such reckless disregard shall not in and of itself establish causation.”

       According to McCain’s police report, a helicopter unit and other marked units were called as backups.

       Wilson mentions in her brief that the City refused to produce requested “data to show the incidence of accidents and injuries resulting from police chases.” This allegation is unsupported by the record. Although the City did initially seek a protective order asking the court to toll its responses to Wilson’s discovery requests, the trial court ultimately ordered the City to respond to those requests.


text:
    A96A1792.
    REDDIN v. THE STATE.
    (476 SE2d 882)
   Birdsong, Presiding Judge.

Pursuant to the grant of his motion for out-of-time appeal, Kenneth Dean Reddin appeals his conviction of aggravated assault upon a peace officer (OCGA § 16-5-21 (c)) and misdemeanor obstruction of a law enforcement officer (OCGA § 16-10-24 (a)).

Although the facts surrounding this incident were contested by appellant and his witnesses at trial, examination of the record in the light most favorable to the verdict reveals the following: Appellant was the middle passenger in a pickup truck being driven by a female friend; appellant’s sister also was a passenger in the truck. A car traveling in the opposite direction allegedly attempted to run the truck off the road. The driver turned the truck around and pursued the car in an attempt to obtain its license number. In pursuing the car, the truck came upon another vehicle stopping to turn; the driver of the truck swerved into the oncoming lane of traffic to avoid a collision. A rookie deputy sheriff driving an approaching patrol car was forced off the roadway by the actions of the driver of the truck. The driver of the truck got back in her lane and proceeded to drive to a nearby gas station where she stopped. The deputy who had activated his blue lights and siren and was in pursuit of the truck observed it pull into the station and pulled in behind it. The truck driver exited her vehicle and was ordered by the sheriff to get back into the truck. After calling his dispatcher, the deputy approached the truck and asked the driver for her driver’s license and insurance card. Smelling alcohol within the truck, the deputy asked the driver to exit the vehicle; at this point, appellant cursed at the officer and stated that the driver did not have to leave the vehicle. The deputy admitted that at this point he was only going to charge the driver with improper passing and not with DUI. The deputy returned to the open truck door and directed appellant to exit the vehicle; this action was taken because appellant had acted in a belligerent manner and the deputy was concerned for his personal safety and wanted to observe appellant. The deputy testified that when he issued this order he believed appellant was not the driver of the truck, that he had seen no weapons, and that he then had no articulable suspicion that appellant either had a weapon or had broken any laws. Appellant told the deputy that he would not exit the truck because he did not want to be arrested for “public drunk.” Appellant then threw and struck the deputy on the shoulder with a lit cigarette; the deputy decided to arrest appellant for simple battery. The deputy attempted to handcuff appellant who swung at him simultaneously. Appellant struggled, pulled the deputy inside of the truck and attempted to hold the deputy down. Appellant then hit the deputy several times with the handcuffs injuring him. Appellant exited the truck and ran into the woods where he was subsequently arrested by other deputies. The deputy was taken to an emergency room where he received 18 stitches for injuries across the top of his left eye, the side of his head, behind his ear, and on the back of his hand; he also suffered smaller cuts and bruises. Held:

1. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which he was found guilty. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Additionally, an accused’s flight, such as occurred in this case, is circumstantial evidence of consciousness of guilt; the fact a suspect flees the crime scene points to the question of guilt in a circumstantial manner. Campbell v. State, 215 Ga. App. 14, 15 (1) (449 SE2d 366). It was for the jury, weighing the evidence and determining witness credibility, to decide whether appellant was lawfully arrested and had assaulted the deputy during the course thereof, or whether appellant was subjected to an unlawful arrest and had merely used that reasonable force necessary to resist an unlawful arrest. The jury was within its province to resolve the conflict of evidence against appellant. See Searcy v. State, 236 Ga. 789, 790 (225 SE2d 311).

2. “[A] motion for directed verdict in a criminal trial should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law.” Taylor v. State, 252 Ga. 125, 127 (1) (312 SE2d 311). Further, the test established in Jackson v. Virginia, supra, “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.” Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436). Under either test appellant’s second enumeration of error is without merit. Having stopped the vehicle for a traffic offense committed in his presence, the deputy could proceed to conduct an investigative detention for a reasonable period of time. During that investigation, he smelled alcohol inside the truck. Under the existing circumstances, the deputy “could continue to detain temporarily [the vehicle driver and passengers] ‘to maintain the status quo momentarily while obtaining more information’ ”; and could take reasonable measures to ensure his safety. Mallarino v. State, 190 Ga. App. 398, 401 (2) (379 SE2d 210). During that legitimate temporary detention, appellant assaulted the deputy by striking him with a lit cigarette; at that point the deputy had probable cause to arrest appellant for a crime committed in his presence. Considering the circumstances, we find that the deputy acted reasonably in his initial detention of the vehicle and its passengers, his subsequent limited investigative inquiry, and his ultimate attempt to arrest appellant who committed a criminal offense during the course of that lawful inquiry. In view of our holding here and in Division 1, appellant’s second enumeration is without merit.

3. Appellant also asserts ineffective assistance of counsel. “The applicable appellate standard is the two-prong test of Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674).” Rachell v. State, 210 Ga. App. 106, 107 (3) (a) (435 SE2d 480). The burden is on appellant to establish he received ineffective assistance of trial counsel. Id. at 108.

(a) The decisions on what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultations with his client. Van Alstine v. State, 263 Ga. 1, 3 (426 SE2d 360). Appellant asserts he ordered counsel to subpoena certain witnesses; inherent within this claim is a concession that he and his counsel consulted regarding the matter. The ultimate decision thereafter rested with counsel. Id.

(b) Likewise, it lies within the province of counsel to determine, as a matter of trial strategy or tactics, what physical evidence to subpoena and present at trial in behalf of his client, as these decisions too relate to matters of trial strategy and tactics. Id. Again appellant’s contention that he requested that such evidence be present perforce establishes his consultation with his counsel regarding these matters.

(c) The trial court found that the evidence did not support appellant’s claim of any violation of the rule of sequestration about which appellant’s counsel should have complained. The record supports this finding. Moreover, the decision by counsel whether to report a sequestration rule violation is one of trial tactics and strategy.

(d) Appellant has failed to establish that any “deal” existed between Teresa Redden and the State. It is not deficient conduct for counsel to fail to inquire into a non-existent matter. Further, a decision how to. conduct cross-examination is a tactical decision to be made by counsel. Id. at 3.

(e) The evidence is conflicting as to the amount of time counsel spent in reviewing the case and discussing it with appellant. “There exists no specified amount of time which a counsel must spend in preparation for trial; each situation must be judged upon its own circumstances and in light of its own degree of complexity.” Datz v. State, 210 Ga. App. 517, 518 (3) (a) (436 SE2d 506). Also, “[tjhere is a strong presumption that trial counsel’s performance ‘falls within the wide range of reasonable professional assistance.’ ” Ferrell v. State, 261 Ga. 115, 119 (3) (401 SE2d 741). Appellant has failed to overcome this presumption.

(f) Appellant was not illegally detained by the deputy; a motion to suppress evidence on that ground would have been frivolous. “It is not deficient to fail to file a frivolous motion.” White v. State, 221 Ga. App. 860, 864 (3) (473 SE2d 539).

(g) Trial defense counsel testified that he did advise appellant of the punishment, and that he did enter into some plea negotiation as to the possibility of obtaining a ten-year sentence. However, plea negotiations were not seriously conducted as appellant informed counsel that there was to be “a trial.” Appellant has failed to overcome the strong presumption that his counsel rendered him “reasonable professional assistance” as to these matters. See Ferrell, supra at 119 (3).

We conclude that as to this enumeration of error, appellant “failed to carry his burden and has failed to overcome the broad presumption of effective assistance of counsel” (Rachell, supra at 108 (3) (a); Luallen v. State, 266 Ga. 174, 176 (3) (a) (465 SE2d 672) (presumption that counsel’s performance is not deficient)). Further, “a trial court’s finding that appellant had been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.” Datz v. State, supra at 519 (3) (d). Appellant has failed to establish that the trial court’s finding was clearly erroneous as to any of his claims of ineffective assistance of counsel.

4. “A photograph which shows mutilation of a victim resulting from the crime against him may, however gruesome, have relevance to the trial of his alleged assailant.” Love v. State, 259 Ga. 468 (2) (383 SE2d 897). Appellant failed to show the trial court abused its discretion in admitting the photographs.

5. Appellant’s contention that the trial court erred in admitting opinion testimony of a certified paramedic (who also had on-the-job experience as to the nature of injuries inflicted by a fist or by hard objects and sustained by victims during domestic disputes) as to the cause of the deputy’s wounds is without merit. The State laid an adequate foundation for the opinion of the certified paramedic, either as an expert or as a lay witness. See generally OCGA §§ 24-9-65; 24-9-67; compare Peebles v. State, 260 Ga. 430, 433 (3) (396 SE2d 229). Admission of this evidence rested in the sound discretion of the trial court. See Sims v. State, 260 Ga. 782, 783 (3) (399 SE2d 924). Appellant has shown no breach of discretion by the trial court. Further, appellant waived on appeal any issue whether the testimony of the paramedic was within the ken of the jury, by failing to object on those specific grounds at trial. Ray v. State, 187 Ga. App. 451, 452 (370 SE2d 629). Additionally, as the opinion testimony was cumulative of other admissible evidence of record, any occurring error in its admission would be harmless. See Scott v. State, 206 Ga. App. 23, 26 (1) (c) (424 SE2d 328).

Decided October 10, 1996

William A. Jordan, for appellant.

6. Prior to opening statements the trial court instructed the jury that opening statements are not evidence and are not to be considered as such by the jury. The trial court further instructed the jury in its final charge that evidence “does not include the indictment or the opening statements or closing arguments by the attorneys.” During its opening statement the State in essence requested the jury to imagine being dragged into the cab of a truck and being beaten by another’s fist holding your own handcuffs and to imagine having received the type of injuries sustained by the deputy. Appellant objected to such argument solely on the ground that “this is a closing argument.” The trial court responded by stating “I don’t know that he’s outside the bounds of an opening statement at this point.” Appellant did not request an express ruling on his objection, or request a curative instruction or move for mistrial.

Appellant’s claim of error on the grounds that the jury was invited to place itself in the victim’s place in regard to the crime (Burgess v. State, 264 Ga. 777, 785 (20) (450 SE2d 680)) is beyond the scope of the specific objection made at trial and is not preserved on appeal. Ray v. State, supra.

On appeal, appellant urges reversible error occurred as the prosecutor’s statements constituted “argument in an opening statement” and “it is argument that is improper at any point in the trial.” Assuming without deciding the State made closing argument to the jury during its opening statement in view of the posture of the trial record in toto, and particularly considering the trial court’s preliminary and final instructions to the jury, it is highly probable that suqh conduct, standing alone, did not contribute to the jury verdict; thus error, if any, was harmless. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869). Additionally, as no motion for mistrial was made, our holding is consistent with the well-established rule that an appellate court will not grant more relief than actually prayed for at trial. Harris v. State, 202 Ga. App. 618, 619 (3) (a) (414 SE2d 919); compare Sanford v. State, 261 Ga. 556 (2) (c) (408 SE2d 110) (no error found where, after an objection to the State’s closing argument was overruled, no request for curative instruction or motion for mistrial was made).

Judgment affirmed.

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

Garry T. Moss, District Attorney, Rachelle L. Strausnér, Assistant District Attorney, for appellee.