author: Smith, Judge.

text:
    A94A0154.
    HUNT v. GREENWAY INSURANCE AGENCY.
    (443 SE2d 661)
   Smith, Judge.

Clara Hunt brought suit against Greenway Insurance Agency, alleging that the agency had negligently failed to procure requested insurance coverage. The trial court granted Greenway’s motion for summary judgment.

Hunt is the sole proprietor of Robins Textiles, a business making bed sheets on a contract basis from cloth supplied by customers. She contacted Greenway Insurance Agency when she moved her business from her home and rented space in an industrial park, because the landlord required that she carry liability insurance. She spoke with Susan Larsen, a customer service representative at the agency, regarding her needs. Larsen then obtained quotes from insurance carriers, and Hunt was offered coverage. She accepted the offer and came to the agency to discuss the coverage with an agent and to sign the application. Hunt had arranged with a driver to deliver finished sheets to a customer in North Carolina. The sheets were contained in a trailer attached to the driver’s pickup truck, and were destroyed by fire en route. She did not receive the insurance policy until after this loss. No coverage was provided in the policy for the loss of the sheets in transit.

Hunt contends the trial court erred in granting Greenway’s motion for summary judgment because a material question of fact remains whether Greenway negligently failed to provide appropriate coverage. It is true that the evidence is in conflict regarding whether Hunt informed Larsen that she would be picking up raw materials and delivering finished products to customers. Hunt testified at her deposition that she did so, while Larsen testified that she did not; that, on the contrary, Hunt told her that customers would deliver the raw materials to her and pick up the finished product.

Nevertheless, summary judgment to Green way was proper. In general, an insured has an obligation to read and examine an insurance policy to determine whether the coverage desired has been furnished. Greene v. Lilburn Ins. Agency, 191 Ga. App. 829 (383 SE2d 194) (1989). Because Hunt did not receive her copy of the policy before the loss, she could not have examined its contents. She also, had an obligation, however, to read the application she signed, which both describes her business and “clearly indicates the type of coverage to be provided.” Fregeau v. Hall, 196 Ga. App. 493, 494 (396 SE2d 241) (1990).

Decided April 15, 1994.

Westmoreland, Patterson & Moseley, Daryl J. Morton, for appellant.

Chambless, Higdon & Carson, Joseph H. Chambless, Mary M. Katz, Jon C. Wolfe, Pamela M. Richards, for appellee.

Hunt asserts that the application did not “clearly indicate the type of coverage provided” because the signature line of the application was on the first page, which contains no information regarding the coverages provided. However, no suggestion is made that Green-way prevented Hunt from reading the application. The application, under “general information,” states that customers will bring materials to Hunt, contrary to what Hunt asserts she told Larsen.

An exception to the general rule exists when the agent has held himself out as an expert and the insured has reasonably relied on the agent’s expertise to identify and procure the correct amount or type of insurance. Greene, supra at 830. As in Greene, however, the prospective insured here admitted to informing the agent of the type of insurance desired. There is no evidence that the agent had any discretion in the type of insurance procured or that the proposed insured relied on the agent to decide what type of insurance was needed. Hunt admitted, in answers to Greenway’s interrogatories, that she told Larsen she “wanted workers’ compensation insurance and liability insurance to cover what I would be doing.” Her failure to exercise ordinary diligence in examining the application to verify that the information regarding her business was correct and that she was receiving the coverage she desired bars her recovery here. Fregeau, supra at 495.

Judgment affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    A94A0212.
    HOLCOMB v. THE STATE.
    (443 SE2d 662)
   Smith, Judge.

Rodney Holcomb was charged with cruelty to animals, reckless conduct, and possession of a firearm by a convicted felon, in connection with the shooting of a neighbor’s dog. In a bifurcated trial, a jury acquitted him of the offenses of cruelty to animals and reckless conduct. The State then presented evidence of a prior felony conviction, and the jury found Holcomb guilty on the firearm charge. His motion for new trial was denied.

1. Holcomb contends the evidence was insufficient to support his conviction on the firearm charge. After the jury found him not guilty on the other two charges, the only evidence presented by the State in the second stage of the trial was a certified copy of his prior indictment, plea, and sentence. Holcomb argues that possession of the gun, an essential element of the offense charged, was not proved by the State. There is no merit in this contention.

OCGA § 16-11-131 (b) provides in pertinent part that a felon who “receives, possesses, or transports any firearm commits a felony.” In the trial on the other two charges, three witnesses testified that they saw Holcomb on his porch holding a .22 caliber rifle. Although Holcomb’s wife testified that she was the one who shot the dog, the jury was authorized to believe that the witnesses saw Holcomb in possession of the rifle. This evidence was incorporated by reference into the trial on the firearms count and showed that Holcomb “possessed” a rifle. Evidence of Holcomb’s prior conviction of a felony provided the additional element necessary for conviction.

The jury’s acquittal of Holcomb on the cruelty to animals and reckless conduct charges did not preclude their finding of guilt on this charge. See generally Head v. State, 253 Ga. 429, 432 (3) (c) (322 SE2d 228) (1984). The evidence was sufficient to enable a rational finder of fact to find Holcomb guilty beyond a reasonable doubt of possession of a firearm by a convicted felon. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Holcomb enumerates as error the trial court’s jury charge on the law regarding possession, including actual and constructive possession and joint and sole possession. During deliberations, the jury sent the court a note, which the court shared with the prosecutor and counsel for Holcomb. The note asked whether the wife had the right to possess a firearm in the same house as the defendant and requested a definition of “possession.” In response, the court charged the jury that the law recognized different types of possession, including actual and constructive, joint and sole. The court instructed the jury that it “would be authorized to convict only if you should fipd beyond a reasonable doubt that the defendant knowingly had actual or constructive possession, either alone or jointly with others.”

When jurors request instructions on any point, it is the court’s duty to so instruct them. Edwards v. State, 233 Ga. 625, 626 (2) (212 SE2d 802) (1975). The instructions given by the trial court accurately stated the law and were adjusted to the evidence. See Kennedy v. State, 197 Ga. App. 220, 221 (2) (398 SE2d 249). We find no error.

Judgment affirmed.

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

Decided April 15, 1994.

William W. Keith III, for appellant.

Jack 0. Partain III, District Attorney, Kermit N. McManus, Assistant District Attorney, for appellee.


author: Birdsong, Presiding Judge.

text:
    A94A0412.
    RIDEN v. THE STATE.
    (443 SE2d 865)
   Birdsong, Presiding Judge.

Johnny Riden appeals his convictions for violating the Georgia Controlled Substances Act for possession of cocaine with the intent to distribute, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. After these convictions, the trial court also sentenced Riden as a habitual felon.

The record shows that police officers responding to information that a possible drug transaction was taking place in a location where street sales of cocaine were common, found an individual and a vehicle that corresponded to the information received. When the officers approached the vehicle, one person, later identified as appellant, was sitting in the driver’s seat of the car with the door open and one leg in the car and the other outside the car. The officer testified that when Riden saw the officer approaching, he tried to conceal something under the seat. When the officer looked under the seat, he found a cloth bag containing 98 rocks of crack cocaine. Later, a loaded weapon and a number of small ziplock bags were found in the glove compartment and a large amount of cash was found on Riden. At trial, an expert witness testified that the items in the bag were cocaine.

In addition, a police officer from another Georgia city testified about an incident some four months earlier in which Riden was apprehended for obstruction of a police officer and one rock of crack cocaine was found in his wallet. The officer testified that the packaging of the crack cocaine found in Riden’s possession on both occasions was similar. Further, there was evidence that appellant was a visitor to both cities.

Riden contends the trial court erred by allowing testimony regarding a prior similar transaction, by allowing testimony about a drug test without a proper scientific foundation, and by denying his motions for a directed verdict and a new trial. Held:

1. A motion for a directed verdict of acquittal should be granted only when there is no conflict in the evidence and the evidence with all reasonable deductions and inferences therefrom demands a verdict of acquittal as a matter of law. OCGA § 17-9-1 (a); Taylor v. State, 252 Ga. 125 (312 SE2d 311). On appeal a reviewing court may consider all the evidence in the case (Bethay v. State, 235 Ga. 371, 375 (219 SE2d 743)) and must view the evidence in the light most favorable to the verdict. Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436). Review of all the evidence of record, and in particular the evidence discussed above, in this manner reveals ample evidence from which any rational trier of fact could find beyond a reasonable doubt that Riden was guilty of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Accordingly, the trial court did not err by denying appellant’s motion for a directed verdict.

Riden further contends the trial court erred by denying his motion for a new trial because the evidence was insufficient to support the verdict. This argument, however, must be addressed to the trial judge because our law gives the trial judge alone the authority to grant a new trial for this reason. This court has no such power. Dixon v. State, 192 Ga. App. 845, 846 (386 SE2d 719). Moreover, as discussed above, the record discloses ample evidence to support the verdict. Therefore, appellant’s third enumeration of error is without merit.

2. Riden contends that the trial court erred by allowing in evidence concerning his prior conviction for possession of one “rock” of crack cocaine in his billfold because, according to Riden, there was no similarity between that crime and the crime of possession of 98 rocks of crack cocaine with intent to distribute for which he was convicted. Riden correctly states the general character of an accused is inadmissible unless the accused puts his character in issue and that proof of a distinct, independent, and separate offense is never admissible unless there is some logical connection between the separate offense and the offense for which the accused is on trial so that proof of the separate offense establishes the offense for which the accused is on trial. Williams v. State, 261 Ga. 640, 641 (409 SE2d 649). His argument that there was insufficient similarity between the two transactions, however, is not supported by the record.

On both occasions within a relatively short span of time, appellant was apprehended while stopped in his car on a street in an area known as a place to sell drugs. In each instance he had in his possession crack cocaine that was packaged in similar small plastic ziplock bags. Under the circumstances, we find the evidence of similarity sufficient. Accordingly, as there was compliance with Williams v. State, supra at 642 and Stephens v. State, 261 Ga. 467, 468-469 (405 SE2d 483), and the trial court’s ruling was not clearly erroneous, there was no error in admitting this similar transaction evidence. Mitchell v. State, 206 Ga. App. 672, 673 (426 SE2d 171).

3. Because of his tactics in the trial court, Riden’s contention that the trial court improperly allowed testimony regarding a drug test presents nothing for review. Although Riden objected to the foundation of admitting the challenged evidence, he did not state his basis for the objection. Such an objection is insufficient to preserve the issue for appellate review. Armstrong v. State, 160 Ga. App. 237, 238 (286 SE2d 523); Blount v. State, 143 Ga. App. 845 (240 SE2d 216).

Decided April 15, 1994.

Bates, Kelehear, Starr & Toland, Harlan M. Starr, James E. To-land, Jr., for appellant.

Jack O. Partain III, District Attorney, Melvin E. Hyde, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


author: Beasley, Presiding Judge.

text:
    A93A0820.
    A93A0821.
    ATLANTA MECHANICAL, INC. v. DeKALB COUNTY. PALMER BRICK & TILE COMPANY v. DeKALB COUNTY.
    (443 SE2d 856)
   Beasley, Presiding Judge.

Atlanta Mechanical, Inc., a subcontractor on a public works project, and Palmer Brick & Tile Company, a material supplier for the same project, brought suit against DeKalb County when they were not paid and the general contractor’s surety proved insolvent. Both plaintiffs appealed the award of summary judgment to DeKalb County and the denial of their cross-motions for summary judgment on like issues consolidated in the trial court. We reversed the award of summary judgment to DeKalb County and affirmed the denial of the plaintiffs’ cross-motions for summary judgment, relying in part upon this court’s holding in J & A Pipeline Co. v. DeKalb County, 208 Ga. App. 123, 124 (1) (430 SE2d 13) (1993). Atlanta Mechanical v. DeKalb County, 209 Ga. App. 307 (434 SE2d 494) (1993).

This case is again before this court pursuant to the Supreme Court’s remand, after granting certiorari, for reconsideration in light of the Supreme Court’s reversal of this court’s opinion in J & A Pipeline. In its J & A Pipeline decision, the Supreme Court held that if “the county takes a payment bond from the general contractor or an affidavit from the surety which does, on its face, comport with the statutory requirements [as to ‘manner’ and ‘form’], the subcontractors’ and materialmen’s direct action remedy will be defeated notwithstanding the subsequent inefficacy of the bond or the subsequent discovery of the falsity of the affidavit.” DeKalb County v. J & A Pipeline Co., 263 Ga. 645, 649-650 (437 SE2d 327) (1993).

Reconsideration denied April 18, 1994.

McReynolds & Welch, J. Michael Welch, for appellants.

Johnson & Montgomery, Albert S. Johnson, Harry W. MacDougald, J. Bertram Levy, for appellee.

In this case, as in J & A Pipeline, the affidavit required under OCGA § 36-82-102 was taken “ ‘in the manner and form’ required” by the Code section. Id. at 649. Therefore, the subcontractor and materialman’s direct action remedy against the county was defeated. Additionally, no question of OCGA § 13-10-1 (f) applies to this case because the statute “was not in effect at the times relevant.” Id. at 650.

Accordingly, upon reconsideration in light of the Supreme Court’s opinion in J & A Pipeline, the prior judgment of this court is vacated, and pursuant to the judgment of the Supreme Court, expressed in its holdings in J & A Pipeline and applied to this case, the judgment of the trial court is affirmed.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


author: Pope, Chief Judge.

text:
    A94A0297.
    GIBBY v. THE STATE.
    (443 SE2d 852)
   Pope, Chief Judge.

Defendant was convicted by a jury of child molestation (two counts), statutory rape, rape, incest, criminal attempt to commit aggravated sodomy, and aggravated child molestation. He appeals from the judgment entered on his conviction and the denial of his motion for new trial.

Laurie Littlejohn, the chief juvenile investigator for the Spalding County Sheriff’s Department, testified that defendant’s 12-year-old daughter told her that defendant had tried to force her to engage in oral sex with him and that when she refused, he had sexual intercourse with her. Officer Littlejohn also stated that defendant’s ten-year-old daughter told her that defendant had asked her to massage him in an improper manner. Anne Hester, a caseworker with the Department of Family & Children Services (DFACS), testified that the older daughter told her that she had, at her father’s request, given him improper massages under the covers in his bed; that defendant had tried to get her to perform oral sex on him; and that he had engaged in sexual intercourse with her. Hester further stated that the younger daughter said she gave defendant massages under the covers as well. Dr. David Hermecz, a clinical psychologist, said the older girl told him she had sexual intercourse with her father and that there had been earlier inappropriate contact. Hester and Dr. Hermecz both testified that the older girl said she told her mother about defendant’s behavior, and that her mother told her to pray about it and not tell anyone. Hester’s testimony to this effect was elicited without objection; Dr. Hermecz’s testimony regarding what the mother said was allowed over defendant’s objection that it was double hearsay. Defendant’s daughters were available at trial but were not called as witnesses. The girls were not taken to a doctor until several weeks after these incidents occurred, and the medical examination was inconclusive.

1. The evidence, viewed in a light to support the verdict, was sufficient to enable rational jurors to find defendant guilty on all counts beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The testimony of Littlejohn, Hester, and Dr. Hermecz was allowed pursuant to OCGA § 24-3-16, the Child Hearsay Statute, which provides that “[a] statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” Defendant challenges the admission of this testimony on several grounds.

(a) Defendant first argues that the Child Hearsay Statute is unconstitutional because it violates the federal Sixth Amendment. We have already rejected this argument. See McLelland v. State, 203 Ga. App. 93 (2) (416 SE2d 340) (1992). Moreover, the Supreme Court’s transfer of the case to this court mandates the conclusion that defendant’s constitutional challenge to the Child Hearsay Statute on Sixth Amendment grounds is without merit. See McCann v. State, 167 Ga. App. 368 (1) (306 SE2d 681) (1983). Rolader v. State, 202 Ga. App. 134 (413 SE2d 752) (1991), cited by defendant in support of his argument, is not binding precedent. See Court of Appeals Rule 35 (b).

(b) Defendant also contends the trial court should not have allowed the State’s witnesses Hester and Dr. Hermecz to testify that the older victim said that when she told her mother what defendant was doing, the mother said to pray and not tell anyone. Even if the witnesses could testify about the victim’s statements regarding her abuse under the Child Hearsay Statute, he asserts, testimony about what the mother said to the victim was impermissible “double hearsay.” We first note that defendant did not object when Hester testified about the mother’s words. Thus, when Dr. Hermecz gave the same testimony, it was merely cumulative and any error in overruling defendant’s objection would have been harmless. See Green v. State, 206 Ga. App. 42 (2) (424 SE2d 646) (1992). But more importantly, we want to emphasize that testimony about what the mother said to the victim was not hearsay (beyond permissible hearsay under the Child Hearsay Statute) because it was not offered to show the truth of matters asserted therein. Indeed, the mother’s response to her daughter was not an assertion but a request, and the testimony concerning her response was presented not to prove that prayer and silence on the subject of defendant’s conduct were desirable, but simply to show that the mother’s request for prayer and silence was made. See Doughty v. State, 175 Ga. App. 317 (1) (333 SE2d 402) (1985); Agnor’s Georgia Evidence, § 11-1 (3d ed. 1993).

(c) Defendant’s argument that the witnesses’ testimony regarding what the girls said defendant told them to do was impermissible “double hearsay” is also without merit, as defendant’s directions to the girls about what he wanted them to do were an integral part of his offenses and were thus admissible as part of the res gestae. See OCGA § 24-3-3. Moreover, the testimony about defendant’s statements to the girls was not hearsay because it was offered not to prove the truth of any matter asserted therein, but instead to show that the statements were made. See Doughty, 175 Ga. App. at 317-318.

(d) Citing Shaver v. State, 199 Ga. App. 428 (405 SE2d 281) (1991) and Hunnicutt v. State, 194 Ga. App. 714 (391 SE2d 790) (1990), defendant contends the trial court erred in allowing evidence under the Child Hearsay Statute without first determining that the child victims were competent to testify under OCGA § 24-9-5. However, unlike the offenses in Shaver and Hunnicutt, the offenses in this case occurred after the effective date of an amendment to OCGA § 24-9-5 which changed that Code section to provide that child victims are now competent to testify regardless of their ability to understand the nature of an oath. For offenses which involve child victims occurring after the effective date of the amendment (April 19, 1989), a determination that the child victim is competent to testify is not necessary; a child witness is “available” for purposes of the Child Hearsay Statute as long as the child is physically available to appear at trial. See OCGA § 24-9-5 (b); see Bright v. State, 197 Ga. App. 784 (4) (400 SE2d 18) (1990). As the victims were available in this case, the trial court did not err in failing to determine the victims’ competency prior to allowing the hearsay testimony.

(e) At oral argument and in a supplemental brief, defendant argued that the trial court erred in admitting evidence of what the victims said under the Child Hearsay Statute without a prior ruling that the circumstances of the victims’ statements provided sufficient indicia of reliability. This specific ground for challenging the testimony was not enumerated as error or argued in defendant’s initial brief, and appellants cannot expand the scope of their enumerations of error at oral argument. See City of College Park v. Ga. Power Co., 188 Ga. App. 223 (372 SE2d 493) (1988). In any case, a prior finding that there are sufficient indicia of reliability is not required, and the trial court’s admission of testimony under the statute will not be reversed as long as the record contains sufficient evidence of indicia of reliability. See Gregg v. State, 201 Ga. App. 238 (3a) (411 SE2d 65) (1991). The record in this case shows that the two girls, who were twelve and ten years old, were interviewed separately on at least two different occasions, and that their statements were consistent with each other and over time. Moreover, the State’s witnesses were all professionals trained in interviewing victims of child abuse without asking leading questions, and all three considered the girls credible. See Gregg, 201 Ga. App. 240 (3b) (listing factors considered in determining reliability, including age of victims, consistency of their statements, spontaneity of their statements, and general credibility).

3. On the first day of the trial, defendant subpoenaed the voluminous records of DFACS relating to his case. Because this material was confidential, the trial court had to conduct an in camera review of all the material to determine what, if anything, should be divulged. See OCGA § 49-5-41 (a) (2). And because there was so much material, the court had to take a day off from the trial to conduct its review.

Defendant enumerates as error the explanation the trial court gave the jury for the delay. However, the trial court simply told the jury the truth: that a request for confidential information had been made and that the court had to go through the material to decide what, if anything, should be divulged. The court did not say who made the request and did not imply in any way that the defendant had done anything wrong. Thus, the trial court’s comments were not improper and did not deprive defendant of a fair trial.

4. Defendant argues that the trial court erred in determining after its in camera review that none of the DFACS material should be divulged, and further erred in refusing to seal the material and include it in the record for appellate review. Defendant has failed to show that any of the withheld information was material and exculpatory; his general assertion that something in the volumes of material would have cast doubt on the reliability of the victims’ statements is not enough. See Davidson v. State, 183 Ga. App. 557 (4b) (359 SE2d 372) (1987). Upon motion by defendant, the material examined in camera should have been sealed and filed or inventoried to allow appellate review. See Wilson v. State, 246 Ga. 62, 65 (1) (268 SE2d 895) (1980). However, the court’s failure to seal or inventory the files was harmless because we will not examine sealed materials to determine whether exculpatory information was withheld without a showing that there is at least a strong possibility that they contain material and favorable evidence, see Williams v. State, 251 Ga. 749, 788-789 (312 SE2d 40) (1983); Byrd v. State, 171 Ga. App. 344 (3) (319 SE2d 460) (1984), and defendant failed to make such a showing in this case.

Decided April 1, 1994

Reconsideration denied April 18, 1994

Jason R. Hasty, L. Chandler Vreeland, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

5. The prosecutor’s remark in closing argument that in child molestation cases the only witnesses are the victims was not improper.

6. Lastly, defendant contends that the trial court erred in its charge on good character. Citing Booth v. State, 186 Ga. App. 342 (2) (367 SE2d 77) (1988), he argues that the charge in this case failed to instruct the jury that good character evidence alone may be sufficient to acquit. In Booth, we held that an instruction that the jury could acquit “ ‘upon a reasonable doubt and proof of good character’ ” was erroneous. This language was not used in this case. Instead, the trial court properly instructed the jury that “good character is a positive, substantive fact, and may be sufficient to produce in the minds of a jury a reasonable doubt about the guilt of a defendant.” Accordingly, this contention is also without merit.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

       Defendant originally filed this appeal with the Georgia Supreme Court, which trans- ' ferred the case to the Court of Appeals without comment.

       We note that the proper procedure would have been to petition the trial court to subpoena the material for in camera inspection. See Davidson v. State, 183 Ga. App. 557 (4b) (359 SE2d 372) (1987).


text:
    A94A0125.
    GENTRY v. THE STATE.
    (443 SE2d 667)
   Beasley, Presiding Judge.

Appellant was convicted of two counts of child molestation of his two stepchildren. OCGA § 16-6-4.

1. Appellant contends that there was insufficient evidence to convict him. The state presented testimony of the two victims that appellant had committed the crimes charged. Additionally, the victims’ mother, the investigating officer, and a social worker all testified that they had heard the victims state that they had been molested by the appellant; audio tapes of some of these statements were played. The evidence presented at trial was sufficient to authorize his conviction under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The trial court admitted evidence of the results of a penile plethysmograph test performed on the defendant. This procedure involves placing a measuring gauge on a subject’s penis, exposing the subject to various visual and aural stimuli, and measuring the change in the circumference of the subject’s penis. The procedure measures the physiological change in blood flow. This state has not previously addressed the admissibility of such evidence.

The test for admissibility of novel scientific evidence is “whether the procedure or technique in question has reached a scientific stage of verifiable certainty, or in the words of Professor Irving Younger, whether the procedure ‘rests upon the laws of nature.’ . . . Once a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature.” Harper v. State, 249 Ga. 519, 525-526 (1) (292 SE2d 389) (1982).

It appears that those states that have addressed the issue of the admissibility of plethysmograph evidence have rejected the technique, due to its unreliability and lack of verifiable certainty. See In the Interest of A. V., 849 SW2d 393, 399 (Tex. App. 1993) (procedure not shown to be reliable test of sexual deviancy nor to be generally accepted in the scientific community as a valid indicator of sexual disorders); Nelson v. Jones, 781 P2d 964, 968 (Alaska 1989) (procedure has “at best, questionable professional recognition”); Dutchess County Dept. of Social Svcs. v. Mr. G., 534 NYS2d 64, 71 (Fam. Ct. 1988) (procedure has “at best, questionable professional recognition,” with margin of error too great to forecast child’s safety); People v. John W., 229 Cal. Rptr. 783, 785 (Cal. App. 1 Dist. 1986) (procedure did not meet evidentiary standards of reliability of the method and general acceptance in the scientific community).

Testimony at trial revealed that reliability of the technique is by no means established. No scholarly works discussing it were introduced. No national guidelines have been adopted for its use. Given the rejection of penile plethysmograph evidence by other states, and particularly the uncertainty within the scientific community of its reliability, we hold that it is inadmissible in Georgia.

The results of the plethysmograph were used to support the conclusions of a witness that the defendant was not forthcoming in psychological examinations about his sexuality and that he was not normally aroused by adult women. In such circumstances, it cannot be said that admission of the plethysmograph evidence was harmless. A new trial is required.

3. Appellant contends that the court erred in allowing the evidence of a similar transaction to be presented at trial. Because it may be introduced at retrial, the question of its admissibility is not moot.

Appellee contends that the admitted evidence falls into an exception for those occurrences “immediately related in time and place to the charge being tried, as part of a single, continuous transaction.” USCR 31.3 (B). The similar transaction occurred in a different county, approximately two years prior to the incident for which the defendant was convicted. The court properly instructed the jury that the appellant could be convicted only of crimes within the compass of the indictment. “ ‘The rule allowing the admission of similar transaction evidence is usually applied more liberally with evidence of prior attempts by the accused to commit the same crime upon the victim of the offense for which he stands charged. Certain otherwise inexplicable assaults, such as occur in a series of incidents of wife or child abuse, particularly lend themselves to this exception to the “other offenses” rule on questions of both identity and motive.’ . . . [Cits.]” Bailey v. State, 209 Ga. App. 390, 394 (5) (433 SE2d 610) (1993). The similar transaction evidence admitted properly falls within the exception of USCR 31.3 (E).

4. Appellant also contends that the trial court erred in failing to grant his motion in limine to exclude evidence of a similar transaction. This procedural issue is moot.

5. Finally, appellant contends that out-of-court statements made by the child victims should have been suppressed because of a lack of reliability. OCGA § 24-3-16. In determining whether such statements should be admitted, “the court may consider . . . but [is] not limited to the following: (1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same; and, the nature of the child’s statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child. [Cits.] These factors are to be applied neither in mechanical nor mathematical fashion, but in that manner best calculated to facilitate determination of the existence or absence of the requisite degree of trustworthiness.” Gregg v. State, 201 Ga. App. 238, 240-241 (3) (b) (411 SE2d 65) (1991). In this case, the court’s order denying the motion to suppress makes it clear that these factors were considered and a factual basis for each does appear in the record. This enumeration is without merit.

Decided April 18, 1994.

Patrick F. McMahon, for appellant.

T. Joseph Campbell, District Attorney, H. Gray Skelton, Jr., Assistant District Attorney, for appellee.

Judgment reversed.

Andrews and Johnson, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A94A0207.
    A94A0208.
    ARMOR ELEVATOR COMPANY v. HINTON. PSI SECURITY v. HINTON.
    (443 SE2d 670)
   McMurray, Presiding Judge.

Plaintiff brought this tort action against VMS/Tower Place Limited Partnership (“VMS”), Armor Elevator Company (“Armor”) and PSI Security (“PSI”) seeking damages stemming from her fall from an elevator at Tower Place in Atlanta, Georgia. She alleged that the elevator stopped several feet from the ground floor and that she fell from the elevator when she exited it. The liability of VMS, the operator and manager of Tower Place, was predicated on its maintenance and control of the premises. Armor was alleged to be liable because it contracted with VMS to service and repair the Tower Place elevators. Plaintiff alleged that PSI, a private security service providing security services on a contract basis to VMS, was liable because it failed to warn her that the elevator was malfunctioning.

Defendants answered the complaint and denied any liability to plaintiff. Thereafter, VMS filed a voluntary petition for bankruptcy and the case against it was stayed.

During the discovery stage of the proceedings, plaintiff deposed the following: On August 9, 1990, plaintiff took her daughter to a modeling class at Tower Place. Prior to that date, plaintiff had been to Tower Place approximately 18 times. The modeling class was held on the first floor, one floor above the ground floor level. Plaintiff’s daughter finished her class and preceded plaintiff to the ground floor. Plaintiff followed in the elevator.

As the elevator descended, it came to a halt and the lights went out for a few seconds. Plaintiff had the feeling that the elevator did not have time to descend all the way to the ground floor. Suddenly, the lights came on and began to flash and blink “real fast. . . like a strobe light.” Plaintiff became “disoriented.”

After a few more seconds, the doors opened. Plaintiff was “thankful to be in the lobby.” She thought that it would be best to get out before the doors closed again. So, she “started out immediately.” As she did so, plaintiff made eye contact with a lady who was standing on the ground floor. The lady “looked down and had a horrible look on her face.” The lady’s expression caused plaintiff to look down, but it was too late for plaintiff to stop her exit. She fell three feet to the ground floor.

Plaintiff made her way to the front desk and spoke with a PSI security guard. She told him what happened. He said that there had been some problems with the elevator before; that it “gets stuck all the time.”

Armor and PSI moved for summary judgment. PSI supported its motion with the affidavit of its president, James W. Pless IV. He deposed that PSI entered into a contract with VMS to provide security guard services at Tower Place; and that PSPs security guard obligations went to VMS, not the general public. Pless also deposed that if the elevators at Tower Place malfunctioned, “as they did on occasion ... we notified [VMS] of the problem as it came to our attention in order that the Tower Place property manager . . . could take appropriate action. ...” Finally, Pless deposed that on the day in question, “we did not receive any reports of any elevator malfunctions or have any knowledge that any elevators were not working properly until [plaintiff’s] accident actually took place.”

A copy of PSPs security guard contract with VMS was attached to Pless’s affidavit. In pertinent part, it reads as follows: “[PSI] shall provide trained', uniformed, and unarmed personnel to be posted as security personnel at the premises of [VMS]. . . . [VMS] may designate in writing to [PSI] specific locations and deployment of guard personnel so long as it will not necessarily endanger their health or safety. ... In the absence of such written instructions, [PSI] will determine, at its own discretion, the locations and deployment of personnel. . . . [PSI] acknowledges its responsibility by law, for the acts and omissions (of legal duties) of its employees and agents in carrying out the duties imposed upon [PSI] herein. ... In the event of a security threat to [VMS] of any type (robbery, riot, vandalism, burglary, fire, property crimes, assault or otherwise), [PSPs] primary duty is to notify appropriate public law enforcement or other emergency personnel.”

The trial court denied Armor’s and PSPs summary judgment motions but certified its rulings for immediate review. We granted Armor’s and PSPs interlocutory appeal applications. Armor appealed in Case No. A94A0207; PSI appealed in Case No. A94A0208. Held:

1. Under certain circumstances, a plaintiff may be excused “from exercising that degree of care . . . which the law would otherwise hold to be necessary in an ordinarily prudent person. The doctrine that a plaintiff may be excused from the otherwise required degree of care because of circumstances creating an emergency situation of peril is well recognized. From this stems the rule that a lesser degree of prudence may be sufficient to constitute ordinary care where there are circumstances causing stress or excitement. City of Rome v. Phillips, 37 Ga. App. 299 (2) (139 SE 828). The doctrine is further broadened to cover situations where the plaintiff's attention is distracted by a natural and usual cause, and this is particularly true where the distraction is placed there by the defendant or where the defendant in the exercise of ordinary care should have anticipated that the distraction would occur.” Redding v. Sinclair Refining Co., 105 Ga. App. 375, 378 (124 SE2d 688).

We think the facts of this case present a jury question as to whether plaintiff should be excused from exercising the otherwise ordinary degree of care. True, plaintiff deposed that when the elevator stopped, she suspected that it did not have time to reach the ground floor. However, she also deposed that the rapid blinking of the elevator lights made her “disoriented”; that when the doors opened she was “thankful to be in the lobby”; and that she started out of the elevator “immediately” because she thought it best to exit before the doors closed again. Given this narrative, a jury could conclude that, due to the stress and excitement of the moment, plaintiff should be held to a lesser degree of prudence. Compare Stephens v. Dover Elevator Co., 109 Ga. App. 112 (135 SE2d 593) with City of Rome v. Phillips, 37 Ga. App. 299, 300 (2), supra. As it is said: “In determining the question of fact whether the conduct of a person frightened by an immediate occurrence is negligent, the standard to be applied is whether a reasonably prudent person in the same circumstances might have become frightened as this person did and what a reasonably prudent person in the same circumstances would have done. In this case fair and intelligent minds might easily differ, and the question must be decided by a jury.” French v. Stephens, 117 Ga. App. 61 (159 SE2d 484).

The trial court did not err in denying Armor’s motion for summary judgment.

2. It is axiomatic that an action for negligence cannot be maintained if the defendant did not owe the plaintiff a legal duty. Montega Corp. v. Grooms, 128 Ga. App. 333, 340 (9) (196 SE2d 459); Ramey v. Pritchett, 90 Ga. App. 745, 750, 751 (84 SE2d 305). In most instances, a person owes no legal duty to assist or warn another person who is or may be in danger. See Thomas v. Williams, 105 Ga. App. 321, 326 (3) (124 SE2d 409); The Shirley Cloak &c. Co. v. Ar nold, 92 Ga. App. 885, 892 (90 SE2d 622). We can see no such duty arising by operation of law on the part of PSI.

However, a legal duty can arise not only by operation of law but by a contract between the parties. Ferrell v. Haas, 136 Ga. App. 274, 276 (220 SE2d 771). And “it is well established that breach of contractual duties may give rise to an action for damages for personal injuries. [Cit.]” Paz v. Marvin M. Black Co., 200 Ga. App. 607, 608 (2) (408 SE2d 807). Did PSI have a duty to assist or warn plaintiff pursuant to its contract to provide security services to VMS? We think not.

“With regard to third-party beneficiaries the rule is well established: ‘In order for a third party to have standing to enforce a contract under Code Ann. § 3-108 (now OCGA § 9-2-20 (b)) it must clearly appear from the contract that it was intended for his benefit. The mere fact that he would benefit from performance of the agreement is not alone sufficient.’ [Cits.]” Bartley v. Augusta Country Club, 172 Ga. App. 289, 290 (322 SE2d 749). It follows that, “[i]n personal injury cases, an injured party may not recover as a third-party beneficiary for failure to perform a duty imposed by a contract unless it is apparent from the language of the agreement that the contracting parties intended to confer a direct benefit upon the plaintiff to protect him from physical injury. ...” Bizien v. Port Auth. of New York & New Jersey, 577 FSupp. 1093, 1102 (E.D.N.Y. 1983).

In Bizien, plaintiffs were injured by protestors during a protest at a British Airways airline terminal at Kennedy Airport. They brought personal injury actions against the Port Authority, British Airways, and a security company which was under contract to supply guards and other security personnel at the British Airways terminal. Applying New York law (a third party may recover under a contract only where the contracting parties intended to confer a benefit upon him), the court analyzed the contract between the security company and British Airways and found no intent to provide protection for the plaintiffs. Id. Accordingly, the court found that plaintiffs could not maintain their suit against the security company as third-party beneficiaries of the security company’s contract with British Airways.

We are persuaded by the logic of Bizien and other such cases, e.g., Whitehead v. USA-One, 595 S2d 867 (Ala. 1992) (contract and deposition testimony demonstrates that security company owed duty to apartments, not tenants of apartments), and find that they comport with Georgia law concerning third-party beneficiaries. Looking to the contract between PSI and VMS, we find no intent to confer a benefit on Tower Place patrons. We conclude, therefore, that PSI neither owed nor assumed any duty to assist or warn plaintiff.

The trial court erred in failing to grant PSI’s motion for summary judgment.

Judgment affirmed in Case No. A94A0207; judgment reversed in Case No. A94A0208.

Decided April 18, 1994.

Bondurant, Mixson & Elmore, John E. Floyd, J. Scott McClain, for Armor Elevator.

Croy, Harris & Hammond, A. Cullen Hammond, for PSI Security.

Lindsey & Jacobs, Tamara Jacobs, for Hinton.

Pope, C. J., and Smith, J., concur.


text:
    A94A0211.
    GRUBER et al. v. WILNER et al.
    (443 SE2d 673)
   Beasley, Presiding Judge.

In June 1991, Gruber, a residential real estate broker, and Taylor & Williams, Architects, Inc. (T&W) sued David and Suzanne Wilner and Brumbelow Road Development Corporation (BRDC), a sub-chapter S corporation formed by the Wilners to develop property in a joint venture with the plaintiffs. The suit is based on an alleged 1983 joint venture agreement, 1986 consulting and profit-sharing agreements, and as to Gruber, quantum meruit.

In Count 1, Gruber seeks 15 percent of the net profits from the sale of the property and T&W seeks 25 percent of the net profits under the parties’ joint venture agreement. In Count 2, Gruber seeks a recovery in quantum meruit in excess of $50,000 for rendering over 1,000 hours of valuable services at the rate of $50 per hour.

The trial court granted a motion for summary judgment filed by the Wilners, in which they argued that plaintiffs’ claims are against BRDC and not the Wilners in their individual capacities. There has been no ruling on a motion for summary judgment filed by BRDC.

The events leading up to the suit are as follows. In 1982, the Wilners discussed with Gruber the purchase of a 36-acre parcel of land on Brumbelow Road which was to be used by the Wilners as a home site. As agreed to by the parties, a trust of which Suzanne Wilner was beneficiary purchased the property for $228,000, and Gruber arranged for the performance of a percolation test which showed that the property would support development. In 1983, Gruber introduced the Wilners to Richard Taylor of T&W, and they began preliminary discussions on a joint venture to develop the land. In November there was a meeting attended by Gruber, the Wilners, and counsel representing the Wilners and the trust.

Counsel’s memorandum of this meeting stated: Through extensive consultations with the Wilners, Gruber and T&W developed a tentative plan for development of the property. Approximately $320,000 in expenditures would be required to subdivide the property into lots and construct appropriate amenities. It was tentatively concluded that the property would be developed and lots sold through a subchapter S corporation to be formed by the Wilners. Development costs would be defrayed through either debt or equity financing provided to the corporation by the Wilners. The corporation would buy the land at its fair market value from the trust when the project was approved by all the parties. Contracts would be drawn between the corporation and Gruber and T&W defining the parties’ rights and duties. It was generally agreed that the rezoning would proceed immediately. Although no time schedule for these activities was proposed, counsel suggested that some determination be reached as to when financing would be required.

In January 1984, Gruber, representing the trust, applied for and obtained a rezoning of the land from agricultural (AG-1) to single-family residential.

Another meeting was held in March at which the Wilners, counsel, Taylor, and Gruber were present. In his memorandum of that meeting, counsel stated: Although it was assumed that the Wilners would make loans to the corporation to advance the project, no clear consensus was reached as to how much financing would be required or whether it would include the building of speculative houses. In the opinion of counsel, these questions needed to be resolved because they affected the amount of capital at risk and the appropriate division of the profit. It was agreed that individual contracts would be prepared for Gruber and Taylor to define the terms of their respective employments by the corporation. It was contemplated that Gruber would be the exclusive sales agent for the corporation and would receive the standard commission as sales agent for the lots or houses, whichever were sold. In addition, he would receive an hourly rate of compensation for performance of his duties in consulting, expediting, securing necessary permits, marketing, and promoting. As each lot or house was sold, he would receive 15 percent of the net profit realized on such sale. If he were fired without cause or the project terminated for any reason, he would have a limited option to purchase 15 percent of the unsold lots at their cost.

With respect to T&W, counsel stated in the memorandum that it was to provide consulting services, relating to the design of the subdivision and supervision of engineering, development, and construction. For these services, T&W was to be paid its standard hourly rate less 10 percent, as well as 25 percent of the net profit as each unit was sold. It was agreed that if T&W were fired without cause or the project abandoned, T&W would have the option to buy 25 percent of the unsold lots. Finally, counsel noted that financing remained an unresolved problem.

BRDC was formed in June, with the Wilners as the sole shareholders, officers, and directors. The trust sold the land to BRDC for $545,000, its appraised value in December. In October 1985, a disturbance permit was issued to BRDC, based on a filed plan showing that the land had been divided into 42 lots. Agreements between BRDC and Gruber and T&W went through several drafts in 1984 and 1985, but were not signed. In January 1986, Gruber applied for rezoning of the land to a higher density, which was granted in March. During these years, the Wilners were employed full-time in occupations unrelated to real estate, and the development of the property was moved along through the efforts of Gruber and T&W.

BRDC and T&W entered into a consulting and profit-sharing agreement dated February 12, 1986, signed by David Wilner as president of BRDC and James Williams as president of T&W. A consulting and profit-sharing agreement between Gruber and BRDC is dated April 5, 1986, but was signed only by Gruber.

Each agreement stated that BRDC planned to develop and improve the Brumbelow property as a residential subdivision by subdividing the property into lots, but that it “is not obligated to develop and improve the property, and may otherwise dispose of the property if, in BRDC’s sole discretion, development and improvement of the property is not feasible or desirable.” The termination date of each agreement was December 31, 1990.

In the T&W agreement, BRDC agreed to pay it a consulting fee at T&W’s standard hourly rates less 10 percent, as well as 25 percent of the net profit, if any, realized by BRDC upon the sale of any lot consummated prior to the termination of the agreement.

In the Gruber agreement, BRDC agreed to pay him a monthly consulting fee of $50 per hour for services actually rendered upon timely submission of written documentation, as well as 15 percent of the net profit, it any, realized upon the sale of any lot consummated prior to termination of the agreement.

Each agreement stated that BRDC, Gruber, and T&W would meet and determine the selling price of each subdivided lot, develop a marketing plan, and proceed to offer the lots for sale. Each agreement contained an “entire agreement” clause stating that the agreement “supersedes all prior negotiations, agreements and oral understandings between the parties and constitutes the entire agreement between the parties.” Neither agreement gave Gruber or T&W a purchase option in the event they were fired without cause or the project terminated.

David Wilner testified that it became necessary to sell the property without developing it because financing was unobtainable. In October 1987, approximately 22.6 acres of the land was sold for $685,770. In December the Wilners informed Gruber and T&W that since the land was not going to be developed and marketed as a subdivision, their services were no longer needed. In July 1988, the remainder of the parcel was sold for $376,180. The total proceeds, including option money, was $1,071,950. Gruber was not the sales broker. In 1988, BRDC paid salaries of $51,200 to David Wilner and $76,800 to Suzanne Wilner. They refused to pay any share of the profits to Gruber or T&W.

1. Plaintiffs argue that the Wilners owed them a fiduciary duty under the parties’ oral joint venture agreement, as established in counsel’s memoranda, and that this included a duty on the part of the Wilners to distribute 40 percent of the profits from the sale of the property to plaintiffs rather than paying exorbitant salaries to themselves.

Plaintiffs have cited cases such as Granik v. Perry, 418 F2d 832, 836 (3) (5th Cir. 1969) and Donahue v. Davis, 68 S2d 163, 171 (7) (Fla. 1953), which are authority in support of the argument that parties to a joint venture agreement continue to owe a fiduciary duty to each other even though they may determine to carry out the purpose of the agreement through the medium of a corporation. “It is generally held that a joint venture agreement continues in effect following the formation of a corporation created to implement it if the intention of the parties to this effect is clear." (Emphasis supplied; footnote omitted.) 48A CJS, Joint Ventures, § 20, p. 435 (1981). On the other hand, when the intention of the parties to a joint venture is to merge their joint venture agreement, or certain rights and obligations under it, into the form of a corporation, they are bound by the result. Sagamore Corp. v. Diamond West Energy Corp., 806 F2d 373, 378 (1) (2d Cir. 1986).

The consulting and profit-sharing agreements clearly evince an intention of the parties to have plaintiffs’ right to their share of the profits upon the sale of the property governed by those agreements. Consequently, plaintiffs’ claim for nonpayment of their share of the profits upon the sale of the property is against BRDC under the agreements and not against the Wilners individually.

2. BRDC and Gruber are bound by the consulting and profit-sharing agreement, notwithstanding BRDC’s failure to sign the agreement, so that Gruber cannot go behind it and base the Wilners’ liability on the alleged joint venture agreement.

“The object of securing signatures of the parties to a written contract is, of course, to take it out of the Statute of Frauds and to afford mutuality so that it may be enforced. [Cits.] But this is not the only manner of obtaining mutuality. If one of the parties has not signed, his acceptance is inferred from a performance under the contract, in part or in full, and he becomes bound. [Cits.]” Cooper v. G. E. Constr. Co., 116 Ga. App. 690, 694 (2) (158 SE2d 305) (1967); see Valiant Steel &c. v. Roadway Express, 205 Ga. App. 237, 240 (3) (421 SE2d 773) (1992). “ ‘A contract signed by one of the parties only, but accepted and acted on by the other party to it, may be just as binding as if it were signed by both parties, if the obligations of the parties are mutual.’ [Cits.]” Nationwide Mut. Ins. Co. v. Teal, 112 Ga. App. 236 (2) (144 SE2d 567) (1965). There is evidence from plaintiffs of part performance of the consulting and profit-sharing agreements by all parties.

Decided April 18, 1994.

Sakas & Horne, Jeffrey L. Sakas, Michael P. Froman, for appellants.

Ted L. Marcus, for appellees.

3. Gruber’s claim for quantum meruit for services rendered by him in developing the property is likewise against BRDC and not the Wilners individually. Moreover, there can be no recovery on quantum meruit when there is an express contract between the parties. American Demolition v. Hapeville Hotel Ltd. Partnership, 202 Ga. App. 107, 110 (2) (413 SE2d 749) (1991).

Judgment affirmed.

Andrews and Johnson, JJ., concur.

       Although plaintiffs state that the Wilners were obligated to provide development financing under the parties’ joint venture agreement, they do not argue that they are entitled to damages by reason of the Wilners’ breach of this duty.


text:
    A94A0306.
    TUFTS v. LEVIN et al.
    (443 SE2d 681)
   Beasley, Presiding Judge.

On April 26, 1991, Tufts entered into an agreement to sell a house to Bennett and her parents, the Levins, for $225,000. The sale of the property closed on October 15, 1991. In accordance with the purchase and sale agreement, Tufts conveyed the property to Bennett. Two notes were signed:

1. Bennett executed a 30-year purchase money note in favor of Tufts in the amount of $200,000, with a $3,690.36 accrued interest shortage resulting from lower interest payments during the first two years of the loan due and payable on October 15, 1994. This indebtedness was secured by a security deed referred to as the purchase money security deed.

2. The Levins executed a $25,000 balloon note in favor of Tufts, with a $25,000 principal balance, $7,500 in accrued interest, and $3,690.36 in deferred interest on the primary note, for a total of $36,190.36, due and payable on October 14, 1994. This represented the down payment. To secure this indebtedness, Bennett executed a separate security deed in favor of Tufts.

Each note contained a cross-default clause stating that default by the borrowers under any term of one note and deed to secure debt would be a default on the other. The security deeds were recorded on the same date, the purchase money security deed first.

Bennett defaulted in making monthly payments under the purchase money note. On December 7, 1992, Tufts declared the balloon note due and payable by reason of default. On January 5, 1993, Tufts sold the property to herself at foreclosure under powers contained in the purchase money security deed. She bid in the property in satisfaction of the purchase money note, interest, attorney fees, and expenses of sale.

Tufts then sued the Levins on the balloon note. The parties filed cross-motions for summary judgment. The contested issue is whether Tufts’ action is one for deficiency judgment, barred as a result of Tufts’ failure to obtain judicial confirmation of the foreclosure sale. The trial court granted the Levins’ motion and denied Tufts’.

The confirmation statute, OCGA § 44-14-161 (a), provides: “When any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds . . . and at the sale the real estate does not bring the amount of the debt secured by the deed ... , no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings” obtains a judicial confirmation. (Emphasis supplied.)

The question thus presented is whether the debt evidenced by the balloon note was “somehow included or includable in” the debt secured by the purchase money security deed. Clements v. Fleet Finance, 206 Ga. App. 736, 739 (426 SE2d 910) (1992) (Carley, P. J., concurring specially). Comparable cases give direction to the answer.

Langley v. Stone, 112 Ga. App. 237 (144 SE2d 627) (1965), involves the sale of real estate by Stone to Langley. Langley assumed a first loan deed from Cathcart to Southern Federal and executed a second loan deed and note to Stone. Stone subsequently became assignee of the first loan deed and sold the property under a power of sale in that deed. He bid in the property at an amount alleged by Langley to have been only one-third of its fair market value. After confirmation of the sale was denied, Stone sued Langley on the second note. We held that by reason of Stone’s failure to obtain fair market value for the property, Langley had a claim for damages for failure to fairly exercise the power of sale in the loan deed. Id. at 239 (2).

Murray v. Hasty, 132 Ga. App. 125 (207 SE2d 602) (1974) involved Murray’s purchase of a house from Hasty. Murray agreed to make a down payment of $900 and to pay the balance of $13,000 in monthly payments to be secured by a security deed. Hasty took Murray’s note for the $900 down payment, but it was not referred to in the security deed and was not part of the debt secured by it. Hasty later foreclosed the security deed and sued Murray on the note for $900, without having obtained confirmation of the foreclosure sale.

Our view was that “[t]he present action is not to recover a deficiency judgment on the debt secured, but to recover on an independent, separate, unsecured obligation. It is not within the ambit of the statute requiring confirmation.” (Emphasis in original.) Id. at 126 (1). Murray distinguished Langley by stating that in Langley, “The two debts, secured by the same property, held by the same creditor and with the assumption of the debt, are owed by the same debtor and are inextricably intertwined. They are not independent of each other, and a foreclosure of one affects the other.” Id. at 127.

In Kennedy v. Gwinnett Commercial Bank, 155 Ga. App. 327 (270 SE2d 867) (1980) (Kennedy I) and Kennedy v. Trust Co. Bank of Gwinnett County, 160 Ga. App. 733 (288 SE2d 87) (1981) (Kennedy II), appellants obtained a consumer bank loan secured by their assignment to the bank of their rights as grantees in a third security debt. After appellants defaulted on the loan, the bank obtained an assignment of the first security deed and foreclosed on the property in order to collect the debt secured by the first deed, thereby causing the debt secured by the third deed to become unsecured. The bank did not obtain confirmation but sued appellants on its loan to them.

In Kennedy I, we overruled Langley insofar as it held that failure to obtain fair market value of the property at the sale, standing alone, is a breach of the duty to fairly exercise the power of sale in the deed. 155 Ga. App. at 327 (1).

In Kennedy II, we held that Kennedy, like Murray, was an action to recover on an independent, separate, unsecured obligation not subject to the confirmation statute. 160 Ga. App. at 734-735. Unlike Langley, appellants’ debts were not secured by a security deed in which they were the grantors and the bank was the grantee. At the time the bank foreclosed on the first deed, it did not hold appellants’ security deed as security for the consumer loan. The effect of the foreclosure on the first deed, again unlike Langley, was essentially to leave the notes totally unsecured. We held, “it seems clear that, unlike Langley, the Bank was not vested with title by ‘merger’ of two security deeds on the same property and consequently the instant case is not a suit on a debt secured by the junior of two ‘merged’ security deeds. As thus viewed, ‘(t)he present action is not to recover a deficiency judgment on the debt secured (by the first [security] deed), but to recover on an independent, separate, unsecured obligation.’ Murray, 132 Ga. App. at 126, supra.” (Emphasis in original.) 160 Ga. App. at 736.

“Furthermore, and perhaps more importantly,” the court in Kennedy II held, “in Langley both debts held by the creditor and secured by the security deeds represented loans to the debtor to purchase the property itself. Thus the two debts represented purchase money loans and the security for both was the property purchased. When the creditor holds both purchase money security deeds and the debtor is obligated on both, it is not unreasonable to view a subsequent suit on the junior debt as an action to obtain a ‘deficiency’ judgment for the amount of the entire purchase money debt that remained unpaid after foreclosure of the first deed. Such is not the case here, where appellants’ consumer collateral notes do not represent loans for the purchase of property and are not secured by appellants’ security deed to the Bank. The notes are totally outside the chain of purchase money security deeds on the property and are clearly unrelated to and independent of the purchase money debt secured by the first security deed foreclosed on. The only debt secured by the first deed was a purchase money debt and the sale under power pursuant to that deed, without confirmation, bars a subsequent suit by the Bank for any deficiency on that debt. The instant suit is for recovery on consumer collateral notes and cannot be deemed an action for a deficiency judgment as to the debt secured by the first deed.” (Emphasis in original.) Id.

Both Devin Lamplighter, Ltd. v. American Gen. Finance, 206 Ga. App. 747 (1) (426 SE2d 645) (1992) and Clements, supra, involved separate debts evidenced by separate notes made at different times, to different creditors, for different collateral purposes. In each case, the junior creditor purchased the senior debt, foreclosed without obtaining confirmation, and then brought an action on the junior debt.

The lead opinion in Clements (a three-judge panel opinion) was premised on the fact that the debts were unrelated and not “inextricably intertwined.” 206 Ga. App. at 738. The two-judge special concurrence was premised on the fact that there had been no merger of the debts secured by the separate security deeds. Id. at 739. All three judges agreed that foreclosure under the first security deed served to extinguish the second security deed and render the debt which had been secured thereunder an unsecured obligation, without extinguishing the debt. Id. at 738, 739-740. The court in Devin reached the same conclusion. 206 Ga. App. at 748.

One additional case bears comparison. In C. K. C., Inc. v. Free, 196 Ga. App. 280 (395 SE2d 666) (1990), appellant purchased real estate from appellees and in return executed two separate promissory notes secured by one security deed on the property purchased. Appellant defaulted on both notes. Afterward, appellees advertised a foreclosure sale referencing only the larger note, conveyed the property to themselves by a deed under power of sale which referenced the debt evidenced by both notes, and applied for a confirmation of the sale referencing the indebtedness evidenced by both notes. Confirmation was denied. In a subsequent suit on the lesser note, we reversed the denial of appellant’s motion for summary judgment. Citing Murray, we held that “ ‘[t]he two debts, secured by the same property, held by the same creditor . . . are owed by the same debtor and are inextricably intertwined. . . .’” 196 Ga. App. at 283 (2).

Decided April 18, 1994.

Johnston & Marsh, Howard H. Johnston, for appellant.

Lefkoff, Duncan, Grimes, Dermer & Miller, Joseph Lefkoff, Kimberly A. Richardson, for appellees.

In the case now before us, there was one seller (Tufts) of one house to three purchasers (Bennett and the Levins), only one of whom (Bennett) obtained title. The $225,000 purchase money debt was evidenced by a $200,000 purchase money note between Bennett and Tufts and a $25,000 balloon note between the Levins and Tufts. Part of the money payable under the balloon note was deferred interest on the primary debt. Both notes were secured by security deeds from Bennett to Tufts. Each note contained a cross-default clause.

Not only were the debts “inextricably intertwined,” but also “it seems clear that, [like] Langley, [Tufts] was . . . vested with title by ‘merger’ of two security deeds on the same property and consequently the instant case is ... a suit on a debt secured by the junior of two ‘merged’ security deeds. As thus viewed, ‘(t)he present action is . . . to recover a deficiency judgment on the debt secured (by the first security deed), [and not] to recover on an independent, separate, unsecured obligation.’ [Cit.]” (Emphasis in original.) Kennedy II, supra, 160 Ga. App. at 736.

Judgment affirmed.

Andrews and Johnson, JJ., concur.


text:
    A94A0451.
    COPELAND v. THE STATE.
    (443 SE2d 869)
   Beasley, Presiding Judge.

Appellant was convicted of one count of possession of cocaine, OCGA § 16-13-30, and one count of misdemeanor obstruction of a law enforcement officer, OCGA § 16-10-24. He appeals, complaining of the denials of his motion to suppress, his motion for a directed verdict on the count of misdemeanor obstruction, and his motion for new trial.

Appellant was observed by Officer Tibbs “walking very close together” with a “suspected drug dealer” in an area known for illegal drug use. Officer Tibbs asked appellant and this other person to speak with him; the latter complied while appellant walked away. Officer Tibbs proceeded to talk to the suspected drug dealer and sent a message over his radio that he wished the appellant stopped by another officer.

While Officer Tibbs questioned and performed a pat-down search of the suspected drug dealer (without finding anything incriminating), Officer Shadeck stopped the appellant. Officer Shadeck asked the appellant for identification, received it, ran a “wants and warrants” check on him, and allowed the appellant to continue on his way. Officer Shadeck reported this to Officer Tibbs over his radio and Officer Tibbs stated that he still wished to speak with appellant himself.

The two officers then asked the appellant to stop and he did so. Officer Tibbs asked appellant whether he was on parole and the appellant responded that he was. Officer Tibbs asked if appellant was carrying a weapon. The appellant said “Oh, damn,” or something similar, and ran. The officers gave chase, observed appellant discard items that later proved to be cocaine, caught appellant, and after a brief struggle, subdued him.

1. Appellant’s motion to suppress and his motion for new trial were both predicated on the contention that evidence of drugs in his possession should be suppressed as the fruits of an unlawful stop and seizure. The State contends that the three encounters between the appellant and the police officers were noncoercive communications that did not rise to the level of a seizure.

“ ‘Supreme Court holdings sculpt out, at least theoretically, three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause. [Cit.]” In the Interest of S. B., 207 Ga. App. 60, 61 (427 SE2d 52) (1993).

“ ‘ “(A) person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. (Cits.) In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person. . . .” [Cit.]’ [Cit.]” State v. Jackson, 201 Ga. App. 810, 814 (2) (412 SE2d 593) (1991). “It is clear . . . that merely approaching an individual and requesting that he give his consent for a search does not constitute a seizure and need not be supported by an articulable suspicion. ‘(E)ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, (cits.); ask to examine the individual’s identification, (cits.); arid request consent to search . . . , (cit.) — as long as the police do not convey a message that compliance with their requests is required.’ [Cit.]” (Emphasis in original.) State v. Westmoreland, 204 Ga. App. 312 (1) (418 SE2d 822) (1992).

In this case, the officers generally asked questions of the appellant. He was not under any police compulsion to remain and answer the officers’ questions. The officers were in uniform, but did not reach for the appellant or have their hands near their weapons. They did not arrest appellant prior to his flight and capture. All evidence presented shows that the officers “employed no physical force or show of authority to restrain [appellant’s] freedom of movement.” In the Interest of S. B., supra at 61-62; see State v. Davis, 206 Ga. App. 238, 239 (424 SE2d 878) (1992). Each of the three encounters was a brief communication between the officers and appellant that did not rise to a seizure. Westmoreland, supra.

The officers were lawfully in the presence of the appellant and in communication with him when he fled in response to the question concerning a weapon. “Flight in connection with other circumstances may be sufficient probable cause to uphold a warrantless arrest or search ([cit.]). . . .” State v. Smalls, 203 Ga. App. 283, 286 (2) (416 SE2d 531) (1992). Appellant Copeland had been observed in an area known for a high level of illegal drug use, had been walking in a suspicious manner with a suspected drug dealer, had walked away from a police officer when the officer attempted to question him, had admitted he was on parole, had voiced despair and run when asked if he had a weapon, and had pulled objects from his pockets and discarded them. Under these circumstances, the officers had probable cause to believe that appellant was committing a crime.

Contrary to appellant’s claim, his flight was not “provoked” by the officers’ questions; this was not a case in which the officers “refused to take ‘no’ for an answer.” Compare Jamison v. State, 262 Ga. 40 (414 SE2d 466) (1992). On the contrary, the evidence suggests that appellant’s actions were consensual.

There was no error in denying the motion to suppress or in refusing to grant a new trial on the same grounds.

2. Appellant contends that his motion for a directed verdict as to the charge of misdemeanor obstruction should have been granted, on the theory that a violation of OCGA § 16-10-24 (a) can.only occur if the officer involved is “in the lawful discharge of his official duties.” As determined above, the officers were acting lawfully. This enumeration is without merit. Compare Brooks v. State, 206 Ga. App. 485, 488-489 (2) (425 SE2d 911) (1992).

Decided April 18, 1994.

David C. Butler, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews and Johnson, JJ., concur.


text:
    A94A0627.
    DEPARTMENT OF HUMAN RESOURCES v. BROWN.
    (443 SE2d 685)
   Beasley, Presiding Judge.

The Department of Human Resources (DHR) was granted interlocutory appeal in its child support recovery action in the case of the minor, A. E., a recipient of Aid to Families with Dependent Children (AFDC). See OCGA §§ 19-11-6 (a); 19-11-7 (a).

A. E.’s parents were never married and the child resided with her mother. DHR sought from her putative father reimbursement for the AFDC payments made, future child support in accordance with the guidelines of OCGA § 19-6-15, and inquiry into the father’s ability to provide medical coverage for the child. The father admitted paternity, denied failing or refusing to provide support for the child, denied any indebtedness to the State for support payments made, and admitted his joint responsibility for A. E.’s future support. The answer included a “counterclaim” in which the father requested that the child be legitimated and given his last name and that he be given permanent and definite visitation rights.

The court concluded as a matter of law that the child’s mother submitted herself to the jurisdiction of the court; the State has a legitimate interest in the legitimation of all children born out of wedlock and all fathers of children so born should be encouraged to legitimate their children and provide for their care and support; by the mother seeking future payments for the care and support of the minor child, the district attorney became more than the attorney for DHR and did in fact become the mother’s attorney; the mother was a “true party of interest” in the action; and the filing of the child support recovery action submitted the mother to the jurisdiction of the court for the purposes of determination of the child’s parentage as well as the legitimation of the child and the visitation rights of the child’s father.

DHR challenges much of the court’s ruling as unauthorized as a matter of law. We agree.

The court’s order contravenes OCGA § 19-11-7 (c), (f), which provides that child support recovery actions are to be limited solely to the issue of support and are to exclude issues otherwise joinable such as custody and visitation. The statutory limitation requires exclusive focus on the express purposes of the Child Support Recovery Act, OCGA § 19-11-1 et seq. It is “(1) To provide that public assistance to needy children is a supplement to the contribution of the responsible parents; >(2) To provide for a determination that a responsible parent is able to support his [or her] children; and (3) To provide for the enforcement of an able parent’s obligation to furnish support.” OCGA § 19-11-2. To engraft other causes to such an action complicates its purposeful simplicity and lengthens the road to child support from a responsible parent. If questions of legitimation and visitation are instead summarily dealt with, as was the case here, then the responding parent is not afforded a meaningful opportunity to be heard. See Adamavage v. Holloway, 206 Ga. App. 156, 158 (1) (424 SE2d 837) (1992), which gives effect to a mother’s right of objection in a legitimation proceeding. She is not even a party in a child support recovery action. Nor can she be made so for purposes of any cross-claim for legitimation, visitation, and so forth, because the public policy established by the Act prohibits it.

In a child support recovery action, DHR is the district attorney’s sole client by statute, contrary to the trial court’s conclusion here. OCGA § 19-11-23 (b). The litigation of additional issues such as custody, visitation, and legitimation would require the legal representation of parties not contemplated, and place the State in a potential conflict of interest. Moreover, the district attorney represents the State agency “on the relation” of the child who has a private interest in the matter; he cannot also represent a private client in a domestic conflict. OCGA § 19-11-23. See Black’s Law Dictionary, Revised 4th ed.; Thibadeau v. Thibadeau, 133 Ga. App. 154, 156 (3) (210 SE2d 340) (1974); OCGA §§ 15-18-10 (d); 15-18-21 (a).

Because the superior court’s order embraces issues and a party (the mother) not properly before it, and requires the district attorney to represent a private party without legal authority, it is erroneous.

The case is remanded to the trial court for a determination of the child support issues properly before it, in accordance with this opinion and the dictates of the Act.

Decided April 18, 1994.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, for appellant.

James A. Nolan, for appellee.

Vicky O. Kimbrell, Lisa J. Krisher, Phyllis J. Holmen, amici curiae.

Judgment reversed.

Andrews and Johnson, JJ., concur.

       While DHR’s application for interlocutory review was pending, DHR and the father entered into a “temporary consent order.” In it he again acknowledged paternity and consented to owing future temporary child support payments of a specific amount and duration to DHR and to owing unreimbursed public assistance, the amount to be determined at a later date. This consent order is not at issue.


text:
    A94A0684.
    CHURCH et al. v. BELL et al.
    (443 SE2d 677)
   Birdsong, Presiding Judge.

This is a direct appeal from the judgment of a superior court dismissing the complaint against Jack T. Bell, John Martin, Vicki Walker (in their individual and official capacities), the Sheriff’s Department of Carroll County, and Carroll County, Georgia, because of insufficient service of process. The case arises from the death of Bobby Thompson while he was being transferred from Carrollton to a hospital in Columbus, Georgia.

On appellees’ motion to dismiss the complaint against them, the trial court found that the original service on the sheriff and his deputies was defective because it was made by another deputy sheriff and this service is contrary to the public policy of this state. See former Code Ann. § 81-219: “If the sheriff is a party to the cause, the process shall be directed to the coroner of the county, and to the sheriffs of the adjoining counties, and may be served by either, as convenience may suggest.” (Emphasis supplied.) Abrams v. Abrams, 239 Ga. 866, 868 (239 SE2d 33); Hillyer v. Pearson, 118 Ga. 815, 817 (45 SE 701); Don Pepe, Inc. v. JMAPCO, Inc., 157 Ga. App. 216 (276 SE2d 886). The trial court further found that subsequent service of process on the sheriff’s department defendants by the coroner was not effective because of laches. Consequently, the trial court granted appellees’ motion to dismiss the complaint. Thereafter, appellants filed this direct appeal. Held:

Appellees have moved to dismiss the appeal because they contend a direct appeal under OCGA § 5-6-34 (a) is not authorized. Review of the order dismissing the claims against appellees shows that on its face the order is not an appealable final order under OCGA §§ 5-6-34 (a) (1) and 9-11-54 (a) because claims remain pending in the trial court against the physician who ordered Thompson’s transfer, and the trial court did not direct entry of final judgment in accordance with OCGA § 9-11-54 (b). Additionally, there has been no compliance with the interlocutory appeals procedures of OCGA § 5-6-34 (b).

Appellants maintain, however, that the trial court’s order is appealable under OCGA § 9-11-56 (h) because the trial court considered matters outside the record, and, in effect, the trial court granted summary judgment because it considered matters outside the record in determining whether valid service of process was perfected. See OCGA § 9-11-12 (b). Under OCGA § 9-11-12 (b), however, only motions under OCGA § 9-11-12 (b) (6), failure to state a claim upon which relief can be granted, are converted to motions for summary judgment when matters outside the pleadings are considered. As appellees’ motion by its terms is a motion to dismiss under OCGA § 9-11-12 (b) (2), (4) and (5), it was not a motion for failure to state a claim upon which relief can be granted. Therefore, it was not converted to a motion for summary judgment. Consequently, to the extent the trial court considered evidence outside the pleadings, it did so under OCGA § 9-11-43 (b) and not OCGA § 9-11-56. See Kirkpatrick v. Mackey, 162 Ga. App. 876, 877 (293 SE2d 461); Williams-East, Inc. v. Weeks, 156 Ga. App. 861, 862 (275 SE2d 801); Rainwater v. Vazquez, 133 Ga. App. 173 (210 SE2d 380). Matters in abatement are not properly the basis for a motion for summary judgment. Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614 (208 SE2d 459).

The cases upon which appellants rely (see, e.g., Rose v. Ryan, 209 Ga. App. 160 (433 SE2d 291); Brooks v. Boykin, 194 Ga. App. 854 (392 SE2d 46)) concern motions for summary judgment asserting the defense of the statute of limitation. Accordingly, they are inapplicable to this case in which no such defense was asserted. Although the trial court’s analysis of the belated service of process in this case considered the expiration of the statute of limitation, the trial court did not grant summary judgment to appellees, but granted their motion to dismiss.

The trial court’s dismissal of this action was not converted to a grant of summary judgment to appellees (Terrell v. Porter, 189 Ga. App. 778, 779 (377 SE2d 540); Behar v. Aero Med. Intl., 185 Ga. App. 845 (366 SE2d 223)), and, therefore, the dismissal was not directly appealable under OCGA § 9-11-56 (h). Accordingly, appellees’ motion to dismiss the appeal is granted and the appeal is dismissed. Travelers Indem. Co. of Rhode Island v. Schenden, 182 Ga. App. 735, 736 (356 SE2d 761).

Appeal dismissed.

Cooper and Blackburn, JJ., concur.

Decided April 18, 1994.

Davis, Zipperman, Kirschenbaum & Lotito, E. Marcus Davis, for appellants.

Drew, Eckl & Farnham, Theodore Freeman, Phillip E. Friduss, for appellees.


text:
    A94A0724.
    CHANDLER v. THE STATE.
    (443 SE2d 679)
   Birdsong, Presiding Judge.

Appellant Shelton B. Chandler and his co-defendant Anthony Lanier Williams were indicted for murder, felony murder, and aggravated assault for the shooting death of Derrick Dollar. Jointly tried before a jury, appellant was found guilty solely of the underlying felony of aggravated assault while Williams was found guilty of felony murder. Chandler appeals from the judgment of conviction entered by the trial court on the jury’s verdict of guilt. Held:

1. The denial of appellant’s written motion to sever the parties for trial is enumerated as error.

“ ‘When (jointly) indicted for a capital felony when the death penalty is waived, or for a felony less than capital, or for a misdemeanor, such defendants may be tried jointly or separately in the discretion of the trial court. [In any event, a jointly indicted defendant may testify for another jointly indicted defendant or on behalf of the State.]’ OCGA § 17-8-4. In the exercise of [its] discretion, the trial court should consider the following: T. Will the number of defendants create confusion of the evidence and law applicable to each individual defendant? 2. Is there a danger that evidence admissible against one defendant will be considered against another despite the admonitory precaution of the court? 3. Are the defenses of the defendants antagonistic to each other or to each other’s rights? (Cit.)’ [Cit.] To warrant reversal of a conviction for failure to sever for separate trials, a co-defendant ‘must make a clear showing of prejudice and a consequent denial of due process.’ [Cit.]” Story v. State, 194 Ga. App. 187 (1) (390 SE2d 96).

The relevant evidence against the two co-defendants was unambiguous and the law applicable thereto was straightforward. Story v. State, supra. There is no showing that relevant evidence admissible only against Williams had a fatal spillover effect, impermissibly branding appellant guilty by association. Compare Crawford v. State, 148 Ga. App. 523, 526 (251 SE2d 602). Although each defendant blamed the other for the shooting, the existence of “antagonistic defenses does not of itself require severance. [Cits.]” Kennedy v. State, 253 Ga. 132, 135 (2) (317 SE2d 822). No prejudice amounting to a denial of appellant’s due process protection is demonstrated by the circumstance that an accomplice, who is subject to cross-examination, takes the stand and blames the appellant or attributes to him a greater degree of culpability than the accomplice himself bears. Durham v. State, 240 Ga. 203 (1) (240 SE2d 14). See also Everett v. State, 238 Ga. 80, 81 (230 SE2d 882). The existence of antagonistic defenses here did not confuse the jury, since they acquitted appellant of all murder charges. Abiff v. State, 258 Ga. 137, 138 (5) (365 SE2d 427). The fact that appellant lost the right to open and close in closing arguments because the co-defendant submitted evidence is not a showing of prejudice amounting to a denial of due process. Robinson v. State, 164 Ga. App. 652, 656 (4) (297 SE2d 751). “Absent a showing that [the defendant] was in some way prejudiced by the refusal to sever, no abuse of discretion is demonstrated, and the trial court’s ruling will be upheld. [Cits.]” Gee v. State, 261 Ga. 178, 179 (3) (402 SE2d 719).

2. The indictment charged appellant and Williams with assault with a deadly weapon, as proscribed by OCGA § 16-5-21 (a) (2). Appellant enumerates as error the trial court’s jury instruction on aggravated assault, which recited the entire Code subsection.

“It has long been the rule that where the trial court’s charge as a whole is an accurate statement of the law, it is generally not a good ground for a new trial that the charge includes a statement, one portion of which is applicable and one portion of which is inapplicable or not adjusted to the facts. [Cits.]” Hightower v. State, 210 Ga. App. 386, 388 (3) (436 SE2d 28). It is not cause for a new trial that an entire Code section is given even though part of the charge may be inapplicable to the facts of the case, unless the inapplicable instruction would authorize a finding of guilt unsupported by the evidence of record. Anderson v. State, 262 Ga. 26, 27 (1) (413 SE2d 732). Under the facts as presented in evidence, appellant’s guilt was that of a party to the crime of assault with a deadly weapon, in that as the driver of a car appellant used that vehicle to block Derrick Dollar’s attempted escape while Williams drew a bead on Dollar and shot him three times. The provisions of OCGA § 16-5-21 (a) (1) define aggravated assault in part as “assault with intent to murder, to rape, or to rob.” While any reference to attempted rape or robbery certainly was extraneous, “we find it highly unlikely that the jury was misled by [this portion of] the charge, since the court also read the indictment to the jury verbatim in advising them of the offense of [assault with a deadly weapon] charged against appellant.” Brown v. State, 159 Ga. App. 901, 903 (3) (285 SE2d 552). See also Diaz v. State, 194 Ga. App. 577, 579 (2) (391 SE2d 140). Instructions which, when the jury is given credit for ordinary intelligence, are not confusing and prejudicial, are not reversible error. We will not impute an inability on the part of the jury to identify that portion of the instruction which was obviously applicable to the facts and issues presented. Hightower v. State, supra at 388 (3).

Decided April 18, 1994.

Luana K. Walsh, for appellant.

Lewis R. Slaton, District Attorney, Penny A. Penn, Vivian D. Hoard, Assistant District Attorneys, for appellee.

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


text:
    A94A0606.
    WBC HOLDINGS, INC. et al. v. THORNTON et al.
    (443 SE2d 686)
   Pope, Chief Judge.

Defendant WBC Holdings, Inc. is a foreign corporation registered to do business in the State of Georgia, with its registered agent for service located in Fulton County. Plaintiffs brought this suit in Fulton County, alleging that the defendant corporation and one of its managers committed intentional torts against them in Bibb County. Defendants’ motion to transfer due to improper venue was denied, and we granted defendants’ motion for interlocutory appeal.

The venue statute of our new corporations code provides that “[f]or the purpose of determining venue, each . . . foreign corporation authorized to transact business in this state shall be deemed to reside: (1) [f]or purposes of proceedings generally, in the county where its registered office is maintained . . . ; (3) [f]or purposes of proceedings for damages because of torts, wrong, or injury done, in the county where the cause of action originated, if the corporation has an office and transacts business in that county.” OCGA § 14-2-510 (b) (1 & 3). Defendants contend that the use of the mandatory words “shall be deemed to reside” means that in any given action against a foreign corporation the corporation has only one county of residence, and that for a tort action that county is the county in which the alleged tort occurred. However, we do not think it reasonable to read “proceedings generally” to exclude tort, contract and garnishment actions (subsections (b) (2 & 4) deal with the latter two types of suits). Moreover, defendants’ contention that the provisions are mutually exclusive is belied by OCGA § 14-2-510 (c), which states that “[a]ny residences established by this Code section shall be in addition to, and not in limitation of, any other residence that any . . . foreign corporation may have by reason of other laws.” We have held that the venue provisions of OCGA § 14-2-510’s predecessor statute were clearly cumulative, see Savannah Laundry &c. Co. v. Owenby, 186 Ga. App. 130, 132 (366 SE2d 787) (1988), and the minor changes between that statute and the new one did not change the provisions from cumulative to mutually exclusive as defendants urge. Accord Gault v. Nat. Union Fire Ins. Co., 208 Ga. App. 134 (2) (430 SE2d 63) (1993).

Decided April 19, 1994.

Ogletree, Deahins, Nash, Smoak & Stewart, Homer L. Deakins, Jr., Gregory J. Hare, for appellants.

Gordon L. Joyner, for appellees.

Thus, a foreign corporation’s residence for purposes of venue in a tort action is both the county in which it has its registered office and the county in which the tort occurred if the corporation has an office and transacts business in that county. In this case, defendant WBC Holdings has its registered office in Fulton County, so the trial court did not err in denying defendants’ motion to transfer the case.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

       Pursuant to OCGA § 14-2-501, the registered agent’s business office must be the corporation’s registered office.

       Aside from minor organizational differences, the only difference between OCGA § 14-2-510 and its predecessor, OCGA § 14-2-63, is that the old version of the statute said the corporation “shall be deemed to reside and may be sued” in the county where the tort cause of action originated, while the new version says the corporation “shall be deemed to reside” in the county where the tort cause of action originated. As a defendant may always be sued where he resides, this change simply eliminated unnecessary words.