text:
    A91A1934.
    HOWARD v. THE STATE.
    (414 SE2d 915)
   Carley, Presiding Judge.

Appellant was tried before a jury in Henry County and was found guilty of 14 counts of violating the Georgia Controlled Substances Act. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts;

1. Henry County is in the Flint Judicial Circuit which, during the relevant time period, had only two superior court judges. The superior court judge to whom appellant’s case was originally assigned voluntarily disqualified himself. Appellant urges that the other superior court judge of the Flint Circuit was thereafter erroneously designated to preside over the case.

Uniform Superior Court Rule 25.7 provides that, if a superior court judge voluntarily disqualifies himself, his replacement shall be “selected by the procedure set forth in Rule 25.4. . . .” Uniform Superior Court Rule 25.4 (B) provides that, in a two-judge circuit, it is the other superior court judge, unless disqualified, who is to hear the case. There is no contention that the superior court judge to whom appellant’s case was reassigned was disqualified. Accordingly, there was no error in the designation of the superior court judge who ultimately presided over appellant’s case.

Decided January 24, 1992.

Herbert Shafer, for appellant.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellee.

2. Appellant’s remaining enumération of error has not been supported by argument or citation of authority. Accordingly, it is deemed abandoned pursuant to Rule 15 (c) of this Court.

Judgments affirmed.

Beasley, J., and Judge Arnold Shulman concur.


source: Caselaw Access Project

author: Sognier, Chief Judge.

license: Public Domain

text:
    A91A1514.
    FIRST STATE BANK & TRUST COMPANY v. YOUNG.
    (415 SE2d 18)
   Sognier, Chief Judge.

First State Bank & Trust Company brought suit against John Young on a promissory note. Young answered and asserted several affirmative defenses. The trial court denied the bank’s motion for summary judgment but issued a certificate of immediate review, and we granted the bank’s application for interlocutory appeal.

The order denying appellant’s motion recites that summary judgment was denied because “[t]here is a genuine issue of material fact as to whether some of the notes which were renewed into the note at issue were guaranteed by [appellee] in a personal or representative capacity. This matter remains for determination by a jury at trial.” Appellant contends the trial court erred by so ruling, because even if such an issue exists it is not material. We agree and reverse.

The evidence of record shows that the note in issue here, executed on February 3, 1987, was the ninth renewal of a promissory note executed by appellee on December 23, 1981, to consolidate five previous separate notes. Appellee alleged in his answer that the note sued upon lacked consideration, at least in part, because two of the five notes consolidated into the 1981 note were not executed by him personally or guaranteed by him but were the obligations of Southeastern Paving & Site, Inc., a corporation in which appellee was a shareholder and officer.

Even assuming appellee’s allegation is true, it is undisputed that the 1981 note was given in payment of five separate antecedent obligations, and OCGA § 11-3-408 provides that “no consideration is necessary for an instrument or obligation thereon given in payment of or as security for an antecedent obligation of any kind.” (Emphasis supplied.) Although all the antecedent obligations may not have been the personal obligations of appellee, the statute applies as well to a note given in payment of a debt already owed by a third person. Deep South Svcs. v. Wade, 248 Ga. 80, 82 (1) (281 SE2d 561) (1981). Thus, no consideration was necessary for the 1981 note or any of the renewal notes thereafter, including the instrument sued upon.

Decided January 13, 1992

Reconsideration denied January 27, 1992

Gardner, Willis, Sweat & Goldsmith, Timothy 0. Davis, for appellant.

Burt & Burt, Hilliard P. Burt, Ben Kirbo, for appellee.

Moreover, the renewal of a note cuts off all defenses of which the maker then had knowledge, Coast Scopitone v. Self, 127 Ga. App. 124, 127 (3) (192 SE2d 513) (1972), and appellee’s argument that he was not aware when he signed the 1981 note that antecedent obligations for which he was not personally liable were consolidated therein is belied by the record. Appellee testified at his deposition that when he signed the 1981 note in his individual capacity, the loan officer informed him that some of the corporate notes were being consolidated into the new note. Appellee deposed that he “was doing a lot of business with [appellant] then. They put the note in front of me, had them all combined, asked me to sign it, and I did so. I had at that time a good relationship with them, and they figured they had a reason. And I didn’t want to upset my relationship with them.” Thus, given that the 1981 note was renewed nine times, we agree with appellant that appellee necessarily waived any defense based on failure of consideration because of his lack of knowledge that he was assuming liability for notes on which he was not obligated. It appearing that no questions of fact exist except as to immaterial matters, the trial court erred by denying appellant’s motion for summary judgment.

Judgment reversed.

Carley, P. J., and Beasley, J., concur.


author: Carley, Presiding Judge.

text:
    A91A1723.
    LEASECOMP, INC. et al. v. MERCEDES-BENZ CREDIT CORPORATION.
    (415 SE2d 178)
   Carley, Presiding Judge.

Appellee-plaintiff brought suit in connection with its lease of an automobile to appellant-defendants. After appellants answered, appellee moved for summary judgment. The trial court granted summary judgment in favor of appellee and appellant appeals.

Decided January 10, 1992

Reconsideration denied January 27, 1992.

Schreeder, Wheeler & Flint, John A. Christy, Debbie A. Wilson, for appellants.

Goodman, Hudnall, Cohn & McManus, H. Gilman Hudnall, for appellee.

1. A review of the record demonstrates that no genuine issue of material fact remains as to appellant’s early termination of the lease by surrender of possession of the automobile before expiration of the four-year lease term. Accordingly, the trial court correctly granted summary judgment in favor of appellee as to appellants’ liability for early termination of the lease.

2. However, the trial court erred in granting summary judgment in favor of appellee as to damages. While there appears in the record a document denominated as a “Pay Off Computation Worksheet,” “we find no identification of this document in anyone’s affidavit showing it to be either a business record ([cit.]) or a summary of business records ([cit.]). We are thus unable to consider this document because it would not be admissible as evidence. [Cit.]” Carlos Jones Constr. Co. v. FDIC, 169 Ga. App. 899, 901 (315 SE2d 458) (1984).

Judgment affirmed in part and reversed in part.

Beasley, J., and Judge Arnold Shulman concur.


author: Beasley, Judge.

text:
    A91A1979.
    KING et al. v. TRAVELERS INSURANCE COMPANY.
    (415 SE2d 176)
   Beasley, Judge.

The question for decision in this case is whether the proceeds of a workers’ compensation settlement agreement, payable after the employee’s death to designated beneficiaries other than the employee’s spouse, constitute an asset of his estate which could be awarded to his spouse in a year’s support proceeding.

In July 1985, Joseph Edward King, Jr., sustained an on-the-job injury. He claimed that this injury resulted in his total and permanent disability, but his employer and its workers’ compensation insurer, Travelers Insurance Company, denied this. Eventually the employer/insurer stipulated and agreed under the Workers’ Compensation Act, OCGA § 34-9-15, to pay King $10,000 in a lump sum, to make a lump-sum payment to his attorney, and to pay King $850 monthly for life, guaranteed for 16 years. If he died within the 16 years, the remaining monthly payments were to be made to his designated beneficiaries: 50 percent to his father and 50 percent to his minor son through his court appointed guardian. This agreement was a complete and final disposition of all claims on account of the injury, and it was approved by the Board in February 1987. King died two years later. Travelers was notified of his death and began making monthly payments to the decedent’s father and to the decedent’s son through his guardian, plaintiff herein.

As the decedent’s common-law wife, plaintiff applied for year’s support in probate court listing her deceased husband’s father as the only interested person. She scheduled the workers’ compensation settlement proceeds as a chose in action constituting part of the estate. The court granted the application and made the schedule of property its award.

Later the widow, both individually and as guardian of the son, filed this complaint against Travelers on the ground that Travelers refused to pay her the benefits under the workers’ compensation settlement agreement. Travelers moved for dismissal of the complaint on the ground that the payments made to the beneficiaries under the settlement agreement are rights which vested in them upon the decedent’s death and thus were not an asset of the estate. In an order setting out a statement of undisputed facts and its conclusions of law, the superior court granted Travelers’ motion. The widow contends that the settlement agreement proceeds are reachable as part of the estate.

The proceeds of a life insurance policy vest in the named beneficiary on the death of the decedent and are not part of the decedent’s estate. See Wilbur v. Bankers Health &c. Ins. Co., 208 Ga. 401 (66 SE2d 918) (1951); OCGA § 33-25-11 (a). Survivors’ benefits under the Teachers Retirement System of Georgia are not part of the decedent’s estate and thus not subject to a year’s-support claim. Kirksey v. Teachers Retirement System of Ga., 250 Ga. 884, 886 (3) (302 SE2d 101) (1983). The proceeds of this workers’ compensation settlement agreement, which bears analogies to an annuity contract, see OCGA § 33-28-1 (1), are likewise not part of the decedent’s estate and thus are not subject to the year’s-support claim. Cf. OCGA § 33-28-7. See 3 Redfearn, Wills & Administration in Ga., § 333, p. 53 (5th ed.). King’s right to the monthly payments passed on his death and by virtue of it to the beneficiaries, not to his estate.

Citing Taylor v. Taylor, 217 Ga. 20, 25 (7) (120 SE2d 874) (1961), and Strain v. Monk, 212 Ga. 194 (1) (91 SE2d 505) (1956), plaintiff argues that as a matter of res judicata, Travelers is bound by the probate court judgment in the year’s support proceeding. These decisions hold that a judgment setting aside year’s support is binding and conclusive upon all interested parties, except where the record shows a want of jurisdictional facts. Travelers was not a party to the year’s support proceeding, and the record shows that, as to the proceeds of the settlement agreement, the probate court lacked in rem jurisdiction because they were not part of the decedent’s estate.

Decided January 6, 1992

Reconsideration denied January 27, 1992

Richard Phillips, for appellants.

Karsman, Brooks & Callaway, R. Kran Riddle, for appellee.

Judgment affirmed.

Carley, P. J., and Judge Arnold Shulman concur.


author: Cooper, Judge.

text:
    A90A1525, A90A1526.
    BAXLEY VENEER & CLETE COMPANY et al. v. MADDOX; and vice versa.
    Decided January 27, 1992.

      Newton, Smith, Durden & Kaufold, Wilson R. Smith, for appellants.

      (415 SE2d 197)
   Cooper, Judge.

This court entered a judgment in the above-styled case at 198 Ga. App. 235 (401 SE2d 282) (1990) reversing the judgment of the trial court. In that case we found that the trial court properly denied appellants’ motion for a directed verdict, but erred in failing to give appellants’ requests to charge on part performance, thus requiring a new trial. We also held that the trial court did not err in allowing the issue of attorney fees to go to the jury. The Supreme Court in Baxley Veneer &c. Co. v. Maddox, 261 Ga. 309 (404 SE2d 554) (1991) reversed our decision and held that the trial court erred in denying appellants’ motion for a directed verdict and in allowing the issue of attorney fees to go to the jury. In accordance with the decision of the Supreme Court, the decision of this court in Case No. A90A1525 is vacated, and the judgment of the Supreme Court is made the judgment of this court.

Since our decision in Case No. A90A1526 was not disturbed, that decision is readopted and incorporated herein by reference.

. Judgment reversed in Case No. A90A1525. Judgment affirmed in Case No. A90A1526.

Birdsong, P. J., and Judge Arnold Shulman concur.

Law Office of Barnard M. Portman, Paul H. Felser, for appellee.


text:
    A91A1837, A91A1838.
    HIPPLE et al. v. BRICK et al.; and vice versa.
    (415 SE2d 182)
   Beasley, Judge.

Accountant Brick and his professional corporation brought a legal malpractice action against attorney Hippie and his professional corporation, for failure to protect their right of appeal in a suit they lost.

Brick retained Hippie to represent Brick’s corporation in a suit against Whalen and Hixon; they counterclaimed against Brick individually. Brick moved for summary judgment on the counterclaim, but it was denied. The case went to trial, and Brick as defendant-in-counterclaim moved for a directed verdict, which was denied.

The jury initially returned a verdict on the counterclaim awarding Whalen and Hixon $39,000 punitive damages but no compensatory damages. Brick moved for a mistrial, which the court did not rule on. He also sought to have the verdict disregarded and judgment entered in his favor. The trial court refused to accept the verdict and instructed the jury that there could not be an award of punitive damages without compensatory damages. The court instructed the jury to deliberate further, which deliberations resulted in a verdict in favor of Whalen for $20,000 compensatory damages and $6,000 punitive damages, and in favor of Hixon for $10,000 compensatory damages and $3,000 punitive damages.

Brick moved for judgment notwithstanding the verdict on the above grounds, or in the alternative for a new trial on six grounds including the same but adding another, i.e., the failure to give a requested charge. The court denied these motions. Despite the provisions of OCGA § 15-6-21 (b) and (c), this was not done until approximately one year and one month afer they were filed, and attorney Hippie did not receive notice of the entry of the order. He learned of it in a telephone call from opposing counsel 35 days after the motions had been denied, after expiration of the 30-day period for filing of a notice of appeal. See OCGA § 5-6-38. Hippie took no action to resurrect the case, such as filing a motion to set aside the judgment in order to gain a new 30-day period, under OCGA § 9-11-60 (d). See Cambron v. Canal Ins. Co., 246 Ga. 147, 148 (1) (269 SE2d 426) (1980); Atlantic-Canadian Corp. v. Hammer, Siler, George & Assoc., 167 Ga. App. 257 (1) (306 SE2d 22) (1983). Brick, however, did not advance the lack of such a motion as a basis for his claim of negligence.

Client Brick’s malpractice claim is predicated on attorney Hippie’s alleged negligence in failing to monitor the status of the case and timely to inform Brick of the order so that an appeal could have been taken. Defendants Hippie moved for summary judgment on the grounds that Hippie was not negligent and that any inaction on his part did not damage Brick, since as a matter of law an appeal would not have been successful. Plaintiff Brick sought partial summary judgment on the issue of liability, contending that Hippie’s inaction was negligence per se. Both motions were denied.

In Case No. A91A1837, defendants Hippie appeal the denial of their motion for summary judgment. In Case No. A91A1838, plaintiff Brick appeals the denial of his motion for partial summary judgment.

Case No. A91A1837

1. Hippie first enumerates that the court erred in failing to rule that the issue of whether the underlying judgment would have been reversed on appeal is an issue of law to be determined by the court.

Of course, the principle espoused by appellants is correct. The question of whether an appeal would have been successful “is a question of law, exclusively within the province of judges.” Fine & Block v. Evans, 201 Ga. App. 294, 295 (1) (411 SE2d 73) (1991). The order appealed from simply denies the motions without explanation, so we cannot ascertain the basis for the denial or whether the court made the ruling complained of. We assume that the court did not make an erroneous ruling. See Torok v. Mize, 164 Ga. App. 357, 358 (1) (296 SE2d 738) (1982).

2. Next Hippie contends that the court erred in failing to conclude that the judgment against his clients would have been affirmed on appeal.

The only enumeration of error which would have been pursued on Brick’s appeal, Hippie argues, was the matter of how the court dealt with the jury’s original verdict.

It is true, as Hippie recites, that when a jury returns a verdict for punitive but not compensatory damages, the trial court is not required to declare a mistrial. Instead, the court may instruct the jurors concerning the necessity of finding actual or compensatory damages before punitive damages can be awarded, and then order them to deliberate further. Colonial Stores v. Fishel, 160 Ga. App. 739, 742 (2) (288 SE2d 21) (1981); Ballard v. Turner, 147 Ga. App. 584, 585 (3) (249 SE2d 637) (1978); accord Biggers v. Biggers, 250 Ga. 248, 250 (2) (297 SE2d 257) (1982); Parrish Bakeries of Ga. v. Wiseman Baking Co., 104 Ga. App. 573, 575 (122 SE2d 260) (1961). That was done in Brick’s case, so the judgment of the trial court based on the jury’s ultimate verdict would have been correct in this regard.

However, the record fails to show that this was the only matter which would have been pursued on appeal. As stated above, there were other grounds advanced in the motion for j.n.o.v. or in the alternative for a new trial, such as the sufficiency of the evidence to support the verdict. Neither the trial court nor we have the transcript of the underlying trial, so no legal judgment can be made on this point. The same emptiness applies to the rejected jury instruction. Its wording, as well as its context, is missing from the record.

Defendant Hippie, as movant for summary judgment, would have to submit undisputed evidence that these other grounds, which were raised and ruled on by the trial court in his client’s lawsuit, were meritless as a matter of law. We, no more than can the trial court in this case, “address the merits of the hypothetical appeal,” as this Court was equipped to do in Fine & Block, supra at (2). Of course, if there was undisputed evidence that Brick had unequivocally conveyed to his attorney that he relinquished the right to appeal these grounds in the event the post-trial motion was denied, as is alluded to by Hippie, then defendants Hippie would be entitled to summary judgment without further legal analysis. But the record does not demonstrate that either.

3. All of this aside, attorney Hippie claims entitlement to summary judgment on the theory that, as a matter of law, he breached no duty to his client in relying on the court and the mail to provide notification to him of entry of the court’s order on the motions, as it is standard practice for attorneys to do so.

In the first place, there is a counter affidavit from another attorney with respect to the professional practice. In the second place, OCGA § 15-6-21 does not relieve an attorney from keeping informed of the progress of the client’s case. The statutory obligation on a judge to send the order does not address the attorney’s separate and independent duty, which arises not from the statute but from the contract with the client. As stated in Bragg v. Bragg, 225 Ga. 494, 496 (170 SE2d 29) (1969): “It is fundamental that it is the duty of counsel who have cases pending in court to keep themselves informed as to the progress of the cases so that they may take whatever actions may be necessary to protect the interests of their clients.”

It has not even been proved that the court did not send notice. Cf. Vines v. Citizens Trust Bank, 146 Ga. App. 845, 847 (1) (247 SE2d 528) (1978), regarding proof of receipt of mail. Even if it had failed to fulfill its duty, counsel would not necessarily be excused from checking for over a year. See American Mut. &c. Ins. Co. v. Satterfield, 88 Ga. App. 395, 398 (2) (76 SE2d 730) (1953). There being a question for the jury as to whether Hippie breached his duty to his client, summary judgment to attorney Hippie and his professional corporation was properly denied.

Decided January 27, 1992.

Shapiro, Fussell, Wedge & Smotherman, Robert B. Wedge, Adrienne L. Anderson, for appellants.

Hugh M. Dorsey III, for appellees.

Case No. A91A1838

Plaintiffs Brick accept as the criterion for legal malpractice when an appeal right is lost, that they must show that the appeal would have resulted in an opinion favorable to them. The client seeks relief from the underlying monetary judgment of $39,000. See OCGA § 51-12-4; Hall v. Browning, 195 Ga. 423, 428 (5c) (24 SE2d 392) (1943). The question is whether the failure to apprise the client of the opportunity to appeal stands in the way or, in legal terms, whether it is the proximate cause of injury.

Brick, the client, acknowledges that he has not proved damages as a matter of law, but he asserts that he is entitled to summary judgment on the issue of liability insofar as the tort elements of duty and breach of duty and proximate cause, and the contract elements of duty and breach, are concerned.

Without addressing whether he has conclusively proved duty and breach, cf. Hughes v. Malone, 146 Ga. App. 341, 345 (247 SE2d 107) (1978), it is clear that, as discussed above, there are issues of proximate cause still unresolved. Whitehead v. Cuffie, 185 Ga. App. 351 (2) (364 SE2d 87) (1987). Brick has not proved as a matter of law that he would have prevailed on appeal to the extent that he would be absolved of the judgment for $39,000. Consequently, as the trial court correctly ruled, plaintiff was not entitled to summary judgment on liability.

Judgments affirmed.

Carley, P. J., and Judge Arnold Shulman concur.


author: Judge Arnold Shulman.

text:
    A91A2157.
    HOWARD v. THE STATE.
    (415 SE2d 45)
   Judge Arnold Shulman.

The appellant was convicted of burglarizing the Terry Development Company and sentenced to a term of 20 years. He has appealed to this court from the denial of his motion for a new trial. At trial, prosecution witnesses testified that the burglarized office had been entered through a window broken by the burglar and that the office had been ransacked. Money and a bottle of whiskey had been taken from the premises. There was also testimony that the appellant had never been employed by the Terry Development Company nor even had permission to enter its building. Police personnel testified that they had obtained a palm print from a desk which matched a palm print taken from the appellant. Without objection by the appellant, the state was also permitted to introduce, for the sole purpose of showing modus operandi, evidence of similar transactions. These included previous break-ins for which the appellant had been indicted and as to which charges were then pending and a prior conviction for burglary proved by introduction of a copy of an indictment and guilty plea both stipulated by defense counsel. The state presented testimony by investigating police personnel concerning entry through broken windows, ransacked premises, and blood and fingerprints matching those of the appellant. On direct examination, the appellant first denied his involvement in the Terry Development Company burglary, denied that the palm print found there could have been his, and denied that he was ever there. He then admitted his involvement in several of the previous burglaries, even those as to which charges were then pending, and further admitted that he had been arrested for several other burglaries as to which the charges had been dismissed. On cross-examination, the appellant again denied any involvement in the Terry Development Company burglary but confirmed that during his direct testimony he had admitted in involvement in the burglaries for which charges were still pending. He also admitted his guilty plea to a prior burglary charge. The trial court charged the jury that the evidence of similar transactions could be considered only for the purpose of “determining the presence and method of operation of the accused” at the time of the offense for which the appellant was being tried. The court then reiterated that charge. However, while giving a general charge on the impeachment of witnesses, the court instructed the jury that witnesses might be impeached “by proof of the conviction ... of an offense involving moral turpitude. . . . And in this connection I charge you that burglary is an offense involving moral turpitude.”

In his only enumeration of error, the appellant contends that the trial court erred in charging the jury that it could consider the previous conviction for impeachment purposes. The appellant argues that it was reversible error so to charge on impeachment by proof of conviction because the appellant had not placed his character in issue. OCGA § 24-9-20 (b). Although the appellant testified on his own behalf, denying that he had committed the Terry Development Company burglary and admitting both his involvement in the burglaries as to which charges were then pending and his arrest for various other burglaries as to which the charges had been dismissed, he did not thereby place his character in issue. Neither his specific denial of the crime charged nor his admission to other criminal activity, even the guilty plea, was sufficient to place his character in issue. Lindler v. State, 149 Ga. App. 155 (253 SE2d 833) (1979); Smith v. State, 141 Ga. App. 64 (2) (232 SE2d 401) (1977). “Evidence of the accused’s participation in other criminal activity tended to show bad character. It did not place good character in issue. . . .” Lindler, supra at 155. Consequently, the appellant’s prior burglary conviction, admitted by stipulation of counsel, for the purpose of establishing modus operandi, could not be considered by the jury for purposes of impeaching the appellant’s testimony. OCGA § 24-9-82.

Decided January 27, 1992.

J. Michael Mullís, for appellant.

Harry N. Gordon, District Attorney, Jimmie E. Baggett, Jr., Assistant District Attorney, for appellee.

We cannot, however, agree with the appellant that the error requires reversal. In view of the overwhelming evidence of the appellant’s guilt, and notwithstanding the conflicting instructions of the court, we find it “highly probable that the error did not contribute to the judgment.” Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


text:
    A91A1626.
    ROBINSON v. THE STATE.
    (415 SE2d 21)
   Sognier, Chief Judge.

Kenneth Robinson was tried by a jury and found guilty of one count of child molestation and one count of aggravated child molestation. Judgment of conviction and sentence were entered thereon, and Robinson appeals following the denial of his motion for a new trial.

1. Appellant contends the trial court erred by denying his motion for a new trial made on the ground that the victim should not have been permitted to testify concerning similar acts of molestation occurring at times other than those alleged in the indictment because the State had not complied with USCR 31.1. We do not agree.

We do agree with appellant that, contrary to the State’s argument, the incidents of molestation described by the victim as occurring seven or eight years prior to trial were not part of a “continuous transaction” and thus did not come within the res gestae exception to the notice requirement provided by USCR 31.3 (E). See Dempsey v. State, 197 Ga. App. 674, 675 (1) (399 SE2d 239) (1990). However, the indictment charged appellant with committing child molestation upon the victim in three specific ways between, the dates of September 20, 1987 and March 25, 1989. Thus, the date was not an essential averment of the indictment. Pittman v. State, 179 Ga. App. 760 (1) (348 SE2d 107) (1986). In such a case, “evidence of similar acts occurring within the [period covered by the] statute of limitation was evidence of the crime charged,” Garrett v. State, 188 Ga. App. 176, 177 (2) (372 SE2d 506) (1988), rather than evidence of a similar transaction. Id. Because the victim was under the age of fourteen, the applicable statute of limitation was seven years. OCGA § 17-3-1 (c). As appellant was indicted one year prior to trial the acts described by the victim occurred within the limitation period. Accordingly, this evidence was evidence of the offense charged, rather than evidence of a similar transaction, and was not within the ambit of USCR 31.1. Bowman v. State, 184 Ga. App. 197-198 (2) (361 SE2d 58) (1987). The trial court did not err by denying appellant’s motion for new trial on this groiind.

2. Appellant maintains the trial court erred by denying his motion for continuance and by allowing the State to add three witnesses whose names were provided to appellant seven days prior to trial.

(a) Appellant sought a continuance on the basis that he received inadequate notice of the trial date, in that he received notice that his trial would begin two weeks early only two days before the new date. However, the grant or denial of a motion for continuance is within the sound discretion of the trial court, OCGA § 17-8-22, and will not be disturbed absent a showing of abuse of that discretion. Davis v. State, 190 Ga. App. 178, 179 (378 SE2d 519) (1989). “Mere shortness of time for preparation does not in itself show a denial of the rights of the accused. He must also show harmful error. [Cit.]” Sewell v. State, 162 Ga. App. 483, 484 (2) (291 SE2d 783) (1982). As appellant has not shown how additional time would have benefited him or how the lack of time harmed him, we find no abuse of discretion in the trial court’s denial of the motion for continuance. Davis, supra.

(b) As to the fact that appellant received seven days’ notice of the State’s witness list, OCGA § 17-7-110 has been interpreted to mean that the State must furnish the defendant, upon demand, a complete witness list “within a reasonable time before trial so that the defense may be adequately prepared. What constitutes a reasonable time before trial must depend upon the nature of the case, the number of the [S]tate’s witnesses, the nature of their testimony, and any other factor which may logically bear upon the question.” Hicks v. State, 232 Ga. 393, 399 (207 SE2d 30) (1974). It has been held that five days before trial is a reasonable time. Logan v. State, 170 Ga. App. 809 (318 SE2d 516) (1984). Given that the doctrine of harmless error also applies to the State’s compliance with OCGA § 17-7-110, see Clark v. State, 138 Ga. App. 266, 267-268 (3) (226 SE2d 89) (1976); that appellant received the list seven days before trial; and that appellant has shown no resultant harm, we find no reversible error. Clark, supra at 268.

Decided January 14, 1992

Reconsideration denied January 28, 1992

Robert G. Fierer, for appellant.

Lewis R. Slaton, District Attorney, Suzanne Wynn, Carl P. Greenberg, Joseph J. Drolet, Assistant District Attorneys, for appellee.

3. Appellant finally enumerates as error the trial court’s permitting the State to reopen its case after resting in order to introduce testimony of the victim’s mother concerning appellant’s cross-dressing. In this case, the trial court had granted a pretrial motion to prohibit the State from introducing evidence regarding appellant’s cross-dressing. The prosecutor argued that the evidence was admissible to rebut appellant’s defense — that the victim’s mother, a former girl friend of appellant, was accusing him of child molestation out of spite because he had spurned her and thrown her out of his home because she was an alcoholic — because the evidence in question would show that actually the victim’s mother left appellant’s home because she discovered, first, that appellant was cross-dressing and second, that he had molested the victim. The prosecutor argued that she had rested inadvertently because she remembered the trial court’s ruling on the motion in limine.

Although appellant objected vigorously to the reopening of the evidence, similar testimony concerning appellant’s alleged cross-dressing had been admitted twice previously without objection from appellant. “ ‘Where certain evidence is admitted over objection, but similar evidence to the same effect is admitted without objection, the admission of the evidence objected to will not constitute reversible error, even if the admission of the evidence was erroneous.’ [Cit.]” Ardeneaux v. State, 197 Ga. App. 640-641 (2) (399 SE2d 258) (1990). Reopening of the evidence is within the sound discretion of the trial court. Mooneyham v. State, 251 Ga. 404, 408 (306 SE2d 272) (1983). Thus, even assuming the irrelevant and prejudicial nature of the testimony in question, given appellant’s failure to object to the previous similar testimony and the prosecutor’s reason for introducing it, we find no reversible error.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: Pope, Judge.

text:
    A91A1676.
    JENKINS v. BURNS.
    (415 SE2d 30)
   Pope, Judge.

Plaintiff Seabron Jenkins sustained injuries in an automobile collision which occurred as he was driving his pickup truck north on East First Street in Rome. Defendant John Milford Burns, Jr., who had stopped his automobile in the left turn lane on the southbound side of the street, made a left turn across plaintiff’s path, striking plaintiff’s truck. Plaintiff’s complaint in negligence against defendant was tried and the jury returned a verdict in plaintiff’s favor in the amount of $1,000. Dissatisfied with the award, plaintiff appeals and argues the trial court erred in instructing the jury on comparative negligence.

The evidence showed the collision occurred about 10:30 a.m. on a bright and clear morning. The posted speed limit at the scene of the collision is 35 miles per hour. Plaintiff testified he was driving between 25 and 30 miles an hour and nothing obstructed his vision of the intersection. He did not see defendant’s vehicle until just before the impact and applied his brakes, but could not avoid the collision. The investigating officer testified he saw skid marks indicating plaintiff’s truck skidded 36 feet before impact. However, he saw no evidence that plaintiff was driving in excess of the speed limit. Defendant testified he did not see plaintiff’s vehicle until just before impact and could not tell how fast it was going. Plaintiff argues no evidence was presented of any negligence on his part and, therefore, the trial court erred in instructing the jury on comparative negligence.

It is true, as plaintiff argues, that in a case where absolutely no evidence is presented from which a jury could find the plaintiff was negligent, then it is reversible error for the trial court to instruct the jury on comparative negligence. See Moore v. Price, 158 Ga. App. 566 (2) (281 SE2d 269) (1981); Taylor v. Haygood, 113 Ga. App. 30 (2) (147 SE2d 48) (1966); Jacks v. Lambert, 111 Ga. App. 763 (1) (143 SE2d 215) (1965). On the other hand, “ ‘[i]t is a well established rule that an instruction is not abstract or inapplicable where there is any evidence, however slight, on which to predicate it. [Cit.] “To justify a charge on a given subject, it is not necessary there should be direct evidence going to that point; it is enough if there be something from which a legitimate process of reasoning can be carried on in respect to it.” [Cits.]”’ Carter v. Central of Ga. R. Co., 149 Ga. App. 867 (256 SE2d 149) (1979). In this case, the investigating officer testified to the physical evidence he observed at trial and that he found no evidence of plaintiff’s excessive speed. The facts of this case are comparable to those in Garner v. Driver, 155 Ga. App. 322 (270 SE2d 863) (1980), in which the investigating officer testified concerning the condition of the road at the scene of the collision and concluded that defendant had crossed over the yellow line. This court held “the jury was not bound by the opinion testimony of the investigating police officer but was authorized to consider his testimony as to the relevant facts as disclosed by his investigation and make its own interpretation. Under [OCGA § 24-1-1] the jury as the trier of facts could have drawn inferences from human experience in connection with cause and effect and applied its own opinion from the fact evidence submitted. [Cit.] Based upon the entire evidence before the court, the trial court did not err in charging on comparative negligence. [Cits.]” Id. at 324. Likewise, in this case the jury could draw its own inferences as to plaintiff’s negligence from the parties’ accounts of the collision and the skid marks described by the officer and the trial court did not err in its instructions to the jury.

Decided January 15, 1992

Reconsideration denied January 28, 1992

Jones, Byington, Durham & Payne, Frank H. Jones, for appellant.

Rogers, Magruder, Sumner & Brinson, J. Clinton Sumner, Jr., for appellee.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: McMurray, Presiding Judge.

text:
    A91A2029.
    WILLIAMS v. VOLJAVEC.
    (415 SE2d 31)
   McMurray, Presiding Judge.

Florence B. Williams (plaintiff) filed an action against her physician, B. F. Voljavec (defendant), alleging intentional infliction of emotional distress. Defendant denied the material allegations of the complaint and the case was tried before a jury. Plaintiff’s testimony reveals the following:

In 1979, plaintiff went to South Fulton Hospital for treatment o: complications resulting from chronic diabetes. Defendant was then or staff at the hospital and was assigned to treat plaintiff. Defendan examined plaintiff and informed her “that [her] heart was not getting enough oxygen and that [medication] would . . . stop the pain.’ Sometime later, plaintiff was admitted to the emergency room a South Fulton Hospital and defendant again treated plaintiff for com plications associated with chronic diabetes. (Plaintiff became dissatis fied with defendant’s manner and professional conduct during her second stay at South Fulton Hospital and she then decided to terminate her relationship with defendant.)

On January 23, 1983, plaintiff went to the emergency room at South Fulton Hospital complaining of chest pain. She informed the emergency room staff that she did not want treatment from defendant. Plaintiff was then examined by an emergency room physician and admitted to the hospital’s coronary care unit. The next morning, defendant “came [to the coronary care unit and plaintiff] asked him what he was doing here because [she] did not want him.” Defendant “mumbled out something” but continued to come by and see her while she was in the coronary care unit. Two days later, plaintiff was ordered moved from the coronary care unit to a regular hospital room. Plaintiff was then informed that her condition would enable her to return home by the end of the week.

As plaintiff was wheeled past a nurse’s station on the way from the coronary care unit, she saw defendant look at a nurse and say “damn, are you just moving her . . .” Shortly thereafter, defendant came to plaintiff’s room and “asked [plaintiff] for [her] insurance claim forms and [plaintiff] told him that [she] was sorry, [that she] didn’t bring any forms because [she] came through emergency.” Plaintiff told defendant, “have someone from your office call [my insurance carrier], and they will send you a handful of blanks.” Defendant responded, “it [isn’t my] problem to get blanks, [you’re] supposed to get them.” Plaintiff said, “Doctor Voljavec, please, just wait and when my daughter-in-law comes, I will have her to bring you some blanks . . .” Defendant responded, “it ain’t [my] damn problem to get no blanks for the patients to sign . . .” and “[I am not] going to wait no seven or eight months to get paid.” Plaintiff pleaded with defendant not to discuss the matter further and asked defendant to leave the room, but defendant “got louder.” Plaintiff then began experiencing discomfort and severe chest pain. A nurse came into the room and defendant started to leave, but he first instructed the nurse “to give [plaintiff] a shot of something.” Plaintiff was later sedated and taken to the coronary care unit. She was discharged from the hospital on February 11, 1983.

The trial court granted defendant’s motion for directed verdict and this appeal followed. Held,-.

To sustain a cause of action for intentional infliction of emotional distress through the use of abusive or obscene language, the defendant’s conduct (action) must have been so abrasive or obscene as to naturally humiliate, embarrass, frighten, or outrage the plaintiff. Moses v. Prudential Ins. Co. of America, 187 Ga. App. 222, 225 (369 SE2d 541). Further, the alleged emotional distress (reaction) must be so severe that no reasonable person could be expected to endure it. Id. at 226. A defendant’s knowledge of a plaintiff’s particular susceptibility to injury from emotional distress is often critical in weighing the extreme and outrageous character of conduct, i.e., “[t]he conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know.” Restatement of the Law Second, Torts 2d, Vol. 1, Chapter 2, The Interest in Freedom from Emotional Distress, § 46 (1), comment (f), p. 75.

Decided January 15, 1992

Reconsideration denied January 28, 1992

Glenville Haldi, for appellant.

Sullivan, Hall, Booth & Smith, Alexander H. Booth, for appellee.

In the case sub judice, plaintiff’s testimony, that defendant relentlessly vented anger against her while she was a hospital patient; that defendant was then aware of plaintiff’s potentially fragile physical condition and that plaintiff’s physical condition deteriorated after defendant’s alleged conduct, is sufficient to sustain an action for intentional infliction of emotional distress. Consequently, the trial court erred in directing a verdict for defendant. OCGA § 9-11-50. Genuine issues of material fact remain as to whether defendant’s conduct was so abrasive or obscene as to naturally humiliate, embarrass, frighten, or outrage the plaintiff and whether plaintiff’s alleged reaction was reasonable under the circumstances. See Greer v. Medders, 176 Ga. App. 408, 409 (336 SE2d 328).

Judgment reversed.

Sognier, C. J., concurs. Andrews, J., concurs in the judgment only.


text:
    A91A2224.
    JACKSON v. THE STATE.
    (414 SE2d 905)
   McMurray, Presiding Judge.

On October 1, 1990, defendant was indicted on charges of rape, aggravated sodomy, burglary and robbery committed on the night of January 3, 1990, and the early morning hours of January 4, 1990. Defendant was arrested on January 4, 1990, and brought to trial on November 7, 1990. He was convicted on all charges and sentenced to consecutive life terms on the rape and aggravated sodomy charges tc be followed by concurrent 20-year terms on the burglary and robberj charges. This appeal follows the denial of defendant’s motion for s new trial.

The following evidence was adduced upon the trial of the case On January 3, 1990, the victim, a 70-year-old woman, attended the funeral of her husband and returned home. At approximately 10:00 p.m., a man came to the victim’s door and asked if he might use her bathroom. When the victim refused, the man asked if he might use her telephone. The victim replied that she did not have a telephone and closed the door. Approximately one hour later, a man grabbed the victim from behind, pushed her to the floor and demanded money and a gun. The victim gave the man some money; she did not have a gun. The man stayed in the victim’s home about 30 minutes, looking through her things. He took a “good bit” of the victim’s jewelry. Then, he left.

Because she did not have a telephone, the victim could not seek help without venturing outside. Unable to walk very well, and hurting from the attack, the victim thought it would be better to stay in her house than to go outside and risk another attack in the dead of night. She decided to secure her home as best as she could and wait for daylight.

At approximately 6:30 a.m., the same man entered the victim’s home again. He forced her into her bedroom where he raped and sodomized her repeatedly. Then the man went into the victim’s kitchen where he opened and ate a can of pork and beans. Before leaving again, at approximately 8:00 a.m., the man took the rest of the victim’s money — a dollar and change.

She summoned help and the police arrived at the scene. The victim described her attacker as a black male in his mid-twenties, of average height and weight, with plaited hair, wearing a baseball cap.

One officer spoke with the victim’s neighbors to see what they might have observed. One neighbor informed the officer that a man came to her house the same night, asked to use the telephone and bathroom, and left when she unveiled a gun. She told the officer that she knew the man as “B. J.”

The officer knew a man called “B. J.” who worked at the courthouse and fit the description of the victim’s attacker. He discovered “B. J.” in a nearby house.

“B. J.” was hiding in a rear bedroom of the house. He was arrested and taken into custody. Several items of jewelry and a baseball cap were recovered from the house in which “B. J.” was hiding. The jewelry was identified as the jewelry which had been taken from the victim’s house. The baseball cap was identified as the cap worn by the victim’s attacker.

At trial, a forensic serologist with the state crime laboratory testified that vaginal swabs and blood samples were sent to the Federal Bureau of Investigation (“FBI”) for “DNA” (deoxyribonucleic acid) analysis; and that it takes between 15 and 20 weeks to obtain the results of such tests. He also testified that he obtained the victim’s bed sheets 12 days after the crime was committed; but added that he preferred to have the vaginal swabs — not the bed sheets — examined because seminal fluid on a bed sheet may be from a different time and source.

The forensic serologist also testified that the DNA test results were inconclusive: defendant could neither be identified nor eliminated as a suspect. In this regard, the witness suggested that there may not have been enough material to conduct the test or the material may have become too degraded.

Following established procedure, the forensic serologist waited for the FBI to complete the DNA tests before performing “secretor testing” on the bed sheets. In this regard, the serologist testified that DNA testing is preferred because it has greater “discriminating potential.”

According to the serologist, the results of the secretor tests were also inconclusive: The seminal stain on the bed sheets indicated (1) the victim’s attacker was a non-secretor or (2) the sample had deteriorated too far to perform the test. Thus, the serologist testified, defendant could not be eliminated as a suspect simply because he is a “secretor.”

In connection with the “secretor” testing, the forensic serologist testified that defendant is blood type O and he acknowledged that (1) blood type 0 is less stable than other blood types and (2) it can lose its “activity” in about one month. He testified that he knew defendant’s blood type when he sent the vaginal swabs to the FBI and he acknowledged that he did not perform the “secretor” tests until he received the FBI’s report. He testified, however, that even if he had performed the “secretor” tests within a month, the results would have been inconclusive.

The victim’s neighbor (who identified the man who came to her door as “B. J.”) died before the case was tried. Cross-examining the officer who spoke with the neighbor, defense counsel asked whether the neighbor was able to pick defendant out of a lineup. The officer replied that she was not. On redirect examination, the officer added that the neighbor thought defendant was the man who came to her door but she was not sure. On recross examination, the officer admitted that he did not put the latter statement of the neighbor in his police report. Held:

1. Defendant was arrested on January 4, 1990. He was indicted on October 1, 1990, and brought to trial on November 7, 1990. Prior to trial, defendant filed a “motion to dismiss for preindictment delay.” The motion was denied and defendant enumerates error upon that ruling. “In Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101), the Supreme Court of the United States identified four factors which it stated the court should weigh in balancing thé conduct of the prosecution and the defendant on the issue of the denial of the constitutional right to a speedy trial. These four factors are: (1) length of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant.” Treadwell v. State, 233 Ga. 468, 469 (211 SE2d 760). None of the four factors is regarded as being necessary to a finding that a defendant was deprived of his right to a speedy trial; on the contrary, the factors are related and must be balanced together. As it is said: “[T]hese factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.” Barker v. Wingo, 407 U. S. 514, 533 (92 SC 2182, 33 LE2d 101).

Defendant concedes that the first factor, the length of delay, is relatively “insignificant.” “The mere passage of time is not enough, without more, to constitute a denial of due process.” Hughes v. State, 228 Ga. 593, 594 (1), 595 (187 SE2d 135) (delay of 20 months between indictment and trial). With respect to the third factor, the State concedes that defendant asserted his right to a speedy trial. The parties disagree, however, with respect to the significance of the second and fourth factors.

With regard to the second factor, the reason for the delay, defendant contends the delay was intended to deprive him of his ability to test the evidence independently. The State asserts the only reason for the delay was to await completion of the investigation.

We do not think the reason for the delay weighs against the State in any way. “[W]e find no evidence whatsoever of a deliberate attempt by the State to delay the trial in order to hamper the defense.” Crapse v. State, 180 Ga. App. 321, 323 (349 SE2d 190). Rather, it appears that the delay was occasioned only by the standard operating procedure of the state crime laboratory. Compare Hall v. State, 131 Ga. App. 786 (206 SE2d 644) (delay of 34 months was negligence at the least).

Finally, with respect to the fourth factor, we are unable to see any prejudice to the defense. We are not persuaded by defendant’s argument that he was prejudiced because the bed sheets were not subjected to a secretor test early on. The forensic serologist testified that the state crime laboratory preferred to conduct tests using vaginal swabs because bed sheets could contain seminal fluid from a different source and time. Thus, if the bed sheets had been tested earlier, defendant would not have been eliminated as a suspect.

Defendant’s contention that he was prejudiced because the victim’s neighbor died before trial is without merit. He has not demonstrated just how the neighbor’s death prejudiced his defense. See Perry v. Mitchell, 253 Ga. 593, 595 (322 SE2d 273); Hughes v. State, 228 Ga. 593, 595, supra. By cross-examining the investigating officer, defendant was able to elicit the fact that the neighbor was unable to identify defendant positively as the man who came to her door on the night in question. The testimony of the deceased neighbor would have been merely cumulative on this point. See Hughes v. State, 228 Ga. 593, 595, supra.

2. Defendant contends the trial court erred in permitting the officer to testify that the deceased neighbor told him that on the night in question a man called “B. J.” came to her door and asked to use the bathroom and telephone; and that he knew a man called “B. J.” who worked at the courthouse and matched the description of the victim’s attacker. In this regard, defendant asserts the evidence was inadmissible under the holdings in Teague v. State, 252 Ga. 534 (314 SE2d 910) and Momon v. State, 249 Ga. 865 (294 SE2d 482). We need not decide whether the evidence violated Teague and Momon because it was admissible out of necessity under OCGA § 24-3-1 (b).

“In Higgs v. State, 256 Ga. 606 (351 SE2d 448) (1987), the Georgia Supreme Court, citing Ohio v. Roberts, 448 U. S. 56, 65 (100 SC 2531, 65 LE2d 597) (1980), held that the United States Supreme Court had ‘not interpreted “confrontation” to signify the exclusion of every hearsay exception, arid has provided (a) method to resolve confrontation challenges based on the admission of hearsay testimony: “. . . First, . . . the Sixth Amendment establishes a rule of necessity. In the usual case . . . the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. (Cits.) The second aspect operates once a witness is shown to be unavailable . . . (O)nly hearsay marked with such trustworthiness that ‘there is no material departure from the reason of the general rule (may be admitted).’ ” (Cit.)’ Higgs, supra at 608, 609 (7). See also Swain v. C & S Bank of Albany, 258 Ga. 547 (372 SE2d 423) (1988).” Adams v. State, 191 Ga. App. 16, 17 (381 SE2d 69). In sum, “[t]here are two prerequisites for admission of hearsay because of necessity: T) necessity; 2) particularized guarantees of trustworthiness.’ Idaho v. Wright,_U. S._(110 SC 3139, 111 LE2d 638) (1990); Higgs v. State, 256 Ga. 606, [supra].” Mallory v. State, 261 Ga. 625, 627 (2) (409 SE2d 839).

The first prerequisite is met inasmuch as the statements were made by a witness who is deceased. Mallory v. State, 261 Ga. 625, 627 (2), supra. The second criteria is met inasmuch as (1) the witness’s statement was given shortly after the event; (2) the witness’s statement was given during the course of an official investigation; and (3) there was no testimony that the witness retracted the statement or controverted the statement. See Higgs v. State, 256 Ga. 606, supra; Adams v. State, 191 Ga. App. 16, supra. It follows that the trial court did not err in admitting the statements of the neighbor.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.

Decided January 16, 1992

Reconsideration denied January 28, 1992

Word & Flinn, Gerald P. Word, for appellant.

William G. Hamrick, Jr., District Attorney, George F. Hutchinson III, David Oliver, Assistant District Attorneys, for appellee.


text:
    A91A2263.
    EIDSON v. BERRY et al.
    (415 SE2d 16)
   McMurray, Presiding Judge.

James A. Eidson (plaintiff) filed a defamation action against Bobby Berry, Decatur Publishing Company, Inc. and Southside Sun Publishing Company, Inc. (defendants), alleging defendant Berry “injured [his] reputation and exposed [him] to public hatred, contempt and ridicule” in a letter that was published in the Southside Sun newspaper. Defendant Berry denied the material allegations of the complaint and filed a motion for summary judgment.

Plaintiff is an attorney licensed to practice law in the State of Georgia. Plaintiff has provided legal services for the City of East Point, Georgia, and has been characterized as the attorney for the City of East Point.

On January 4 or 5, 1991, defendant Berry posted a letter to the editor of the Southside Sun newspaper, criticizing the East Point “city attorney” for allegedly turning over a tape recorded conversation between city officials to the news media. On January 11, 1991, the letter was published in the Southside Sun newspaper and it states, in pertinent part, as follows: “It has been revealed that some tapes exist in which our Mayor and one councilman are guilty of a racial slur. I feel that the city attorney was acting improperly when he delivered the tapes to the newspaper and that the secretary that recorded a private conversation was also acting illegally. They should both be prosecuted and the city attorney should be barred from practicing law because he knowingly violated Federal law.”

The trial court granted defendant Berry’s motion for summary judgment, finding that defendant Berry’s statements were “merely his opinion about what he thought should take place in the future. . . .” This appeal followed. Held:

There is no “wholesale defamation exemption for anything that might be labeled ‘opinion.’ [To say otherwise would] ignore the fact that expressions of ‘opinion’ may often imply an assertion of objective fact.” Milkovich v. Lorain Journal Co.,_U. S. _ (110 SC 2695, 111 LE2d 1). Any defamatory expression on matters of public concern that is provable as false may carry liability under state defamation law. Id at 18. Consequently, the trial court erred in excluding defendant Berry’s liability for defamation based on the simple characterization of defendant Berry’s comments as an opinion. The pivotal questions are whether defendant Berry’s statements can reasonably be interpreted as stating or implying defamatory facts about plaintiff and, if so, whether the defamatory assertions are capable of being proved false.

“A libel is a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.” OCGA § 51-5-1 (a). “ ‘Libel per se consists of a charge that one is guilty of a crime, dishonesty or immorality. (Cit.)’ Grayson v. Savannah News-Press, 110 Ga. App. 561, 566 (139 SE2d 347) (1964).” Barber v. Perdue, 194 Ga. App. 287, 288 (390 SE2d 234). In the case sub judice, the comments in defendant Berry’s letter regarding the alleged illegal conduct of the “city attorney” can easily be taken as an assertion that plaintiff, as attorney for the City of East Point, is guilty of a crime punishable by law. Further, the accusation that plaintiff is guilty of a crime punishable by law is susceptible of being proved false. It therefore appears that circumstances exist which raise genuine issues of material fact as to defendant Berry’s liability for defamation. However, plaintiff “concedes, for purposes of this action, that he is a ‘public figure’ who is prohibited ‘from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice” — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.’ New York Times v. Sullivan, 376 U. S. 254, 279-280 (84 SC 710, 11 LE2d 686) (1964). Inasmuch as the First Amendment mandates that a public figure plaintiff prove actual malice by clear and convincing evidence (id. at 285-286; Harte-Hanks Communications v. Connaughton,_U. S._(109 SC 2678, 105 LE2d 562) (57 LW 4846) (1989); Williams v. Trust Co. of Ga.,. 140 Ga. App. 49, 52 (230 SE2d 45) (1976)), ‘a court ruling on a motion for summary judgment (in such a case) must be guided by the New York Times “clear and convincing” evidentiary standard in determining whether a genuine issue of actual malice exists — that is, whether the evidence presented is such that a reasonable jury might find that actual malice had been shown with convincing clarity.’ Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 257 (106 SC 2505, 91 LE2d 202) (1986).” Barber v. Perdue, 194 Ga. App. 287, 288, supra.

In the case sub judice, there is no evidence supporting defendant Berry’s accusations that the attorney for the City of East Point delivered a tape recorded conversation between city officials to the news media or that the attorney for the City of East Point violated federal law. On the contrary, defendant Berry gave deposition testimony, admitting that he did “not know for a fact that [plaintiff] delivered [a tape recorded conversation between city officials] to the newspapers” and explaining that he assumed plaintiff delivered any such recording to the media because “the information was out there.” Defendant Berry also testified that he assumed there is a federal prohibition against tape recording private conversations “unless all the parties involved in this conversation knew that the conversation was being recorded” and that plaintiff violated federal privacy law by delivering an illegally taped conversation to the news media. This evidence alone is sufficient to authorize any reasonable jury’s finding that defendant Berry acted with reckless disregard for the truth in accusing the attorney for the City of East Point of violating federal law. Barber v. Perdue, 194 Ga. App. 287, 288, supra. The trial court erred in granting defendant Berry’s motion for summary judgment.

Decided January 9, 1992

Reconsideration denied January 28, 1992

Jones, Brown, Brennan & Eastwood, Taylor W. Jones, Timothy R. Brennan, for appellant.

Scott Walters, Jr., for appellees.

Judgment reversed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A1631.
    UNITED ELECTRIC COMPANY, INC. v. UNDERGROUND FESTIVAL, INC. et al.
    (415 SE2d 197)
   Carley, Presiding Judge.

Appellant-plaintiff in this lien foreclosure action appeals from the grant of summary judgment in favor of appellee-defendants. Unless otherwise specified, the relevant facts are the same as those in D & N Elec. v. Underground Festival, 202 Ga. App. 435 (414 SE2d 891) (1991).

1. Construing the evidence of record most favorably for appellant, appellee Underground Festival, Inc. (UFI) “is the ‘true owner’ against whose interest in the property a viable lien can attach. [Cits.]” D & N Elec. v. Underground Festival, supra at 436 (1).

2. Under a proper construction of the evidence of record, the lack of any immediate contract between UFI and appellant would likewise not constitute a viable basis for the grant of summary judgment in favor of UFI. D & N Elec. v. Underground Festival, supra at 437 (2).

3. Here, unlike D & N Elec. v. Underground Festival, supra at 437 (3), UFI relies upon an affidavit obtained from the contractor with whom appellant had contracted. This affidavit was. dated June 13, 1989, and is in substantial compliance with OCGA § 44-14-361.2 (a) (2). Star Mfg. v. Edenfield, 191 Ga. App. 665 (2) (382 SE2d 706) (1989); Dixie Concrete Svcs. v. Life Ins. Co. of Ga., 174 Ga. App. 866 (331 SE2d 889) (1985). It is undisputed that this affidavit was given in connection with the final payment of the contract price and that the improvements were substantially completed by June 13, 1989. Compare CC&B Indus. v. Stroud, 198 Ga. App. 658 (1) (402 SE2d 527) (1991). It follows that the trial court correctly granted summary judgment in favor of UFI.

Decided January 28, 1992.

McReynolds & Welch, J. Michael Welch, Frederic S. Beloin, for appellant.

Alston & Bird, John I. Spangler III, Linda K. Disantis, for appellees.

4. Assuming, without deciding, that our holding in Divisions 1 and 2 would not otherwise be applicable to appellee Jacqueline Amirmonazah, our holding in Division 3 would be.

Judgments affirmed.

Beasley, J., and Judge Arnold Shulman concur.


author: Carley, Presiding Judge. Beasley, Judge,

text:
    A91A1698.
    JOHNSON v. THE STATE.
    (415 SE2d 189)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of distributing cocaine. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilt.

1. Appellant testified in his own defense and denied committing the crime, claiming to have been in Florida in the company of one Wayne Bryant. Subsequently, over appellant’s continuing objection, the State was permitted to cross-examine him regarding his knowledge of Bryant’s criminal record and whether he knew that Bryant had “been [recently] convicted of two sales of cocaine).]” The failure to sustain the objections to this line of cross-examination is enumerated as error.

There was no evidence that appellant and Bryant were co-conspirators, having traveled together to Florida to obtain cocaine for distribution. If Bryant had testified as an alibi witness at appellant’s trial, he could have been impeached by proof of his previous convictions. Since Bryant did not testify, the State could have questioned appellant about his failure to have called Bryant. Shirley v. State, 245 Ga. 616, 618 (1) (266 SE2d 218) (1980); Pritchard v. State, 160 Ga. App. 105, 107 (4) (286 SE2d 338) (1981). However, the State could not attempt to impeach appellant by showing that the absent Bryant had previous convictions. Western & Atlantic R. Co. v. Vaughan, 113 Ga. 354 (1) (38 SE 851) (1901); Cross v. State, 136 Ga. App. 400, 405 (6) (221 SE2d 615) (1975). “The trial court [erred] in allowing the [S]tate’s attorney to cross-examine [appellant] as to whether [his companion] had ‘been [convicted of selling cocaine].’ This evidence was not shown to be relevant to any issue in the case and must consequently be construed as an improper attempt to impugn [appellant’s] character and establish his guilt by association. [Cits.]” Hill v. State, 176 Ga. App. 509, 510 (3) (336 SE2d 276) (1985).

2. Appellant’s remaining enumerations of error have been considered and are found to involve circumstances unlikely to recur upon retrial.

Judgment reversed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Pope, Cooper, Andrews, JJ., and Judge Arnold Shulman concur. Beasley, J., dissents.

Beasley, Judge,

dissenting.

I respectfully dissent. Johnson’s main alibi witness, the only person who allegedly was with him on a trip to Florida at the time the drug transaction took place, was Wayne Bryant. Although defendant called five witnesses regarding his whereabouts, none could say with certainty that he was elsewhere when the sale occurred. Only the absent Bryant could so testify.

The jury would be permitted to draw, as reasonable, the inference that Bryant would have so testified if he had been called but was unavailable for some reason unknown to the jurors. On the other hand, the jury could infer that the absence of the witness meant that he would not corroborate Johnson’s alibi; the State is permitted to make such an argument. Shirley v. State, 245 Ga. 616, 618 (1) (266 SE2d 218) (1980), cert, denied 449 U. S. 879 (101 SC 227, 66 LE2d 102) (1980). This inference would portend rejection of the sole defense. The question about Bryant’s conviction of sales made by him seven and nine days before defendant’s sale to the undercover agent was relevant to the issue of the validity of the alibi. It tended to explain why defendant did not call Bryant as a witness; even if Bryant would have testified that he and Johnson were on a trip to Florida at the crucial time, he would have been impeached by his conviction of crimes of moral turpitude. Such is permitted. Doggett v. Simms, 79 Ga. 253, 257 (2) (4 SE 909) (1887); Cross v. State, 136 Ga. App. 400, 405 (6) (221 SE2d 615) (1975), cert. denied 233 Ga. 960 (214 SE2d 374) (1975); OCGA § 24-9-84.

This, of course, would weaken the inference that Bryant was absent for a legitimate reason and strengthen the inference that Bryant could not honestly testify that Johnson was not out in front of his corner grocery store in Alma at 8:30 p.m. on September 23, 1988.

Decided January 28, 1992.

Garland & Samuel, Donald F. Samuel, for appellant.

Harry D. Dixon, Jr., District Attorney, George E. Barnhill, Assistant District Attorney, for appellee.

Thus, unlike the situation in Hill v. State, 176 Ga. App. 509, 510 (3) (336 SE2d 276) (1985), the evidence was relevant to an issue in the case, i.e., the absence of the only witness who allegedly could give direct evidence that defendant was not present at the scene when the crime as charged occurred. The State’s question addressed the absent witness’ character, not the character of the witness/defendant. So it did not violate the principle that “[a] witness can not be impeached by proving association with a man of bad character.” Western & Atlantic R. Co. v. Vaughan, 113 Ga. 354 (1) (38 SE 851) (1901).

“[T]he right of cross examination is thorough and sifting, and ... a defendant who elects to testify in his own behalf shall be examined and cross-examined as any other witness. . . .” Pritchard v. State, 160 Ga. App. 105,108 (4) (286 SE2d 338) (1981); OCGA § 24-9-20 (b).


text:
    A91A1805.
    VAUGHAN v. MOORE.
    (415 SE2d 47)
   Carley, Presiding Judge.

In connection with his purchase of real property, appellee-defendant executed both a promissory note and a security deed in favor of appellant-plaintiff. When appellee defaulted, appellant initiated the instant action on the note. Also, pursuant to the powers contained in said security deed, appellant caused the real property to be sold at foreclosure sale. When appellant failed to have the sale of the realty confirmed pursuant to OCGA § 44-14-161, appellee moved for summary judgment. The trial court granted summary judgment in favor of appellee and appellant appeals.

“ ‘A creditor who holds a promissory note secured by a deed is not put to an election of remedies as to whether he shall sue upon the note or exercise a power of sale contained in the deed, but he may do either, or “pursue both remedies concurrently until the debt is satisfied.” [Cits.]’ [Cits.]” Taylor v. Thompson, 158 Ga. App. 671, 672 (282 SE2d 157) (1981). Although concurrent pursuit of both remedies is not barred, it is nevertheless clear that if it is the foreclosure remedy that is pursued to an initial conclusion, the creditor must then comply with OCGA § 44-14-161 so as to retain the right of continued pursuit of his remedy of obtaining a judgment against the debtor. “[N]o action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and approval thereon.” (Emphasis supplied.) OCGA § 44-14-161 (a). Continuing to pursue a lawsuit on a promissory note after the foreclosure proceedings have been concluded obviously constitutes “action” on the part of the creditor to obtain a deficiency judgment against the debtor.

If appellant had initially obtained a judgment against appellee then he would not have been required to comply with OCGA § 44-14-161. “By virtue of the judgment obtained on the note prior to foreclosure sale, [appellee would be] indebted to [appellant] for the full amount of such judgment. Because of this prior judgment, [appellee would be] liable to [appellant] for any sum remaining after application of the proceeds of the foreclosure sale. Thus, there [would be] no purpose to be served by [appellant] filing the petition for confirmation of the sale under power because no action for deficiency [would be] necessary. [Cit.]” Taylor v. Thompson, supra at 672-673. However, appellant did not obtain a judgment against appellee prior to the foreclosure sale. Therefore, he was required to comply with OCGA § 44-14-161. “When the creditor wishes to exercise a power of foreclosure prior to obtaining a judgment on the note and thereby save time and expense, he will be required to comply with the confirmation statute before instituting [or continuing] any action for a deficiency judgment.” Taylor v. Thompson, supra at 673. Since it is undisputed that appellant did not comply with the applicable provisions of OCGA § 44-14-161, it necessarily follows that the trial court correctly granted summary judgment in favor of appellee.

Judgment affirmed.

Judge Arnold Shulman concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in the ruling in this case, but I do not agree completely with Taylor v. Thompson, 158 Ga. App. 671 (282 SE2d 157) (1981), the case primarily relied upon.

Part of the rationale in Taylor is that a confirmation of the foreclosure sale “would be of no benefit to” the debtor. Id. at 673. There could indeed be a benefit, because if the court found that the sale did not represent the true market value of the property, OCGA § 44-14-161 (b), the enforcement of the money judgment on the note would be affected to the debtor’s advantage. Rather than what might be insuflacient or defectively arrived at proceeds of the sale being automatically applied by the creditor to the judgment, the debtor would have judicial scrutiny to be sure the amount was adequate and the statutory procedure complied with. Without the confirmation, the debtor could be short-changed in what is applied to reduce the judgment.

The court in Taylor assumes that the creditor will save time and expense by foreclosing on the property before obtaining a judgment on the note, implying that requiring confirmation should therefore not be onerous. However, a simple suit on a defaulted note does not necessarily require a greater period of time or greater expense than does a foreclosure.

Taylor recognizes the unassailable principle that “the confirmation statute is in derogation of the common law and requires strict construction.” Id. at 673. If that be so, then why not strictly construe the provision in OCGA § 44-14-161 (a) that “no action may be taken to obtain a deficiency judgment unless” there is judicial confirmation and approval of the sale? Enforcement of the prior judgment on the note, by means statutorily provided, is no less legal “action” than the filing of a suit. Enforcement is, in effect, that of a “deficiency” judgment, because the judgment on the note must be credited with the proceeds of the sale; what is left is a “deficiency” as surely as is a deficiency when suit is not brought until after the sale and confirmation.

That is to say, because the proceeds of the sale must be applied in at least partial satisfaction of the earlier-obtained judgment on the note, it is in effect a deficiency judgment if a foreclosure is accomplished. “A deficiency judgment is the ‘imposition of personal liability on mortgagor for unpaid balance of mortgage debt after foreclosure has failed to yield full amount of due debt.’ [Cit.]” Redman Indus. v. Tower Properties, 517 FSupp. 144, 151 (5) (N.D. Ga. 1981). We must look at the substance of things, not merely their form, and as said by the court in Redman Indus., “when a secured creditor seeks to satisfy its claim from property of a debtor other than the security itself, the creditor is in substance seeking a deficiency judgment.” Id.

Just as the sale was not legally complete until judicial confirmation and approval was obtained in this case, so should be the case when the sale is subsequent to the judgment on the note. As recognized at the outset in Taylor, the confirmation statute was enacted to protect mortgagors.

Finally, Taylor suggests that if the foreclosure sale was defective for some reason, the creditor who was not required to obtain confirmation would be subject to a suit in equity. But this would be a far more costly and cumbersome remedy than simply requiring a confirmation in the first place, close in time to the sale and so to the evidence that it produced the “true market value” of the property. Moreover, a suit in equity requires a higher standard in order for the debtor to obtain relief. “It is only when the price realized is grossly inadequate and the sale is accompanied by either fraud, mistake, misapprehension, surprise or other circumstances which might authorize a finding that such circumstances contributed to bringing about the inadequacy of price that such a sale may be set aside by a court of equity. [Cits.]” Giordano v. Stubbs, 228 Ga. 75, 79 (3) (184 SE2d 165) (1971). The creditor has a much heavier burden in confirmation proceedings. See Martin v. Fed. Land Bank of Columbia, 173 Ga. App. 142 (325 SE2d 787) (1984).

Decided January 28, 1992.

Brown & Romeo, Robert T. Romeo, for appellant.

Gary C. Harris, for appellee.

Thus, although I agree with the ruling made here, I do not want to be regarded as agreeing with the decision in Taylor, or in Division 2 of Georgia R. Bank &c. Co. v. Griffith, 176 Ga. App. 198 (335 SE2d 417) (1985), which follows it.


text:
    A91A1816.
    ROGERS v. THE STATE.
    (415 SE2d 49)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of rape, aggravated sodomy, battery, kidnapping with bodily injury, and two counts of aggravated assault. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. Appellant filed a motion in limine, seeking to prevent the introduction of evidence regarding the victim’s identification of him as the perpetrator. The denial of this motion is enumerated as error.

Shortly after the commission of the crimes, the victim had given officers a description of her assailant. This description was general as to the physical characteristics of the assailant but was specific as to his clothing. Shortly thereafter, appellant, who matched the victim’s description, was arrested. The victim was then taken to the police station where she identified appellant in a one-on-one showup. At the time of this showup, appellant was not wearing the clothes that he had been wearing at the time of his arrest. Thus, appellant’s clothing, which had been a factor , in his arrest, had not been a factor in the victim’s identification of appellant at the showup.

“Although as a general rule a police station showup, as opposed to a conventional lineup, is not favored, ‘in each case it is necessary to look at the “totality of the circumstances.” [Cit.]’ [Cit.]” Matchett v. State, 190 Ga. App. 227 (2) (378 SE2d 404) (1989). The instant showup was conducted as soon as possible after the crimes had been committed. “[0]ur appellate courts have consistently upheld the admission of in-court identifications when prior one-on-one showups are reasonably and fairly conducted at or near the time of the offense. [Cits.]” Arnold v. State, 155 Ga. App. 782, 783 (1) (272 SE2d 751) (1980). “Here the one-on-one confrontation was permissible in aiding a speedy police investigation and because there were possible doubts as to the identification which needed to be resolved promptly and in order to enhance the accuracy and reliability of identification in order to permit the expeditious relief of innocent subjects. [Cits.]” Arnold v. State, supra at 783-784 (1). “The description [the] victim gave of the perpetrator proved accurate, and [she] was certain of [her] identification of appellant.” Maxwell v. State, 178 Ga. App. 20, 21 (1) (342 SE2d 8) (1986). “[G]iven the fact that the [victim] was quite obviously concentrating on the [perpetrator’s] appearance with a view towards obtaining a description of him, and given the fact that the description [she] did obtain proved to be accurate, the brevity of [her] opportunity to observe the [perpetrator] is not sufficient, in and of itself, to require the exclusion of [her] testimony. [Cit.] ” Benton v. State, 178 Ga. App. 239, 241 (1) (342 SE2d 722) (1986). “[W]e conclude that[,] under the totality of the circumstances, the identification procedures used were not unduly suggestive and there was no substantial likelihood of irreparable misidentification. [Cits.]” Maxwell v. State, supra at 21 (1). See also Matchett v. State, supra.

Moreover, the record shows that there was a basis for the victim’s in-court identification of appellant which was independent of the showup. At trial, the victim testified that she had seen her assailant’s clothing and she was shown the clothing that appellant had been wearing at the time of his arrest. She identified certain articles of appellant’s clothing as being those which her assailant had worn and certain other articles of appellant’s clothing as being similar to those which her assailant had worn. Thus, appellant’s clothing, which had not been a factor in the victim’s identification of appellant at the showup, was shown to be an independent basis for the victim’s identification of appellant at trial. “ ‘Where in-court identification is independent of [showup] identification, the admission into evidence of in-court identification is not error’ [Cits.]” Price v. State, 159 Ga. App. 662, 663 (1) (284 SE2d 676) (1981).

Accordingly, the trial court did not err in denying appellant’s motion in limine.

2. The State called an expert witness who, in the course of her direct examination, testified that 20 percent of the male population was comprised of nonsecretors. On cross-examination, appellant established that this portion of the witness’ testimony had been based upon a specific study that she herself had not personally conducted. Appellant then moved to strike that portion of the witness’ testimony as hearsay. The denial of this motion to strike is enumerated as error.

Decided January 28, 1992.

L. Eddie Benton, Jr., for appellant.

C. Andrew Fuller, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

“Books of science and art are not admissible in evidence to prove the opinions of experts therein expressed. [Cits.] But, notwithstanding the inadmissibility of the books, the opinions contained therein may come to the jury though the mouth of an expert witness. [Cits.]” Boswell v. State, 114 Ga. 40, 43 (3) (39 SE 897) (1901). “ ‘The opinion of an expert as to what conclusions may be properly drawn from statements in scientific works pertaining to his profession, amounts to something more than mere hearsay, and may be very valuable in elucidating a given scientific inquiry.’ [Cit.]” Woods v. Andersen, 145 Ga. App. 492, 494 (3) (243 SE2d 748) (1978). “The court [would have] erred in restricting the expert’s testimony as . . . hearsay and allowing [her] to testify only as to actual knowledge of tests performed by [her].” Herrin v. State, 138 Ga. App. 729, 732 (7) (227 SE2d 498) (1976), overruled on other grounds Patterson v. State, 238 Ga. 204, 207 (232 SE2d 233) (1977). It follows that the trial court correctly denied appellant’s motion to strike.

Judgments affirmed.

Judge Arnold Shulman concurs. Beasley, J., concurs in Division 1 and in the judgment.


text:
    A91A1964.
    STALVEY v. ATLANTA BUSINESS CHRONICLE, INC.
    (414 SE2d 898)
   McMurray, Presiding Judge.

Thomas Stalvey (plaintiff) brought a defamation action against The Atlanta Business Chronicle, Inc. (defendant), alleging defendant published a statement in defendant’s magazine which tended to “injure [his] reputation and to expose [him] to public hatred, contempt, and ridicule. . . .” More specifically, plaintiff alleged “the entire libelous article . . .” inferred that he was either an accomplice to sexual assaults or that he obstructed police investigations of the assaults. Plaintiff also alleged that as the proximate result of defendant publishing the defamatory article his good reputation in the community was lost, his professional standing was injured; that he has suffered mental anguish, humiliation and he sustained lost wages. Defendant denied the material allegations of the complaint and filed a motion for summary judgment.

Defendant published an article entitled, “Kathryn Smith’s story reveals the human side of apartment security,” in the April 1989, edition of the magazine, Counterpart. The article describes two sexual assaults of female residents of an apartment complex (“Park Crossing”) formerly managed by plaintiff. The article gives details of how a Park Crossing maintenance man (Dennis Patrick Connolly) committed the crimes and how he gained entrance to the victims’ apartments with a pass key. Pertinent provisions of the article state as follows:

“Within a few days of the [first sexual assault], Connolly resigned from Park Crossing to head off his own firing; he had a personality clash with the property supervisor, Tom Stalvey. He was not considered a suspect [after the first sexual assault], although he was one of only three people with master keys. The other two were a Gwinnett police officer who lived at the complex and doubled as its ‘courtesy officer,’ and Stalvey. It was Stalvey who told Gwinnett police it would not be necessary to even question Connolly.
“But when he left, Connolly took a print of the master key at Park Crossing and moved into another apartment complex across Dickens Road. He had used the key to enter the apartment of the [first sexual assault] victim and [he later] used it to attack the woman he had seen about the complex and about whom he was ‘curious,’ the careful Kathryn Smith. . . .
“A civil suit filed by Smith in the aftermath of Connolly’s crime spree has forced Balcor Property Management Co. (BPM), which manages Park Crossing, to explain the policies which permitted two unforced entry attacks there within a few months, by an employee with a master key. . . .
“Depositions from the Smith case show that after the first and second attacks on single female residents of Park Crossing in 1986, Balcor’s managers took no action to notify other residents of any danger.
“Though the occupancy rate was relatively low, about 55 percent, more than half of the residents were single, and women outnumbered men, according to testimony from Victoria Hughes, Park Crossing’s assistant manager.
“But Hughes testified she told the staff at Park Crossing ‘not to go putting out a news flier and tell it’ after the first attack because ‘that’s not the kind of knowledge you want out.’
“Policy was to answer direct questions with the truth, but Hughes testified that crime rate ‘is not generally a question a prospective resident asks a leasing consultant.’
“According to Hughes’ testimony, Stalvey told her ‘not to make it a common topic of company conversation.’
“Asked why, she responded, ‘Possible fear of having the property dump . . . that’s when everybody vacates and leaves and moves without notice.’ ” (Emphasis supplied.)

The trial court granted defendant’s motion for summary judgment. This appeal followed. Held:

1. “Any false and malicious defamation of another in any newspaper, magazine, or periodical, tending, to injure the reputation of the person and expose him to public hatred, contempt, or ridicule, shall constitute a newspaper libel.” OCGA § 51-5-2 (a). In the case sub judice, plaintiff denies the allegation that he “told Gwinnett police it would not be necessary to even question Connolly” and argues that this false statement infers that he was either an accomplice to the sexual assaults or that he obstructed police investigations of the assaults. Plaintiff further contends the false statement that he “told Gwinnett police it would not be necessary to even question Connolly” and the false statements that Park Crossing had a “relatively low, about 55 percent,” occupancy rate and that plaintiff “told [an employee] ‘not to make it (the attack) a common topic of company conversation,’ ” impugned his reputation as a property manager, leaving genuine issues of material fact as to defendant’s liability for defamation.

“ ‘As a general rule, the question whether a particular publication is libelous, that is, whether the published statement was defamatory, is a question for the jury. (Cit.) However, if the statement is not ambiguous and can reasonably have but one interpretation, the question is one of law for the judge.’ Thomason v. Times-Journal, 190 Ga. App. 601 (1) (379 SE2d 551). ‘(A)s a defamatory statement may be made in indirect terms or by insinuation, the publication thereof must be construed as a whole. (Cit.) In doing so, the courts “will not hunt for a strained construction in order to hold the words used as being defamatory.” (Cit.) In considering whether a writing is defamatory as a matter of law, any relevant extrinsic circumstances will be considered, because “(a) statement may . . . carry a defamatory meaning only by reason of extrinsic fact or circumstances by use of innuendo, inducement and colloquium.” (Cit.) Moreover, “we will not look at the evidence of what the extrinsic circumstances were at the time indicated in the writing, but at what construction would be placed upon it by the average reader.” ’ Id. at 602 (1).” Southern Business Machines of Savannah v. Norwest Fin. Leasing, 194 Ga. App. 253, 259 (4) (390 SE2d 402).

In the case sub judice, we find nothing in the above article which infers that plaintiff was an accomplice to the sexual assaults at Park Crossing. However, we cannot say as a matter of law that the “average reader” would not take the above emphasized language, in context of the entire article, as an inference that plaintiff obstructed police investigators or that plaintiff acted illegally or unethically in order to protect Park Crossing from being “dumped” or deserted by tenants.

“Statements which tend to injure one in his or her trade, occupation, or business have been held to be libelous per se, and one need not prove special damages in such instances. Walker v. Sheehan, 80 Ga. App. 606, 611 (56 SE2d 628) (1949); Dickey v. Brannon, 118 Ga. App. 33, 35 (162 SE2d 827) (1968).” Hub Motor Co. v. Zurawski, 157 Ga. App. 850, 852 (3) (278 SE2d 689). In the case sub judice, the statements, “It was Stalvey who told Gwinnett police it would not be necessary to even question Connolly” and “the occupancy rate [at Park Crossing] was relatively low, about 55 percent,” are susceptible to being proved false. Further, when these statements are read in the context of the entire article in question, they may be taken as an attack on plaintiff’s reputation as a property (apartment) manager. Consequently, the trial court erred in granting defendant’s motion for summary judgment. Genuine issues of material fact remain as to defendant’s liability for defamation.

2. Defendant contends publication of the above emphasized language is not libelous because the statements are substantially true.

“While the truth of the charge made may always be proved in justification, Code Ann. § 105-708 [now OCGA § 51-5-6], nevertheless, truthfulness is a question of fact for the jury. Lester v. Trust Co. of Ga., 144 Ga. App. 526, 528 (241 SE2d 633) (1978).” Hub Motor Co. v. Zurawski, 157 Ga. App. 850, 852 (3), supra. In the case sub judice, defendant offers no admissible evidence showing the truth of the allegation that plaintiff “told Gwinnett police it would not be necessary to even question Connolly.” On the contrary, defendant admits that neither the editor of its magazine nor the author of the article in question interviewed plaintiff before publication of the alleged defamatory statement. These circumstances not only draw the truthfulness of the above statement into question, they raise genuine issues of material fact as to defendant’s reckless disregard for the truth of any portrayal of plaintiff as a property manager who deliberately thwarted police investigators and misled tenants in order to protect the occupancy rate of the apartment complex he managed. See Barber v. Perdue, 194 Ga. App. 287, 289 (390 SE2d 234), where it was held that genuine issues of material fact remained as to “actual malice” where the defendant disregarded opportunities for having or obtaining, from objective sources, a knowledge of the true facts prior to publication.

3. Defendant contends the alleged defamatory statements are privileged because they are fair and honest reports of court proceedings. See OCGA § 51-5-7 (5). This contention is not supported by the record.

Decided January 9, 1992

Reconsideration denied January 29, 1992

Wilson, Strickland & Benson, Warner R. Wilson, Jr., Mary M. Brockington, Anne W. Lewis, for appellant.

Jones, Day, Reavis & Pogue, David J. Bailey, Leslie A. Dent, for ippellee.

Defendant carries the burden of proving that any false statement from the above article was a fair and honest report of a court proceeding. WSAV-TV, Inc. v. Baxter, 119 Ga. App. 185 (2) (166 SE2d 416). In the case sub judice, defendant offers no official court record proving the truth of the allegation, “It was Stalvey who told Gwinnett police it would not be necessary to even question Connolly.”

4. It is unnecessary to address plaintiff’s final enumeration.

Judgment reversed.

Sognier, C. J., and Andrews, J., concur.


author: Birdsong, Presiding Judge.

text:
    A91A1500.
    MANSFIELD v. PIZZA HUT OF AMERICA, INC.
    (415 SE2d 51)
   Birdsong, Presiding Judge.

Martha Mansfield appeals from a judgment for $20,000, based apon a jury verdict, in her favor. She alleges the trial court erred by lenying her motion for new trial because the verdict for $20,000 was nadequate since the verdict was less than her special damages. Held:

The evidence, construed to support the verdict, shows that Mrs. Mansfield fell in a Pizza Hut after her chair broke. She admitted that he fell while she rocked back and forth on the chair showing that the ;hair was wobbly. Also, witnesses testified that after her fall, Mrs.Mansfield said she was not hurt.

Although Mrs. Mansfield presented evidence tending to show hat she incurred special damages for medical expenses and lost vages in excess of the amount of the verdict and that her life changed is a result of the fall, other evidence primarily from her own physi;ian showed that she complained of some similar symptoms prior to his fall, that he did not see any bruises when he examined her after he fall, that he could make no objective physical findings supporting hese symptoms, that he considered her problems to be psychological md that her treatments before and after her fall were substantially he same.

Additionally, Mrs. Mansfield’s chiropractor testified he treated íer for arm and neck pain on two occasions years before this fall. A íeurologist also testified that Mrs. Mansfield’s neurologic examinaion was within normal limits, and a neurosurgeon also testified that Mrs. Mansfield had no neurologic disability and that she could work as a school teacher. Further, another witness testified that Mrs. Mansfield told him she injured her back before her fall moving a bookcase, and that one of Mrs. Mansfield’s hospitalizations was because of acute asthmatic bronchitis. Moreover, the psychologist’s interpretation of Mrs. Mansfield’s psychological test results was that she could overuse addictive substances and was likely to seek obscure treatment of any problems she might have. As this evidence conflicts with the evidence supporting Mrs. Mansfield’s claims for these damages, the evidence did not demand a verdict in the amount of her special damages. See Williams v. Opriciu, 198 Ga. App. 663, 664 (402 SE2d 744); Smith v. Doe, 176 Ga. App. 711, 712 (337 SE2d 367).

Decided January 29, 1992.

Gammon & Anderson, Joseph N. Anderson, for appellant.

Rogers, Magruder, Sumner & Brinson, J. Clinton Sumner, Jr., for appellee.

Also, the evidence that Mrs. Mansfield admitted she was rocking the chair to show how wobbly it was raises the issues of equal knowledge and of her own negligence in engaging in that activity when she knew the chair was defective, and when “comparative negligence is involved under the pleadings and the evidence, a verdict for damages for personal injuries cannot properly be set aside on the ground that the verdict is inadequate.” (Citation and punctuation omitted.) Palo v. Meisenheimer, 199 Ga. App. 24, 25 (403 SE2d 881).

Therefore, it cannot be said that the verdict was against the preponderance of the evidence in the case. Consequently, the criteria of OCGA § 51-12-12 (a) were not satisfied. See Salvador v. Coppinger, 198 Ga. App. 386, 387 (401 SE2d 590): The damages awarded are not clearly so inadequate as to be inconsistent with the preponderance of the evidence. Moreover, whether the verdict was inadequate is an issue which is addressed to the discretion of the trial judge and the standard of review in this court is whether the trial judge abused his discretion in denying the motion for new trial. St. Paul Fire &c. Co. v. Dillingham, 112 Ga. App. 422, 425 (145 SE2d 624). The “trial [court’s] denial of a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict.” (Citation and punctuation omitted.) Mathis v. Dept. of Transp., 185 Ga. App. 658 (365 SE2d 504). Based upon the evidence in this case, we cannot say that the trial court abused its discretion, and thus, the trial court did not err by denying Mrs. Mansfield’s motion for a new trial.

Judgment affirmed.

Pope and Cooper, JJ., concur.