text:
    A89A1795.
    LINER et al. v. NORTH.
    (390 SE2d 263)
   Birdsong, Judge.

This is an appeal of the order granting summary judgment to appellee/defendant on the grounds of res judicata in the above-styled case, Civil Action No. 87CV34,110 (4110).

In 1986, appellant/plaintiffs filed simultaneous actions in probate court and superior court. Appellant elected to style the superior court action, no. 86CV32,305 (2305) George Cleotus Liner et al., plaintiffs, v. Richard B. North, individually, and as executor of the estates of Fannie R. Monds and Leroy Monds. The complaint in no. 2305 was captioned Action for Monetary Damages, Declaratory Judgment, and to Clear Cloud On Title and Fraud. The causes of actions were all grounded on a certain factual scenario concerning North’s collection and distribution of estate assets. The complaint included, inter alia, prayer for relief for an accounting of monies received and allegedly wrongfully spent, and for compensatory and punitive damages.

Appellant elected to style the probate court action, no. 2522, as George Cleotus Liner et al., petitioners, v. Richard B. North, as executor of the estate of Leroy Monds. In the petition, appellant sought certain relief including a full, final and correct return, settlement and accounting of North’s administration of the Leroy Monds estate, surcharge and accounting for any and all improper expenditures and unaccounted for proceeds from the sale of estate assets and punitive damages. The petition expressly included averments of neglect or other failure to file settlement reports, treating by North of the estate assets as his own, commingling by North of estate assets with his own funds, waste of estate assets, breach of fiduciary duties as executor to the estate, unauthorized expenditures, intentional hiding of estate assets, failure to open the trust as required by the terms of the will, and the sale of estate assets without adequate compensation to himself and his family.

In October 1986, the probate action came for hearing and appellant was apprised of the provisions of OCGA § 9-2-5 prohibiting a plaintiff from prosecuting two actions in the courts at the same time for the same cause of action and against the same parties. The probate court entered an order in favor of appellee, and thereafter dismissed the action on the statute of limitations grounds. Appellants appealed to the superior court; the appeal was designated as no. 86CV32,482 (2482).

After appellants appealed the probate court’s order, appellee North moved to dismiss superior court action, no. 2305, pursuant to OCGA § 9-2-5. The motion was granted and appeal was taken to this court. In Liner v. North, 184 Ga. App. 74 (2) (360 SE2d 637), this court affirmed the trial court’s judgment and rejected appellants’ claim that both the defendant and the relief sought in the two cases were different. In doing so, we expressly concluded “[bjoth suits clearly involved the same defendant and the same transactions, and both sought substantially the same relief. . . . [T]he trial court did not err in dismissing the superior court action in the absence of an election by the appellants as to which action they intended to pursue.” (Emphasis supplied.) Id. at 75. Our ruling was not appealed.

At this point, only the appeal from the probate court, no. 2482, remained pending in superior court. Appellee filed a motion for summary judgment as to this action, which was granted by the trial court. Appellant appealed the grant of summary judgment to this court. In Liner v. North, 188 Ga. App. 677 (373 SE2d 846), this court reversed the findings of the trial court in part and affirmed them in part and reversed the judgment. In so doing, we held “in addition to the primary averments of claiming an alleged breach of duty by the executor in collecting and distributing estate assets, the petition also initiated a specific claim for breach of the fiduciary relationship between the executory [sic] and the remaindermen heirs based on the executor’s allegedly failing properly to perform his fiduciary duties. This alleged breach of fiduciary duties included the failure to give the remainder-men heirs proper notice of known adverse claims to their trust interest, and included the assertion by the executor of a claim of title to the subject trust property allegedly adverse to that of the remainder-men.” (Emphasis supplied.) Id. at 678. We further held regarding the averred breach of fiduciary relationship that “[a]s a fiduciary, appellee acquired a number of legal duties in relation to appellants. Among these duties were the duty to avoid potential conflicts of interest and the duty to give full and fair disclosure ... of all known things adversely affecting the appellant beneficiaries’ rights in the subject matter of the dealings.” (Emphasis supplied.) Id. at 679. We further expressly affirmed the trial court’s finding that “all the estate property had been duly transferred to the named beneficiary under the will and accepted by her, and that the beneficiary, Fannie Rhea Monds, as a named trustee of the subject trust, accepted the 74.7 percent interest in the undivided one-half interest in the G & M Furniture Company.” Our decision was not appealed.

Thereafter, case no. 2482 was tried before a jury. Before trial, appellants amended their complaint and a pretrial order was entered by the court. In the amended complaint appellants attempted to add two new parties, but appellants’ prayer to add these parties was denied. The amended complaint was captioned, Amended and Restated Action for Monetary Damages, Declaratory Judgment, To Clear Cloud on Title, Fraud and Petition for Citation of Executor.” Subsequently, the trial court dismissed that portion of the amended complaint seeking relief against appellee North in his capacity as executor of the estate of Fannie Rhea Monds and appellant’s prayer for punitive damages. The pretrial order filed in case no. 2482 reflects that two of the issues asserted by appellant/plaintiff were: “Did [appellee/ defendant do or fail to do anything that was the proximate cause of waste, mismanagement or destruction of the trust corpus,” and “What amount of damages, if any, to the corpus of the trust estate was the direct result of the [defendant’s actions or inactions.” In November 1988, case no 2482 was tried by jury, and verdict was returned in favor of appellee. Judgment subsequently was entered in favor of appellee and no appeal was taken therefrom.

In December 1987, appellants filed this case, no. 4110, against appellee. Appellee filed an answer and his second asserted defense was the doctrine of res judicata. In the pretrial order appellee asserted and contended inter alia that he “anticipates filing ... a [m]otion for [s]ummary judgment,” and “that none of the [p]laintiffs [has] any right of action against him and that [p]laintiffs are not entitled to recover any sum from him.” The pretrial order also reflects that the following appellant/plaintiff issues remained for jury resolution: “When did . . . North begin acting as [t]rustee”; “Has . . . North wrongfully distributed any [t]rust [a]ssets”; “Has the [t]rust [c]orpus been mismanaged or wasted”; “Did . . . North convert all or any part of the trust to himself”; and “What is the amount of any damage.” After judgment in case no. 2482 became final appellee filed a motion for summary judgment in case no. 4110. The trial court granted the motion and this appeal followed. Held:

1. Appellants assert that the trial court erred in granting appellee’s motion for summary judgment on grounds of res judicata.

OCGA § 9-12-40 provides that “[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.”

“The decisions of the Court of Appeals insofar as not in conflict with those of the Supreme Court shall bind all courts except the Supreme Court as precedents.” Ga. Const, of 1983, Art. VI, Sec. V, Par. Ill; see OCGA § 9-11-60 (h). Liner, 184 Ga. App., supra, and Liner, 188 Ga. App., supra, constitute binding precedent in this case.

Moreover, superior court case no. 2305 was involuntarily dismissed following appellee’s motion to dismiss pursuant to OCGA § 9-2-5. OCGA § 9-11-41 (b), as amended, pertinently provides that “[t]he effect of dismissals shall be as follows: (1) A dismissal for failure of the plaintiff to prosecute does not operate as an adjudication upon the merits; and (2) Any other dismissal under this subsection and any dismissal not provided for in this Code section, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, does operate as an adjudication upon the merits unless the court in its order for dismissal specifies otherwise.” (Emphasis supplied.)

The order granting appellee’s motion to dismiss in superior court case no. 2305 did not exempt the dismissal from operating as such an adjudication. Moreover, the judgment of the trial court in dismissing the superior court action was, as above discussed, affirmed in Liner, 184 Ga. App., supra, and is now conclusive. OCGA § 9-12-40. As to those matters to which a dismissal constitutes an adjudication on the merits, the defense of res judicata will lie and summary judgment may be had thereon. Compare Brantley v. Sparks, 167 Ga. App. 323, 324 (306 SE2d 337). In Brantley, supra at 324, this court observed “[t]here was no appeal from the order dismissing appellants’ original complaint and . . . that order was an adjudication on the merits. The trial court did not err in granting appellee’s motion for summary judgment based upon the defense of res judicata.” Although appellant appealed the order granting the motion to dismiss to this court, our opinion affirming the trial court’s judgment was not further appealed.

“[A] litigant who pleads res judicata must show, at a minimum, that the prior suit[s] involved the same claim, was contested by the same parties, and was decided by a court of competent jurisdiction.” (Emphasis supplied.) Boozer v. Higdon, 252 Ga. 276, 277-278 (1) (313 SE2d 100). Thus, “[w]here a judgment has been rendered on the merits, the doctrine of res judicata may not be avoided merely by requesting different relief in a subsequent suit.” Caswell v. Caswell, 162 Ga. App. 72, 73 (290 SE2d 171); compare McCracken v. City of College Park, 259 Ga. 490 (2) (384 SE2d 648).

Examining the record before us in its entirety and applying the appropriate law to the operative facts, we are satisfied that the defense of res judicata applied to all matters raised in issue in the case sub judice, OCGA § 9-12-40, and that the trial court did not err in granting appellee’s motion for summary judgment based on res judicata.

Decided January 5, 1990.

William G. Schwall, for appellants.

Fletcher & Womack, Ronald R. Womack, for appellee.

2. Appellants assert that the trial court erred in granting appellee’s motion for summary judgment because they had not raised res judicata as a defense in the pretrial order.

Appellants have presented no matter in this enumeration of error for our review on appeal, “[s]ince this ground was never made an issue before the trial court, no question is presented for appellate review.” Dairyland Ins. Co. v. McIntosh, 171 Ga. App. 782, 783 (321 SE2d 110).

Assuming arguendo, however, that a viable issue remained for appeal, we are satisfied that appellee did adequately preserve the res judicata defense. “[R]es judicata, an affirmative defense, may be properly raised by motion where ‘the facts are admitted or are not controverted or are completely disclosed on the face of the pleadings and nothing further can be developed by a trial of the issue. . . .’” Flanders v. Ga. Farm Bureau &c. Ins. Co., 171 Ga. App. 188-189 (318 SE2d 794); Ezzard v. Morgan, 118 Ga. App. 50, 51 (1) (162 SE2d 793).

Reviewing the pleadings in their entirety, we are satisfied the pleadings completely disclosed on their face the appellant’s assertion of the res judicata defense within the meaning of Flanders, supra and - Ezzard, supra.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Carley, Chief Judge.

license: Public Domain

text:
    A89A1608.
    BURGESS v. THE STATE.
    (390 SE2d 92)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of child molestation. In Burgess v. State, 189 Ga. App. 790 (377 SE2d 543) (1989), we affirmed appellant’s conviction, but remanded the case to the trial court for further proceedings regarding the State’s use of its peremptory strikes against black prospective jurors. In compliance with this remand, the trial court conducted a hearing wherein the State was required to explain the use of its peremptory strikes. After the hearing, the trial court entered an order finding that “the State’s reasons for striking black jurors are racially neutral.” Appellant appeals from this order.

“ ‘In order to rebut a prima facie case of racial discrimination in the exercise of peremptories, the prosecutor must explain each peremptory challenge of a black prospective juror. The explanation “need not rise to the level justifying exercise of a challenge for cause,” but it must be “neutral,” “related to the case to be tried,” and a “ ‘clear and reasonably specific,’ explanation of his ‘legitimate reasons’ for exercising the challenges.” (Cit.) The explanation offered for striking each black juror must be evaluated in light of the explanations offered for the prosecutor’s other peremptory strikes, and, as well, in light of the strength of the prima facie case. The persuasiveness of a proffered explanation may be magnified or diminished by the persuasiveness of companion explanations, and by the strength of the prima facie case.’ [Cit.]” Bess v. State, 187 Ga. App. 185 (1) (369 SE2d 784) (1988).

Of those four instances in the present case wherein black prospective jurors were peremptorily stricken by the State, appellant concedes that a racially neutral explanation was given for three. In the one remaining instance, the State’s explanation for its use of a peremptory strike was that the prospective juror knew the mother of the victim. Because the mother of the victim “was taking the side” of appellant against her own child, the State elected to use one of its peremptory strikes against this prospective juror.

Appellant urges that a purported friendship with the victim’s mother does not suffice as a racially neutral explanation because the transcript in this case does not demonstrate that the State ever raised this issue during its voir dire of the prospective juror. However, the record likewise does not demonstrate that the State did not question the prospective juror on voir dire as to this issue. Voir dire was not transcribed and the post-trial hearing was conducted based upon recollection. There is no requirement that the State’s racially neutral explanation for its use of peremptory strikes be supported by a transcript of voir dire. See generally Glanton v. State, 189 Ga. App. 505 (2) (376 SE2d 386) (1988); Hillman v. State, 184 Ga. App. 712 (1) (362 SE2d 417) (1987). “In this case, there is no contention that anything in the record would show that the prospective juror was not [a friend of the victim’s mother]. Accordingly, it cannot be said that the explanation . . . , even if based upon mistake or ignorance, was whimsical or fanciful. [Cit.]”' (Emphasis in original.) Bess v. State, supra at 187 (1).

Even assuming that the State’s racially neutral explanation was relatively “weak,” the trial court was nevertheless authorized to find that appellant’s prima facie showing of discrimination had been rebutted. “A court charged with the duty of determining whether the prosecutor has rebutted a prima facie case may be less troubled by one relatively weak explanation for striking a black juror when all the remaining explanations are persuasive than where several of the prosecutor’s proffered justifications are questionable.” Gamble v. State, 257 Ga. 325, 327 (5) (357 SE2d 792) (1987). “[T]he challenge here [was] not based upon race, but upon the fact that the juror knew the [mother of the victim and was possibly prejudiced against the State], which is a racially-neutral basis, and the trial court found no merit to the motion. That finding is due great deference and ‘will be affirmed unless clearly erroneous.’ [Cit.] The trial court’s ruling cannot be found clearly erroneous when the challenge is not based upon racial grounds, but upon the racially-neutral grounds that prosecutors use every day in every court of this [S]tate. [Cits.]” Glanton v. State, supra at 507 (2).

Decided January 8, 1990.

David F. Dickinson, for appellant.

John M. Ott, District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


author: Birdsong, Judge.

text:
    A89A1672.
    MOSS v. THE STATE.
    (390 SE2d 268)
   Birdsong, Judge.

Victor Leroy Moss appeals from his convictions, following a bench trial, of driving under the influence and driving without insurance. Moss enumerates as error the entering of a conviction when the weight of the evidence did not support the guilty verdict, the denial of his motion for a directed verdict, and the application of OCGA § 40-6-391 to the evidence. The basis for all three enumerations of error is Moss’ contention that a conviction for driving under the influence must be based on evidence that the defendant actually operated his vehicle in an unsafe or less safe manner, and on other evidence showing that he was under the influence of alcohol when he did so. Held:

The trial was not transcribed and, while a transcript of evidence from recollection pursuant to OCGA § 5-6-41 (g) may have been prepared, that transcript was not provided with the record submitted to this court. Further, Moss’ brief cannot be used to add evidence to the record (Leathers v. Timex Corp., 174 Ga. App. 430, 431 (330 SE2d 102); see Patterson v. State, 256 Ga. 740 (2) (353 SE2d 338)), and we cannot consider factual allegations in the brief that are not supported by the record. Behar v. Aero Med Intl., 185 Ga. App. 845 (366 SE2d 223). Accordingly, Moss has failed to satisfy his burden by showing error affirmatively in the record. Moye v. State, 127 Ga. App. 338, 341 (193 SE2d 562).

Moreover, Moss’ arguments are incorrect as a matter of law. OCGA § 40-6-391 (a) (1) makes it unlawful for a person to “drive or be in actual physical control of any moving vehicle while: Under the influence of alcohol to the extent that it is less safe for the person to drive. ...” There is no requirement that the person actually commit an unsafe act. See Williams v. State, 190 Ga. App. 361, 362 (378 SE2d 886); Campbell v. State, 189 Ga. App. 303 (375 SE2d 654); Boose v. State, 185 Ga. App. 728 (365 SE2d 534); Howell v. State, 179 Ga. App. 632, 634 (347 SE2d 358).

Decided January 8, 1990.

Randall G. Levine, for appellant.

Spencer Lawton, Jr., District Attorney, Leonard Geldon, Assistant District Attorney, for appellee.

Judgment affirmed.

Deen, P. J., and McMurray, P. J., concur.


text:
    A89A1760.
    DOUGLAS v. THE STATE.
    (390 SE2d 98)
   Carley, Chief Judge.

After a jury trial, appellant was found guilty of theft by receiving stolen property, giving a false name and possession of tools for the commission of a crime. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

Appellant enumerates only the general grounds. Construed most favorably for the State, the evidence shows the following: Police officers stopped appellant after observing him driving a stolen automobile at an excessive rate of speed. The automobile’s steering column and radio evidenced damage which had not been present before the theft. In addition, the vehicle was being operated with no key in the ignition. Appellant and the other occupant of the vehicle, Calvin Sims, were arrested. The officers discovered four knobs from the vehicle’s radio in appellant’s pocket and a flat-head screwdriver in Sims’ pocket. Flat-head screwdrivers are commonly used to break into vehicles and then to start the engine by breaking into the steering column. Although appellant told police that Sims had picked him up in the vehicle, he admitted that Sims had told him that the vehicle had been stolen. Appellant acknowledged that he knew something was “fishy” when Sims began to remove the radio. Appellant also admitted that he had lied to the officers about his name.

On this evidence, a rational trior of fact could reasonably have found appellant guilty of theft by receiving stolen property beyond a reasonable doubt. “ ‘While proof of knowledge that the property is stolen is an essential, “(t)his guilty knowledge may be inferred from circumstances which would excite suspicion in the mind of an ordinary prudent man. (Cits.)” [Cit.]’ [Cit.]” Parrott v. State, 188 Ga. App. 564, 566 (373 SE2d 828) (1988).

Decided January 8, 1990.

Kenneth D. Feldman, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Assistant District Attorney, for appellee.

Although the screwdriver was found in the immediate possession of Sims, the evidence was sufficient to authorize a rational trior of fact to find appellant was likewise guilty beyond a reasonable doubt of the crime of possession of tools for commission of a crime. See generally Solomon v. State, 180 Ga. App. 636 (1) (350 SE2d 35) (1986).

The evidence that appellant admitted giving the police a false name “was sufficient to sustain the jury’s finding that [appellant] violated [OCGA § 16-10-25 beyond a reasonable doubt].” Johnson v. State, 149 Ga. App. 273, 274 (1) (253 SE2d 889) (1979). See also Mallory v. State, 164 Ga. App. 569, 570 (4) (298 SE2d 290) (1982). Compare Preston v. State, 257 Ga. 42, 44 (1) (354 SE2d 135) (1987).

Judgments affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    A89A1824.
    LUKE et al. v. SPICER.
    (390 SE2d 267)
   Carley, Chief Judge.

Appellant-plaintiffs brought suit against appellee-defendant, seeking to recover for injuries allegedly sustained as the result of an automobile collision. Appellee answered, denying the material allegations of appellants’ complaint, and he also filed a counterclaim. The jury returned a verdict in favor of appellee on appellants’ main claims and on his counterclaim. Appellants appeal from the judgment entered by the trial court on the jury’s verdict.

1. Appellants enumerate as error the denial of their motion for a directed verdict as to appellee’s liability.

There was a conflict in the evidence as to the parties’ exercise of ordinary reasonable care under the circumstances. Accordingly, it was not error for the trial court to refuse to direct a verdict against appellee as to liability. See OCGA § 9-11-50; Campbell v. Forsyth, 187 Ga. App. 352 (1) (370 SE2d 207) (1988).

2. When appellants attempted to introduce into evidence the investigating officer’s incident report, appellee objected. The trial court sustained the objection and this evidentiary ruling is enumerated as error.

Decided January 8, 1990.

M. Stan Ballew, for appellants.

Willie J. Linahan, Samuel F. Greneker, Daniel C. Hoffman, for appellee.

A document that is otherwise admissible as a business record may nevertheless be excluded from evidence if it contains opinions, conclusions or conjectures. See Martin v. Baldwin, 215 Ga. 293 (2c) (110 SE2d 344) (1959). The proffered incident report contains such objectionable material. Accordingly, the trial court did not err in excluding that report.

3. The trial court’s giving of a jury instruction on sudden emergency is enumerated as error.

“The doctrine of sudden emergency refers only to those acts which occur immediately following the apprehension of the danger or crisis and before there is time for careful reflection. [Cit.] The rule of sudden emergency is that one who in a sudden emergency acts according to his best judgment or, because of want of time in which to form a judgment, acts in the most judicious manner, is not chargeable with negligence. [Cits.]” Webb v. Perry, 158 Ga. App. 409, 410 (280 SE2d 423) (1981). “An emergency is a ‘sudden peril caused by circumstances in which the defendant did not participate and which offered him a choice of conduct without time for thought so that negligence in his choice might be attributable not to lack of care but to lack of time to assess the situation.’ [Cit.]” (Emphasis omitted.) Hall v. Chastain, 246 Ga. 782, 785 (5) (273 SE2d 12) (1980).

Appellee testified to the following: As he approached the intersection where the collision occurred, the light was in his favor. He saw appellants’ car turning into the intersection in front of him. Believing that appellants would complete their turn, he braked gradually. However, appellants came to a complete stop in the intersection. Appellee was uncertain whether it was safe for him to change lanes so as to avoid appellants. Despite braking, the cars collided. This is evidence of a choice of perils which confronted appellee in a situation that was not of his own making. The trial court did not err in giving the instruction on the doctrine of sudden emergency.

4. Appellants’, remaining enumeration of error concerns the trial court’s giving of a jury instruction on nominal damages. Since the jury returned a verdict in favor of the defendant, error, if any, in giving this charge would be harmless. See Minter v. Leary, 181 Ga. App. 801 (1) (354 SE2d 185) (1987).

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    A89A1846.
    DEPARTMENT OF TRANSPORTATION v. FINA OIL & CHEMICAL COMPANY.
    (390 SE2d 99)
    Decided January 8, 1990.

      Michael J. Bowers, Attorney General, Sell & Melton, Carl E. Lancaster, Jr., for appellant.

      Hall, Bloch, Garland & Meyer, Benjamin M. Garland, for appellee.
   Carley, Chief Judge.

Acting pursuant to OCGA § 32-3-1 et seq., appellant-condemnor initiated condemnation proceedings and deposited, into the registry of the court, the sum of money estimated “to be just compensation for the land taken, including consequential damages to land not taken. . . .” OCGA § 32-3-6 (b) (5). Appellee-condemnee filed, with the superior court, a notice of appeal as provided by OCGA § 32-3-14. Thereafter, appellee, citing OCGA § 9-11-13 (e), sought permission from the trial court to file a counterclaim against appellant. In this proposed counterclaim, it was alleged that appellant’s agents, while engaged in the highway project, made unauthorized use of appellee’s remainder. For this alleged unauthorized use, appellee sought damages. The trial court granted appellee permission to file the counterclaim, but certified its order for immediate review. Appellant’s application for an interlocutory appeal was granted.

The trial court erred in allowing appellee to file the counterclaim in this condemnation action. “All of the procedures outlined in OCGA § 32-3-1 et seq. are geared exclusively towards answering questions relating to the propriety of the condemnation at hand or the value of the condemned land. Here [appellee’s] counterclaim seeks [damages for an alleged unauthorized use of its remainder]. As.such, the subject of the counterclaim lies outside the bounds of this type of condemnation. . . . The legislature made no provision for . . . damages, even of the constitutional variety, in this type of condemnation action. . . . [T]he trial court’s [allowance] of [appellee’s] counterclaim [was erroneous].” Brooks v. Dept. of Transp., 254 Ga. 60, 62 (2, 3) (327 SE2d 175) (1985).

Judgment reversed.

McMurray, P. J., and Beasley, J., concur.


text:
    A89A1889.
    JOHNSON v. LLEWELLYN.
    (390 SE2d 94)
   Carley, Chief Judge.

This appeal concerns the eligibility of appellee-applicant for medical assistance benefits from the Georgia Department of Medical Assistance (Department) under the following circumstances: After appellee moved in with her daughter, she sold her own home. Appellee financed the sale, taking back a promissory note and security deed. She then filed for divorce. A subsequent examination of appellee at the Monroe County Counselling Center disclosed the probability that she would need nursing home placement in the near future, and her daughter was informed of this. Shortly thereafter, appellee assigned to her daughter the promissory note and security deed and she then entered a nursing home. Appellee’s application for benefits from the Department was denied and she appealed this administrative decision to the superior court. The superior court reversed and appellant-Commissioner of the Department applied to this court for a discretionary appeal pursuant to OCGA § 5-6-35. This appeal results from the grant of that application.

There was, under the above stated circumstances, a presumption that the assignment of the promissory note and security deed to appellee’s daughter was for the purpose of establishing eligibility for benefits from the Department. See Johnson v. Ellis, 174 Ga. App. 861 (1) (331 SE2d 884) (1985). “The burden [was] on [appellee] to rebut this presumption, [cit.], and unless [she did] so by ‘convincing evidence’ that the transaction was ‘exclusively’ for some purpose other than establishing eligibility for benefits, the uncompensated value of the assets are counted as [hers]. [Cits.]” Johnson v. Ellis, supra at 862 (1).

The superior court found that the assignment had been made in connection with appellee’s divorce, rather than to establish her eligibility for benefits. However, the superior court was not authorized to weigh the evidence and to substitute its judgment on questions of fact for that of the Department. The record clearly shows that the Department “weighed the evidence in light of the [applicable] presumption . . . and found that appellee had failed to present convincing evidence rebutting the presumption. ... On appeal, the superior court was required to determine only whether there was ‘any evidence’ that appellee had not presented ‘convincing evidence’ to rebut the Department’s presumption. In view of appellee’s declining health [and the timing of the assignment which was several months after the sale of the home but only several weeks after the probability of appellee’s need for nursing home placement was discovered], there was at least some evidence to support the Department’s decision. [Cit.]. . . . Therefore, the superior court erred by reversing the Department’s decisión that appellee was ineligible for medical assistance benefits.” (Emphasis in original.) Johnson v. Ellis, supra at 862 (1).

Decided January 8, 1990.

Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, Stephanie B. Manis, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, for appellant.

C. Robert Melton, for appellee.

Judgment reversed.

McMurray, P. J., and Beasley, J., concur.


text:
    A89A1940.
    STORY v. THE STATE.
    (390 SE2d 96)
   Carley, Chief Judge.

Although appellant and her husband were jointly tried before a jury and found guilty of child molestation, she appeals separately from the judgment of conviction and sentence entered by the trial court on the jury’s verdict finding her guilty.

1. Appellant enumerates as error the denial of her motion to sever her trial from that of her co-defendant husband.

“When [jointly] indicted for a capital felony when the death penalty is waived, or for a felony less than capital, or for a misdemeanor, such defendants may be tried jointly or separately in the discretion of the trial court.” OCGA § 17-8-4. In the exercise of that discretion, the trial court should consider the following: “1. Will the number of defendants create confusion of the evidence and law applicable to each individual defendant? 2. Is there a danger that evidence admissible against one defendant will be considered against another despite the admonitory precaution of the court? 3. Are the defenses of the defendants antagonistic to each other or to each other’s rights? [Cit.] ” Cain v. State, 235 Ga. 128, 129 (218 SE2d 856) (1975). To warrant reversal of a conviction for failure to sever for separate trials, a co-defendant “must make a clear showing of prejudice and a consequent denial of due process.” Murphy v. State, 246 Ga. 626, 629 (2) (273 SE2d 2) (1980).

In the present case, there were only two co-defendants, each of whom was charged with committing the same crime against the same victim in the same manner. The relevant evidence against both was unambiguous and the applicable law was straightforward. Although certain evidence was admissible only against appellant’s husband, the trial court twice admonished the jury that it was to consider this evidence solely with respect to his guilt. The defenses were not antagonistic but were, in fact, mutually supportive. The trial court did not abuse its discretion in denying the motion to sever. Kesler v. State, 249 Ga. 462, 468 (4) (291 SE2d 497) (1982).

Decided January 8, 1990.

Robert B. Whatley, for appellant.

William G. Hamrick, Jr., District Attorney, Peter J. Skandalakis, Assistant District Attorney, for appellee.

2. Over appellant’s objection that it was irrelevant, prejudicial, and improperly placed her character in issue, evidence was admitted which showed that the victim had been covered with welts and bruises at the time of her removal from appellant’s home. The admission of this evidence is enumerated as error.

The evidence of the victim’s physical abuse was not evidence of independent but similar transactions within the notice requirements of Uniform Superior Court Rule 31.3. The victim was physically abused to compel her participation in the acts of molestation and she was threatened with further beatings if she told anyone. Thus, the evidence was admissible as part of the res gestae of the very crime for which appellant was being tried. “The [SJtate is entitled to present evidence of the entire res gestae of the crime. . . . [E]very aspect of it relevant to the crime charged may be presented at trial. [Cit.] This is true even if the defendant’s character is incidentally placed in issue.” Satterfield v. State, 256 Ga. 593, 598 (6) (351 SE2d 625) (1987).

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    A89A2067.
    GAITHER v. BARCLAYSAMERICAN/FINANCIAL OF GEORGIA, INC.
    (390 SE2d 97)
   Carley, Chief Judge.

Appellee-defendant held a purchase money security interest in appellant-plaintiff’s mobile home. After appellant defaulted and allegedly abandoned the mobile home, appellee repossessed it. Appellant subsequently initiated this action, alleging that appellee’s repossession was “wrongful” and seeking both compensatory and punitive damages under a variety of tort theories. After extensive discovery, appellee moved for summary judgment. This motion was denied except as to the issue of appellant’s recovery of punitive damages under OCGA § 51-12-5. Appellant appeals from this grant of partial summary judgment in favor of appellee.

“ ‘Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or “malice,” or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called wilful or wanton. There is general agreement that, because it lacks this element, mere negligence is not enough, even though it is so extreme in degree as to be characterized as “gross,” a term of ill-defined content, which occasionally, in a few jurisdictions, has been stretched to include the element of conscious indifference to consequences, and so to justify punitive damages. Still less, of course, can such damages be charged against one who acts under an innocent mistake in engaging in conduct that nevertheless constitutes a tort. . . .’ [Cit.]” Colonial Pipeline Co. v. Brown, 258 Ga. 115, 121-122 (4) (365 SE2d 827) (1988). In support of its motion for summary judgment, appellee produced evidence which was sufficient to pierce the allegations that it or its agents had engaged in such egregious behavior as would authorize a recovery for punitive damages. In opposition, appellant made no showing that appellee or its agents had “heedlessly and unnecessarily committed acts which resulted in damage to [appellant’s] property [or] indiscriminately seized items as to which payments were not then overdue [such as] would be some evidence of conscious indifference to consequences [or] wanton disregard of [appellant’s] rights. . . . [Cit.]” Whisenhunt v. Allen Parker Co., 119 Ga. App. 813, 819 (4) (168 SE2d 827) (1969). The evidence, construed most favorably for appellant, shows, at most, the mere commission of a tort. The trial court correctly granted partial summary judgment in favor of appellee as to punitive damages. Compare Associated Health Systems v. Jones, 185 Ga. App. 798, 802 (2) (366 SE2d 147) (1988).

Decided January 8, 1990.

Blount, Garcia & Singh, Udai V. Singh, for appellant.

Douglas N. Campbell, Laura E. Stevenson, for appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


author: Pope, Judge.

text:
    A89A1604.
    PERKINS v. THE STATE.
    (390 SE2d 273)
   Pope, Judge.

Defendant Kenneth Wayne Perkins appeals from his conviction on two counts of armed robbery and one count of possession of a firearm during the commission of a crime. Defendant does not deny that he, along with two other perpetrators, participated in the robbery but denies he was armed.

1. We reject defendant’s argument that he is entitled to a new trial because insufficient evidence was presented to convict him of possession of a firearm during the commission of the crime. Both victims testified that one of the other perpetrators claimed to have a gun and threatened to use it if they did not surrender their money and jewelry. One of the victims testified he saw the end of the gun sticking out of the robber’s pants pocket. Defendant may properly be convicted of possession of a firearm during the commission of a crime (OCGA § 16-11-106 (b)) on the ground that he was a party or aider or abettor to the offense (OCGA § 16-2-20). Wilcox v. State, 177 Ga. App. 596 (340 SE2d 243) (1986). We also reject defendant’s argument that his conviction was improper because the indictment charging him with possession of a handgun “on his person” fatally varied from the evidence that one of the other perpetrators possessed a handgun. “A person need not be indicted under [OCGA § 16-2-20] before the state may prove his culpability for a crime as a party to that crime. [Cit.] While it may be better practice to charge conspiracy or parties to a crime in the indictment, the absence of such does not render the indictment fatally defective.” Wright v. State, 165 Ga. App. 790 (1) (302 SE2d 706) (1983).

2. The trial court granted the State’s request to charge that presence and conduct are circumstantial evidence of criminal intent. However, the trial transcript of this charge reads as follows: “I charge you that presence, companionship, and conduct before and after the offense or circumstances from which one’s participation in a criminal attempt may be inferred.” (Emphasis supplied.) Defendant argues the charge is syntactically improper and confusing and is erroneous and irrelevant in its reference to criminal attempt because criminal attempt is not at issue in this case. However, the charge reported in the transcript is virtually identical to the charge properly requested by the State if the word “are” is substituted for “or” and if “intent” is substituted for “attempt.” The improper words are homonyms for the words which should properly have been charged. We conclude that “or” and “attempt” are merely errors in the transcript of the charge and that no error was made in the charge actually given to the jury. Defendant’s counsel expressly stated at the conclusion of the charges that he “did not note any omissions or misreadings in the charge.” Consequently, any objection to the charge was waived.

3. Defendant argues the trial court committed reversible error in giving a charge on the distinction between actual and constructive possession. We agree that the charge given is appropriate to cases involving possession of a controlled substance whereas the definition of possession in regard to the offense of possession of a firearm during the commission of a crime, as set forth by OCGA § 16-11-106 (b), is to “have on or within arm’s reach of [one’s] person.” However, we note that the trial court correctly charged the jury on the issue of guilt by being a party to or aiding or abetting in a crime. Moreover, we conclude that any confusion which might have been caused by the charge on constructive possession was corrected by the trial court’s recharge, in response to questions submitted by the jury, on the issue of possession of a firearm by one of the other perpetrators of the crime.

Decided January 9, 1990.

John D. McCord III, for appellant.

4. We reject defendant’s argument that the recharge was erroneous and confusing. In the recharge the judge stated, essentially, that while the mere verbal threat of using a gun would not be sufficient to find defendant guilty, a threat plus evidence that a gun existed would be sufficient to find the defendant guilty of possession of a firearm in the commission of a crime. Defendant argues that the recharge was erroneous because it did not instruct the jury that the evidence that a gun actually existed must be beyond a reasonable doubt. The court properly charged the jury on the reasonable doubt standard in its initial charge. When the jury requests further instruction on a specific question the trial court need not recharge the jury in full but may, in its discretion, recharge the jury only upon the points requested by the jury. Dyson v. State, 155 Ga. App. 297 (2) (270 SE2d 711) (1980). Moreover, defendant waived any objection to the recharge when his counsel expressly stated that the recharge was satisfactory.

5. The trial court commenced its charge on possession of a firearm and the commission of a crime by quoting from the title heading to OCGA § 16-11-106, which refers not only to possession of a firearm but also to possession of a knife, and not only to the commission of a crime but also to the attempt to commit a crime. Defendant argues the trial court erred by charging the jury on possession of a knife and on attempt to commit a crime when the evidence did not justify such a charge. “It is not usually cause for new trial that an entire Code section is given. [Cits.] This is so even though a part of the charge may be inapplicable under the facts in evidence. [Cits.]” Keller v. State, 245 Ga. 522 (1) (265 SE2d 813) (1980). Accord Rains v. State, 161 Ga. App. 361 (7) (288 SE2d 626) (1982). Moreover, although the. trial judge read from the title of the code section referring to elements of the offense not in evidence in this case, the remainder of the charge related only to possession of a firearm during the commission of a crime. Consequently, the charge was not in error. See Lumpkin v. State, 249 Ga. 834 (2) (295 SE2d 86) (1982).

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.

Robert E. Wilson, District Attorney, Robert M. Coker, Shawn E. LaGrua, R. Stephen Roberts, Assistant District Attorneys, for appellee.


author: McMurray, Presiding Judge.

text:
    A89A1757.
    WHISENANT v. FULTON FEDERAL SAVINGS & LOAN ASSOCIATION.
    (390 SE2d 100)
   McMurray, Presiding Judge.

This is an unusual case in which the superior court awarded summary judgment to defendant/appellee without considering three depositions which were filed mistakenly in the record of another case. We remand for consideration of the three depositions by the superior court.

Plaintiff/appellant brought this breach of contract action against defendant/appellee in the Superior Court of Fulton County. The action was styled Stephen H. Whisenant v. Fulton Federal Savings & Loan Association of Atlanta d/b/a Fulton Federal Savings & Loan Association and was assigned Civil Action File No. D-47088.

Defendant/appellee answered the complaint and, following discovery, moved for summary judgment. The motion was granted and plaintiff/appellant filed a notice of appeal. With regard to the composition of the record on appeal, the notice of appeal provided that nothing was to be omitted.

After the record was prepared and transmitted, it came to the attention of plaintiff/appellant that the depositions of Charles Thomas Cantrell, Paul Henry and Shepherd R. Marsh were omitted from the record. Accordingly, on July 6, 1989, plaintiff/appellant moved to supplement the record with those depositions. In support of its motion, plaintiff/appellant submitted the affidavit of Donna J. Jennewine who was formerly associated with the law firm of Davis, Matthews & Quigley, P. C., plaintiff/appellant’s counsel. Ms. Jennewine testified that she was employed by Davis, Matthews & Quigley on April 15, 1988, and that as part of her responsibilities she worked on this case; that, on April 15, 1988, she sent the original depositions of Messrs. Cantrell, Henry and Marsh to the Clerk of the Superior Court of Fulton County via courier; that she sent a cover letter to the court requesting that the depositions be filed and, per her normal practice, she enclosed a copy of her cover letter to be marked “filed” and returned.

A copy of the cover letter was attached to Ms. Jennewine’s affidavit as an exhibit. It correctly referenced this case by name and civil action file number and requested the clerk to file the depositions of Messrs. Cantrell, Henry and Marsh in this case. The cover letter was stamped “FILED IN OFFICE APR 15, 1988 DEPUTY CLERK, SUPERIOR COURT FULTON COUNTY, GA” and returned to Ms. Jennewine.

After hearing argument, the superior court issued an order dated August 11, 1989, filed August 14, 1989, denying plaintiff/appellant’s motion to supplement the record. In this regard, the superior court ruled: “The Court finds that the three depositions at issue, those being the deposition of Shepherd R. Marsh, the deposition of Charles Thomas Cantrell, and the deposition of Paul Henry, were presented to the Clerk of the Superior Court of Fulton County with the case number D-48088, which is not the proper case number of this case. The Clerk of the Superior Court filed those three depositions in case number D-48088 and not in case number D-47088. Therefore, the Court finds that these three depositions were not properly a part of the record in this case during this Court’s consideration of the Defendant’s Motion for Summary Judgment. The Court has found the three depositions in case number D-48088. The depositions remain sealed and the Court specifically states that they were not considered by this Court during its consideration of the Defendant’s Motion for Summary Judgment.” Held:

The burden of filing depositions and other discovery material rests upon the party which intends to rely upon it. Sheffield v. Zilis, 170 Ga. App. 62, 64 (2) (316 SE2d 493). See also OCGA § 9-11-29.1 (a). Did plaintiif/appellant carry his burden of filing the three depositions in the case sub judice? We think he did.

Pleadings and other papers filed with the clerk of the court are to be deemed filed. OCGA § 9-11-5 (e). In the case sub judice, plaintiff/ appellant filed the depositions with the clerk of the court via cover letter properly identifying the case by style and case number. The mere fact that the depositions themselves did not bear the correct case number does not negate the fact that the depositions were filed. Inasmuch as the clerk of the court received the depositions for filing, they will be deemed to have been filed.

Once the depositions were filed with the clerk of the court, it was the responsibility of the clerk of the court to be sure the depositions were placed with the appropriate record. If the clerk had any difficulty identifying the appropriate record, counsel for plaintiff/appellant should have been so notified. Instead, because a copy of the cover letter which accompanied the depositions (and which bore the appropriate case number) was marked “filed” and returned to counsel for plaintiif/appellant, plaintiff/appellant was, in effect, notified that the depositions were filed properly.

Defendant/appellee contends plaintiff/appellant did not carry his burden of filing the three depositions because he negligently submitted the depositions for filing. In this regard, defendant/appellee argues that counsel for plaintiff/appellant should have observed that the depositions themselves bore the wrong case number. We cannot accept this contention. Counsel cannot be expected to catch a mistaken case number (which is off by only one digit) when the caption of the case is otherwise correct. Rather, the onus must fall on the clerk of the court to match the case number to the style of the case before placing pleadings or papers in a particular record.

Decided January 9, 1990.

Davis, Matthews & Quigley, Ron L. Quigley, Robert E. Casey, Jr., for appellant.

Swift, Currie, McGhee & Hiers, A. L. Mullins, Jr., Jane C. Bar-wick, John P. MacNaughton, Jeffrey Y. Lewis, for appellee.

Because the depositions were placed in the wrong record by the clerk of the court, the superior court did not consider the three depositions in ruling upon defendant/appellee’s motion for summary judgment. It follows that this case must be remanded with direction that the superior court consider the entire record in this case, including the depositions of Shepherd R. Marsh, Charles Thomas Cantrell and Paul Henry, before determining whether defendant/appellee is entitled to summary judgment. See Maddox v. Brown, 188 Ga. App. 728 (374 SE2d 222).

Judgment vacated and case remanded with direction.

Carley, C. J., concurs. Beasley, J., concurs in the judgment only.


text:
    A89A1773.
    BIGHAM v. WRIGHT.
    (390 SE2d 109)
   Birdsong, Judge.

This discretionary appeal was granted to review the trial court’s judgment in this child visitation rights case. Bigham and Wright were divorced in 1987 with custody of their daughter given to the mother, Bigham, and visitation rights granted to Wright. Alleging that Wright had sexually abused his daughter, Bigham sought the termination of his visitation rights. After evidentiary hearings, the trial court refused to terminate Wright’s visitation rights, but required that future visits with his daughter be supervised by Wright’s parents.

Although dissatisfied with this decision, Bigham did not seek permission to appeal, but moved for a new trial contending that “the judgment” was contrary to the law and the evidence, and was strongly against the weight of the evidence. At the hearing on the motion, Big-ham’s counsel agreed the motion contended that the trial court abused its discretion by not terminating the father’s visitation rights. The motion was denied, and Bigham was granted permission for a discretionary appeal. Held:

Decided January 9, 1990.

Eugene S. Taylor, for appellant.

Minor, Bell & Neal, Steven B. Farrow, Sara-Ellen Midkiff, for appellee.

When the application for this appeal was granted, it appeared the motion for new trial attacked errors contributing to the verdict. The record on appeal, however, shows the motion only attacked the judgment, not the verdict. That is not a proper basis for a motion for new trial. State Farm &c. Ins. Co. v. Yancey, 188 Ga. App. 8, 9 (371 SE2d 883). Therefore, the motion did not extend the time in which an application for discretionary appeal could be filed. Sands v. Lamar Properties, 159 Ga. App. 718, 719 (285 SE2d 24). Since the application for discretionary appeal was not filed within 30 days after the judgment below, the application was untimely and we have no jurisdiction.

Appeal dismissed.

Deen, P. J., and Sognier, J., concur.


text:
    A89A2045.
    AIKENS v. THE STATE.
    (390 SE2d 102)
   McMurray, Presiding Judge.

Defendant was indicted in three counts for murder (Count 1), possession of a firearm during the commission of a crime (Count 2) and possession of an alcoholic beverage by a minor (Count 3). The evidence adduced at a jury trial revealed the following: At about 11:30 p.m. on November 26, 1987, defendant, who was then 16 years of age, was involved in a barroom brawl at a “hang out” in Valdosta, Georgia known as the “Hole-in-the-Wall.” During the fight, defendant shot the victim with a handgun; “ran” to a staircase located inside the bar and, as defendant was fleeing “back upstairs,” he “turned around and shot the second time.” The victim died of a gunshot wound to the chest.

Two officers of the Valdosta Police Department were parked in the near vicinity of the “Hole-in-the-Wall” and heard “two gunshots.” They went to investigate and discovered the victim on “the pavement” in a pool of blood. A witness identified defendant as the gunman and defendant was arrested and taken to the police station. A test was administered to determine the alcohol content in the defendant’s blood. The test revealed defendant’s blood alcohol concentration to be “.10 grams.”

Defendant was found guilty on Counts 2 and 3 of the offenses charged and was found guilty of the lesser offense of voluntary manslaughter on Count 1. His motion for new trial was denied. This appeal followed. Held:

1. Defendant first asserts the general grounds, arguing that the “weight of his evidence outweighs the State’s evidence. . . .” This contention is without merit.

“The weight and credibility to be afforded . . . testimony was a matter for the jury to resolve. Harris v. State, 155 Ga. App. 530 (271 SE2d 668). This court cannot review the ‘quality’ of evidence; it can only review the sufficiency of evidence. Thomas v. State, 175 Ga. App. 873 (1) (334 SE2d 903).” Webb v. State, 187 Ga. App. 348 (1), 349 (370 SE2d 204). From this perspective, we find the eyewitness testimony that defendant shot the victim, the physical evidence corroborating this testimony and evidence showing that defendant was a minor with a blood alcohol concentration of “.10 grams” sufficient to authorize the jury’s verdicts under the standard of proof required in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Next, defendant contends “[t]he Trial Court erred in allowing the State to reopen its presentation of evidence by allowing another State’s witness to testify after the State had rested its case.”

The trial court is vested with broad discretion in allowing a party to reopen its case and present evidence. State v. Roberts, 247 Ga. 456, 458 (277 SE2d 644); Wansley v. State, 256 Ga. 624, 626 (5) (352 SE2d 368). In the case sub judice, the State rested its case before a lunch recess and the trial court allowed the State to reopen its case after the recess and present additional evidence before defendant presented his case to the jury. Under these circumstances, we find no abuse of discretion in allowing the State to reopen its case.

3. In his final enumeration, defendant contends “[t]he Trial Court erred in allowing the State to impeach a defense witness by allowing the State to introduce three non-dated handwritten statements allegedly written by the witness.”

Walter Lee Anderson, Jr., was called by the defense. Anderson testified that he was with defendant on the night of the shooting and that defendant “didn’t shoot nobody. I didn’t see it if he did.” On cross-examination, the State’s attorney presented the defense witness with three handwritten statements identifying defendant as the perpetrator of the shooting. The statements indicated the following signatures: “Walter Lee Anderson,” “Walter Anderson” and “Walter Anderson.” Anderson denied writing the statements. In rebuttal, Detective Mike Courson of the Valdosta Police Department testified that Walter Lee Anderson, Jr., was transported to the police station on the morning after the shooting and that Anderson there executed and signed the three handwritten statements identifying defendant as the perpetrator of the shooting. Defense counsel objected when the State offered the statements into evidence saying, “No dates, times, or anything else.” The trial court allowed the documents into evidence.

Decided January 9, 1990.

William D. Edwards, for appellant.

H. Lamar Cole, District Attorney, J. David Miller, Assistant District Attorney, for appellee.

“Our rules of evidence provide a wide variety of means by which a party may authenticate a writing. A witness who saw the writing being made may, of course, testify to its genuineness. Code § 38-706 [now OCGA § 24-7-4]; Brewer v. Commercial Credit Co., 66 Ga. App. 138 (17 SE2d 243).” Martin v. State, 135 Ga. App. 4, 6 (3), 7 (217 SE2d 312). Detective Courson’s testimony in the case sub judice was sufficient to authenticate the statements purportedly executed by Anderson. The question of whether these statements were actually executed by Anderson was a question for the jury. See Clay v. Howington, 74 Ga. App. 794, 799 (2), 800 (41 SE2d 571). This enumeration is without merit.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A2275.
    BENNETT et al. v. BENNETT et al.
    (390 SE2d 276)
   Birdsong, Judge.

Appellants, Steven Rodney Bennett b/n/f Susan Marie Bennett and Susan Marie Bennett (hereinafter Susan Ham) individually, appeal the order of the superior court granting appellees’ motion for summary judgment.

On July 8, 1985, Steven Rodney Bennett (hereafter Rodney), a minor child, was injured seriously, while visiting for a few days at the home of his grandparents, Frances and Hugh Bennett, when a riding lawn mower was started by another child and driven over him.

On October 6, 1986, Rodney’s mother, appellant Susan Ham, commenced suit grounded in negligence on behalf of Rodney, and in her individual capacity, against Frances and Hugh Bennett.

The Bennetts assert Susan Ham left Rodney with them permanently on December 24, 1986, and that they have acted in the capacity of his parents since that date. Susan Ham, by deposition, testified that Rodney had been living with his grandparents since about two months previous. Thus, Rodney, by her admission, would have been living with his grandparents since about March 8,1987, as the deposition was taken on May 8, 1987. Susan Ham consistently denied intending to give Frances and Hugh Bennett permanent custody and control of her son. The evidence is uncontroverted that, except when Rodney visited his mother who was then living in Tennessee, Frances and Hugh Bennett provided him with the necessities of life, food, clothing and shelter; they enrolled him in school, and provided any necessary parental discipline from the date Rodney was placed voluntarily in their home by Susan Ham. Susan Ham presented evidence that Frances and Hugh Bennett had not paid any of Rodney’s medical bills resulting from the accident, and that she had bought him clothing. Rodney still resides with his grandparents.

On December 5, 1988, guardianship papers were issued by the probate court to Frances Bennett who since that time has acted as Rodney’s guardian. Susan Ham asserts that guardianship was obtained by fraud, and moved the superior court to set aside the guardianship, and to appoint a guardian ad litem for Rodney before ruling on the motion for summary judgment.

On January 24, 1989, appellees filed a motion for summary judgment. The superior court granted the motion concluding that “ [defendant's have stood in loco [parentis] to the [m]inor-[p]laintiff . . . from 1986 until date and therefore . . . [m]otion for [sjummary [jjudgment is granted; said action being barred by the family immunity doctrine.”

Under the doctrine of family immunity, the preservation of family tranquility being paramount, an unemancipated child is prevented from suing a parent “or person standing in loco parentis” for injuries resulting from simple negligence. Trotter v. Ashbaugh, 156 Ga. App. 130 (1) (274 SE2d 127); Clabough v. Rachwal, 176 Ga. App. 212, 213 (335 SE2d 648).

“When ‘duty and control is lost or alienated to a third person by any . . . means recognized by law, then such third person stands in loco parentis to the child.’ [cit.], and parental power ‘remains in the third person until the child reaches majority[,]’ [cit.], unless of course the third party loses or forfeits the right to custody or becomes unfit for retaining custody.” In re M. A. F., 254 Ga. 748, 751 (1) (334 SE2d 668). Parental power may be lost in various ways. See, e.g., OCGA § 19-7-1 (b). As stated by Presiding Judge Deen in his special concurring opinion in Clabough, “[i]n the instant case, the defendant grandmother, as the appointed legal guardian of the plaintiff unemancipated grandchild, was clearly in loco parentis. This action was in negligence. Accordingly . . . public policy prohibits this cause of action.” Clabough, supra at 217.

It is not the status of the “relationship” at the time the action accrues, rather it is the status of the parties’ relationship at the filing of suit and thereafter which is controlling. Arnold v. Arnold, 189 Ga. App. 101, 103 (375 SE2d 225), aff’d 259 Ga. 150 (377 SE2d 856). Thus, if appellees stood in loco parentis relationship with appellant Rodney before the trial court entered its order granting summary judgment, that would suffice to invoke the family immunity doctrine. Arnold, supra at 104. In the case sub judice, appellee Frances Bennett was appointed guardian of the person and property of the unemancipated minor child, Rodney, before the trial court entered its order.

Appellants have attempted to collaterally attack the guardianship appointment of the probate court in this proceeding. Probate courts have authority, unless otherwise provided by law, to exercise exclusive, and general jurisdiction of the appointment and removal of guardians of minors, and of all controversies as to the right of guardianship except under OCGA § 19-7-4. See OCGA § 15-9-30. “Judgments rendered in the exercise of this jurisdiction can not be collaterally attacked.” Beavers v. Williams, 194 Ga. 875, 878 (23 SE2d 171). Accordingly, we find that the superior court did not err in declining to address the motion to set aside guardianship.

The cases of Trotter, supra, and Maddox v. Queen, 150 Ga. App. 408 (257 SE2d 918) are distinguishable from the facts of this case; rather we find Clabough, supra, to be controlling. For the two separate reasons hereinafter discussed, Frances and Hugh Bennett clearly were in loco parentis to their unemancipated grandchild, and accordingly public policy prohibits this cause of action. First, from December 24,1986, until present, the grandparents have stood in loco parentis to the child' Rodney. The grandparents having met all the requirements of loco parentis, compare Eaves v. Fears, 131 Ga. 820 (2) (64 SE 269), before the trial court entered its order for summary judgment, the court properly invoked the doctrine of family immunity. Arnold, supra. Secondly, the appointment of the grandmother as guardian of the child Rodney on December 5, 1988, after the mother on August 30, 1989, had relinquished in writing and before a notary “all claim, right of custody and parental control in my child” and had further expressly consented “to the appointment ... of Frances M. Bennett as guardian of my child,” independently caused a status of in loco parentis to be vested upon the grandmother. Clabough, supra at 217. This relationship having commenced before the trial court entered its order for summary judgment, the court properly invoked the doctrine of family immunity. Arnold, supra.

Moreover, we find no merit to any argument that the grandparents’ immunity is not a defense to appellant Ham’s individual claims, as there has been no showing that such claims are other than derivative in nature, and dependent upon the viability of the minor child Rodney’s cause of action before the statute of limitation expires as to appellant Ham. See Brown v. Phillips, 178 Ga. App. 316 (342 SE2d 786).

Decided January 9, 1990.

Carr & Kessler, James C. Carr, Jr., for appellants.

Beck, Owen & Murray, Samuel A. Murray, for appellees.

Appellants’ other assertions are equally without merit; and, appellants are deemed to have abandoned any potential appellate claims or enumerations of error not supported in their brief by citation of authority or argument. Court of Appeals Rule 15 (c).

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


text:
    A89A2304.
    HALL v. THE STATE.
    (390 SE2d 104)
   Pope, Judge.

Hall’s conviction for possession of cocaine was affirmed in an earlier appeal, Hall v. State, 188 Ga. App. 322 (373 SE2d 32) (1988), but the case was remanded to allow the trial court to conduct a hearing on Hall’s claim that his trial counsel was ineffective. After conducting such a hearing, the trial court found that Hall’s counsel had not been ineffective. Hall, represented by new counsel who appeared at the hearing below, now appeals that ruling. Held:

“To establish that there has been actual ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient and that the deficiency prejudiced the defense. In order to prove the defense has been prejudiced, defendant must show there is a reasonable probability that the result of the proceedings would have been different but for counsel’s unprofessional deficiencies. [Cit.]” Baggett v. State, 257 Ga. 735 (363 SE2d 257) (1988).

On appeal, Hall raises two issues. He contends that his trial counsel was ineffective because he withdrew a Jackson-Denno motion and because he failed to raise a defense of insanity. Testimony below was in conflict about whether trial counsel consulted Hall about withdrawing the Jackson-Denno motion. Trial counsel testified that after he reviewed the State’s file and found a written waiver signed by his client along with statements by police that led him to believe that Hall’s statements had been made voluntarily, he discussed the matter with Hall and recommended that the motion be withdrawn because it was unlikely to succeed. Hall agreed. However, Hall testified that trial counsel did not consult him and that he had no knowledge the motion had been withdrawn.

Decided January 9, 1990.

E. Jerrell Ramsey, for appellant.

Glenn Thomas, Jr., District Attorney, Charles K. Higgins, Assistant District Attorney, for appellee.

The trial court found that trial counsel did consult Hall about the matter and did get Hall’s consent to withdraw the motion. “On appeal, where the evidence is in conflict, the trial court’s findings as to factual determinations and credibility will be upheld unless clearly erroneous. [Cit.]” Burley v. State, 190 Ga. App. 75, 78 (3a) (378 SE2d 328) (1989). Our review of the record shows that the finding of the trial court was not clearly erroneous.

The trial court also found that trial counsel knew that Hall had been diagnosed as a paranoid schizophrenic, but that at all material times Hall knew right from wrong, knew that possession of cocaine was a crime and was able to assist his trial counsel in the preparation for and conduct of the trial. Evidence in the record supports these findings. “ ‘Schizophrenia is a psychosis, but a psychosis is not the equivalent of insanity. . . . It is a mental illness. ... (A) mere showing of a'medical psychosis does not establish legal insanity.’ [Cit.]” Tarver v. State, 186 Ga. App. 905 (368 SE2d 828) (1988).

Hall has failed to show that his trial counsel’s actions were improper or prejudiced his defense so that the result at trial would have been different. It follows that the trial court’s conclusion that Hall was not denied effective assistance of counsel was not clearly erroneous and should stand.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A2317.
    RICHARD A. NASO & ASSOCIATES, INC. v. DIFFUSION.
    (390 SE2d 106)
   Birdsong, Judge.

Richard A. Naso & Associates, Inc. (“Naso”) appeals from the grant of summary judgment to I. B. Diffusion, L. P. (“Diffusion”), on Naso’s claims arising from the termination of a business relationship between Naso and Diffusion. Naso sued Diffusion for damages caused by the termination, for tortious interference with Naso’s relationship with its employees, and to recover certain allegedly unpaid commissions.

The record reveals that the parties reached an oral agreement in 1980 for Naso to be Diffusion’s sales representative and be paid on a commission basis. Naso admits that the agreement was not for a definite term, was never reduced to writing, and was revised from time to time and year to year based upon the conduct of the parties.

Apparently, there were no disagreements about commissions paid Naso until Naso received a Diffusion memorandum which Naso asserts changed the method of paying commissions. Naso did not protest the memorandum at the time, and accepted commissions paid under what Naso contended was a new method of payment.

Some date before April 1987, Naso learned that Diffusion was inquiring about obtaining display space of its own in locations where it was represented by Naso. Because of concerns about their continued business relationship, Naso met with Diffusion. At the meeting Diffusion stated that it intended to continue the relationship with Naso, and, according to Naso, agreed to Naso leasing certain display space for five years because their relationship would continue for that long.

Naso leased the display space and continued to represent Diffusion until June 1987, when it was advised by Diffusion that their business relationship would be ended effective July 31, 1987. Although Naso was paid commissions on orders taken before the termination date and not shipped until after, Naso claims that it is entitled to additional commissions. Further, after July 31, certain employees left Naso to work for Diffusion, and Naso claims that Diffusion improperly interfered with its relationship with these employees by inducing them to leave. In March 1988, Naso filed its action on these claims.

There was no dispute about most of the terms of the agreement, but Diffusion denied that commissions were ever intended to be paid on other than an as-shipped basis. Further, it also denied that Naso was promised their relationship would continue for five more years. Moreover, while Diffusion admitted it told Naso in April 1987, that the relationship would continue, it contends that at the time it had no intention then to end their business relationship, and it made no promises as to the duration of the agreement.

Diffusion was granted summary judgment because the trial court found that Naso was not entitled to damages from the termination of the contract since the agreement was terminable at will, that Naso was not entitled to damages on the fraud claim because the alleged fraud was premised on an unenforceable promise about future events and Naso had suffered no damages from the purported fraud, that Naso was not entitled to damages on the tortious interference claim because there was no evidence that Diffusion had interfered with Naso’s employees, and that Naso was not entitled to additional commissions other than those paid into the court because the agreement could be modified at any time by either party and Naso had accepted commissions paid without protest and had waived its right to complain of any underpayment. Naso’s appeal contends that the trial court erred by granting the motion for summary judgment because genuine issues of material fact remain to be tried. Held:

Naso cites several cases on part performance of contract (e.g., Allen & Bean v. American Bankers Ins. Co., 153 Ga. App. 617 (266 SE2d 295), as well as OCGA § 13-5-31) to support its contention that Diffusion should be bound to perform its part of the contract or es-topped from terminating the agreement before the five-year period during which Diffusion allegedly promised Naso the agreement would continue because Naso performed its part of the contract. Naso also argues that a question of fact remains whether Diffusion made such a promise.

These contentions have no merit. Naso had an oral contract to represent Diffusion for an indefinite period. Such contracts are terminable at will (Atlanta Dairies Co-op v. Grindle, 182 Ga. App. 409, 410 (356 SE2d 42); Gatins v. NCR Corp., 180 Ga. App. 595, 598 (349 SE2d 818)), and Naso’s prior representation of Diffusion does not alter that result. Slater v. Jackson, 163 Ga. App. 342, 343 (294 SE2d 557); Hudson v. Venture Indus., 147 Ga. App. 31 (248 SE2d 9). See also Hudson v. Venture Indus., 243 Ga. 116 (252 SE2d 606).

Further, the purported statement by Diffusion that the arrangement would continue for five more years does not add to Naso’s case. As this would be a five-year contract, it must be in writing to be enforceable. OCGA § 13-5-30 (5). Since it was not in writing, it cannot be enforced and Naso cannot rely on it. Atlanta Dairies Co-op v. Grindle, supra.

Similarly, Naso cannot rely on the alleged violation of the terms of this five-year representation agreement for its fraud claim. Actionable fraud cannot be based on this alleged promise since it relates to future acts. Alston v. Brown Transport Corp., 182 Ga. App. 632 (356 SE2d 517); Zappa v. Basden, 188 Ga. App. 472, 476 (373 SE2d 246). Further, this result obtains even if Diffusion did not intend to honor the agreement for five years when the statement allegedly was made because the promise itself was not in writing and hence was unenforceable. Alston v. Brown Transport Corp., supra at 633; Ely v. Stratoflex, Inc., 132 Ga. App. 569, 572 (208 SE2d 583).

Additionally, Naso’s lease of the display space does not constitute part performance of the five-year agreement sufficient to remove the agreement from the requirements of OCGA § 13-5-30 (5) since renting the space was not part performance of the contract. Tompkins v. Tompkins, 88 Ga. App. 563 (76 SE2d 819). Instead, as Naso’s argument concedes, it was merely an act in reliance on the contract. To constitute part performance in this sense, the partial performance must be substantial and essential to the contract. Zappa v. Basden, supra at 476. The lease of the display space was neither. Moreover, the record demonstrates that Naso suffered no damages from Diffusion’s alleged breach of the five-year promise because the obligations Naso identified were incurred prior to the date of the alleged promise or others assumed the obligation. Accordingly, Naso cannot establish this essential element of a fraud claim. OCGA § 51-6-1.

Diffusion was properly granted summary judgment on Naso’s claim of tortious interference with Naso’s relationship with its employees. The motion was supported by affidavits and deposition testimony showing that it did not interfere with the relationship because it did not solicit Naso’s employees to leave Naso. The evidence showed that certain of Naso’s employees approached Diffusion about employment after they learned that Diffusion was ending the relationship. Such evidence pierced the pleadings of Naso’s complaint (Waldrep v. Goodwin, 230 Ga. 1, 2 (195 SE2d 432)) because proof that Diffusion induced the employees to leave Naso is an essential element of the claim. Integrated Micro Systems v. NEC Home Electronics, 174 Ga. App. 197, 200 (329 SE2d 554). Consequently, Naso was required to set forth specific facts showing there exists a genuine issue for trial or summary judgment would be entered against it. Summer-Minter & Assoc, v. Giordano, 231 Ga. 601, 604 (203 SE2d 173). Naso’s rebuttal relied on the verified pleadings, an affidavit, and a deposition which Naso contended made clear that Diffusion schemed to hire away its employees. The verified complaint, however, merely stated various conclusions without specific facts; the affidavit does not contain information about this issue; and the deposition states that Naso “believes” that Diffusion approached the employees, but does not state any facts supporting this belief other than someone from Diffusion was seen talking to the Naso employees about something. Naso’s rebuttal does not show that there was a genuine issue for trial. Conclusory allegations, without substantiating facts or circumstances, are not sufficient to raise a material issue for trial. Morton v. Stewart, 153 Ga. App. 636, 642-643 (266 SE2d 230). Further, merely stating that one “believes” is not the same as setting forth specific facts (see Brown v. J. C. Penney Co., 123 Ga. App. 233, 234-235 (180 SE2d 364)), and stating that the belief is based upon having observed business associates talking also does not constitute sufficient rebuttal. At best this is merely circumstantial evidence from which it might be inferred that they were talking about leaving Naso for Diffusion, but not necessarily at Diffusion’s inducement. Naso was required to rebut with specific facts, and rebuttal with circumstantial evidence from which inconsistent facts might be inferred, but which were not demanded, is not sufficient. Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 779-783 (257 SE2d 186). In particular, this circumstantial evidence has no probative value when measured against the uncontradicted evidence that no one from Diffusion approached the employees about leaving Naso. Esco v. Jackson, 185 Ga. App. 901, 903-904 (366 SE2d 309); Cohen v. Hartlage, 179 Ga. App. 847, 850-851 (348 SE2d 331). Thus, giving Naso the benefit of all reasonable doubt and construing the evidence and all inferences and conclusions arising therefrom in his favor, Naso has nevertheless failed to carry its burden. Peterson v. Liberty Mut. Ins. Co., 188 Ga. App. 420, 422 (373 SE2d 515).

Decided January 9, 1990.

Charles J. Vrono, for appellant.

Smith, Gambrell & Russell, Thomas W. Rhodes, Edward H. Wasmuth, Jr., for appellee.

The Georgia sales representative statute, OCGA § 10-1-700 et seq., does not apply in this case because it applies only to agreements entered into on or after July 1, 1986. Ga. L. 1986, p. 884, § 2. As this agreement in this case was entered into in 1980, it does not fall within the purview of the statute. Moreover, any claim that Naso was otherwise entitled to commissions is deemed abandoned as no such error was enumerated and no citation of authority or argument in support of such claim was made in Naso’s brief. Court of Appeals Rule 15 (c) (2); Bicknell v. Joyce Sportswear Co., 173 Ga. App. 897, 898 (328 SE2d 564).

Naso’s enumeration of error being without merit, summary judgment was properly granted to Diffusion.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


author: Beasley, Judge.

text:
    A89A1683.
    SOWERS v. THE STATE.
    (390 SE2d 110)
   Beasley, Judge.

Defendant Traci Sowers appeals her conviction of selling marijuana in violation of OCGA § 16-13-30. Defendant contends that the trial court erred: in denying her motion to reveal the identity of a confidential informant; in denying her motion for new trial on the grounds that the grand jury which returned her indictment was tainted and the evidence was insufficient to sustain her conviction.

1. Prior to trial, at the hearing on defendant’s motion to disclose the identity of a confidential informant, the district attorney produced the following account. Deloach, an undercover G.B.I. special agent, was conducting an investigation of narcotics in Fannin County. On May 14, 1987, he and an informant entered the “Hot Spot” package store. The informant approached a white female known to him as Tracey Pless and asked if she still had a “quarter ounce of reefer.” Pless reached under the counter and produced a paper bag. The informant told her Deloach had the money and that the quarter ounce would cost $30. Deloach picked up the bag, which held a plastic bag containing a leafy material “suspected as marijuana,” and handed Pless $30. He asked if she could get a quarter pound of marijuana. She said she could do so the next day and it would cost $325. Deloach agreed to the price.

Defendant pointed out that she was not Tracey Pless but Traci Sowers. She claimed she did not sell marijuana to Deloach, and this was a case of mistaken identity. She contended that the informant was critical to her defense; that the informant was present at the scene of the offense and was a participant by negotiating the price; that his testimony would bear upon identity of the perpetrator as not being herself; that his motive in pointing out defendant might have been malicious; and that the failure to disclose the informant’s identity would prejudice the defense.

During the trial Deloach testified that the package store he and the informant visited had a sign at that time which read: “Hot Spot.” He identified a photo of the Right of Way Shop as the store. Every other witness who mentioned a package store referred to it as the “Right of Way” and stated that there was no package store named “Hot Spot.” Deloach also testified that at the point the informant said Deloach was the “guy that has the money,” informant left to go to the rest room and took no further part in the transaction. He positively named defendant as the person who sold him the marijuana.

Roviaro v. United States, 353 U. S. 53 (77 SC 623, 1 LE2d 639) (1957), and Thornton v. State, 238 Ga. 160 (231 SE2d 729) (1977), provide the basic concepts applicable to the government’s privilege to withhold from disclosure the identity of a confidential informant. Moore v. State, 187 Ga. App. 387, 388 (2) (370 SE2d 511) (1988), synthesized the principles derived from those cases and their progeny into a formula for balancing the interests of the government and those of the defendant on a case-by-case basis. It dealt specifically with the situation where a police officer positively identifies defendant as the culprit, defendant denies involvement, and the sole remaining witness is an undisclosed confidential informant. In such case, the informant is the only one in a “position to amplify or contradict the testimony” of the defendant and the officer. The solution is an in-camera proceeding described in Moore to determine whether the nondisclosure of the informant’s identity was harmless error. Ponder v. State, 191 Ga. App. 346 (381 SE2d 534) (1989); Jones v. State, 192 Ga. App. 186 (384 SE2d 273) (1989).

There are two State versions of how the sale transpired. During the hearing the State conceded that the informant was present during the course of events but contended that he was not an active participant. The hearing version pictured the informant introducing the participants to the sale and stating what the price would be. The G.B.I. agent’s account at trial had the informant absent when the price and other details were discussed and the money and marijuana exchanged.

The focus of the defense was to undermine the credibility of the agent and refute the accuracy of his identification. Under either of the State’s versions a vital factor would be whether defendant was the individual to whom the informant introduced Deloach. An in-camera hearing would ascertain whether defendant was harmed by the absence of the informant’s testimony as to the events.

The case must be remanded for post-trial proceedings in conformity with Moore, supra.

2. Defendant asserts that the district attorney’s father was a member of the grand jury which indicted her, tainting the indictment and requiring a new trial. OCGA § 15-12-70.

Two legal principles apply. First, the disqualification of a grand juror propter affectum, that is, for bias or prejudice (Black’s Law Dictionary (4th ed.)), does not afford grounds for the dismissal of the charge or the grant of a new trial even though the parties were ignorant of the defect until after verdict. Bitting v. State, 165 Ga. 55, 60 (2) (139 SE 877) (1927); Davis v. State, 72 Ga. App. 347, 350 (33 SE2d 728) (1945). Accord Betts v. State, 66 Ga. 508, 515 (6) (1881); Farrar v. State, 187 Ga. 401, 403 (1) (200 SE 803) (1939); Hall v. State, 7 Ga. App. 115, 117 (1) (66 SE 390) (1909); Mitchell v. State, 69 Ga. App. 771, 776 (3) (26 SE2d 663) (1943); Williams v. State, 107 Ga. App. 794, 796 (1) (131 SE2d 567) (1963); Phillips v. State, 167 Ga. App. 260, 264 (3) (305 SE2d 918) (1983). Second, the issue of disqualification of a juror should have been raised prior to indictment or at the earliest practical opportunity thereafter. Mydell v. State, 238 Ga. 450 (233 SE2d 199) (1977); Thomas v. State, 239 Ga. 734, 735 (1) (238 SE2d 888) (1977); Sullivan v. State, 246 Ga. 426, 428 (271 SE2d 823) (1980).

Defendant contends that she was ignorant of the grand juror’s relationship to the prosecutor before indictment but fails to show why. the subject was not offered until motion for new trial. The ground was not timely raised, not having been asserted at the earliest practical opportunity. Besides, the relief she sought, a new trial, would not have cured the defect she claimed, and it would not have furnished a basis for dismissal of the charges against her. Sullivan, supra; Farrar, supra; Mitchell, supra.

3. Although there were conflicts in the evidence and credibility issues, a rational trier of fact could have found proof of defendant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed in part and reversed in part; case remanded with direction for further proceedings.

Carley, C. J., and McMurray, P. J., concur.

Decided January 10, 1990.

Robert L. Ferguson, for appellant.

Roger G. Queen, District Attorney, J. L. Floyd, Assistant District Attorney, for appellee.


text:
    A89A1814.
    BUTLER v. THE STATE.
    (390 SE2d 278)
   Carley, Chief Judge.

After a jury trial, appellant was found guilty of one count of burglary and two counts of armed robbery. Appellant appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdicts.

1. Relying upon OCGA § 24-3-50, appellant enumerates as error the admission of his confession into evidence.

“[F] actual and credibility determinations as to voluntariness of a confession are normally made at a suppression hearing and must be accepted by appellate courts unless such determinations are clearly erroneous. [Cit.]” Moore v. State, 179 Ga. App. 488, 490 (2) (347 SE2d 318) (1986). See also Burley v. State, 190 Ga. App. 75, 78 (3a) (378 SE2d 328) (1989). Even under appellant’s own version of the events surrounding the giving of his confession, there was no showing of a violation of OCGA § 24-3-50. According to appellant, he was not promised a specific sentence, but was merely told that the prosecutor would be informed of his cooperation. “[A]greeing to tell the trial judge [or the prosecutor] of the defendant’s cooperation if he confesses does not constitute the ‘hope of benefit’ contemplated by OCGA § 24-3-50. [Cits.]” Moore v. State, supra at 489 (2). Accordingly, it was clearly not error to admit appellant’s confession into evidence.

2. The evidence showed that, in each armed robbery, the victim was a pizza delivery person. The robberies occurred on consecutive days when the victim was responding to a telephone request for the delivery of pizza to the same vacant apartment located in the complex where appellant lived. Evidence of appellant’s guilt of the first robbery was clearly shown. In his confession, appellant stated that, upon learning of his commission of the first robbery, two of his friends wanted to emulate him. After the second call was made, appellant and his two friends waited together for the victim to arrive. Appellant observed the second robbery and shared the stolen pizza. On this evidence, appellant enumerates the general grounds as to the second armed robbery.

Decided January 10, 1990.

Nicholas Pagano, for appellant.

Robert E. Keller, District Attorney, for appellee.

“While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, ‘ “presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” ’ [Cit.]” Kimbro v. State, 152 Ga. App. 893, 894 (264 SE2d 327) (1980). Compare Smith v. State, 188 Ga. App. 415, 416 (1) (373 SE2d 97) (1988). “ ‘[I]f the [defendant] had knowledge of the intended crime and shared in the criminal intent of the principal actor, he is an aider and abettor. (Cits.) Hence, if the defendant was at the scene and did not disapprove or oppose the commission of the offense, a trier of fact may consider such conduct in connection with prior knowledge and would be authorized to conclude the defendant assented to the commission of the offense, that he lent his approval to it, thereby aiding and abetting the commission of the crime. (Cit.)’ [Cits.]” (Emphasis supplied.) Parker v. State, 190 Ga. App. 126, 127 (378 SE2d 503) (1989). “After a review of the entire record, we find that a rational trier of fact could reasonably have found from the evidence adduced at trial proof of appellant’s guilt beyond a reasonable doubt. [Cits.]” Kimbro v. State, supra at 894.

Judgments affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    A89A1823.
    INGRAM et al. v. HARPER.
    (390 SE2d 416)
   Birdsong, Judge.

Jeff Harper sued Walter Ingram and Ingram’s employer, Marietta Plastering Company, Inc., for injuries received when Harper, who sells a synthetic stucco product, went into subdivision property where Ingram and a crew were plastering a new house, on September 26, 1986. Harper testified, and the evidence viewed in favor of the verdict showed, that when he walked up to Ingram to give his sales pitch, Ingram accused Harper of bad-mouthing the product and method that Marietta Plastering Company was then using, and then picked up a two-by-four board and swung it at Harper’s head. Harper threw up his right arm in reflex and the board struck his right elbow. He believed the blow would have killed him if it had struck his head. Instead, it crushed his elbow and caused a large swelling lump of fluid to appear almost immediately, and required an operation whereby a five-inch screw was inserted into the elbow and remained for several months while he wore a cast.

The jury awarded Harper a verdict against defendants Walter Ingram and Marietta Plastering Company for medical expenses, $15,000 general damages, and $25,000 punitive damages. Defendants enumerate three errors on appeal. Held:

1. Appellants contend the trial court erred in allowing Harper to introduce evidence of Harper’s good character, particularly since the trial court, on defendants’ motion in limine, had expressly ruled out such evidence.

We find no error in the circumstances of this case. OCGA § 24-2-2 provides: “The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.”

Defendant Ingram was called by the plaintiff during plaintiff’s presentation. He denied having struck Harper at all, and explained his action of swinging a “cardboard cylinder” at Harper as extreme annoyance at Harper’s persistence in calling on him at job sites and at Harper’s alleged “bad-mouthing” of his company to a builder. Then, he added, “[This was] just one of [those] things that [Harper brought] on over a period of months, and that led into it. Normally, I shouldn’t even have let him needle me into it, and the more I think about it I think it was more or less him just leading up to what he’s doing right now.” (Emphasis supplied.) Ingram was obviously referring to the bringing of this lawsuit. Plaintiff’s counsel then asked, “Including the crushed elbow, I suppose?” and Ingram replied, “He just sustained that when he [ran]. . . .”

This testimony injected by defendant went far beyond the setting up of a denial or a defense to the plaintiff’s allegations. It directly accused plaintiff Harper of needling Ingram to intentionally bring about a situation whereupon Harper could, and did, file a false lawsuit against him for an injury which Ingram did not inflict. In this, Ingram clearly put in issue the plaintiff’s character for having brought the lawsuit and having needled him over a period of time so as to create a false accusation of liability. Ingram’s testimony escaped the realm of disputing Harper’s evidence, and in attempting to describe “the nature of the action,” impugned the character of Harper within the meaning of OCGA § 24-2-2 and “[rendered] necessary or proper the investigation of such conduct.” That is, by statute, evidence of Harper’s good character was admissible.

Moreover, although Ingram argues Harper’s evidence of good character forced him to change his defense strategy (in which he provided ample evidence of his own good character and Harper’s bad character), we cannot accept this description of the proceedings. Plaintiff called as a witness a business acquaintance of both men, and first asked him about Ingram’s character and reputation in the community. The defendants did not object to this questioning, nor to the witness’ response that Ingram’s reputation for character and honesty was “bad.” Plaintiff’s counsel then inquired as to plaintiff Harper’s reputation and character, whereupon Ingram objected.

If defendants had intended to rely upon the ruling on their motion in limine to keep out all evidence of character, they were obliged to object to the evidence of Ingram’s own bad character. Instead, by allowing this evidence they invited, if not condoned, the subsequent introduction of evidence of Harper’s good character. Then, by objecting to this latter evidence, they sought to preserve a question of error on plaintiff’s part, thus seizing the opportunity to later introduce negative evidence of Harper’s character and positive evidence of Ingram’s character.

The defendants’ failure to object to evidence of Ingram’s own character, which was substantially the same in nature as that concerning Harper’s character, prohibits a reversal on grounds that evidence of Harper’s character was inadmissible. See Smith v. State, 210 Ga. 713 (82 SE2d 507). Although Smith involved the same evidence, defendants here, without objection, allowed the same prohibited category of evidence, i.e., character evidence; thus the introduction of the subsequent admission of same prohibited evidence as to Harper, is not grounds for reversal. See similarly Bell v. Bell, 210 Ga. 295, 297 (79 SE2d 524). And, by failing to object to evidence of any party’s character when it was first offered, appellants cannot then object to substantially the same evidence as to another party, for they have waived that right. Sides v. State, 213 Ga. 482, 487 (99 SE2d 884); Steuerson v. Hosp. Auth. of Ware County, 129 Ga. App. 510, 514 (199 SE2d 881). We conclude the evidence complained of was not erroneously admitted; but if there was any error, defendants aided in causing its occurrence by failing to object when such evidence was first admitted as to Ingram himself.

2. According to our ruling in Division 1, the trial court did not err in denying a mistrial on the grounds submitted.

3. Defendants Ingram and Marietta Plastering Company complain the trial court “erred in furnishing a verdict form which did not provide a way for the jury to find in favor of defendant [Marietta Plastering Company],” independently of any finding of Ingram’s liability.

The trial court and the parties thoroughly discussed the verdict form and, whatever the reasons given by the trial court for its own conclusions, the defendants made no objection to the verdict form. They were expressly asked, after time for review, if they had any objection to the jury form; defendants’ counsel announced the form was “fine.” Defendants cannot now complain of an error or ruling which their own conduct procured or aided in causing. Dodd, supra; Parlato v. City of Atlanta, 151 Ga. App. 235, 237 (259 SE2d 217). “ ‘A defendant will not be allowed to induce an asserted error, sit silently hoping for a [favorable verdict], and obtain a new trial when that tactic fails. . . .’ ‘Induced error is impermissible and furnishes no ground for reversal.’ ” Bess v. State, 187 Ga. App. 185, 189 (5) (369 SE2d 784). Moreover, appellants waived any error by their failure to object, for “ ‘one must assert his rights properly or face the possibility of their being forever lost.’ ” Bennett v. State, 187 Ga. App. 234, 235 (369 SE2d 552), citing Bostick v. Ricketts, 236 Ga. 304 (1) (223 SE2d 686).

Decided January 10, 1990.

Murray, Donovan & Nabors, Donald R. Donovan, for appellants.

Moore & Rogers, Stephen C. Steele, David P. Oliver, for appellee.

We do not concede that the verdict form was harmful error in this case, for the evidence showed fairly Ingram committed a wilful tort in and during the course of his employment and as secretary/ treasurer of Marietta Plastering Company, thus calling the employer in as liable by respondeat superior. But, if there was any error committed, appellants invited it by agreeing to it, and by failing to object to any error, thus giving the trial court no chance to correct it, and have therefore waived their right to claim error on appeal, according to the cases just cited.

We find no merit in this appeal.

Judgment affirmed.

Deen, P. J., concurs. Sognier, J., concurs in judgment only.