author: Blackburn, Presiding Judge. Barnes, Judge,

text:
    A99A2089.
    LANGE et al. v. STANDARD TELEPHONE COMPANY et al.
    (533 SE2d 162)
   Blackburn, Presiding Judge.

In this class action suit regarding alleged overcharging for telecommunications services, Deborah A. J. Lange, Lange Machinery, Inc., and Marcia L. Rheinschilds appeal from the trial court’s order dismissing their suit against Standard Telephone Company, Sprint Communications, L.P., MCI Telecommunications Corporation, and BellSouth Telecommunications, Inc. For reasons that follow, we affirm the trial court’s dismissal.

In their class action, the plaintiffs asserted violations of: (1) OCGA § 46-2-25.1 because the defendants allegedly charged for telephone calls between two telephones within the same county and (2) OCGA § 46-2-25.2 because the defendants allegedly charged for telephone calls between two telephones within sixteen miles of one another. The plaintiffs’ complaint alleged that their grounds specifically included “For A First Cause of Action (OCGA §§ 46-2-25.1; 46-2-25.2)” and “For A Second Cause Of Action (OCGA § 46-2-90).”

In its order granting the defendants’ motion to dismiss, the trial court concluded:

that neither statute [OCGA § 46-2-25.1 nor § 46-2-25.2] imposes any duties or obligations on telecommunications providers or prohibits the same from engaging in any act thereby creating a private cause of action for their violations of the same. Instead, said statutes impose duties on and govern the conduct of the Public Service Commission.

In addition, the trial court further found that the plaintiffs failed to set forth a valid cause of action under OCGA § 46-2-90, explaining:

OCGA § 46-2-90 provides that “any company under the jurisdiction of the [PSC] (which) does, causes to be done, or permits to be done any act which is prohibited, forbidden, or declared to be unlawful, or (which) fails to do any act which is required either by a law of this state or by an order of the [PSC] . . . shall be liable . . . for all loss, damage, or injury caused thereby or resulting therefrom” in an action to recover the same brought in any court of competent jurisdiction. However, . . . [p]laintiffs have failed to cite to any affirmative act undertaken by the [defendants which is prohibited, forbidden, or unlawful. In addition, [p]laintiffs have failed to cite any failure of the [defendants to do an act required of them by Georgia law or by an order of the PSC.

In this appeal, the plaintiffs erroneously contend that the trial court’s reasoning was faulty and that it erred by concluding (1) that OCGA §§ 46-2-25.1 and 46-2-25.2 did not impose any duties or obligations upon telecommunication providers, a violation of which would give rise to a cause of action under OCGA § 46-2-90; and (2) “that there [was] no state of facts that could be proved in support of appellants’ claims which would entitle them to relief.”

1. OCGA § 46-2-90 provides:

If any company under the jurisdiction of the commission does, causes to be done, or permits to be done any act which is prohibited, forbidden, or declared to be unlawful, or fails to do any act which is required either by a law of this state or by an order of the commission, such company shall be liable to the persons affected thereby for all loss, damage, or injury caused thereby or resulting therefrom. An action to recover for such loss, damage, or injury may be brought in any court of competent jurisdiction by any such person. In case of recovery, if the jury finds that such act or failure to act was willful, it may fix a reasonable attorney’s fee, which shall be taxed and collected as part of the costs of the case.

Plaintiffs assert that the defendants’ alleged violations of OCGA §§ 46-2-25.1 and 46-2-25.2 bring this case within the ambit of OCGA § 46-2-90. These statutes, however, are directed at the conduct of the PSC, not telecommunications providers.

OCGA § 46-2-25.1 provides:

(a) Except as provided in subsection (b) of this Code section, . . . the commission shall not approve any rate schedule which authorizes a. long-distance charge for calls between two telephones within the same county. Where two or more telephone companies operate in the same county, each company shall provide county-wide local calling to and from telephones within the area served by the other company or companies in the county. . . .
(b) All rate schedules approved pursuant to this Code section may be modified at the discretion of the commission upon a good and sufficient showing of geographic, economic, or technological infeasibility by a telephone company.
(c) All rate schedules approved pursuant to this Code section shall take into account [various factors].
(d) The commission shall . . . implement a plan [to expand toll-free calling].
(e) Any plan to implement county-wide local calling shall be subject to the approval of the commission. . . .
(f) The commission shall be authorized to consider and adopt alternative forms of regulation. . . .
(g) Nothing in this Code section shall be interpreted as amending, modifying, or repealing Code Section 46-2-23, relating to the rate-making power of the commission generally and special provisions concerning telecommunications companies.

Because this statute is clearly directed at the conduct of the PSC, plaintiffs cannot rely upon it to demonstrate that the telecommunications defendants performed an act that was “prohibited, forbidden, or declared to be unlawful” within the meaning of OCGA § 46-2-90.

2. The language of OCGA § 46-2-25.2 also demonstrates that it is directed at the conduct of the PSC, not telecommunications providers. It states:

(a) It is the goal of this Code section to provide for toll free calling between two telephones where the central offices serving such telephones are within 16 miles of each other.
(b) Except as provided in subsection (e) of this Code section, . . . the [PSC] shall not approve any new rate schedule which authorizes a long-distance charge for calls between two telephones where the central offices serving such telephones are within 16 miles of each other.
' (c) Except as provided in subsection (e) of this Code section, . . . rate schedules approved by the [PSC] . . . shall be amended so as to reduce by one-half the long-distance charge for calls between two telephones where the central offices serving such telephones are within 16 miles of each other.
(d) On or before July 1, 1993, the [PSC] shall conduct hearings and accept evidence. . . .
(e) All rate schedules approved pursuant to this Code section may be modified at the discretion of the [PSC] upon a good and sufficient showing of geographic, economic, or technological infeasibility by a telephone company.
(f) All rate schedules approved pursuant to this Code section shall take into account the following. . . .
(g) Any telephone company seeking to recover any portion of its expenses or lost toll revenues resulting from the implementation of the . . . plan contained in this Code section shall demonstrate its financial hardship. . . .
(h) Nothing in this Code section shall be interpreted as amending, modifying, or repealing Code Section 46-2-23, relating to the rate-making power of the [PSC] generally and special provisions concerning telecommunications companies.

As with OCGA § 46-2-25.1, plaintiffs cannot rely upon this Code section to state a claim under OCGA § 46-2-90.

3. Finally, the plaintiffs contend that the trial court erred by dismissing their case and finding that there was no state of facts which could be proven in support of their class action. However, because the appellants’ claims are wholly untenable as a matter of law, the trial court properly ruled.

Generally, a complaint should be dismissed pursuant to OCGA § 9-11-12 (b) (6) for failure to state a claim upon which relief can be granted only when “it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his [or her] claim.” (Punctuation omitted.) Vaughan v. Vaughan, 253 Ga. 76, 77 (317 SE2d 201) (1984). Otherwise, the claim should be allowed to proceed, as all doubts pertaining to a motion to dismiss must be resolved in the nonmovant’s favor. Quetgles v. City of Columbus, 264 Ga. 708 (450 SE2d 677) (1994).

Here, all of plaintiffs’ claims are based on alleged violations of OCGA §§ 46-2-25.1 and 46-2-25.2 by the telecommunications companies. As discussed above, these statutes apply only to the PSC and provide no basis for relief against the various telecommunications companies involved herein. In their first cause of action, plaintiffs argue that defendants violated the mandates of OCGA §§ 46-2-25.1 and 46-2-25.2, contending that these statutes create an independent cause of action. In their second cause of action, plaintiffs attempt to bootstrap their first cause of action under the aegis of OCGA § 46-2-90. Merely stating that they believed the defendants were under the jurisdiction of the PSC, the plaintiffs again argue that “[defendants caused or permitted . . . illegal charging for telephone service in violation of OCGA § 46-2-25.1 and OCGA § 46-2-25.2.” However, because these statutes are clearly directed at the conduct of the PSC, plaintiffs cannot rely on them to demonstrate that the telecommunications defendants performed an act that was “prohibited, forbidden, or declared to be unlawful” within the meaning of OCGA § 46-2-90.

Moreover, the plaintiffs’ complaint never states that the defendants violated any PSC regulation and thereby engaged in “unlawful conduct” of any kind. Furthermore, the plaintiffs’ complaint is totally devoid of any allegations of action by the PSC, and, as such, their claims would fall into the PSC’s jurisdiction for resolution, as OCGA § 46-2-90 empowers the commission to entertain consumer complaints about public utilities. Carr v. Southern Co., 263 Ga. 771 (438 SE2d 357) (1994).

Therefore, plaintiffs’ claims are wholly untenable, as the only source of the telecommunications companies’ alleged liability claimed by plaintiffs is a violation of OCGA §§ 46-2-25.1 and 46-2-25.2, which are not applicable to these defendants, and the plaintiffs have failed to assert any “unlawful conduct” required under OCGA § 46-2-90. No state of facts proposed by the plaintiffs can alter the legal insufficiency of their claims against these defendants under OCGA §§ 46-2-25.1, 46-2-25.2 or 46-2-90 as raised in their complaint.

Contrary to the dissent, plaintiffs cannot now attempt to revive the legal sufficiency of the arguments framed in their complaint by raising the mere possibility that the PSC may have issued some order for some reason with which the defendants did not comply. The existence of such order does not appear in the record and is not alleged in the complaint.

Under the Civil Practice Act a motion to dismiss a complaint for failure to state a claim upon which relief may be granted should not be granted unless averments in the complaint disclose with certainty that plaintiffs would not be entitled to relief under any state of facts that could be proven in support of the claim.

(Punctuation omitted; emphasis supplied.) Ledford v. Meyer, 249 Ga. 407, 408 (2) (290 SE2d 908) (1982). The averments in the complaint all revolve around the defendants’ direct violation of OCGA §§ 46-2-25.1 and 46-2-25.2, which statutes, without question, apply only to the PSC. No mention is made of the defendants’ violation of any order issued by the PSC, thereby making any claim for a violation of OCGA § 46-2-90 equally meritless. As such, no state of facts can breathe life into plaintiffs’ claims. Also, the dismissal of this complaint would not preclude the filing of a properly pled complaint stating a lawful claim.

Thus, the allegations framed in the plaintiffs’ complaints are insufficient to state a claim upon which relief may be granted as a matter of law, and the trial court appropriately dismissed them.

Judgment affirmed.

Johnson, C. J, Pope, P. J., Andrews, P. J., Eldridge and Phipps, JJ, concur. Barnes, J., concurs as to Divisions 1 and 2 and dissents as to Division 3.

Barnes, Judge,

dissenting.

I concur fully in Divisions 1 and 2 but respectfully dissent to Division 3 because facts could be proven which would establish a valid claim under OCGA § 46-2-90, specifically, violation of a Public Service Commission order by the defendants.

Under the Civil Practice Act a motion to dismiss a complaint for failure to state a claim upon which relief may be granted should not be granted unless averments in the complaint disclose with certainty that plaintiffs would not be entitled to relief under any state of facts that could be proven in support of the claim.

Decided March 30, 2000

Clinton W. Sitton, Claude M. Sitton, for appellants.

Smith, Gambrell & Russell, Lisa C. Tripp, Edward H. Wasmuth, Jr., Sutherland, Asbill & Brennan, Allegra J. Lawrence, Teresa W. Roseborough, J. Henry Walker IV, Steven C. Adams, James R. Thompson, for appellees.

(Citation and punctuation omitted.) Ledford v. Meyer, 249 Ga. 407, 408 (2) (290 SE2d 908) (1982). When undertaking this analysis, we must remember that

the objective of the [Civil Practice Act] is to avoid technicalities and to require only a short and plain statement of the claim that will give the defendant fair notice of what the claim is and a general indication of the type of litigation involved; the discovery process bears the burden of filling in [the] details.

(Citations omitted.) Dillingham v. Doctors Clinic, 236 Ga. 302, 303 (223 SE2d 625) (1976). “Complaints do not have to allege facts sufficient to set forth a cause of action and are no longer to be construed most strongly against the pleader.” Richter v. D & M Assoc., 228 Ga. 599, 604 (1) (187 SE2d 253) (1972). Finally, it is no longer necessary for a complaint to set forth all of the elements of a cause of action in order to survive a motion to dismiss for failure to state a claim. Christner v. Eason, 146 Ga. App. 139,140 (245 SE2d 489) (1978); Hill v. Lariscy, 118 Ga. App. 699-700 (165 SE2d 315) (1968).

In this case, the trial court granted the defendants’ motion to dismiss, in part, because “[p]laintiffs have failed to cite to any failure of the Defendants to do an act required of them by Georgia law or by an order of the PSC.” While the plaintiffs’ failure to point to a specific PSC order might be fatal in the summary judgment context, it does not warrant a dismissal for failure to state a claim. The plaintiffs in this case clearly asserted a claim under OCGA § 46-2-90 that provided the defendants with “fair notice of what the claim is and a general indication of the type of litigation involved.” Dillingham, supra. The fact that they may not have alleged an element of a cause of action under OCGA § 46-2-90, violation of a PSC order by the defendants, does not support the majority’s conclusion that their complaint failed to state a claim.


source: Caselaw Access Project

author: Smith, Judge. Pope, Presiding Judge,

license: Public Domain

text:
    A99A2271.
    LaBREC v. DAVIS.
    (534 SE2d 84)
   Smith, Judge.

We granted Kevin LaBrec’s application for discretionary appeal to consider an order granting the petition of Jonathan Davis to legitimate the minor child, Denver, whom LaBrec had been raising since birth as his own son. Notwithstanding the existence of an order that had legitimated Denver as LaBrec’s child, the trial court granted Davis’s petition. Because we find that the trial court misapplied controlling authority, apparently failed to consider the legal effect of a prior order legitimating the child as LaBrec’s son, and also failed to consider the best interest of the child, we vacate the judgment and remand for further findings consistent with this opinion.

The underlying litigation arose after Davis, Denver J. LaBrec’s apparent biological father, filed suit against LaBrec, the only father Denver had ever known. The competing paternity claims to Denver, a minor child, evolved into a difficult and contentious court battle.

The evidence shows that LaBrec and Elizabeth Wolff “had been in an intimate relationship for approximately six years prior to the child’s birth,” a relationship that ended shortly after Denver was born. This child, raised as Denver J. LaBrec, was born May 17, 1995. LaBrec claims, and Davis does not dispute, that LaBrec was present at Denver’s birth and that LaBrec’s name appears on the birth certificate as Denver’s father. See Court of Appeals Rule 27 (b) (1) (failure to controvert an appellant’s statement of facts constitutes consent to statement).

Denver’s mother, Wolff, has a history of mental instability. Some time subsequent to giving birth, Wolff experienced serious psychological problems. After Wolff attempted suicide in July 1996 while visiting relatives in Missouri, LaBrec returned with Denver to Georgia. LaBrec sought and obtained a court order legitimating Denver as his son and that order was entered on July 15, 1996. In support of LaBrec’s petition to legitimate, Wolff testified by affidavit, acknowledging LaBrec as the natural and biological father of Denver. In August 1996, LaBrec commenced a court action to obtain sole legal and physical custody of Denver. In response to LaBrec’s effort to obtain custody, Wolff for the first time asserted that LaBree was not Denver’s father. Nevertheless, Wolff and LaBree entered a consent agreement, and on February 4, 1997, the trial court awarded sole permanent legal and physical custody of Denver to LaBree.

On August 7, 1997, Davis served LaBree with a complaint in which Davis sought to establish paternity, to legitimate the child, and to gain custody of Denver. Davis, the probable biological father of the minor child according to DNA test results, admitted that he had engaged in unprotected sexual relations with Wolff about nine months before the child’s birth. Davis claimed that he did not discover that he was Denver’s father until December 5, 1996, when the child was already over a year and a half old.

Based on an assertion of his delayed discovery of the existence of the minor child and a claim to be a “loving, fit, and proper person to have custody,” Davis sought to have set aside both prior court orders, the order finding Denver LaBree to be the legitimate child of LaBree and the other order awarding permanent custody of the child to LaBree. Davis also sought a new order legitimating the child as his son, awarding custody of the child to him, and changing the child’s surname from LaBree to Davis. Because Davis had to fulfill an enlistment obligation in the Air Force, he suggested that until he returned stateside his mother, Susan Green, would be fit to raise Denver along with her own “three minor children in White Water, Missouri, a small farming community.”

Meanwhile, Davis’s lawsuit proceeded through the legal system. At the March 1999 hearing on Davis’s petition, counsel conceded that Davis would continue to have a military obligation to the Air Force until 2004. His counsel admitted to the court, however, that Davis was no longer stationed in Guam but was in Missouri at the time of the hearing. Davis’s counsel argued that since Davis had not abandoned his opportunity interest in fathering Denver and was “fit” to be a parent, Davis had a constitutional right to legitimate his child under the holding of In re Baby Girl Eason, 257 Ga. 292, 297 (358 SE2d 459) (1987).

The court-appointed guardian ad litem addressed the court and pointed out that the two people who Davis suggested would care for Denver, Davis’s mother, Green, and Davis, “have never met this child.” During the hearing, the trial judge noted that he had personally “struggl[ed] with this thing.” The court stated:

Here you have got a will be four-year-old . . . child who has lost [his] relationship with mother, who has only known LaBrec as father for the entire — entirety of his life for that matter, who, in fact, faces the possibility of even losing — being snatched from that relationship. . . .

Obviously frustrated, the court noted, “I don’t care what the . . . black letter law says, I think that is just horrible.” Nevertheless, the trial court felt constrained by In re Baby Girl Eason.

Relying upon Eason, supra, the trial court determined that Davis'had “not waived his ‘opportunity interest’ to develop a relationship with his child.” The court declared Denver LaBrec “to be the legitimate son of Jonathan R. Davis,” with inheritance rights from Davis, and pronounced that “henceforth the name by which said child shall be known shall be DENVER JAMIN DAVIS.” After legitimating Denver as the biological offspring of Davis, the court granted Davis limited visitation rights of every other Saturday or Sunday, provided that he gave 24 hours notice to LaBrec. The court ordered Davis and LaBrec to keep each other notified at all reasonable times as to the child’s whereabouts.

1. LaBrec claims that the trial court erred in finding that Davis had not abandoned his opportunity to bond with the child after he was informed of his paternity. We agree.

The threshold inquiry must be whether Eason, upon which the trial court and the dissent rely, controls our analysis of this situation. While Eason provides an analytical framework, the Supreme Court recognized in that case that its holding could not be applied across the board to every set of facts that might be presented. In fact, the Supreme Court expressly noted in Eason that the existence of an established familial bond could require consideration of the best interest of the child rather than simply the fitness of the biological parent. Here, established familial bonds exist.

In Eason, the Supreme Court considered the rights of unwed biological fathers against the rights of strangers who wished to adopt. Eason made no mention of a situation in which the rights of a legal father (LaBrec) who legitimated the child, gained custody, and was raising him were being challenged by the apparent biological father (Davis). The dissent overlooks the critical fact that it is LaBrec who is the parent of Denver as a matter of law and as a matter of fact. To apply Eason in the mechanical fashion advocated by the dissent would create an anomaly: Davis (the apparent biological father) then would be totally precluded from challenging LaBrec’s legal status as Denver’s father unless he could prove by clear and convincing evidence that LaBrec (the legal father) is unfit. Such an approach would violate principles of fundamental fairness by affording no opportunity whatsoever for consideration of the best interest of the child, including any potential role of Davis in his life.

In Eason, supra, the Supreme Court held that

unwed fathers possess an opportunity interest protected by due process of law. If timely and diligently pursued, and not abandoned, this opportunity interest will lead an unwed father in [these] circumstances to enjoy the benefits of custody and entitle him to equal treatment under law accorded other parents. Thus, we hold because Georgia law affords an unwed mother a fitness test or veto power under the circumstances it must also afford [an unwed biological father] a fitness test or veto power, provided he has not abandoned his opportunity interest.

(Footnote omitted; emphasis in original.) Id. at 297 (1). But in Eason, unlike here, the unwed biological father did not delay nearly three years in filing a proper petition to legitimate. On the contrary, in Eason, about two months after the baby’s birth, the biological father sought to legitimate the infant. Despite the biological father’s seemingly prompt action in filing a petition to legitimate, the Supreme Court remanded the case for a determination as to whether the father had, in fact, abandoned his opportunity interest “through his conduct with regard to Eason and the child and otherwise.” Id. The court noted that only if the biological father had not abandoned his opportunity interest, would the appropriate test be his fitness as a parent to have custody. Id.

As this court noted in Turner v. Wright, 217 Ga. App. 368 (1) (457 SE2d 575) (1995), the opportunity interest of an unwed biological father to develop a relationship with a child begins at conception. Davis’s “opportunity interest” commenced in August 1994 about nine months before Denver’s birth. Yet the evidence is undisputed that Davis did nothing to timely and diligently avail himself of his opportunity interest for nearly three years and failed to file the underlying action until August 1997. Davis offered no evidence to suggest he ever attempted to ascertain whether the unprotected intercourse in which he admittedly engaged with Wolff had culminated in a pregnancy.

Wolff told Davis of his parentage no later than December 5, 1996, two months before LaBrec’s pending custody action became final. Davis did not bother submitting to blood testing to verify his parentage until more than six months later. Wolff’s affidavit claiming that Davis gave money to her (not for the child) whenever she asked is vague as to details of the amounts, frequency, and purpose and is not independently corroborated by financial documentation. While this evidence certainly would support a finding that Davis slept on his rights and effectively abandoned his opportunity interest by not intervening in the custody action or timely taking another action, it does not demand a finding that Davis has forfeited all opportunity to be Denver’s father. An unwed biological father’s “opportunity interest” as used in the context of a legitimation proceeding has a distinct legal meaning. See Eason, supra. By no means are we saying that Davis has lost his “opportunity” to be Denver’s father. On the contrary, that determination should be made and must be made by the trial court based on the best interest of the child.

Even if we assume, as does the dissent, that the clock did not start ticking on Davis’s “opportunity interest” until December 5, 1996, when Wolff told him that he was Denver’s father, the record contains no evidence that Davis immediately attempted to locate the precise whereabouts of Denver, contacted any court in this State, or otherwise took appropriate legal action, until filing a lawsuit against LaBrec in August 1997, more than eight months after being informed of his paternity.

In a recent case, this court upheld a finding that due to the biological father’s inaction during the mother’s pregnancy and for two months after the child’s birth, the father had “abandoned his opportunity interest to develop a relationship with the child.” In the Interest of D. S. P., 233 Ga. App. 346, 349 (2) (504 SE2d 211) (1998). Inaction and passivity simply cannot suffice to demonstrate the requisite diligence of an unwed biological father in pursuing the opportunity interest to parent a young child, a child growing increasingly more attached daily to another person who has fully assumed the parental role as the child’s father. Id. Davis claims to have relied upon Wolff to bring the child to Missouri, but after Davis became aware of legal proceedings in another state, he could not just sit back and await the outcome.

The dissent’s reliance upon Doe v. Chambers, 188 Ga. App. 879 (374 SE2d 758) (1988) is misplaced. In that case, when the biological father learned of the birth of his child two months after the fact, he “then vigorously pursued his opportunity ... to establish his parental relationship.” Id. at 880. Also, in Doe, there was no prior order legitimating the child as another man’s. Here, Davis cannot show that he vigorously pursued the chance to establish his parental relationship, when, in fact, he failed to take any legal action and did not even file suit until more than eight months had elapsed. Nor can we agree with the dissent that Davis’s pending military service constituted a bar to action or excused his passivity. The dissent cites no law and we know of none that would support the proposition that Davis could justify his inactivity by supposedly relying upon Wolff to act to protect his interests.

Moreover, the dissent misconstrues portions of Wolff’s testimony. Wolff did not testify that she assured Davis she would return with the child to Missouri. Rather, she attested, “That I informed Plaintiff that I was in the process of bringing his child back from Georgia and that I would cooperate in his legitimation of his son when I returned.” Further, Wolff’s testimony that she did not “provide him with information sufficient for him to intervene in said action” and “he accepted responsibility for his son” are unsupported legal conclusions lacking in probative value. Reid v. City of Hogansville, 202 Ga. App. 131, 133 (1) (413 SE2d 457) (1991). Nor is it clear how the dissent can find “due diligence” when the undisputed evidence shows that Davis delayed over four and a hálf months after December 5, 1996, before finally submitting to DNA testing.

The dissent ignores the fact that it was Davis’s obligation to proceed vigorously and diligently to avoid forfeiting his opportunity interest. Compare Doe, supra. In these circumstances, we find the trial court erred in finding Davis had not abandoned his opportunity interest. See In the Interest of D. S. P., supra. This finding, however, does not end the matter. It means that on remand, if the trial court determines the earlier order of legitimation can be set aside and reaches the issue of custody, it must do so on the basis of the best interest of the child as discussed more fully below.

2. LaBrec contends the trial court erred in legitimating Davis as the legal father and misapplied the analysis enunciated in In re Baby Girl Eason, supra, by not inquiring into and applying the best interest of the child standard. We agree.

In Eason, the Supreme Court considered several possible scenarios involving unwed biological fathers. The court recognized the existence of a continuum: At one end is a father who clearly takes on parental duties and forms emotional bonds with the children, as in Stanley v. Illinois, 405 U. S. 645 (92 SC 1208, 31 LE2d 551) (1972), and at the opposite extreme is a father who does not live with the mother after the child’s birth, never offers to marry, does not support the child, and fails to register as the father as required by state law. Lehr v. Robertson, 463 U. S. 248 (103 SC 2985, 77 LE2d 614) (1983).

The Supreme Court of Georgia carefully differentiated between undeveloped parent-child situations and developed ones, recognizing significant distinctions:

When an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child, his interest in personal contact with his child acquires substantial protection under the Due Process Clause. At that point it may be said that he acts as a father toward his children. But the mere existence of a biological link does not merit equivalent constitutional protection. The actions of judges neither create nor sever genetic bonds. The importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in promoting a way of life through the instruction of children.

(Citation and punctuation omitted; emphasis supplied.) Eason, supra at 295-296.

In Eason, the Supreme Court addressed the rights of an unwed, biological father pitted against the rights of a genetically unrelated couple desiring to adopt his child. But in Eason, unlike here, no longstanding parent-child relationship had been formed, and no legitimation order had already been entered. Moreover, the court noted in Eason, that the best interest standard may be used in certain circumstances. These are such circumstances: a family had been established, Denver had been legitimated, and a father-son relationship had been created. When Denver’s mother became unable to care for him, LaBrec stepped forward and assumed full parental responsibility for rearing Denver. LaBrec, not Davis, provided emotional and financial support to Denver, nurturing the child while raising him in a single-parent home. No evidence suggests otherwise.

LaBrec not only made a full commitment to the parental duties and responsibilities for rearing Denver, but also undertook legal action to legitimate Denver as his son. OCGA § 19-7-43 is expressly designed for the specific purpose of determining and establishing paternity. Dept. of Human Resources v. Fleeman, 263 Ga. 756, 758 (439 SE2d 474) (1994). The appearance on the certificate of birth of the name of the father, entered with his written consent, creates a rebuttal prima facie case establishing paternity. OCGA § 19-7-46.1 (a). By law, LaBrec became Denver’s “legal father” after legitimating Denver in compliance with the procedures of OCGA § 19-7-22. See OCGA § 19-8-1 (6) (E).

Upon legitimation, a father stands in the same position as any other parent as to custody of his child. Sims v. Pope, 228 Ga. 289, 291 (185 SE2d 80) (1971). The father of a child rendered legitimate by court order has a claim to parental and custodial rights with respect to his child. Mitchell v. Ward, 231 Ga. 671, 672 (203 SE2d 484) (1974). This court has held repeatedly that public policy is not advanced by “ ‘the disestablishment of legitimacy and paternity.’ ” See Grice v. Detwiler, 227 Ga. App. 280, 283 (488 SE2d 755) (1997). The dissent implicitly suggests we ignore this entire body of law.

In another case with similarly disturbing facts, this court observed:

Paternity and legitimation are not the same thing. Biology is not destiny, and a man has no absolute right to the grant of his petition to legitimate a child simply because he is the biological father. Instead, we have held time and time again that the court must consider the best interest and welfare of the child before granting a legitimation petition, and that it is not bound by the desires and contentions of the biological parents.

(Citations omitted; emphasis in original.) Ghrist v. Fricks, 219 Ga. App. 415, 420 (1) (465 SE2d 501) (1995). “[W]hile OCGA § 19-7-43 provides a means for establishing paternity, no such statute provides for the disestablishment of paternity.” Id. at 419. This court noted that public policy would not permit “a mother and an alleged father to enlist the aid of the courts to disturb the emotional ties existing between a child and his legal father after sitting on their rights for the first three years of the child’s life.” Id. “ ‘Once there has been a final determination of paternity, a party may not relitigate that issue without first showing, inter alia, that his failure to contest paternity earlier was not the result of a lack of due diligence. [Cit.]’ ” Dept. of Human Resources v. Browning, 210 Ga. App. 546, 548 (1) (b) (436 SE2d 742) (1993).

Davis did not make this showing. He delayed action, and by the time he filed his petition seeking to legitimate Denver and seeking custody of him, a developed familial relationship and emotional bonds had already been formed between Denver and LaBrec. Yet when ruling on Davis’s complaint seeking to legitimate Denver, the trial court apparently failed to consider Davis’s delay, the legal effect of the prior court order legitimating Denver as the child of LaBrec, or whether the disruption of the existing stable family consisting of LaBrec and Denver would exceed any benefit which might otherwise flow to the child. See In the Matter of J. M. S., 257 Ga. 630, 631 (362 SE2d 56) (1987). No evidence of fraudulent conduct on the part of LaBrec in legitimating Denver has even been suggested. Compare Clements v. Phillips, 235 Ga. App. 588 (510 SE2d 311) (1998) (mother participated in fraudulent scheme to have child legitimated by someone other than his father). In fact, we question whether Wolff can be permitted to contradict the earlier testimony she apparently made in the legitimation proceeding in Gwinnett County. Reagan v. Lynch, 241 Ga. App. 642, 643-644 (524 SE2d 510) (1999) (doctrine ofjudicial estoppel prevents manipulation of judicial system through use of divergent sworn positions). See Kaiser v. Kaiser, 195 Ga. 774, 777 (1) (25 SE2d 665) (1943).

The dissent overlooks the inevitable consequences of affirming the existing order. Under this order, Denver became the child of Davis and his surname was changed to Davis. Without question, Davis seeks to eliminate LaBrec’s custody of Denver and to obtain custody for himself. No consideration has been accorded to the best interest of this child, and were we to embrace the dissent’s argument, no consideration would ever be made. Not even a strained reading of Eason, supra, would dictate such a result.

We therefore vacate the order that declares Denver to be “the legitimate son of Jonathan R. Davis.” On remand, as a threshold matter, if the July 15, 1996 order entered by the Superior Court of Gwinnett County legitimating Denver as LaBrec’s child has not been set aside, then the trial court must consider the preclusive effect of a valid preexisting order. Patterson v. Whitehead, 224 Ga. App. 636, 638 (2) (481 SE2d 621) (1997). See Macuch v. Pettey, 170 Ga. App. 467 (1) (317 SE2d 262) (1984). Weemphasize that,

generally judgments and orders shall not be set aside or modified without just cause and, in setting aside or otherwise modifying judgments and orders, the court shall consider whether the rights have vested thereunder and whether or not innocent parties would be injured thereby.

OCGA § 9-11-60 (h). address Davis’s petition, then we direct the court to determine the crucial issue of whether the delegitimation of the child’s lifelong relationship with LaBrec is in the best interest of the child, considering the emotional harm such decision would have upon the child in light of Denver’s established familial bonds and emotional ties with LaBrec. Grice, supra at 283 (delegitimation not in best interest of child); Ghrist, supra at 419 (after alleged father and biological mother sat on their rights for three years, public policy foreclosed judicial disturbance of the existing emotional ties between child and his legal father); Alexander v. Guthrie, 216 Ga. App. 460, 461-462 (1) (454 SE2d 805) (1995); Boyd v. Harvey, 173 Ga. App. 581, 584 (2) (327 SE2d 551) (1985); see also Flannagan v. Cantrell, 233 Ga. App. 547, 548 (505 SE2d 53) (1998) (physical precedent only) (best interest of the child must govern legitimation proceedings).

In the event that the trial court determines that it can properly

3. In light of the above, we need not reach LaBrec’s remaining enumeration of error.

Judgment vacated and case remanded with direction.

Ellington, J, concurs. Blackburn, P. J, concurs in the judgment only. Miller, J., concurs in Division 2 and in the judgment. Pope, P. J., Andrews, P. J., and Ruffin, J., dissent.

Pope, Presiding Judge,

dissenting.

I must respectfully dissent from the majority opinion. In In re Baby Girl Eason, 257 Ga. 292 (358 SE2d 459) (1987), the court stated: “unwed fathers gain from their biological connection with a child an opportunity interest to develop a relationship with their children which is constitutionally protected.” Id. at 296. Although the father may abandon this interest, “[a]bsent an abandonment of his interest, a state may not deny a biological father a reasonable opportunity to establish a relationship with [the] child.” (Emphasis supplied.) Id. In this case, I agree with the trial court that the biological father did not abandon his opportunity interest in the child. Furthermore, I agree with the trial court that the appropriate standard to use in determining Davis’s right to legitimate his child is his fitness as a parent to have custody of his child.

1. The majority finds that “Davis’s ‘opportunity interest’ commenced in August 1994 about nine months before Denver’s birth.” Under the facts of this case, I cannot agree with this conclusion. The evidence shows that Davis did not learn of Denver’s existence until December 5, 1996. At the time of Denver’s birth, LaBrec, not Davis, believed the child to be his. Wolff did not tell LaBrec otherwise, nor did she tell Davis that she was carrying or had given birth to his son at that time. The record is simply devoid of evidence that Davis knew or should have suspected that Wolff had given birth to his son. The fact that Davis did nothing at that time to exercise his opportunity interest is thus not surprising. It defies logic and common sense to say, as does the majority, that the period of time in which Davis knew nothing of his son should be considered in determining whether Davis waived his opportunity interest. And the majority’s reliance on cases which say the opportunity interest begins at conception is somewhat misleading because in those cases the evidence clearly showed that the biological father knew about the child from conception or birth. For example, in Turner v. Wright, 217 Ga. App. 368, 369 (457 SE2d 575) (1995), the issue was whether the father’s actions during the mother’s pregnancy constituted a disregard of his opportunity interest. After simply noting that the biological father’s opportunity interest begins at birth, the court went on to consider the father’s actions “after [he] was aware he was to be a father.” (Emphasis supplied.) Id. The majority cites no cases, and I have found none, in which our appellate courts have held that the period of time to be considered in determining whether the biological father has abandoned his opportunity interest should include the period of conception when the father did not know a child had been conceived. To the contrary, this court has previously held that evidence that a biological father was unaware of the pregnancy or birth is relevant in determining whether the biological father abandoned his opportunity interest. Doe v. Chambers, 188 Ga. App. 879, 880 (1) (374 SE2d 758) (1988) (father who did not learn of child’s birth until she was two months old found not to have abandoned opportunity interest); Alexander v. Guthrie, 216 Ga. App. 460 (1) (454 SE2d 805) (1995) (father, who was aware mother of the child was pregnant and of the birth of the child, lost his opportunity interest by committing crimes resulting in his incarceration).

It follows that the relevant date for determining whether Davis waived his opportunity interest is December 5,1996, when Wolff told Davis he had a son. Although the majority asserts Davis’s response to the news was inaction and passivity, I do not agree with that characterization. According to Wolff, when she told Davis about his son, he “accepted responsibility for his son, indicated his desire to have a blood test to establish paternity, and sent me money when I asked for it.” Wolff further averred that she “did not serve [Davis] with formal notice of the custody action pending in Georgia concerning his son, nor did I provide him with information sufficient for him to intervene in said action.” In any event, Wolff averred that she had “informed” Davis that she would return with the child to Missouri and “cooperate” with legitimation proceedings. Although the majority asserts that Davis could not justify his “inactivity” by relying on the mother to protect his interest or that his pending military service did not excuse his “passivity,” I believe this conclusion somewhat ignores the reality of the situation. As I read the majority, upon learning he was a father, Davis was supposed to take immediate legal action or lose his opportunity interest to be a father to his child. But this is not a situation where Davis knew months before the child’s birth that he was going to be a father. And the record does not indicate that he understood the significance of the legal proceedings that were ongoing in Georgia or knew that because of those proceedings he had to act quickly or lose substantial rights in legitimating his child. And during this time the mentally unstable mother of the child was continuing to mislead both Davis and LaBrec, as well as the court. Surely a father in Davis’s position and in these circumstances should be accorded some opportunity to assimilate the information he has received and to determine what his next legal step should be. And I cannot simply ignore the fact that Davis’s military service would have some impact on his ability to deal with his situation. In sum, unlike the majority, I believe the circumstances surrounding the particular situation must be considered in determining whether a biological father has timely pursued his opportunity interest and nothing about this case convinces me the father lost his opportunity here. Given the circumstances, I believe that the trial court correctly determined that Davis did not abandon his opportunity interest, and the majority should not second-guess the trial court’s finding.

2. I also disagree with Division 2 of the majority opinion. The court in In re Baby Girl Eason held that if the biological father “has not abandoned his opportunity interest, the standard which must be used to determine his right to legitimate the child is his fitness . . . to have custody of the child.” Id. at 297. See also Turner v. Wright, 217 Ga. App. at 369-370 (2); Doe v. Chambers, 188 Ga. App. at 880 (1). “In such a case, the parent is entitled to custody of the child unless the third party shows by clear and convincing evidence that the parent is unfit.” (Citations and punctuation omitted.) Turner v. Wright, 217 Ga. App. at 370.

Thus, the trial court properly applied the fitness standard in this case, and I disagree with the majority’s conclusion that the trial court erred by not inquiring into and applying the best interest of the child standard. LaBrec established a relationship with the child, sanetioned by the court, because he believed he was the child’s father; Davis did nothing to intervene in that relationship or to establish his own relationship with Denver because he did not know the child existed. All of this happened because the mentally unstable mother of the child misled LaBrec, Davis and the court concerning the child’s paternity. Even reading In re Baby Girl Eason to hold that the standard to be applied when dealing with an unwed biological father who has not lost his opportunity interest should be decided on a case-by-case basis, I do not believe the facts of this case mandate application of the best interest standard. In this regard I note that the trial court’s order does not sever the relationship with LaBrec; it simply allows the child’s biological father the opportunity to develop a relationship with his child. I would not deny either the father or the child this opportunity. And because I find no merit to LaBrec’s remaining argument on appeal, I would affirm the trial court’s order.

Decided March 30, 2000

Lawrence D. Kupferman, Gregory D. Golden, for appellant.

Fred L. Cavalli, M. Ayres Gardner, for appellee.

I am authorized to state that Presiding Judge Andrews and Judge Ruffin join in this dissent.

       The child’s court-appointed guardian ad litem stated in court on March 24, 1999, that Davis had never met the child, who by then was nearly four years old.

       Blood tests established the likelihood of the paternity of Davis to a probability of 99.12 percent.

       About three weeks after Wolff purportedly told Davis that he was Denver’s biological father, Davis commenced his enlistment in the United States Air Force and was eventually stationed in Guam.

       In an affidavit designed to support Davis’s efforts to legitimate and obtain custody of Denver, Wolff testified, “I believe that Susan Green, mother of Jonathan R. Davis, is a fit and proper person to serve as guardian of my son during his father’s service in the United States Air Force, and that it would be in the best interests of my son to reside with her.”

       In June 1997, Davis improperly filed the action in Gwinnett County despite the fact that LaBrec was living with Denver in DeKalb County.

       Although Davis seeks to excuse his inaction by stating that he was out of the country during much of the time after December 5, 1996, the record indisputably indicates that Davis was not in Guam but was in Eolia, Missouri, on April 22, 1997. In his brief, LaBrec asserts that Davis admitted in his deposition that during her pregnancy Wolff told him that the baby might be his. But no copy of that deposition has been included in the appellate record.

       In fact, some of the subsequent delay in the process was directly attributable to Davis who sought and obtained a continuance of the case from July 1998 to “sometime in September or October,” to save him time and money.

       In the order entered on June 2, 1998, a ruling on LaBrec’s motion to dismiss, the trial court noted: “[p]laintiff, the prospective father, is now attempting to establish paternity and legitimate a child who has already been legitimated by another man.”

       As noted by the majority in footnote 6, LaBrec’s assertion in his brief that Davis may have had some knowledge about the pregnancy and the paternity of the child is unsupported by record citation and nothing I have found in the record supports that assertion. I would further note that although LaBrec’s brief contains numerous factual representations, it contains no citations to the record, in violation of Court of Appeals Rule 27 (a) (1).

       Although the majority states on page 307 that LaBrec has been raising Denver since birth, it appears that Wolff was raising the child for the first year of his life and that LaBrec did not seek to legitimate Denver until he was slightly over a year old. Moreover, it also appears that LaBrec may have had reason to suspect that he was not Denver’s father prior to the February 1997 custody order.


author: Barnes, Judge.

text:
    A00A0629.
    MARTIN et al. v. WYATT et al.
    (533 SE2d 149)
   Barnes, Judge.

Lithford and Virginia Martin appeal the trial court’s dismissal of their complaint for lack of prosecution. We conclude that the trial court did not abuse its discretion in dismissing the complaint and affirm.

The Martins dismissed their first personal injury suit against Hazel and Edward Wyatt on March 21, 1997, and refiled it on September 22, 1997. On February 2, 1999, the Wyatts moved to dismiss the complaint for failure to prosecute because no counsel of record responded on behalf of the Martins at a mandatory calendar call on February 1, 1999, and the attorney who told the clerk he was ill and unable to attend was not the counsel of record. The trial court granted the motion on February 12, 1999, finding that the case had been placed on the February 1, 1999 trial calendar and “[c]ounsel for plaintiff failed to appear. No announcement was made by counsel of record. Instead, counsel telephoned the Court and stated he was ill.” The court concluded that the law required counsel who sought a continuance due to illness to present a doctor’s affidavit that specifically included the style of the case. Because counsel did not submit such an affidavit, the trial court dismissed the case for want of prosecution. The trial court’s order of dismissal, however, was styled with the case number of the Martins’ first, dismissed, civil action and not the one pending before the trial court at that time.

On March 12,1999, the Martins moved for reconsideration of the dismissal order, arguing that illness prevented counsel from appearing at the calendar call and that someone claiming to be the calendar clerk said the case had been continued. The Martins also moved on March 12,1999, for a “new trial,” on the grounds that “[t]he verdict is contrary to law, . . . contrary to the evidence, . . . strongly against the weight of the evidence, [and] [t]he court erred by Dismissing said Action.” No briefs were submitted with these motions.

On March 14, 1999, attorney S. Ben Parker filed an entry of appearance on behalf of the Martins. Parker was the attorney who called in sick but was not then counsel of record. On March 15, 1999, Parker filed an affidavit in which he stated that he experienced a sudden illness the night before the calendar call that prevented him from attending, although he made several calls to the trial judge’s office to communicate his situation with staff members. Because he had the case file, his co-counsel, George Peters, “was unable to receive files in time to proceed with the trial,” Parker averred, although he also said his clients had been in the courtroom at the call of the calendar.

The Wyatts then moved the trial court to correct its order of dismissal by correcting the case number, and on May 6, 1999, the trial court granted the Wyatts’ motion to correct its February 12, 1999, order of dismissal, ordering the clerk of court to substitute the proper civil action number in that earlier order.

The trial court also denied the Martins’ motion for a new trial on May 6, 1999, noting that no trial had been held in the case and no verdict was returned. Finally, the court denied the Martins’ motion for reconsideration, noting that OCGA § 9-11-60 provided the exclusive means for attacking a judgment, and those means did not include a motion for reconsideration.

We concluded in a previous order in this case that no final judgment was effectively rendered until the trial court entered its corrective order on May 6, 1999. Thus, the Martins were able to file a timely appeal, and they submit four arguments on appeal: (1) Georgia law does not require an attorney to submit a doctor’s affidavit to seek a continuance due to illness; (2) their counsel complied with the requirements for a continuance; (3) the trial court erred in finding the Martins were not in the courtroom as of the calendar call and in not allowing them to proceed pro se; and (4) the trial court erred in denying their motions for new trial and for reconsideration.

1. We consider the first and second enumerations together, reviewing for abuse of discretion a trial court’s grant of a motion to dismiss for want of prosecution. Ector v. Unison Ins. Co., 228 Ga. App. 520, 521 (3) (492 SE2d 287) (1997). The trial court may dismiss an action for want of prosecution when a party’s attorney fails to appear for trial and has not obtained a continuance. See Scriver v. Lister, 235 Ga. App. 487, 488 (1) (510 SE2d 59) (1998).

The Georgia Code specifically outlines the requirements to be met when seeking a continuance due to counsel’s illness. OCGA § 9-10-155 provides:

The illness or absence, from providential cause, of counsel where there is but one, or of the leading counsel where there are more than one, shall be a sufficient ground for continuance, provided that the party making the application for a continuance will swear that he cannot go safely to trial without the services of the absent counsel, that he expects his services at the next term, and that the application is not made for delay only.

Nothing in this record shows that any of these criteria for granting a continuance due to counsel’s illness were met. “ ‘Continuances because of the absence of counsel are not favored, and a strict compliance with the law is required, particularly since the matter rests within the sound discretion of the trial judge.’ ” Chappelaer v. Gen. GMC Trucks, 130 Ga. App. 664, 666 (2) (204 SE2d 326) (1974).

The record contains no motion for continuance; further, the counsel claiming he could not attend trial due to illness made no entry of appearance as counsel of record until April 14, 1999, more than two months after the trial court granted the Wyatts’ motion to dismiss. The attorney who was counsel of record for the Martins as of the February 1,1999 calendar call submitted no motions or affidavits to seek a continuance or respond to the Wyatts’ motion to dismiss. While we can conceive of circumstances under which a trial court may properly require an attorney seeking a continuance to present a doctor’s affidavit of illness, OCGA § 9-10-155 does not mandate that action. However, under the circumstances in this case, we cannot say the trial court erred in concluding that the Martins failed to appear and failed to comply with the requirements for a continuance.

Decided March 30, 2000.

George B. Peters, Joseph C. Pendergrass, Jr., James S. Grimes, for appellants.

Harper, Waldon & Craig, Thomas D. Harper, Robert D. Brunson, Trevor G. Hiestand, for appellees.

2. The Martins argue the trial court erred in not allowing them to proceed pro se and in finding that they failed to report upon the call of the calendar on February 1, 1999. First, nothing in the record indicates that the Martins asked to proceed pro se. Counsel has cited no authority for the proposition that a trial court must discern sua sponte whether a civil party wishes to proceed on his own when his lawyer fails to appear, and we decline to so hold. Second, no evidence of record rebuts the trial court’s finding that the Martins failed to respond when the calendar was called. While counsel refers in his brief to the Martins’ affidavits as support for his argument that the Martins were in court on February 1, 1999, these affidavits do not appear in the record transmitted from the trial court. This court cannot consider factual representations in a brief that are not supported by the record. Ellison v. William Huff Ford, Inc., 155 Ga. App. 108, 109 (270 SE2d 327) (1980). The trial court did not abuse its discretion in granting the Wyatts’ motion to dismiss.

3. We also cannot say that the trial court erred in denying the Martins’ motions for new trial and motion for reconsideration. Pretermitting whether these motions were proper vehicles to challenge an order granting a motion to dismiss, for the reasons discussed in Division 1, we hold that the trial court did not err in denying the Martins’ motions.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.


author: Eldridge, Judge.

text:
    A00A0821.
    GUERTIN v. THE STATE.
    (533 SE2d 159)
   Eldridge, Judge.

A DeKalb County jury found James Alan Guertin guilty of statutory rape, incest, two counts of aggravated child molestation, and two counts of child molestation for acts he perpetrated against his five-year-old niece. On appeal, Guertin claims numerous instances where his trial attorney was allegedly ineffective, thereby depriving him of his Sixth Amendment right to effective assistance of counsel at trial. We have reviewed the trial transcript and the transcript of the motion for new trial at which Guertin’s trial counsel testified. Finding no merit to Guertin’s claims, we affirm.

1. “A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. [Cit.]” Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484) (1990).

The burden was on [Guertin] to show both that his trial counsel’s performance was deficient and that the deficient performance prejudiced his defense. A strong presumption exists that representation has been effective, and trial strategy and tactics do not establish ineffective assistance. In the absence of testimony to the contrary, counsel’s actions are presumed strategic.

(Citations and punctuation omitted.) Straite v. State, 238 Ga. App. 420, 424 (4) (518 SE2d 914) (1999). With these principles in mind, we turn to the specifics of Guertin’s claims.

(a) Guertin contends that counsel failed to properly prepare him for the “specifics and nuances of his anticipated testimony.” However, Guertin fails to allege what further specific preparation he would have liked or to what “nuances” he refers. His trial attorney testified that Guertin lived near his office; that they met “quite frequently”; and that they talked about the case approximately once a week for almost a year, including the fact that Guertin would testify and face cross-examination.

(b) Guertin contends that counsel failed to interview the State’s witnesses or any “exculpatory defense witnesses,” i.e., his mother, Linda Williams. However, counsel did interview Williams, whose loyalties were divided, because Guertin is her son, the main complaining witness (the victim’s mother) is her daughter, and the victim is her granddaughter. Defense counsel determined that, as a reluctant witness, any beneficial testimony that Williams could have provided might have been offset with testimony that could hurt Guertin’s case. A review of Williams’ testimony at the motion for new trial supports this conclusion: “I did not want to come between my children on either side.” In addition, it appears that Williams’ testimony would have consisted primarily of inadmissible hearsay and improper opinion testimony about the credibility of the victim’s mother. Moreover, counsel interviewed several State’s witnesses, including the victim’s mother and the State’s expert witnesses. Counsel had complete access to the State’s file and “knew who the witnesses were [and] what their testimony was going to be.”

(c) Guertin contends that his trial attorney failed to object to hearsay testimony that put his character in evidence. However, a review of the allegedly improper testimony shows that it was admissible as either outcry under OCGA § 24-3-16 or course of conduct under OCGA § 24-3-2.

(d) Guertin contends that counsel failed to file pretrial motions, including a discovery motion, a Brady motion, a motion in limine, and a motion to suppress the videotape testimony of the victim. However, Guertin has not shown that a motion to suppress or a motion in limine would have had merit. Further, counsel testified that neither a discovery motion nor a Brady motion was necessary, since he had complete access to the State’s file, knew what it contained, and no surprises occurred at trial.

(e) Guertin contends that defense counsel failed to have transcribed certain “critical” phases of the trial, such as voir dire, opening and concluding arguments, and the charge conference. However, Guertin has not alleged how the transcription of such portions of the trial would have benefitted him. Counsel testified that the entire trial was not transcribed because of cost concerns and that nothing objectionable occurred in any of the omitted portions of the trial.

(f) Guertin contends that counsel failed to cross-examine the victim’s mother regarding her failure to appear at an earlier scheduled trial date and her alleged reluctance to testify at trial. However, such topic was the subject of a State’s motion in limine, and defense counsel was instructed not to go into such matters.

(g) Guertin contends that his trial attorney failed to object to the allegedly improper opinion testimony of the State’s expert witness, Michelle Davis Martin. However, a review of Martin’s testimony reveals nothing objectionable about her expert opinion testimony. The hearsay to which Martin testified was admissible as outcry under OCGA § 24-3-16; Martin properly offered her expert opinion regarding the victim’s outcry in relation to Martin’s experience with abused children; and it is not improper for an expert to relate what she has read or studied as a basis for formulating her opinion. At the motion for new trial, Guertin did not question his attorney regarding any other aspects of Martin’s expert testimony.

(h) Guertin contends that defense counsel failed to make any requests to charge. However, counsel testified that he reviewed the State’s requests to charge, as well as the standard charges the trial court intended to give. Counsel found them adequate and determined that no additional charges were necessary. To the extent that a “good character” charge would have been applicable and/or beneficial, counsel testified that he “probably” should have requested one. However, defense counsel developed good character evidence at trial and such was before the jury. The trial court charged the jury on the credibility of witnesses. Guertin has not alleged how the result of the trial would have been different if an independent charge on good character had been given.

Having reviewed the transcript of the hearing on the motion for new trial in relation to the errors alleged, we conclude that Guertin has failed to meet his burden of showing any deficiency in his trial attorney’s performance which prejudiced his defense. Taylor v. State, 232 Ga. App. 825, 827 (6) (502 SE2d 540) (1998). Accordingly, Guertin’s claims of ineffective assistance of counsel are without merit.

2. In numerous additional ineffective assistance of counsel claims, Guertin contends that defense counsel: (a) failed to move for directed verdict on the basis that Guertin was not identified by the victim as the perpetrator of the sexual acts against her; (b) failed to consult with expert witnesses in order to rebut the State’s experts; (c) failed to make a “continuing witness” objection to the replaying of the video recording of the victim’s outcry pursuant to jury request; (d) failed to make a “continuing witness” objection to the introduction of an investigator’s report; (e) failed to request a charge on credibility; (f) failed to request a charge on identity; (g) failed to request a charge on accident; (h) failed to request the “standard charges” of mere presence and knowledge; (i) failed to object to the trial court’s instruction on reasonable doubt; (j) failed to conduct an adequate direct examination of defense witness Rebecca Scherling; (k) failed to object to improper testimony from Detective Paul Warner; (1) failed to object to the admission of Guertin’s booking photograph taken at the time of arrest; (m) failed to object to improper testimony from the victim; and (n) failed to conduct an adequate cross-examination of the victim. None of these contentions were raised at the motion for new trial as a basis for Guertin’s ineffective assistance of counsel claim, and consequently, they were not ruled upon by the trial court. Accordingly, we will not consider them for the first time on appeal. Holland v. State, 232 Ga. App. 284, 285 (2) (501 SE2d 829) (1998).

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

Decided March 30, 2000.

Kenneth T. Israel, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.

        Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).

       To the extent that Guertin now complains that Martin was not qualified to offer expert opinion testimony or that her opinion testimony exceeded the scope other expertise, such contention was not raised at the motion for new trial and will not be considered for the first time on appeal. Dukes v. State, 224 Ga. App. 305, 307 (2) (480 SE2d 340) (1997).

       The young victim testified at trial that her “Uncle Jimmy” committed the sexual acts against her as charged but would not point him out in open court; other State’s witnesses identified Guertin as the victim’s “Uncle Jimmy.”

       Such charge was given as part of the trial court’s standard charges.

       Guertin neglects to argue how the defense of “accident” could mitigate statutory rape and aggravated child molestation.


author: McMURRAY, Presiding Judge.

text:
    A00A0789.
    BULLARD v. ELGIN FEDERAL SAVINGS & LOAN ASSOCIATION.
    (531 SE2d 113)
   McMURRAY, Presiding Judge.

In this case’s first appearance this Court affirmed the superior court’s grant of defendant West Star Financial Corporation’s (“West Star”) motion to set aside default judgment for lack of service of process. Thereafter, appellant-plaintiff Sparkle Bullard (“plaintiff”) amended her complaint against West Star, AFI Mortgage Corporation (“AFI”), and Beal Banc, S.A. (“Beal”) to add appellee-defendant Elgin Federal Savings & Loan Association (“Elgin”) and Wendover Funding Corporation (“Wendover”) as parties. As amended, plaintiff’s complaint sought damages for wrongfully threatening foreclosure of her home on behalf of Elgin as owner of an interest in the deed to secure debt on plaintiff’s home. The superior court granted Elgin’s motion for summary judgment on the issue of vicarious liability, and this appeal followed. Subsequently, plaintiff voluntarily dismissed her complaint, as amended, against West Star, Beal, and Wendover without prejudice, leaving only AFI and Elgin in her lawsuit. Elgin later moved to dismiss the appeal as moot, arguing that plaintiff’s claim against Elgin did not survive plaintiff’s dismissal of Elgin’s alleged agents in wrongful foreclosure because it rested upon the doctrine of respondeat superior alone. Held:

1. We decline to grant Elgin’s motion to dismiss the appeal, noting that while plaintiff has voluntarily dismissed her cause of action against all of Elgin’s alleged subagents less AFI, she has not done so as to Elgin. This result is not inconsistent with the recent decision of our Supreme Court in Miller v. Grand Union Co., in which the Supreme Court held that neither a covenant not to sue nor a release in favor of an employee is sufficient to discharge an employer who is alleged to be vicariously liable for the tortious acts or omissions of such employee, “unless the instrument names the employer.” Plaintiff named Elgin in the voluntary dismissal she filed in the case sub judice only to state that “[b]y this pleading [she did] not dismiss her Complaint against [AFI] or her Complaint or appeal against [Elgin].”

2. Further, we conclude that the superior court erred in granting summary judgment to Elgin.

Elgin supported its motion for summary judgment by pointing to a document denominated “First Mortgage Participation Agreement” (the “Agreement”), arguing that it could not be vicariously liable for the actions of its co-defendants for want of an agency relationship under the Agreement with respect to the enforcement of loans in default.

Under the Agreement Fulton Federal Savings & Loan Association of Atlanta (predecessor-in-interest to Elgin’s co-defendants) as “Owner” and servicing agent assigned and transferred to Elgin as “Participant” a 90 percent interest in certain deeds securing home mortgages, among them that which attached to plaintiff’s home. Paragraph 11 of the Agreement pertinently provided that:

Owner shall have the sole discretion as to how and when to take the necessary steps to enforce collections of loans in default, including, without limiting the general terms, the right to employ counsel and incur expenses incidental to collection, foreclosure or otherwise; provided that loans in default more than ninety (90) days shall be the subject of prompt foreclosure procedure, unless Owner and Participant agree otherwise in writing.

(Emphasis supplied.)

While Paragraph 11 of the Agreement thus gave the co-defendant owners and servicing agents sole authority to decide “how” and “when” enforcement action should be taken as to loans in default, it did not expressly give them the authority to determine “whether” such action should be initiated. Moreover, by its own terms, Paragraph 11 gave participant Elgin a right to participate in decisions excepting distressed mortgages from prompt foreclosure.

Plaintiff opposed Elgin’s motion for summary judgment by filing her response to which she attached a West Star letter to Elgin, dated August 10, 1994. Therein West Star recommended that plaintiff’s loan be foreclosed for uncollectible debt and sought Elgin’s approval of foreclosure action. On its face, the letter shows Elgin’s apparent approval of such action by the signature of its representative, dated August 11, 1994.

Decided March 10, 2000

Reconsideration denied March 31, 2000

Michael P. Froman, Jeffrey L. Sakas, for appellant.

Culbreth & Sharoney, Abraham A. Sharoney, for appellee.

Upon the appeal of the grant of summary judgment; this Court reviews the evidence de novo. Summary judgment is proper where the movant shows no genuine issue of material fact exists and entitlement to summary judgment as a matter of law. A defendant carries this burden by demonstrating the absence of evidence as to one essential element of plaintiff’s case. Should the defendant do so, the plaintiff “ ‘cannot rest on (her) pleadings, but rather must point to specific evidence giving rise to a triable issue.’ ”

Viewed in a light most favorable to plaintiff, the evidence shows that a genuine issue of material fact remains on the issue of imputed liability. Under these circumstances, the superior court erred in granting summary judgment to Elgin.

Judgment reversed.

Johnson, C. J., and Phipps, J., concur.

        Bullard v. West Star Financial Corp., 231 Ga. App. 521 (500 SE2d 51).

       270 Ga. 537 (512 SE2d 887).

       Id.

       The Agreement when signed in 1971 gave Elgin a 75 percent participation interest; by 1973, Elgin’s interest had grown to a 90 percent participation interest.

       (Citations omitted.) Jackson v. K-Mart Corp., 242 Ga. App. 274, 275 (529 SE2d 404).

       Id.; see also Taverrite v. Lowe’s of Franklin, Inc., 166 Ga. App. 346, 348 (1) (304 SE2d 78).


text:
    A00A0844.
    LIGON v. BARTIS.
    (530 SE2d 773)
   Eldridge, Judge.

This is an appeal from the trial court’s order granting appelleedefendant Larry Bartis’ motion to enforce a settlement agreement. Upon review of the record, we affirm the trial court’s order.

On a motion to enforce a settlement agreement, we construe the evidence to uphold the trial court’s judgment. Morrow v. Vineville United Methodist Church, 227 Ga. App. 313, 317 (489 SE2d 310) (1997). We will not disturb a trial court’s findings thereon unless “clearly erroneous.” Id. The record in this case shows that, while driving his car, appellant-plaintiff Louis L. Ligón III, was hit from behind by a car driven by Bartis. Ligón hired attorney James Farris to represent him in a personal injury action against Bartis. Bartis hired attorney Lee Welborn to defend against the action. The case proceeded to discovery.

Following discovery, attorneys Farris and Welborn entered into settlement negotiations. The next day, on December 22, 1998, Farris informed Ligón of the strengths and weaknesses of his case and that defendant was offering $23,750 in settlement and satisfaction of Ligon’s personal injury claim. Ligón asserts that, when Farris told him of the settlement offer and terms, Ligón stated, “I don’t know what else is there to do?” The following day, December 23, 1998, Farris notified Welborn that Ligón had accepted the settlement offer of $23,750. The settlement was confirmed in writing in a January 14, 1999 letter written by Welborn to Farris.

Approximately a month after Farris settled the case, Ligón telephoned Farris and told him “that he should not proceed any further with any settlement negotiations or proceedings.” Apparently, Ligón had consulted with other attorneys and decided that Farris had misled him as to whether settlement was in his best interest. Ligón fired Farris; he refused to sign the settlement papers. Defendant Bartis, through his attorney, filed a motion to enforce the settlement. A hearing was held on the motion, and on May 19,1999, the trial court ordered Ligón to sign the settlement agreement and to file a dismissal of his personal injury claim. Thereafter, Ligón filed an “Affidavit of Truth in Matter of Settlement Offer” wherein he refused to follow the trial court’s order. Bartis, through attorney Welborn, filed a petition to hold Ligón in contempt. A hearing was held on the petition, after which the trial court vacated its earlier order, enforced the settlement agreement again, and entered judgment in favor of Ligón in the amount of $23,750, per the terms of the agreement. From this order, Ligón appeals. Held:

Under Georgia law [a private] attorney of record has apparent authority to enter into an agreement on behalf of his client and the agreement is enforceable against the client by other settling parties. The authority may be considered plenary unless it is limited by the client and that limitation is communicated to opposing parties.

(Citations and punctuation omitted.) City of Atlanta v. Black, 265 Ga. 425, 427 (457 SE2d 551) (1995).

Here, there is no dispute as to the existence of the settlement agreement and its terms. The agreement and its terms were memorialized in writing, and “letters or documents prepared by attorneys which memorialize the terms of the agreement will suffice.” Brumbelow v. Northern Propane Gas Co., 251 Ga. 674, 676 (308 SE2d 544) (1983). Moreover, Ligón admits that his attorney entered into the settlement agreement for $23,750. Here, the sole dispute is Ligon’s contention that Farris did not have his authorization to enter into such agreement.

Decided March 9, 2000

Reconsideration denied March 31, 2000

Louis L. Ligón III, pro se.

Downey & Cleveland, George L. Welborn, for appellee.

“[W]here there is no challenge to the existence or the terms of an agreement but only to an attorney’s authority to enter into it, the client is bound by its terms.” Brumbelow v. Northern Propane Gas Co., supra at 676. Ligon does not assert that his attorney’s alleged lack of authority was ever communicated to the opposite party. Nor does the record show such communication was ever made. In this case, Ligon’s remedy, “where there have been restrictions not communicated to the opposing party, is against the [private] attorney who overstepped the bounds of his agency, not against the third party.” Id. at 675. See also City of Atlanta v. Black, supra at 432 (Carley, J., dissenting). Accordingly, in light of the fact that the existence and terms of the agreement were established in writing and are not in dispute, the trial court did not err in enforcing the settlement agreement and entering judgment for plaintiff in the amount of $23,750. Commercial Union Ins. Co. v. Marco Transp. Co., 211 Ga. App. 844 (1) (440 SE2d 730) (1994); compare LeCroy v. Massey, 185 Ga. App. 828 (366 SE2d 215) (1988).

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       Apparently, Welborn obtained a video surveillance demonstrating that Ligón could perform tasks that he represented he could not do. In addition, an independent medical examination revealed evidence contradicting the diagnosis by Ligon’s physician.

       In his brief, Ligón also frames his claim of error as a deprivation of his constitutional right to due process, because Ligón was compelled to participate in the settlement agreement. “[Ligón] raised no due process issue at the trial court, and the trial court did not pass on such issue, so that it was not preserved for review on appeal.” Peoples v. Consolidated Freightways, 226 Ga. App. 265, 268 (1) (486 SE2d 604) (1997).


author: Andrews, Presiding Judge.

text:
    A00A0309.
    THE STATE v. JACKSON.
    (533 SE2d 433)
   Andrews, Presiding Judge.

The State appeals from the trial court’s order granting Michael Jackson’s motion to suppress evidence. Because the trial court’s order is based on an incorrect statement of the law, we reverse and remand.

Decided March 31, 2000.

J. Tom Morgan, District Attorney, Kevin N. Levitas, Assistant District Attorney, for appellant.

Willice D. Magee, for appellee.

The trial court erred when it held that Robinson v. State, 226 Ga. App. 406 (486 SE2d 667) (1997), stood for the proposition that standing was not addressed until after it is determined whether the investigatory stop was proper. In Robinson, this Court first concluded that the Terry stop of the automobile was proper because it was based on articulable suspicion. As the owner and driver of the car, Robinson clearly had standing to object to the Terry stop. The court then addressed the next issue, whether the pat-down and search of the jacket that the passenger was wearing were proper. We concluded that Robinson had no standing to object to the search of the passenger. Id. at 409. The stop of the car and the search of the passenger were two separate issues before the court.

In reviewing a ruling on a motion to suppress, the threshold question is whether the defendant has standing to challenge the seizure of the evidence. Lewis v. State, 233 Ga. App. 560, 561 (504 SE2d 732) (1998). As the United States Supreme Court held in Rakas v. Illinois, 439 U. S. 128 (99 SC 421, 58 LE2d 387) (1978), Fourth Amendment rights are personal in nature and may be enforced only at the instance of the person whose protection was infringed by the search and seizure. Id. at 138.

Therefore, because a defendant may challenge the legality of a search only where his or her own rights were violated, the trial court erred in holding that it would not address this issue. Accordingly, this case is reversed and remanded to the trial court for action consistent with this opinion.

Judgment reversed and case remanded.

Ruffin and Ellington, JJ., concur.


text:
    A00A0414.
    SMITH v. THE STATE.
    (533 SE2d 431)
   Andrews, Presiding Judge.

Adrian Smith appeals from the judgment entered after a jury found him guilty of armed robbery and possession of a firearm during the commission of a crime. Because we conclude there was no reversible error, we affirm.

The evidence at trial, taken in the light most favorable to support the verdict, was as follows. The gas station employee who was robbed identified Smith at trial as the man who came into the convenience store, pointed a gun at her and demanded the money from the cash register. The employee said the man with Smith came around the counter and took the money. Then, after the men got the money, they ran out, got into a blue car and sped off. The clerk positively identified Smith as the man with the gun who robbed her, both in a photo lineup shortly after the robbery and at trial. The car the men escaped in was later found wrecked by the side of the road, and the two defendants were picked up separately on foot.

Also testifying at trial was a prisoner who was in a holding cell with Smith’s co-defendant, Ebony Smith, also known as Ebony Shanique. The prisoner testified that Ebony Smith told him he had robbed a gas station with his brother, Adrian Smith.

1. In his first enumeration of error, Smith claims the trial court erred in allowing the prosecutor to question the co-defendant through a series of leading questions. It appears from the transcript that Ebony Smith had pled guilty and had given a statement implicating Adrian Smith in the crime. The State called Ebony Smith as a witness, but he refused to cooperate and denied his earlier statements. The prosecutor then used leading questions to examine him, and defense counsel objected. The trial court overruled the objection on the grounds that Ebony Smith was a hostile witness.

Although leading questions are generally allowed only on cross-examination, the trial court has discretion to allow leading questions on direct examination where the witness is nervous, ignorant or hostile. OCGA § 24-9-63; Fugate v. State, 263 Ga. 260, 265 (431 SE2d 104) (1993). “It would be a rare case in which the trial court’s exercise of discretion on this issue would warrant reversal.” Id. There was no error.

2. Next, Smith argues the trial court erred in allowing the testimony of the prisoner who was in the holding cell with Ebony Smith because it was hearsay. As Smith concedes, no objection was made to this testimony at trial; therefore, we will not address this claim on appeal. See, e.g., Tyner v. State, 193 Ga. App. 126 (387 SE2d 50) (1989). Nevertheless, Smith argues that hearsay testimony, even if not objected to, has no probative value. Even assuming the testimony was hearsay, the evidence against Smith was overwhelming, and this testimony was merely cumulative. There was still sufficient evidence to find Smith guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Smith also claims the trial court erred in denying a motion for mistrial after the prosecution commented on Smith’s right to remain silent. After playing a surveillance camera videotape of the robbery, the prosecutor asked one of the investigators, “In regards to any tape, voice analysis, or comparisons played to the witnesses, were you able to take a taped statement from Mr. Adrian Smith?” The officer replied, “No, I was not.” Defense counsel requested a mistrial, arguing that the jury was left with the impression that Smith asserted his right to remain silent after the arrest. The judge denied the motion, stating that he “was not left with that impression at all.”

We agree. The officer’s comment only referred to whether or not he had taken a taped statement from Smith and did not directly comment on Smith’s refusal to give a statement. Even assuming the statement directly commented on Smith’s silence, this is not cause for reversal. Smith v. State, 244 Ga. 814, 815 (262 SE2d 116) (1979). The test is whether the remark resulted in a trial so fundamentally unfair that it denied appellant due process. Williams v. State, 242 Ga. 757, 759 (251 SE2d 254) (1978). In this case, the remark did not have that effect.

4. During deliberations, the jury sent out the following note: “Count number one states that with intent to commit theft did take United States currency. It also states that he has an offensive-weapon, a certain handgun. Can we find Defendant guilty or not guilty of robbery without committing with handgun?” Defense counsel then requested that the court charge on the lesser included offense of robbery by intimidation. The trial court denied the request, stating that there was no evidence of robbery by intimidation in the case.

Smith argues on appeal that the court erred in refusing to give the charge on the lesser included offense. Smith does not dispute the court’s statement that there was no evidence of this lesser included offense, but rather contends that the court should have charged on the lesser included offense because the jury was requesting it. Smith cites to no case law in support of this proposition, and we find none.

Although we have no way of knowing what the jury intended by the note, the law is, as Smith admits, that failure to charge on robbery by intimidation is not error where the evidence does not demand a charge on that offense. Holcomb v. State, 230 Ga. 525, 527 (198 SE2d 179) (1973). Here, the only evidence was that the robbery was committed by someone with a handgun.

The trial court surmised that the jury was confused because in the original charge they were told they could find Smith guilty of one offense and not the other and one of the jurors must have questioned how they could find Smith not guilty of possession of a firearm in the commission of a crime and still find him guilty of armed robbery with a handgun.

In any event, after reading the jury’s note, the court recharged the jury on the State’s burden to prove each element of the crime beyond a reasonable doubt. The court also instructed the jury again on the elements of the crimes charged and parties to a crime.

Decided March 31, 2000.

Peter D. Johnson, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Reviewing the charge as a whole, as we must, Spearman v. State, 267 Ga. 600 (481 SE2d 814) (1997), we conclude the trial court did not err in failing to give the requested recharge. The charge as a whole adequately covered the applicable principles of law. McCant v. State, 234 Ga. App. 433, 435 (506 SE2d 917) (1998).

Judgment affirmed.

Ruffin and Ellington, JJ, concur.


author: Blackburn, Presiding Judge.

text:
    A00A0739.
    SCOTT v. THE STATE.
    (533 SE2d 428)
   Blackburn, Presiding Judge.

Following a jury trial, Douglas William Scott appeals his conviction of possession of cocaine. Scott contends that insufficient evidence was presented to support his conviction and that the trial court erred by: (1) failing to charge on accomplice testimony; (2) allowing the introduction of improper character evidence; and (3) denying his motion for acquittal. For the reasons set forth below, we affirm.

On appeal from a criminal conviction,

the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. The testimony of a single witness is generally sufficient to establish a fact.

(Punctuation omitted.) Newman v. State, 233 Ga. App. 794 (1) (504 SE2d 476) (1998).

Viewing the evidence under this standard, it reveals that Richmond County Deputy Sheriff David Santos stopped the vehicle in which Scott was a front seat passenger because Scott was not wearing a seat belt. Deputy Santos spoke to the driver of the vehicle, Brett Hydrick, who produced his driver’s license but was unable to produce proof of insurance. The driver appeared very nervous, “babbling about different things.” Hydrick told Deputy Santos that he did not know the passenger’s name, that he had just picked him up, and he did not know where he was taking him. Deputy Santos asked Hydrick to step to the back of the vehicle where he continued to question him about Scott. Deputy Santos then questioned Scott, who was very fidgety. Scott said that he and the driver were good friends who had previously worked together. Scott told the deputy that they were just riding around. However, Scott could not tell the deputy the name of the driver. Based on these conflicting statements, Deputy Santos asked Hydrick for permission to search the vehicle. After obtaining consent to search, Deputy Santos found a rock of cocaine, a crack pipe, and a razor blade under the front edge of the passenger seat of the car where Scott had been sitting. Both Hydrick and Scott were arrested for possession of cocaine. After they were handcuffed and put into the back seat of the deputy’s car, Scott began attacking Hydrick with his feet.

At trial, Hydrick, who pled guilty to possession of cocaine, testified that he was driving around looking for drugs when Scott waved for him to pull over. Scott obtained some cocaine with Hydrick’s money, then joined Hydrick in the car, and they drove around smoking the cocaine from Scott’s pipe. Hydrick testified that Scott threatened him several times when he attempted to get Scott to leave the car. After they were both arrested, Scott threatened to kick Hydrick’s “a__.” Scott told Hydrick that he knew people in jail. At the jail, Scott hit Hydrick before they were put into separate cells.

1. This evidence was sufficient to support the jury’s determination that Scott possessed cocaine. Scott’s argument that he was convicted based solely on the testimony of an accomplice is without merit.

The rule is well established that, to sustain a conviction in a felony case upon the testimony of an accomplice, there must be corroborating facts or circumstances, which, in themselves and independently of the testimony of the accomplice, directly connect the defendant with the crime, or lead to the inference that he is guilty, and are more than sufficient to merely cast on the defendant a grave suspicion of guilt. However, the sufficiency of the corroboration evidence is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting a defendant with the crime, the verdict is legally sufficient. The necessary corroboration may consist entirely of circumstantial evidence, and evidence of the defendant’s conduct before and after the crime was committed may give rise to an inference that he participated in the crime.

(Citations and punctuation omitted.) Bradford v. State, 261 Ga. 833, 834 (1) (412 SE2d 534) (1992). Accord Williams v. State, 198 Ga. App. 725 (1) (402 SE2d 796) (1991); Peabody v. State, 190 Ga. App. 304 (2) (378 SE2d 712) (1989).

Hydrick’s testimony was sufficiently corroborated by Scott’s nervous behavior at the time of the traffic stop, his inability to name Hydrick despite his contention that they were friends, his close proximity to the drugs, and his attempts to intimidate Hydrick. Although not sufficient alone to convict Scott, these facts are circumstantial evidence connecting Scott to the possession of the cocaine.

2. In Scott’s second enumeration of error, he contends that the trial court erred in failing to charge the jury on accomplice testimony. However, the record reflects that Scott failed to request such a charge. “The trial court did not err in failing to charge the law requiring corroboration of an accomplice’s testimony, absent a request to do so.” Thornton v. State, 264 Ga. 563, 578 (23) (i) (449 SE2d 98) (1994).

3. Scott contends that the trial court improperly allowed the State to cross-examine him with regard to his arrest record. Scott asserts that this improperly put his character into evidence. The record reveals, however, that the State was allowed to cross-examine Scott on his arrest record because he opened the door to such evidence by testifying:

I plead [ed] guilty [to a previous sale of cocaine charge] because I was wrong and I — and I was caught for my wrongness. And I done time for my wrongness, and that was ten years ago. But a person do change. A person can change. I have changed. If you look at my record you can see the only thing I ever had was disorderly conduct from — from arguing.
The prohibition against the [SJtate’s introduction of character evidence unless and until the defendant places his own character into issue does not preclude use of evidence to disprove facts testified to by the defendant. Francis v. State, 266 Ga. 69, 71 (2) (463 SE2d 859) (1995). The [S]tate is permitted to rebut statements of a defendant who testified at trial by disproving the facts to which the defendant testified. Bounds v. State, 207 Ga. App. 665, 666 (428 SE2d 673) (1993).

Decided March 31, 2000.

Ellis R. Garnett, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Lucas v. State, 234 Ga. App. 534, 538 (3) (507 SE2d 253) (1998). See also OCGA § 24-9-20 (b).

Pretermitting whether Scott’s testimony put his character into issue, testimony that his record contained only a disorderly conduct charge authorized the State to cross-examine him with regard to the numerous charges contained in his record. Lucas, supra.

4. The issues raised in Scott’s fourth enumeration of error regarding the denial of his motion for directed verdict are not properly before this Court as they were not raised in the trial court. “This Court is a court for the correction of legal errors and has no jurisdiction to address issues that are raised for the first time on appeal.” McDaniel v. State, 221 Ga. App. 43, 46 (1) (470 SE2d 719) (1996).

Judgment affirmed.

Eldridge and Barnes, JJ, concur.