author:
Per curiam. McMurray, Presiding Judge,
      Smith, Judge,

text:
    A94A1161.
    OVESTCO CORPORATION et al. v. BOWEN et al.
    (453 SE2d 94)
   Per curiam.

On October 4, 1993, the trial court granted summary judgment to all of the defendants. A notice of appeal was timely filed by plaintiffs on November 1, and they paid the court costs on November 5. A motion to dismiss the appeal under OCGA § 5-6-48 (c) was filed by defendants on February 2, 1994, and it was granted on March 24. Between the filing of the motion and the trial court’s action on it, the plaintiffs caused the record to be transmitted to this court by advising the clerk that “there is no transcript of evidence” and instructing that the appeal be transmitted “as soon as possible.” The appeal was docketed in this court on February 17. That record did not contain the pending motion and, of course, it did not contain the order which was subsequently entered. Transmitting it was simply a clerical mistake, of which this court was unaware because the pending motion was not included.

In March the defendants/appellees filed a motion in this court to dismiss the appeal, and appellants responded. Thereafter two supplemental records were transmitted to this court, on November 2 and 4, 1994. One included the motion to dismiss the appeal and one contained the trial court’s order granting that motion. Nevertheless, a panel of this court remanded the case on November 14 for a ruling on the motion. On reconsideration there is a dissent which would hold that the motion to dismiss pending in this court should be denied and the merits of the grant of summary judgment should be addressed and, presumably, decided.

We disagree with both positions for the following reasons. With respect to the former remand, there is no “pending” motion in the trial court so there is no purpose to be served by remanding the case to that court. With respect to the dissent, there is no notice of appeal from the dismissal of the appeal. If appellants desired review of that order, they were required to appeal from it. Court of Appeals Rule 47; Minor v. Minor, 173 Ga. App. 428 (327 SE2d 229) (1985), and cases cited therein. An example of such an appeal is Johnston v. Ga. Pub. Suc. Comm., 209 Ga. App. 224 (433 SE2d 65) (1993). It would then have been appropriate thereafter to consolidate the two appeals for resolution. If the appeal from the dismissal were affirmed, the appeal from the grant of summary judgment would be moot. On the other hand, if the appeal from the dismissal were reversed, summary judgment would be reviewable on the merits.

But all we have is an unappealed order of dismissal, with a motion in this court filed by the parties who prevailed below on their dismissal motion, seeking dismissal anew in this appellate court.

The appeal should be dismissed because there is a dismissal of it by the trial court, unappealed from.

This case differs from Turner v. Taylor, 179 Ga. App. 574 (1) (346 SE2d 920) (1986), because it is evident from appellants’ actions and reference to Rule 47 that they sought to avoid the trial court’s ruling on the motion. Instructing the clerk to transmit the record when there is a pending motion filed by the opposing party cannot be permitted to deprive the trial court of jurisdiction.

Appeal dismissed.

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

McMurray, Presiding Judge,

concurring specially.

Although I agree with the disposition of dismissing this appeal, I concur specially as it is my view that the trial court lost power (i.e., jurisdiction) to dismiss plaintiffs’ notice of appeal after the case was docketed in the Court of Appeals. See Turner v. Taylor, 179 Ga. App. 574 (1) (a) (346 SE2d 920); State v. Jackson, 188 Ga. App. 259 (1) (372 SE2d 823). This is not to say that I believe the issue raised in defendants’ motion to dismiss plaintiffs’ notice of appeal is dead. The Court of Appeals has inherent power to issue such orders as may be necessary to preserve jurisdiction of an appeal or to prevent a contested issue from becoming moot. Court of Appeals Rule 50 (c). Accordingly, I would dismiss this appeal and remand the case for consideration of defendants’ motion to dismiss plaintiffs’ notice of appeal.

After the trial court entered an order granting summary judgment in favor of defendants on all counts of the complaint, plaintiffs filed a timely notice of appeal and therein directed the clerk of the trial court as follows: “Transcript of evidence and proceedings will be filed for inclusion in the record on appeal.” Three months later, defendants filed (on February 2, 1994) a motion to dismiss the notice of appeal because of an unreasonable delay in filing the transcript. Plaintiffs responded by sending the following letter, entered on February 10, 1994, to an agent of the Superior Court of Fulton County: “In reference to our Notice of Appeal in the above-styled case, there is no transcript of evidence. Please file the Appeal as soon as possible.” The record was then transmitted to the Court of Appeals (apparently the next day) and the appeal was docketed in this court on February 17, 1994.

After docketing of the case sub judice in the Court of Appeals, plaintiffs filed in the trial court (on March 8, 1994) the following response to defendants’ motion to dismiss the notice of appeal: “The Clerk’s costs for this appeal were paid on November 5, 1993 and on February 11, 1994 the Clerk of the Superior Court transmitted the record to the Court of Appeals where it was docketed on February 17, 1994 as Case No. A94A1161. Under the rulings of State v. Jackson, 188 Ga. App. 259 and Turner v. Taylor, 179 Ga. App. 574, the failure to obtain a ruling on a motion to dismiss for delay while the matter is within the jurisdiction of the trial court precludes review of the matter pursuant to Rule 47 of the Rules of the Court of Appeals.” Unpersuaded by this response, the trial court entered an order dismissing plaintiffs’ notice of appeal on March 24, 1994, finding (in pertinent part) as follows: “To delay filing of the transcript of a one to two hour hearing for a period of over three months under such circumstances is unreasonable, and such unreasonable delay is unexcusable.”

In their motion to dismiss this appeal pursuant to Court of Appeals Rule 32 and OCGA § 5-6-48 (c), defendants argue that the case sub judice must now be dismissed because of plaintiffs’ unreasonable delay in filing a hearing transcript in the trial court. Defendants also argue that, absent manifest abuse of discretion, this court must accept the trial court’s finding that plaintiffs’ delay in filing a hearing transcript warrants dismissal of plaintiffs’ notice of appeal. Neither argument is fruitful. First, the Court of Appeals is not a court of record and cannot effectively weigh (for the first time on appeal) the credibility of plaintiffs’ explanation for the delay in filing a transcript. Second, the trial court lost jurisdiction to rule on defendants’ motion to dismiss plaintiffs’ notice of appeal once the case sub judice was docketed in the Court of Appeals. Turner v. Taylor, 179 Ga. App. 574 (1) (a), supra; State v. Jackson, 188 Ga. App. 259 (1), supra. However, this is not to say that I believe the issue raised in defendants’ motion to dismiss plaintiffs’ notice of appeal is dead. This court has inherent power to issue such orders as may be necessary to preserve jurisdiction of an appeal or to prevent a contested issue from becoming moot. Court of Appeals Rule 50 (c). Accordingly, I agree with dismissing this appeal, but would remand the case to the trial court for consideration of defendants’ pending motion to dismiss plaintiffs’ notice of appeal. An appeal would then be authorized from the trial court’s ruling.

I am authorized to state that Judge Johnson joins in this special concurrence.

Smith, Judge,

dissenting.

I respectfully dissent from the dismissal of this appeal. The notice of appeal was filed on November 1, 1993> stating that “a transcript of evidence and proceedings will be filed.” Although there was a hearing, it apparently was not transcribed, and appellants mistakenly requested the filing of a transcript. Appellees filed a motion to dismiss the appeal on February 2, 1994. Appellants then requested immediate transmittal on February 9, 1994. The trial court granted the motion to dismiss on March 24, 1994, after docketing of this appeal. It is not disputed that costs were paid on November 5, 1993.

Unlike the per curiam opinion, I do not see any manipulation or improper motives on the part of appellants. After filing what amounted to a standard notice of appeal containing a reference to a nonexistent transcript, appellants belatedly realized their error and endeavored to correct it.

OCGA § 5-6-48 (b) provides for the dismissal of appeals only under certain limited circumstances. Those circumstances differ depending on whether the filing of a transcript or the transmission of a record is involved. More specifically, OCGA § 5-6-48 (c) provides that the trial court may, after notice and a hearing, dismiss an appeal where there is unreasonable delay in the filing of a transcript if it is shown that the delay was inexcusable and caused by the appellant. In contrast, where there is unreasonable delay in the transmission of the record, it must be shown that the delay was both inexcusable and caused by the failure of a party to pay costs in the trial court or file an affidavit of indigency. Since no transcript in fact existed in this appeal, our ruling must be governed by the second provision of OCGA § 5-6-48 (c), which requires both inexcusable delay and failure to pay costs.

There is no dispute that costs in this case were paid, unlike Teston v. Mills, 203 Ga. App. 20 (416 SE2d 133) (1992), in which they were not. Therefore the reliance on Teston by Johnston v. Ga. Pub. Svc. Comm., 209 Ga. App. 224, 225 (433 SE2d 65) (1993), is misplaced. Because Johnston relied upon Teston even though costs had been paid, Johnston impermissibly extends Teston. Although I concurred in Johnston, I am now convinced it was wrongly decided and should be overruled. The plain language of the statute limits dismissal for delay in transmitting the record to those situations in which the delay was caused by appellants’ failure to pay costs. Since costs were paid in this action, the appeal should not be dismissed.

Moreover, Rule 47 of the rules of this court provides: “Appellee shall be deemed to have waived any failure of the appellant to comply with the provisions of the Appellate Practice Act relating to the filing of the transcript of the evidence and proceedings or transmittal of the record to this Court, unless objection thereto was made and ruled upon in the trial court prior to transmittal and such order is appealed as provided by law.” (Emphasis supplied.) Appellees’ motion was made but not ruled upon prior to the transmittal of the record. State v. Jackson, 188 Ga. App. 259, 260 (1) (372 SE2d 823) (1988).

Decided December 20, 1994

Reconsideration denied January 23, 1995

Stewart, Melvin & House, J. Douglas Stewart, Frank W. Armstrong III, for appellants.

Webb, Tanner & Powell, Anthony O. L. Powell, R. Jack Wilson, Frederick D. Burkey, Chandler & Britt, Gregory D. Jay, for appellees.

This result is consistent with the stated purpose of the Appellate Procedure Act: “[T]his article shall be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein, except as may be specifically referred to in this article.” OCGA § 5-6-30. Construed in this fashion, the Appellate Procedure Act and the rules of this court do not provide for a dismissal of this appeal under the circumstances presented here. For these reasons, I believe appellees’ motion to dismiss should be denied and the merits of this appeal considered.

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


source: Caselaw Access Project

author: Smith, Judge. McMurray, Presiding Judge,

license: Public Domain

text:
    A94A1237.
    CONTINENTAL INSURANCE COMPANY v. GAZAWAY.
    (453 SE2d 91)
   Smith, Judge.

Continental Insurance Company appeals from the judgment of the Probate Court of Gwinnett County finding it liable under a guardianship bond.

The record reveals that the bond at issue, in the amount of $52,000, was filed in the probate court by Jeannie Garner Gazaway, the duly appointed guardian of the person and property of Charlie Junior Gazaway. The bond named Continental Insurance Company as surety, and it was issued by George G. Robinson as attorney-in-fact for Continental. However, Continental never received a premium from Robinson for the bond. Robinson’s authority to write bonds for Continental had been revoked more than two months before this bond was issued. The power of attorney attached to the bond authorized Robinson’s execution of surety bonds on behalf of Transamerica Insurance Company. Continental is not an affiliate, subsidiary, or parent of Transamerica. Nevertheless, the bond was accepted by the deputy clerk of the probate court.

Robinson died prior to the initiation of this probate court case. Thereafter, the guardian’s attorney filed a petition to withdraw as counsel, alleging Gazaway had plundered the ward’s estate and requesting that the probate court inquire into the matter. Gazaway was removed as guardian, and a show cause order issued requiring Gaza-way to settle her accounts. Continental was served based upon its denial of liability on the bond. After a hearing, the probate court found Gazaway had wasted the entire estate of her ward, in the amount of $90,184.17, without benefit to the ward. The court'found that Robinson had lawfully issued a bond backed by Continental and that Continental and Gazaway were jointly and severally liable for the $52,000 covered by the bond. An additional judgment for $37,969.17 was entered against Gazaway.

In this appeal, Continental contends the probate court erred in holding it liable on the bond. We agree and reverse. It is undisputed that Robinson issued the bond as attorney-in-fact for Continental. One signing as attorney-in-fact does not purport to be a general agent of the corporation. The term “primarily denotes that all the authority the person so signing possesses is contained in a written power of attorney.” Foley & Williams Mfg. Co. v. Bell & Harrell, 4 Ga. App. 447, 448-449 (2) (61 SE 856) (1908). The record shows without dispute that Robinson was given only a limited power of attorney. He therefore was, at best, a limited agent. Persons dealing with a limited agent have the duty to examine the agent’s authority. OCGA § 10-6-50; Addley v. Beizer, 205 Ga. App. 714, 716-717 (423 SE2d 398) (1992). The signature of Robinson as attorney-in-fact therefore placed the probate court clerk and the former guardian on notice that they must inspect the power of attorney before relying on Robinson’s authority to write the bond.

Because of the purpose of the agency, in this case another duty of inquiry arose. The statute of frauds requires that contracts to answer for the debts of another be in writing. OCGA § 13-5-30 (2). Bonds and other surety contracts are within the contemplation of this statute. See generally Jam Bonding Co. v. State of Ga., 179 Ga. App. 82, 83 (345 SE2d 87) (1986).

The equal dignity rule, codified in OCGA § 10-6-2, provides that where the act to be performed by the agent must be executed with certain formalities, the creation of the agency must be executed with those same formalities. See, e.g., Spiegel v. Hays, 103 Ga. App. 293, 300 (3) (119 SE2d 123) (1961); Nalley v. Whitaker, 102 Ga. App. 230 (2) (115 SE2d 790) (1960). As a result, Robinson’s authority to issue the bond could not be mere apparent authority; his authority was required to be shown by a writing: a power of attorney from Continental. Although a power of attorney was attached to the bond in this case, that power was not from Continental but from Transamerica Insurance Company. It was therefore insufficient, and neither Gazaway nor the probate court was justified in relying on Robinson’s apparent authority.

The dissent seeks to hold Continental liable on the bond under a theory of apparent agency. However, to hold a principal liable under such a theory, the plaintiff must show that the principal held out the agent as its own through conduct which, reasonably interpreted, caused the plaintiff to believe the agent was authorized. Shivers v. Barton & Ludwig, Inc., 164 Ga. App. 490, 491 (296 SE2d 749) (1982). Reasonably interpreted, Continental’s conduct in this case did not authorize either the guardian or the probate court to conclude the bond was valid, and the lack of diligence on the part of both the guardian and the probate court precludes a showing of justifiable reliance.

Continental did nothing to knowingly cause or permit Robinson to act as its agent. Robinson was a limited agent and could write bonds only by virtue of a specific power of attorney from Continental. When his authority was revoked, Continental properly removed from Robinson’s possession the powers of attorney it had given him and destroyed them. Consequently, even under the Restatement 2d of Agency, § 130, Continental would not be liable.

Because Robinson was not authorized to write the bond on behalf of Continental, and neither the guardian nor the probate court clerk was justified in relying on his authority to write the bond, Continental is not liable under the bond. The probate court’s judgment must be reversed.

Judgment reversed.

Birdsong, P. J., Beasley, P. J., Andrews, Johnson and Ruffin, JJ., concur. Pope, C. J., McMurray, P. J., and Blackburn, J., dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as it is my view that there is sufficient evidence to sustain the probate court’s finding that George G. Robinson had authority (albeit apparent) to issue the $52,000 guardianship bond on behalf of Continental. Further, I find no conclusive evidence refuting the presumption that the probate court acted with regularity (i.e., with evidentiary support that Robinson was an authorized agent for Continental) when he approved the $52,000 surety bond filed to protect the ward’s estate.

“ ‘In terms of estoppel, the general rule is that an insurance company will be estopped to deny that a certain person is its agent or possesses the authority he assumes to exercise, where the insurance company knowingly causes or permits him so to act as to justify a third person of ordinarily careful and prudent business habits to believe that he possesses the authority exercised.’ 43 AmJur2d 201, Ins., § 120.” Henry v. Dairyland Ins. Co., 186 Ga. App. 250, 252 (366 SE2d 799). In the case sub judice, the evidence is undisputed that Continental gave Robinson a power of attorney giving him authority to issue surety bonds on its behalf and that Continental gave Robinson such authority so that Robinson could develop business on behalf of it in the Probate Court of Gwinnett County, Georgia. There is also evidence that a copy of this power of attorney was on file in the office of the Clerk of the Probate Court of Gwinnett County at the time the probate court judge approved that $52,000 bond which is now the subject of the case sub judice.

“If the principal entrusts to the agent a power of attorney or other writing which manifests that the agent has authority and which is intended to be shown to third persons, and this is retained by the agent and exhibited to third persons, the termination of the agent’s authority by causes other than incapacity or impossibility does not prevent him from having apparent authority as to persons to whom he exhibits the document and who have no notice of the termination of the authority.” Restatement, Law of Agency 2d, § 130.

In the case sub judice, there is evidence that Continental gave Robinson a “GENERAL POWER OF ATTORNEY” in the early part of 1990, giving him authority to issue surety bonds (not to exceed $300,000) to “[a] 11 Obligees.” Further, there is evidence that this power of attorney has no expiration date and that it was on file in the Probate Court of Gwinnett County at the time the probate court judge approved the $52,000 guardianship bond submitted by Gaza-way. Although there is evidence that Continental revoked Robinson’s power to issue bonds before Gazaway acquired the $52,000 bond certificate from Robinson, there is no proof that Continental informed the Probate Court of Gwinnett County that Robinson no longer had authority to issue surety bonds on its behalf. In fact, Thomas Williams, a “senior underwriter” for Continental, testified that he terminated Robinson’s authority to issue bonds for Continental in April 1991, but that he never informed the Probate Court of Gwinnett County of Robinson’s termination as a Continental agent, explaining that giving such notice would have been too burdensome. It is my view that this evidence, along with the presumption that the probate court judge acted with regularity when it approved the surety bond on behalf of the ward’s estate (i.e., with evidentiary support that Robinson was an authorized agent for Continental), Acker v. Jenkins, 178 Ga. App. 393, 394 (1) (343 SE2d 160), is sufficient to support the probate court’s finding that Robinson was Continental’s ostensible agent when he issued the $52,000 surety bond. Consequently, it is my view that the probate court did not err in concluding that “Continental Insurance Company is responsible to pay $52,000.00 to the ward as a result of its issuance of a valid bond to the former guardian, Ms. Jeannie [Garner] Gazaway, through its lawful agent, Mr. George Robinson.”

Decided December 20, 1994

Reconsideration denied January 23, 1995

Bovis, Kyle & Burch, John V. Burch, Timothy J. Burson, for appellant.

Claira M. Zellers, J. Gordon Barksdale III, Steven M. Reilly, for appellee.

I am authorized to state that Chief Judge Pope and Judge Blackburn join in this dissent.

       OCGA § 33-24-18 also specifies that insurance contracts are set forth in written instruments.

       Specifically, Williams testified that he never informed the probate court of Robinson’s termination “because unlike insurance, bonds can be issued to an unlimited number of obligees is the word we use, the Probate Court being one of those. And there’s logistically no way that you could potentially identify every obligee and notify them of the fact that the power of attorney had been revoked. Because since George Robinson had a power of attorney, that didn’t mean that he just issued bonds for the Probate Court, if that explains it.”


author: Andrews, Judge.

text:
    A94A2045.
    ADSIDE v. THE STATE.
    (453 SE2d 139)
   Andrews, Judge.

Adside was found guilty by a jury of the offenses of aggravated assault, possession of a firearm during the commission of a felony and misdemeanor obstruction of a law enforcement officer. He was found not guilty on a kidnapping charge.

1. Adside claims the evidence was insufficient to support the convictions.

The State presented testimony from the victim, Pitts, that Ad-side held a gun to her head. This testimony was clearly sufficient to allow the jury to conclude beyond a reasonable doubt that Adside was guilty of aggravated assault under OCGA § 16-5-21 and was guilty of possessing a firearm during the commission of the felony offense of aggravated assault in violation of OCGA § 16-11-106.

As to the obstruction charge, Adside was indicted for “knowingly and willfully obstructing] and hinder [ing] [four named] law enforcement officers engaged in the lawful discharge of their duties by attempting to run from officers to avoid arrest.” Adside enumerates as error that the State failed to produce necessary evidence showing how he obstructed the officers in that there was no evidence that he ran from the officers to avoid arrest.

The evidence showed that police officers came to Adside’s residence to investigate an earlier report that Pitts, Adside’s ex-girl friend, had been kidnapped at gunpoint by Adside. When the officers arrived, Pitts came out of the house, denied that Adside had a gun, and refused at that time to press any charges against Adside. At the request of the officers, Adside came out of the house to speak with the officers. The officers questioned Adside as he sat on the steps of the house, but obtained no evidence that would have established probable cause to arrest him on any charge connected with the incident under investigation. During the questioning, Adside gave his name and date of birth, and the police ran a computer check for outstanding warrants. Apparently none were discovered. Although an officer testified that “[t]here was some discrepancy in the birthday that he gave us, and the birthdate that was derived from the computer,” Adside was not charged or arrested for giving false information to an officer under OCGA § 16-10-25. The officer further testified that: “I don’t know whether [the birthdate discrepancy] maybe triggered him to do what he done, but the next thing he done, he just stood up, turned, and abruptly walked into the house. . . . We were concerned that there might be a weapon in the house and that he could use it against us. So we physically put our hands on him, and we had to wrestle him to the floor to subdue him.” The officer testified that Adside ignored a command that he not go into the house. Adside was immediately arrested for obstructing the officers. The remaining charges in the case were eventually brought against Adside based on evidence obtained at a later date.

Adside argues that “ ‘ “in criminal law an unnecessarily minute description of a necessary fact must be proved as charged.” ’ ” Williams v. State, 196 Ga. App. 154, 156 (395 SE2d 399) (1990). In essence, Adside contends that the indictment charging that he ran from the officers to avoid arrest precisely described how the obstruction occurred, and that the State’s proof showed obstruction in a wholly different manner. “To permit the prosecution to prove that a crime was committed in a wholly different manner than that specifically alleged in the indictment would subject the accused to unfair surprise at trial and constitute a fatal variance under the standards enunciated in DePalma v. State, 225 Ga. 465, 469 (169 SE2d 801).” Walker v. State, 146 Ga. App. 237, 246 (246 SE2d 206) (1978).

Decided January 23, 1995.

L. Elizabeth Lane, for appellant.

Charles H. Weston, District Attorney, Thomas J. Matthews, As sistant District Attorney, for appellee.

The evidence showed that, in the lawful discharge of their official duties, the officers were questioning Adside as part of an investigation into the charges for which he was eventually arrested. Adside attempted to terminate the questioning, and, contrary to the officers’ express command, abruptly moved away from the officers and attempted to reenter the house. In the process, he forcefully resisted the officers and was arrested. The indictment fairly notified Adside that these were the actions which formed the basis for the obstruction charge. There was no variance in this case between the allegations in the indictment and the proof at trial which unfairly surprised Adside.

2. Adside claims the trial court erroneously denied his motion for a mistrial made on the basis that his character was improperly placed into issue.

During cross-examination of the victim, defense counsel asked: “Of course, all the detail about [Adside] trying to shoot the gun and it not shooting and so forth, you didn’t tell police any of that, did you?” The victim responded: “No, because Peter [Adside] was on probation, and I didn’t want to get him in any worse trouble than he was already in.”

Defense counsel moved for a mistrial claiming this response by the witness was not elicited by his question and that it improperly placed Adside’s character into evidence. The trial court denied the motion, concluding that the witness’ explanation was responsive to the question, but the trial court, nevertheless, instructed the jury to disregard the witness’ reference to Adside’s probation.

Even if the reference to Adside’s probation placed his character into evidence, the trial court properly denied the motion for a mistrial. Defense counsel’s question was an attempt to demonstrate that the victim’s trial testimony was not believable because she did not initially relate the same facts to the police. The victim’s reply was responsive to the question and explained why she did not initially tell police all she knew. Since the mention of Adside’s probation came in responsive testimony elicited by defense counsel, any error was induced and Adside is in no position to complain. Tolliver v. State, 167 Ga. App. 696, 697 (307 SE2d 269) (1983). Moreover, the trial court’s instruction to the jury was sufficient to cure any error. Stanley v. State, 250 Ga. 3 (295 SE2d 315) (1982).

Judgment affirmed.

Beasley, C. J., and Johnson, J., concur.


author: McMurray, Presiding Judge.

text:
    A94A2055.
    STOKES et al. v. CANDLER HOSPITAL, INC.
    (453 SE2d 502)
   McMurray, Presiding Judge.

Plaintiff Connie Stokes brought this tort action on behalf of her deceased four-year-old son, Justin D. Stokes, alleging that defendant Candler Hospital, Inc. (“the hospital”) and its agents negligently failed to diagnose that the boy required emergency surgery. As a separate count to the complaint, plaintiff alleged that the hospital breached an independent duty of care for which it was “strictly liable” under the provisions of 42 USC § 1395dd, in that “Justin Stokes’ condition was not appropriately screened and [he] was not medically stable at the time of his discharge . . .” from the hospital’s emergency room.

The hospital denied the material allegations and, after a period of discovery, moved for partial summary judgment as to any tort claim under the federal law, based upon the following undisputed chronology: Plaintiff brought her son to the emergency room of the hospital around 2:00 a.m. on April 22, 1991. The child’s noted symptoms were that he was vomiting, in abdominal pain, and was wild-eyed. He was examined by C. Patrick Ng, M.D., who initially prescribed injections of “atropine and phernergan” to stop the child’s vomiting and to help with any stomach cramps. Dr. Ng then referred the child to a hospital pediatric surgeon, Robert D. Gongaware, M.D., for a “surgical consult. . . .” At approximately 4:00 a.m., Dr. Gongaware examined the child, “diagnosed [his] condition as viral gastroenteritis,” and concluded that the child did “not [have] a surgical abdomen,” i.e., surgery was not necessary. Dr. Ng ordered no further testing “after the child was cleared by a pediatric surgeon.” According to medical records, the child was discharged at 4:42 a.m. and his condition on discharge was noted as “improved.” Plaintiff was instructed in writing to “see [the child’s regular physician] Dr. Morrison today[, and to] return if child gets worse.” At approximately 9:30 a.m., when she went to awaken the child, plaintiff discovered he was dead. The immediate cause of death, “acute ischemic necrosis,” is undisputed. In the opinion of the pathologist from the Georgia Bureau of Investigation, Justin Stokes “had a congenital malformation of the mesentery, which resulted in it assuming a very small, abbreviated form. As a consequence, the virtual entirety of the intestines rotated upon themselves, resulting in obstruction of the arteries and veins passing through this abbreviated mesenteric segment. This obstruction resulted in thrombosis (clotting) of the veins in this area, causing the intestines to die (infarct).”

The trial court granted the hospital’s motion for partial summary judgment and this appeal followed. In four related enumerations, plaintiff contends the trial court erred because fact questions remain as to whether the hospital fulfilled its duties under 42 USC § 1395dd, the Emergency Medical Treatment & Active Labor Act, (“the Act”). Held:

42 USC § 1395dd (a) imposes on certain hospitals with emergency rooms the duty to “provide for an appropriate medical screening examination within the capability of the hospital’s emergency department, including ancillary services routinely available ... , to determine whether or not an emergency medical condition . . . exists.” If any individual comes to a hospital and the hospital determines that the individual has an emergency condition, 42 USC § 1395dd (b) (1) (A) imposes upon the hospital the further duty to “stabilize the medical condition,” or to transfer the individual to an appropriate medical facility. See Brooks v. Maryland Gen. Hosp., 996 F2d 708, 709 (4th Cir. 1992). “The term ‘to stabilize’ means ... to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual. . . .” 42 USC § 1395dd (e) (3) (A). The term “transfer” includes the discharge of an individual. 42 USC § 1395dd (e) (4).

In the case sub judice, there is no question that the hospital screened the child and treated the immediate symptoms of his emergency medical condition with medications intended to stop his vomiting and to alleviate suspected stomach cramps. We agree with plaintiff that the Act does not require a showing that her child was treated unequally due to suspected indigency. However, we do not agree that a claim for damages under the Act is made out solely by proof of an unfortunate result. 42 USC § 1395dd (a) “requires a hospital to develop a screening procedure designed to identify such critical conditions that exist in symptomatic patients and to apply that screening procedure uniformly to all patients with similar complaints.” Baber v. Hosp. Corp. of America, 977 F2d 872, 879 (4th Cir. 1992). “[A] hospital fulfills the ‘appropriate medical screening’ requirement when it conforms in its treatment of a particular patient to its standard screening procedures.” Gatewood v. Washington Healthcare Corp., 933 F2d 1037, 1041 (D.C. Cir. 1991). See also Brooks v. Maryland Gen. Hosp., 996 F2d 708, 710 (I), supra. “[T]he Act is intended not to ensure each emergency room patient a correct diagnosis, but rather to ensure that each is accorded the same level of treatment regularly provided to patients in similar medical circumstances.” Gatewood v. Washington Healthcare Corp., 933 F2d 1037, 1041, supra. The Act “does not create a standard of care to be followed, [and] does not create liability for malpractice based on a breach of [a] national or community standard of care; at the core, it aims at disparate treatment.” Brooks v. Maryland Gen. Hosp., 996 F2d 708, 713 (III), supra. “The provisions of [the Act] do not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section.” 42 USC § 1395dd (f). That the emergency room physicians in the case sub judice might have misdiagnosed the true nature and peril of the child’s emergency condition does not make out a cause of action against the hospital pursuant to the requirements of 42 USC § 1395dd (a), where it is undisputed that the child was screened, was examined by two physicians, and was given medications to stop his vomiting and to ease his pain before being discharged with instructions to see the child’s regular pediatrician and with the further instruction to “return if [the] child gets worse.”

Nevertheless, plaintiff contends that summary judgment was erroneous because the hospital improperly discharged Justin Stokes before he had been stabilized as required by 42 USC § 1395dd (b) (1). This contention is without merit.

“The hospital’s responsibility under the statute ends when it has stabilized the individual’s [emergency] medical condition. See Brooker v. Desert Hosp. Corp., 947 F2d 412, 415 (9th Cir. 1991).” Green v. Touro Infirmary, 992 F2d 537, 538 (III), 539 (5th Cir. 1993). “Stabilization” of an emergency medical condition under the Act refers only to those emergency medical conditions actually diagnosed. “[T]he plain language of the statute dictates a standard requiring actual knowledge of the emergency medical condition by the hospital staff. [Cits.]” Baber v. Hosp. Corp. of America, 977 F2d 872, 883, supra. “If the emergency nature of the condition is not [correctly] detected, the hospital cannot be charged with failure to stabilize a known emergency condition.” Cleland v. Bronson Health Care Group, 917 F2d 266, 271 (6th Cir. 1990). In the case sub judice, it is undisputed that when the child was discharged he had stopped vomiting and was drowsy (albeit delirious) or else “[h]e was sleeping most of the time,” due to the injections prescribed by Dr. Ng. The medical records note the child’s condition on discharge as “improved.” Since the observed emergency medical condition had been stabilized, the hospital had fulfilled its duties under 42 USC § 1395dd. Any failure to diagnose the congenitally defective bowel and the resulting infection is not actionable as a failure to stabilize before discharge under the requirements of 42 USC § 1395dd (b) (1). The trial court correctly granted the hospital’s motion for partial summary judgment.

Decided January 12, 1995

Reconsideration denied January 24, 1995

Jones, Boykin & Associates, Noble L. Boykin, Jr., for appellants.

Oliver, Maner & Gray, William P. Franklin, Jr., Beckmann & Pinson, William H. Pinson, Jr., Bouhan, Williams & Levy, Joseph A. Mulherin III, Brennan & Wasden, Wiley A. Wasden III, for appellee.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       Also known as the “Anti-Patient Dumping Act.” See Baber v. Hosp. Corp. of America, 977 F2d 872, 873, fn. 1 (4th Cir. 1992).


author: Birdsong, Presiding Judge.

text:
    A94A2666.
    GREGG v. THE STATE.
    (453 SE2d 499)
   Birdsong, Presiding Judge.

Appellant James R. Gregg was convicted of DUI (Count I), driving a motor vehicle with an unlawful blood-alcohol level (Count II), and driving without proof and evidence of minimum insurance coverage (Count III); Count I was merged into Count II by the trial court following appellant’s conviction. Appellant appeals the denial of his motion for new trial and in effect the judgment of conviction. His sole enumeration is that the trial court erred in allowing the State to introduce evidence of a blood test result during rebuttal. Held:

Following his arrest for DUI and no proof of insurance, appellant was taken to the police station and was tested on the Intoximeter 3000; the test result was .17. Appellant requested an independent test of his blood. During the course of the independent testing, the arresting officer ordered and obtained a sample of appellant’s blood. The officer testified that it was his own custom always to obtain a control sample of the blood drawn during independent testing so that the State crime lab could test it “to insure that the differences in the test results would not be so grossly different.” This procedure is conducted to obtain “a control sample, not to be introduced as evidence against [a suspect] as to the results of it, initially.’> (Emphasis supplied.) The crime lab report revealed that the control sample showed appellant’s blood-alcohol concentration level at .17. During a hearing on appellant’s motion in limine or to suppress, the trial court ruled that if the State intended to introduce this evidence it must first give the court ten days notice prior to trial and provide a brief, and that opposing party also would be given an opportunity to brief the issue. The State did not provide such notice prior to trial, and evidence of the test result of the sample was not admitted during the State’s case-in-chief. Appellant introduced expert testimony contesting the accuracy of the results of the State’s Intoximeter 3000 test and asserting that the .17 reading on the Intoximeter 3000 “very well could have” been caused by appellant’s earlier exposure to methyl ethyl ketone. Thereafter, the State requested that it be allowed to introduce the results of the State’s test of the control sample taken from the blood drawn from appellant. The trial court ruled that the State could introduce the test results in rebuttal.

“[W]hether the State should be permitted to introduce evidence after the defendant has closed his testimony, even if it was not strictly in rebuttal, is a matter resting in the sound discretion of the court.” (Emphasis supplied; punctuation omitted.) Smith v. State, 260 Ga. 746, 748 (1) (399 SE2d 66). “Under the facts of this case, ‘the trial court did not abuse its discretion in controlling the scope of rebuttal testimony.’ ” Id.; see Chezem v. State, 199 Ga. App. 869, 872 (3) (406 SE2d 522). The ruling of the trial court to allow the blood test to be admitted in rebuttal is entirely consistent with the statutorily recognized object of the rules of evidence, which is “the discovery of truth.” OCGA § 24-1-2.

Appellant asserts that the introduction of the evidence was tantamount to a violation of the requirements of former OCGA § 17-7-211 (b), see generally OCGA § 17-16-1 et seq.; however, as appellant made no timely objection at trial to the admission of the evidence on the specific grounds of former OCGA § 17-7-211, this issue is not preserved on appeal. Norman v. State, 197 Ga. App. 333, 334 (2) (398 SE2d 395); Ray v. State, 187 Ga. App. 451, 452 (370 SE2d 629). Further the State, in response to appellant’s pretrial motions for discovery, inspection, and production of evidence, filed disclosure in February 1993. The record shows, without contradiction, that the disclosure included the State’s intoximeter test report and the blood test report at issue. Additionally, in appellant’s motion in limine filed on October 5, 1993, appellant revealed its awareness “that the State will seek to introduce evidence of alcohol concentration which was the result of a state administered chemical test.”

Appellant contends the “trial court” should be estopped from allowing the evidence to be offered in rebuttal, as the defense had been led to rely upon the prior ruling of the trial court regarding the ten-day notice and brief requirement imposed upon the State. Assuming a proper situation ever could estop a trial court from exercising its judicial discretion as to the admission of rebuttal evidence, this is not such a case. Appellant was aware that the State possessed this evidence, and should not have expected in effect evidentiary immunity to attack the accuracy of the Intoximeter 3000 result free from the State’s subsequent introduction of rebuttal-type evidence. The trial court had discretion to allow relevant evidence in rebuttal even assuming it technically tended to bolster the State’s intoximeter test result more than to impeach directly defense evidence attacking intoximeter test result credibility. In searching for the truth (OCGA § 24-1-2), evidence should be admitted if it is admissible for any legitimate purpose (Krebsbach v. State, 209 Ga. App. 474 (1) (433 SE2d 649)); appellant has failed to establish affirmatively by the record that the trial court abused its discretion in admitting the evidence during rebuttal. See Smith, supra.

Appellant contends in support of his claim of lack of foundation that the blood test was not a State-administered test and that the arresting officer did not know who paid for it. Who pays for the blood test does not affect admissibility. The evidence is uncontradicted that the State had the blood sample analyzed by the State crime lab; thus, the blood test itself was State-administered, although the drawing of the blood may have been done at an independent medical facility. Appellant also contends that the officer admitted the blood test was not taken for evidentiary purposes; this is incorrect, the officer merely admitted the blood sample was taken primarily as a control sample and was not taken for purposes of being “initially” introduced in evidence against appellant. Appellant asserts that the blood sample was not taken pursuant to OCGA § 40-6-392. OCGA § 40-6-392 (a) (3) and (4) provides on its face that a law enforcement officer can request the person to submit to more than one chemical test. Nothing in this statute prohibits a police officer from taking a portion of the blood legitimately drawn during an independent test requested by the person whose blood was drawn, and sending the sample to the crime lab for subsequent testing, either for control purposes or for potential rebuttal evidence, or both. In this regard, OCGA § 40-6-392 (a) broadly provides that “[u]pon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391, evidence of the amount of alcohol or drug in a person’s blood, urine, breath, or other bodily substance at the alleged time, as determined by a chemical analysis of the person’s blood, urine, breath, or other bodily substance shall be admissible.” (Emphasis supplied.) To obtain a reversal of his conviction, an appellant must show both error and harm; appellant has not carried his burden. Robinson v. State, 212 Ga. App. 613, 616 (2) (442 SE2d 901).

Additionally, the blood test evidence was admissible not only to bolster directly the State’s intoximeter test result but also to undermine the credibility of any inference favorable to the defense that might have been drawn from the testimony of the defense expert that the intoximeter results could have been adversely affected by appellant’s exposure to methyl ethyl ketone; accordingly, the blood test evidence was not rendered inadmissible due to lack of foundation. See Cartin v. Boles, 155 Ga. App. 248, 256 (7) (270 SE2d 799).

Decided January 6, 1995

Reconsideration denied January 24, 1995.

Spruell & Dubuc, Billy L. Spruell, Melinda D. Taylor, for appellant.

Ben F. Smith, Jr., Solicitor, Mark A. Basurto, Barry I. Morgan, Assistant Solicitors, for appellee.

Each of appellant’s contentions in support of this enumeration of error is without merit.

Judgment affirmed.

Blackburn, J., concurs. Ruffin, J., concurs in judgment only.


author: Johnson, Judge.

text:
    A94A2697.
    STOVALL v. THE STATE.
    (453 SE2d 110)
   Johnson, Judge.

Michael Stovall appeals his conviction of armed robbery, kidnapping and theft by taking. Ms. Su In Chang and Mr. Leon Chong were entering their room at a motel when they were overpowered by two men and forced into a different room at gunpoint. They were bound with telephone and electrical cords and gagged with torn towels. The men took their money and the keys to Chong’s BMW, which they stole. Chong was unable to identify his assailants. A housekeeper at the motel identified Stovall as having been a guest at the motel. Several days after the incident, a BMW bearing the same vehicle identification number as Chong’s car was totalled after a high-speed police chase in Ohio. A police officer testified that two men ran from the car following the accident. Later the same day, four miles from the scene of the accident, a man checking into his room at a motel was hit with a rock, tied up with telephone cords and gagged with torn towels. Stovall took the victim’s razor and proceeded to shave himself. While shaving, he told the victim that he was in deep trouble in Georgia. He went through the victim’s pockets taking what money he could find. He also took the victim’s car keys and stole his car.

1. Over hearsay objection, a police officer was permitted to read a statement which he had witnessed being written by Su In Chang at the scene of the crime some 45 minutes after the crime was committed. Stovall asserts that the statement was hearsay because Chang was not present at trial to testify, and therefore, allowing the statement to be read was error. The state argued that the testimony was admissible either as a res gestae exception to the hearsay rule, or out of necessity because Chang’s whereabouts were unknown and prosecution efforts to locate her had been unsuccessful. Because the trial court expressed reservations regarding the unavailability theory after hearing evidence of the state’s efforts to locate her, we assume that the trial court’s basis for allowing the evidence was as a res gestae exception to the hearsay rule. “A trial court’s determination that evidence is admissible as part of the res gestae will not be disturbed unless it is clearly erroneous.” (Citations and punctuation omitted.) Brinson v. State, 208 Ga. App. 556, 557 (1) (430 SE2d 875) (1993). The evidence was relevant and the statement was made without premeditation. The trial court’s decision to admit the evidence under this theory was not clearly erroneous and will not be disturbed on appeal. Contra, Wilbourne v. State, 214 Ga. App. 371, 372 (1) (448 SE2d 37) (1994).

Having held that the evidence was properly admitted under a res gestae exception to the hearsay rule, we need not address Stovall’s contention based on Rosser v. State, 211 Ga. App. 402 (439 SE2d 72) (1993) that the state failed to make all possible efforts to locate the witness and therefore the evidence should not have been admitted under a necessity theory which requires proof that a witness is unavailable. “Georgia law has never required proof of unavailability of the declarant to admit res gestae.” Wilbourne, supra at 374. A trial court’s ruling will be affirmed if it is right for any reason. Hunt v. State, 212 Ga. App. 217, 219 (441 SE2d 514) (1994).

2. Stovall asserts that the trial court erred in allowing the police officer to recite the vehicle identification number which he obtained from Chong’s insurance card because the testimony was hearsay. The insurance card was not proffered as evidence in the case. We do not agree with Stovall that the vehicle identification number itself was hearsay. The number was being offered as evidence that the vehicle identification number provided by the victim in Georgia matched the vehicle identification number taken from the car in Ohio, which information was provided by the law enforcement agencies there. This tended to show that the vehicle involved in the accident in Ohio was Chong’s car. The actual number was irrelevant. The officer could have as easily testified that he took a vehicle identification number off an insurance card and entered it into the National Crime Information Center (NCIC) computer without stating what the number was. Likewise the officer from Ohio could have established that the number on the NCIC computer was the same as the one he found on the car which had been involved in the accident without ever stating what the number was. From that testimony the jury could have inferred that it was the same car. Even though establishing that the car stolen in Georgia was the same car found in Ohio tended to connect Stovall to the similar transaction evidence, it was not essential for that purpose because of the palm print evidence, nor was it essential to prove any of the crimes being tried in this case. Because it was being offered for a purpose other than to show the truth of the content of the card from which the number was taken, it was not hearsay. Further, as it was not essential to prove the state’s case, even if there was error in its admission the error was harmless. See Henry v. State, 154 Ga. App. 120, 122 (3) (267 SE2d 653) (1980).

3. Stovall argues that the trial court erred in permitting evidence of a similar transaction in Ohio because there was no evidence that Stovall committed that crime. “Before evidence of similar offenses is admissible, two criteria must be met. First, it must be shown that appellant was the perpetrator of the similar offenses, and second, there must be sufficient similarity or connection between the independent crimes and the offense charged that proof of the former tends to prove the latter.” (Citations and punctuation omitted.) Watkins v. State, 206 Ga. App. 701, 703 (1) (b) (426 SE2d 238) (1992). During the state’s proffer of the evidence, the victim of the robbery in Ohio testified that he had been unable to pick Stovall out of a photographic lineup, but identified him in court. The trial court refused to allow an in-court identification to be made in the jury’s presence, noting: “He’s not going to come in this court room, three years later and pick out the only black person in a room sitting at the defense table and make an identification.” Even without the in-court identification, which we believe was correctly excluded under the circumstances, there was sufficient evidence tying Stovall to the crime. A member of the housekeeping staff of the motel in Ohio testified that someone had broken into an unoccupied room and had apparently been sleeping in the bathtub. An evidence technician from the Mansfield Ohio Police Department testified that a palm print lifted from the bathtub in that room positively matched Stovall’s. There was sufficient evidence establishing that Stovall was the perpetrator of the similar offense. See Leaver v. State, 211 Ga. App. 876, 877 (1) (440 SE2d 760) (1994). In both of these incidents a motel guest was violently pushed into a room, bound with cords and gagged with torn towels. In both instances, all of the victims’ money was taken, as well as the keys to cars, which were ultimately stolen. The crimes were sufficiently similar that proof of the robbery in Ohio tended to prove the offenses charged in this case. The trial court did not err in allowing the evidence.

4. Stovall’s assertion that the evidence is insufficient to sustain his conviction is without merit. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Corey v. State, 211 Ga. App. 333 (1) (439 SE2d 513) (1993).

5. Stovall enumerates as error the trial court’s failure to charge the jury on false imprisonment as a lesser included offense of kidnapping. “In State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550), the Georgia Supreme Court expressly disapproved of that line of authority which had held that a lesser-included offense need not be charged unless the evidence showed that the defendant was guilty only of the lesser crime, and held that the correct rule is that a written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser offense.” (Emphasis in original; citation and punctuation omitted.) King v. State, 214 Ga. App. 311, 312 (2) (447 SE2d 645) (1994). False imprisonment is a lesser included offense of kidnapping. Raysor v. State, 191 Ga. App. 422, 423 (2) (382 SE2d 162) (1989). However, under the evidence presented at trial, there is no support for a theory that the victims were falsely imprisoned without having been asported into a motel room. There is not any evidence that Stovall is guilty of the lesser included offense. “The complete rule with regard to giving a defendant’s requested charge on a lesser included offense is: where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense. [Cit.]” Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994). Therefore, the trial court’s refusal to give the requested charge on false imprisonment was not error.

6. Stovall’s assertion that the trial court’s charge to the jury on moral and reasonable certainty constitutes error has repeatedly been held to be without merit. See Brown v. State, 215 Ga. App. 544 (451 SE2d 787) (1994); Lloyd v. State, 214 Ga. App. 564 (448 SE2d 729) (1994); Pilcher v. State, 214 Ga. App. 395, 396-397 (1) (448 SE2d 61) (1994).

7. Stovall asserts that his life sentence violates the sentencing mandates of OCGA § 17-10-1 (a) (1) as it existed on the date the crime was committed. On December 29,1991, the statute, in pertinent part provided: “Except in cases in which life imprisonment or the death penalty must be imposed . . . the judge fixing the sentence shall prescribe a determinate sentence for a specific number of months or years. ...” (Emphasis supplied.) Stovall argues that at the time the crime was committed a life sentence was not mandatory. Therefore, the judge was constrained to sentence Stovall to a specific number of months or years. OCGA § 16-8-41 (b) specifies that an armed robbery conviction shall be punishable by death or imprisonment for life or by imprisonment for not less than five nor more than twenty years. Even if we concede that reading OCGA § 16-8-41 (b) and OCGA § 17-10-1 (a) (1) (as it existed at the time) together creates an ambiguity, the specific statute will prevail over the general statute, absent any indication of a contrary legislative intent. First Nat. Bank of Atlanta v. Sinkler, 170 Ga. App. 668, 670 (1) (317 SE2d 897) (1984). OCGA § 16-8-41 (b) creates a sentencing scheme specifically for the offense of armed robbery, whereas the former (as well as the now amended) OCGA § 17-10-1 (a) (1) related to sentencing generally. Therefore in resolving any ambiguity we look to the more specific Code section and hold that Stovall’s life sentence was legitimate. See also Williams v. State, 214 Ga. App. 421, 422 (4) (447 SE2d 714) (1994).

Decided January 11, 1995

Reconsideration denied January 24, 1995

David L. Whitman, for appellant.

Daniel J. Porter, District Attorney, Karen E. Reed, Assistant District Attorney, for appellee.

8. Finally, Stovall argues that the trial court erred in denying his motion to suppress evidence obtained in a warrantless search of room 214 of the motel, a room located directly across the hall from the room in which the crimes were committed. “On appeal of the denial of a motion to suppress, the evidence is to be construed most favorably to the upholding of the findings and judgment made. The trial court’s findings must be adopted unless determined to be clearly erroneous.” (Citation and punctuation omitted.) Furfano v. State, 212 Ga. App. 472 (1) (442 SE2d 305) (1994). Evidence presented at the motion to suppress hearing established that room 214 had been rented to two men who fit the victims’ descriptions of their assailants. At approximately 4:00 a.m., almost seven hours after the crimes were committed, the motel manager opened the door to the room and saw no luggage or other signs of occupancy, after which the police entered the room and gathered evidence. The trial court relied on State v. Johnston, 171 Ga. App. 224 (319 SE2d 83) (1984) in determining that the motel manager had authority to open the door to the room. After hearing evidence, the trial court agreed with the manager’s conclusion that the room had been abandoned and concluded Stovall no longer had any expectation of privacy with respect to the room. Relying on Buttrum v. State, 249 Ga. 652, 653 (2) (293 SE2d 334) (1982), the trial court denied the motion to suppress. The trial court’s determination that the room had been abandoned was not clearly erroneous and therefore the application of Buttrum, supra, to the facts of this case was not error.

Judgment affirmed.

Beasley, C. j., and Andrews, J., concur.

       The statute was amended in 1993 so that it now provides: “Except in cases in which life imprisonment, life without parole, or the death penalty may be imposed . . . the judge fixing the sentence shall prescribe a determinate sentence for a specific number of months or years. . . .” (Emphasis supplied.)


text:
    A93A1589.
    SMITH v. THE STATE.
    (453 SE2d 145)
    Decided January 24, 1995.

      Williams & Associates, Rita T. Williams, for appellant.
    Winston J. Smith, pro se.

      Ralph T. Bowden, Jr., Solicitor, Jacqueline R. Seabolt, Cliff Howard, Assistant Solicitors, for appellee.
   Andrews, Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, State v. Smith, 264 Ga. 634 (452 SE2d 90) (1994), our decision in Smith v. State, 211 Ga. App. 567 (440 SE2d 44) (1993) is hereby vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed.

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


author: Ruffin, Judge.

text:
    A94A1925.
    WARD v. DOLLAR.
    (453 SE2d 142)
   Ruffin, Judge.

In this unusual case, appellant, Freddie Ward, gave money to the appellee, Beulah Dollar, to deposit in the Telfair County Credit Union (“the credit union”). Dollar was an officer of the credit union. The evidence showed that Dollar actually operated the credit union out of her home. The evidence also showed that Ward made deposits with Dollar totaling $25,000. When Dollar could not return Ward’s money, he sued her. Dollar failed to file an answer to the complaint. Ward subsequently moved for a default judgment on unliquidated damages pursuant to OCGA § 9-11-55, and the trial court denied the motion.

Ward enumerates six errors by the trial court, but states that due to the nature of the arguments, the errors are consolidated. In essence, Ward argues that the court’s ruling denying him a judgment against Dollar in any amount was unsupported by the evidence and was clearly erroneous. We agree. OCGA § 9-11-55 (a) provides that when a case is in default, the plaintiff is entitled to a verdict and judgment by default “as if every item and paragraph of the complaint . . . were supported by proper evidence. . . However, if the action is one for unliquidated damages, “the plaintiff shall be required to introduce evidence and establish the amount of damages. . . Id.

Decided January 24, 1995.

Dwayne H. Gillis, for appellant.

Beulah Dollar, pro se.

Here, Ward established that he left $25,000 with Dollar. Dollar testified that every time Ward gave her money, she filled out a cash voucher receipt and entered the deposit in an account book. Ward presented initialed receipts for deposits of $2,000, $3,000 and $10,000, and Dollar admitted that the initials on the receipts were hers. The receipt for the $10,000 deposit showed a balance in Ward’s “account” of $25,000 and Dollar did not dispute this. Dollar contended only that on some occasions she gave Ward a cash receipt without counting the money. Ward’s brother testified that he was present each time Ward deposited money and that the deposits totaled $25,000.

Dollar further testified that Ward asked her to hold much of the money in her home until he could decide whether to deposit it in the credit union, and that the undeposited money was eventually stolen from her home by her son. Dollar told Ward she was sorry the money had been stolen and that she would try to pay him back on a monthly basis. In sum, Dollar never disputed that Ward had deposited $25,000 with her, did not attempt to prove that Ward’s damages were less than $25,000 as she was entitled to do under OCGA § 9-11-55 (a), and in fact, offered to repay him.

Thus, Ward proved the amount of his damages and was entitled to a judgment of $25,000. Nonetheless, the trial court ruled that Ward was to recover nothing because it did not find Ward or his brother credible and found the circumstances of this case too incredible and improbable to be the basis for a judgment. While the facts of the case are certainly unusual and may defy common sense, we cannot simply ignore the evidence, particularly Dollar’s admissions. “We find, therefore, that this is that rare case contemplated by OCGA § 9-11-52 (a) in which the findings of a trial judge are to be set aside as clearly erroneous.” Davis v. Davis, 262 Ga. 420, 422 (3) (419 SE2d 913) (1992).

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A2040.
    KABIRI v. ARONOV et al.
    (453 SE2d 143)
    Decided January 24, 1995.

      Weener & Associates, Philip H. Weener, William P. Mason, for appellant.

      Watson, Spence, Lowe & Chambless, Stephen S. Goss, David H. Martyn, for appellees.
   Ruffin, Judge.

This is a direct appeal of the trial court’s April 20, 1994 nunc pro tunc order correcting a scrivener’s error in its January 31, 1994 order denying Kabiri’s motion to set aside a default judgment. This court dismissed Kabiri’s initial direct appeal of that order for failure to follow the discretionary appeal procedures required by OCGA § 5-6-35 (a). Kabiri v. Aronov, Case No. A94A1531, dismissed April 1, 1994. For reasons which follow, this appeal is also dismissed.

“ ‘The meaning of a nunc pro tunc judgment is to enter now a judgment which was rendered and should have been recorded at a previous time. . . .’ [Cits.]” (Emphasis omitted.) West v. Dorsey, 167 Ga. App. 233, 235 (305 SE2d 840) (1983). Accordingly, the nunc pro tunc order entered on April 20, 1994, effectively corrects the court’s original order and relates back to January 31, 1994, its date of entry. The instant appeal is merely appellant’s second attempt to bring a direct appeal of the January 31, 1994 order.

Although this appeal has no arguable merit, and appellee has requested the imposition of a penalty for such, we decline to do so on this record. Appellant sought simply to correct a fatal error and we do not deem his effort so egregious as to warrant the imposition of sanctions.

Appeal dismissed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A2564.
    HILTON et al. v. CALLAGHAN.
    (453 SE2d 509)
   Ruffin, Judge.

Harry and Lois Hilton filed suit against their accountant, John Callaghan, to recover damages arising out of Callaghan’s purchase of their condominium. In Count 1 of their complaint, the Hiltons alleged breach of contract, contending Callaghan failed to provide them with the necessary and proper tax advice normally required by a certified public accountant operating in good faith, and that as a result, they unknowingly incurred a significant tax liability from the sale of the unit. In Count 2, the Hiltons alleged fraud, contending that because of the “fiduciary relationship” existing between the parties and the “confidentiality of the information held by [Callaghan], as a certified public accountant for the [Hiltons], [Callaghan’s] failure to communicate the tax consequences of such a sale to anyone constitutes a fraud under the terms of OCGA § 23-2-53. ...” Callaghan filed a motion to dismiss under OCGA § 9-11-9.1, contending the Hiltons failed to file an expert affidavit with the complaint where one was required. The trial court granted the motion, and the Hiltons appeal from that order.

OCGA § 9-11-9.1 (a) provides that “[i]n any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” A complaint filed without such affidavit, “is subject to dismissal for failure to state a claim. . . .” OCGA § 9-11-9.1 (e). “[T]he affidavit requirements of OCGA § 9-11-9.1 are limited to those claims ‘for professional malpractice by negligent act or omission sounding in tort or by breach of contract for failure to perform professional services in accordance with the professional obligation of care.’ [Cit.]” Hodge v. Jennings Mill, Ltd., 215 Ga. App. 507, 508 (451 SE2d 66) (1994).

The Hiltons’ allegations of breach of contract fall squarely within the rule requiring an expert affidavit. By alleging that Callaghan “failed to provide the necessary and proper tax advice normally required by a certified public accountant,” the Hiltons are raising an issue as to whether he performed his services in accordance with the professional obligation of care for certified public accountants. Accordingly, an expert affidavit should have been filed with Count 1 of the complaint and it was not error to dismiss it.

However, an expert affidavit was not required under OCGA § 9-11-9.1 to support the Hiltons’ claim of fraud. As we stated in Hodge, “ ‘[t]hou shalt not defraud,’ is a proposition that is understood by even the most uneducated layman. Indeed, what professional could deny its propriety? It follows therefore that no expert testimony is required to establish that it is improper for [certified public accountants] to defraud their clients. It is improper for any person to defraud another as that is a standard of society, from which no one is excepted.” Id. at 509. Accordingly, the trial court erred in dismissing Count 2 “as it sounded in fraud and required no OCGA § 9-11-9.1 affidavit. . . .” Id.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Blackburn, J., concur.

Decided January 24, 1995.

W. Allen Separk, for appellants.

William P. Holley, Jr., for appellee.


text:
    A94A2676.
    STEPHENSON v. THE STATE.
    (453 SE2d 144)
   Ruffin, Judge.

Rodney Stephenson was tried by a jury and convicted of being a habitual violator, driving under the influence, fleeing to elude and other traffic offenses.

Construed in a light most favorable to the verdict, the evidence shows that a Georgia State Highway Patrol trooper turned on his blue lights after spotting a car weaving across the road. After turning and jumping a curb, the driver, later identified as Stephenson, stopped near a wooded area, jumped out of the car, looked briefly in the trooper’s direction and ran into the woods. Approximately one hour later Stephenson walked out of the woods and was arrested. The trooper testified that at the time of the arrest he concluded Stephenson was intoxicated because he smelled of alcohol and his overall demeanor was consistent with individuals who have been drinking a lot. After being read his implied consent rights, Stephenson refused to submit to a chemical test, insisting that he was not driving the car.

1. In his first enumeration of error, Stephenson contends the State failed to introduce evidence to establish venue in Whitfield County. At trial, the uncontroverted testimony of the trooper was that the area in which the events took place was located in Whitfield County. This evidence “was sufficient to permit the jury to find beyond a reasonable doubt that venue of all the charges brought against [Stephenson] was in Whitfield County. [Cit.]” Vest v. State, 211 Ga. App. 882, 883 (1) (440 SE2d 765) (1994).

2. Stephenson also contends the trial court erred in admitting a notice of habitual violator status served on him. At trial, the State introduced the notice which was based on the three offenses listed on the notice. Stephenson’s attorney objected on the basis that the State had not proved service of the notice on Stephenson or that the signature on the notice was Stephenson’s. However, on appeal Stephenson appears to challenge the admission of the notice on the ground that the State failed to notify him of its intent to introduce evidence of independent offenses at least ten days before trial in accordance with Uniform Superior Court Rule 31.1. “ ‘It is well settled that a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal.’ [Cit.]” Reinhardt v. State, 197 Ga. App. 825, 828 (4) (399 SE2d 729) (1990). Accordingly, we find no error.

Decided January 24, 1995.

M. Gene Gouge, for appellant.

Jack O. Partain III, District Attorney, M. Bert Poston, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: Beasley, Presiding Judge.

text:
    A94A2549.
    THOMPSON et al. v. KOHL.
    (453 SE2d 485)
   Beasley, Presiding Judge.

J. Scott Kohl left employment with an automobile dealership after receiving an offer of employment with TermNet, Inc., a Texas corporation solely owned by Charles D. Thompson, Sr. The offer was contained in a letter from Thompson, Sr. to Kohl, under which Kohl was to be paid a certain base salary plus commissions in various stated amounts. Kohl agreed to the offer of employment by signing the letter in February 1990. He began his employment in the Merchant Services Division of TermNet the following month.

Kohl was to be working with the owner’s son, Charles D. Thompson, Jr., who was a friend of Kohl’s and was instrumental in his becoming employed with TermNet. In January 1991, TermNet Merchant Services, Inc. (TMS), was activated as a Georgia corporation. Thompson, Sr. transferred his interest in TMS to Thompson, Jr., who became CEO and sole shareholder. TMS then became successor in interest to the business of the Merchant Services Division of TermNet. In March 1991, Thompson, Jr. terminated Kohl’s employment with TMS.

Kohl sued Thompson, Jr., TMS, and TermNet for compensation due under the letter agreement and for ten percent of the corporate stock in TMS, which he alleged was verbally promised to him by Thompson, Jr.

Kohl testified by affidavit that prior to leaving employment with the automobile dealership and signing the February 1990 letter of agreement, he reached a separate agreement with Thompson, Jr., under which they mutually agreed that they would work together to increase the profitability and cash flow of the Merchant Services Division in order to allow Thompson, Jr., to purchase this business from his father; that if and when Thompson, Jr. purchased the business and formed a new corporation Kohl would manage its operations; and that Thompson, Jr. would give Kohl a minimum of ten percent ownership in the new corporation when he purchased the business and transferred it to a new corporation. In Kohl’s deposition, he testified that he was to get the ten percent stock ownership in the new corporation whenever the transfer took place but that he would not be entitled to it unless he was still employed with the new company.

The trial court denied Thompson, Jr.’s and TMS’ motion for summary judgment but dismissed TermNet as a party. We granted Thompson, Jr.’s and TMS’ application for interlocutory appeal.

1. Thompson, Jr. and TMS argue that Kohl’s claim for ten percent of the corporate stock of TMS, being based on a verbal promise, is legally barred by OCGA § 11-8-319.

OCGA § 11-8-319 is the Statute of Frauds contained in Article 8 of the UCC on Investment Securities. OCGA § 11-8-101 et seq. Under it, a contract for the sale of securities is not enforceable unless: (a) there is some signed writing sufficient to indicate that a contract has been made for the sale of a stated quantity of described securities at a defined or stated price; (b) delivery of a certificated security or transfer instruction has been accepted, or transfer of an uncertificated security has been registered and the transferee has failed to object, or payment has been made; (c) within a reasonable time a writing in confirmation of the sale or purchase has been received by the party against whom enforcement is sought and he has failed to object; or (d) there is an admission in judicio by such party. See Murrey v. Specialty Underwriters, 233 Ga. 804, 808 (213 SE2d 668) (1975).

Kohl argues that OCGA § 11-8-319 is inapplicable because shares of a closely-held corporation do not constitute investment securities under the definitional section of Article 8, which is OCGA § 11-8-102.

Under OCGA § 11-8-102 (1) (c), a “security” is either a certificated or an uncertificated security. A “certificated security” is “[o]f a type commonly dealt in on securities exchanges or markets or commonly recognized in any area in which it is issued or dealt in as a medium of investment.” OCGA § 11-8-102 (1) (a) (ii). An “uncertificated security” is “[o]f a type commonly dealt in on securities exchanges or markets.” OCGA § 11-8-102 (1) (b) (ii).

Georgia cases applying OCGA § 11-8-319 have not considered the question of whether the shares of stock in a corporation are “securities” within the meaning of OCGA § 11-8-102. See Patterson v. Professional Resources, 242 Ga. 459, 460 (3) (249 SE2d 248) (1978); Murrey v. Specialty Underwriters, supra; Godwin v. Westberry, 231 Ga. 492 (202 SE2d 402) (1973); Turner v. MCI Telecommunications Corp., 203 Ga. App. 71 (416 SE2d 370) (1992); Demer v. Capital City Cable, 190 Ga. App. 40, 44 (4) (378 SE2d 162) (1989).

Courts in other states have held that their counterparts to UCC § 8-319 did not apply to sales of stock in closely-held corporations, on grounds that such stock was not dealt in by securities exchanges or commonly recognized as a medium of investment and therefore was not an investment security under UCC § 8-102. Blasingame v. American Materials, 654 SW2d 659, 664 (2) (Tenn. 1983) and cits.

The official comment to UCC § 8-102 currently states that interests such as the stock of closely-held corporations, although they are not actually traded upon securities exchanges, are intended to be included within the definitions of both certificated and uncertificated securities by the inclusions of interests “of a type” commonly traded in those markets. We hold that the stock of a closely-held corporation such as TMS is a “security” within the meaning of OCGA § 11-8-102.

In Zamore v. Whitten, 395 A2d 435, 441 (12) (Me. 1978), the court assumed without deciding that stock certificates evidencing ownership of stock in a closely-held corporation are “goods” within the meaning of UCC Article 2, although not investment securities under Article 8. This would render the Article 2 Statute of Frauds, UCC § 2-201, applicable. This approach is supported by the official comment to UCC § 2-105, which states that although investment securities are expressly excluded from coverage of Article 2, it is not intended by this exclusion to prevent the application of a particular section of Article 2 by analogy to securities, when the reason for that section makes such application sensible and the situation involved is not covered by Article 8. First Nat. Bank of Chicago v. Jefferson Mtg. Co., 576 F2d 479, 489 (3) (3rd Cir. 1978); Silverman v. Alcoa Plaza Assoc., 323 NYS2d 39, 43 (1) (App. Div. 1971).

2. Alternatively, Kohl argues that OCGA § 11-8-319 is not applicable to an oral contract under which an employer has agreed to transfer corporate stock to an employee in consideration for services rendered, in that this is not a contract for the “sale” of securities.

Article 8 of the UCC does not define “sale.” Article 2 defines “sale” as “the passing of title from the seller to the buyer for a price.” OCGA § 11-2-106 (1). Webster’s Third New International Dictionary defines “sale” as “a contract transferring the absolute or general ownership of property from one person or corporate body to another for a price (as a sum of money or any other consideration).”

Kohl’s argument is supported by cases decided in other states. Baldassarre v. Singer, 282 A2d 262, 264 (2) (Pa. 1971), and Bowers Steel v. De Brooke, 557 SW2d 369, 374 (13) (Tex. Civ. App. 1977), relied upon by Kohl, hold that there is no “price” for stock transferred pursuant to an employment contract in which the only consideration is the employment itself, and, therefore, such a contract is not one for the “sale” of securities under UCC § 8-319. In response, Thompson, Jr. and TMS cite Goldfinger v. Brown, 564 NYS2d 459 (App. Div. 1991), and Beta Drilling v. Durkee, 821 SW2d 739 (Tex. Civ. App. 1992). Goldfinger holds that where an oral employment contract requires the employee to pay a sum of money for corporate stock, there is a “price” and therefore a “sale” under UCC § 8-319. Beta Drilling is in accord.

In Baldassarre and Bowers, the courts also reasoned that even if UCC § 8-319 was applicable to such an oral employment contract, then the plaintiffs in those cases, by leaving their previous employment and working for the corporation, made “payment” for the stock and thus were entitled to enforce their oral contract under the terms of § 8-319 (b).

Although the question is debatable, we hold that an oral agreement by an employer to transfer corporate stock to an employee for a non-monetary consideration is not a “sale” within the meaning of UCC § 8-319. Even if we were to hold that it is a sale, Kohl has submitted evidence that he rendered the services that constituted the consideration for the transfer, thereby entitling him to seek enforcement of the alleged oral agreement under the exception contained in subsection (b) of § 8-319. See Baldassarre, supra; Bowers, supra; compare Baxley Veneer &c. Co. v. Maddox, 261 Ga. 309, 310 (1) (404 SE2d 554) (1991); Sams v. Duncan & Copeland, Inc., 153 Ga. App. 765 (1) (266 SE2d 546) (1980).

3. In reliance upon such cases as Alston v. Brown Transport Corp., 182 Ga. App. 632, 633 (1) (356 SE2d 517) (1987); Taylor v. Amisub, Inc., 186 Ga. App. 834, 835 (1) (368 SE2d 791) (1988), and Sams, supra, Thompson, Jr. and TMS argue that Thompson, Jr.’s alleged oral promise to give corporate stock to Kohl is legally unenforceable, in that it constituted a verbal executory promise relating to an employment terminable at will.

This case, unlike such cases as Alston and Taylor, involves a promise which, according, to Kohl’s testimony, required fulfillment prior to termination of his employment. See Alston, supra at 633 (2).

The decision in Sams was based on the holding that an oral employment agreement for an indefinite duration falls within the purview of the Statute of Frauds. This holding was disapproved in Wood v. Dan P. Holl & Co., 169 Ga. App. 839, 840 (2) (315 SE2d 51) (1984).

4. In reliance upon such cases as Marshall v. W. E. Marshall Co., 189 Ga. App. 510, 512 (3) (376 SE2d 393) (1988), Thompson, Jr. and TMS argue that the alleged verbal promise is too vague and uncertain to be enforceable.

The agreement in Marshall was simply an oral contract to sell corporate shares. In contrast, the agreement in the present case is to transfer a minimum of ten percent of the corporate shares to Kohl, and Kohl seeks the minimum ten percent. That is a definite amount. Compare Demer, supra, 190 Ga. App. at 42 (2). This alleged agreement is not too indefinite to be enforced in this manner.

Decided December 19, 1994

Reconsideration denied January 25, 1995

Culbreth & Sharony, Abraham A. Sharony, Freed & Freed, Gary S. Freed, for appellants.

Smith & Fleming, Daniel J. Weber, for appellee.

Judgment affirmed.

Andrews and Johnson, JJ., concur.


text:
    A94A2336.
    PRESTON v. THE STATE.
    (453 SE2d 759)
   Ruffin, Judge.

Terris M. Preston appeals from his conviction of armed robbery, aggravated assault, burglary, and two counts of possession of a firearm during the commission of a crime.

1. In his first enumeration of error, Preston contends the trial court erred by admitting into evidence a white and black baseball cap seized from his home. At trial, Preston objected to the admission of the cap into evidence, arguing that the chain of custody had been broken when the cap was removed from the evidence room by an officer during the investigation. The cap was originally seized during the execution of a search warrant of Preston’s home, then taken to the police department evidence room where it was turned over to the evidence custodian. Although the evidence custodian stated that the cap was in her custody and control until she brought it to court, an investigating officer testified he had taken it out of the evidence room and to the hospital for identification by the victim, and then returned it to the evidence room. At trial, the officers identified the cap as the one seized from the bedroom of Preston’s home. Preston argues that since the cap is virtually indistinguishable from any number of millions of caps that look like it, the break in the chain of custody should have prevented it from being admitted into evidence.

“[I]terns of evidence which are distinct and recognizable physical objects, such that they can be identified by the sense of observation . . . are admissible in evidence without the necessity for showing a chain of custody. In addition, where there is evidence that the perpetrator of a robbery wore certain clothing . . . similar items belonging to or found in the possession of the defendant are properly admitted for the jury to consider. Thus, it really makes no material difference whether the hat . . . [was] the identical [one] worn by the appellant; the identification of the hat. . . was sufficient to authorize the jury in deciding whether or not [this was the cap worn by Preston].” (Citations and punctuation omitted.) Harper v. State, 251 Ga. 183, 185 (1) (304 SE2d 693) (1983). Furthermore, even if a chain of custody showing had been necessary, the record shows that the state sufficiently established a chain of custody for the cap. Brown v. State, 195 Ga. App. 389 (393 SE2d 514) (1990). In this regard, “ ‘[t]he only burden on the state is to show with reasonable certainty that the evidence examined is the same as that seized and that there has been no tampering or substitution. (Cits.) The state met this burden, and it was not error to admit the [cap].’ ” Cannon v. State, 206 Ga. App. 20, 21 (424 SE2d 331) (1992).

Decided January 26, 1995.

Langdale, Vallotton & Linaham, Charles A. Wetherington, Jr., for appellant.

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

2. Although Preston admits he is guilty of the burglary, he challenges the sufficiency of the evidence to support the convictions of the other crimes. “ ‘On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence.’ . . . [Cit.]” Denson v. State, 212 Ga. App. 883, 885 (4) (443 SE2d 300) (1994). Viewed in this light, the evidence shows that Preston, wearing a white and black baseball cap, entered a liquor store with a gun, approached the counter and told the clerk “this is a stickup.” The clerk testified that another individual then entered the store, went behind the counter, opened the cash register and took out the money. Following Preston’s directions, the clerk then got down on the floor where Preston shot her in the face. When the clerk identified Preston at trial, she testified there was no doubt in her mind he was the individual with the gun. Two days after the robbery and burglary, while being questioned by an investigating officer, Preston signed a written statement confessing to taking part in both crimes. At trial, Preston denied any involvement in the armed robbery or the aggravated assault. Despite this denial, the evidence was sufficient for the jury to conclude beyond a reasonable doubt that Preston was a party thereto and guilty of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: Blackburn, Judge.

text:
    A95A0014.
    PREVOST v. COFFEE COUNTY HOSPITAL AUTHORITY.
    (453 SE2d 760)
   Blackburn, Judge.

Appellee/plaintiff, Coffee County Hospital Authority (Hospital Authority), brought suit against appellant/defendant, Maurice Prevost, M.D., seeking to recover under contract for a loan it made to Prevost. The loan was made to Prevost as an inducement to open a medical practice in Coffee County in association with the Hospital Authority. Prevost filed a general denial and counterclaim asserting breach of contract. In this regard, he prayed for unspecified damages alleging, among other things, the Hospital Authority’s responsibility for expenses he incurred in renovating office space and “adverse economic impact” resulting from the Hospital Authority’s failure to purchase new instruments to facilitate his practice.

The jury returned a verdict for the Hospital Authority in the amount of $225,296.43 and awarded damages to Prevost of $50,000. By its judgment and amended judgment, the trial court directed that the verdict for the Hospital Authority be offset by the damages awarded Prevost and ordered judgment against Prevost in the amount of $175,296.43. Thereafter, the trial court denied appellant’s motion for new trial, and he now appeals.

Prevost contends that the trial court erred by refusing to allow him to reopen his case. In particular, Prevost argues that the trial court erred by not allowing him to introduce documentary evidence to impeach Hospital Authority testimony denying responsibility for his costs in renovating office space. He also argues that the trial court erred by not allowing him to call an additional witness. In this regard, he wished to call the doctor who succeeded him with the Hospital Authority to bolster his testimony regarding the inadequacy of a microscope and to impeach Hospital Authority testimony denying any failure to provide him new medical equipment as agreed.

“[T]he decision to reopen the evidence in a case lies within the sound discretion of the trial court, and will not be disturbed absent a showing of an abuse of that discretion. [Cit.] ” Crocker v. Stevens, 210 Ga. App. 231, 237 (6) (435 SE2d 690) (1993). The record reflects that the trial court gave careful consideration to the evidence which appellant’s counsel sought to introduce. As to Prevost’s documentary evidence, generally consisting of bills, estimates, and invoices, the trial court properly concluded that it did not impeach Hospital Authority testimony disavowing responsibility for Prevost’s office renovation costs. Additionally, the documents had been available before trial but were not produced in response to the Hospital Authority’s discovery request for Prevost’s records.

Likewise, after hearing the testimony of Prevost’s successor out of the presence of the jury, the trial court concluded that his testimony merely confirmed the inadequacy of the complained of microscope but did not impeach Hospital Authority evidence opposing the claim that it had failed to purchase new medical equipment. There is no claim that this witness was not available to Prevost prior to and during trial. Under these circumstances, we find no evidence that the trial court abused its discretion by refusing to allow Prevost to reopen his case. Accordingly, Prevost’s claims of error are without merit.

Decided January 26, 1995.

Solomon & Edgar, Teddy M. Solomon II, for appellant.

Philip R. Taylor, for appellee.

Judgment affirmed.

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


text:
    A95A0383.
    BURKS v. COMMUNITY NATIONAL BANK.
    (454 SE2d 144)
   Blackburn, Judge.

The appellant, James Burks, appeals from the grant of a motion for summary judgment in favor of appellee Community National Bank (“CNB”).

Burks executed three promissory notes in favor of CNB and conveyed a security interest in two tractors, a bulldozer, and certificate of deposit as collateral for the notes. Burks subsequently defaulted under the terms of the notes and refused to pay the balance due and owing thereunder. CNB filed the instant petition for writ of possession and complaint for damages against Burks and Tommy Hutto d/b/a Hutto’s Shop. Hutto was in possession of a portion of the secured property. In his response, Burks admitted executing the promissory notes in issue, denied all other allegations of the complaint, and asserted a counterclaim based upon CNB’s alleged failure to secure benefits due under a disability policy obtained through CNB.

In support of its motion for summary judgment, CNB filed the affidavits of Mildred McNair, its Assistant Vice President for Community Affairs, in which she averred that Burks was in default on all of the loans based upon his failure to make timely payments on said loans as they became due. She further attested that CNB applied the certificate of deposit to the indebtedness represented by the third promissory note. Although an accident and health insurance carrier made payments on the first two promissory notes pursuant to a policy on Burks, these payments were insufficient to cure the default. No policy was taken out on the third note.

Decided January 27, 1995.

Carl A. Bryant, for appellant.

Over three months after the filing of the motion for summary judgment, Burks filed an affidavit in which he admitted executing the promissory notes in question. However, he denied that the promissory notes were in default based upon payments made by the accident and health insurance carrier. He further averred that McNair told him when he executed one of the first two promissory notes that he could make monthly or annual installment payments. The trial court granted the motion for summary judgment following its consideration of the parties’ briefs based upon Burks’ default under the terms of the three loan agreements.

In his sole enumeration of error, Burks maintains that summary judgment was inappropriate because issues of fact remain for summary adjudication as to whether the loans were in default. We disagree. “When signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense. The evidence in the record shows the promissory notefs] w[ere] duly executed and that defendant is in default. Thus, a prima facie right to judgment by plaintiff is established and the burden is on the defendant to establish an affirmative defense to plaintiffs claim.” (Citations and punctuation omitted.) Jay Gleason Advertising Svc. v. Gleason, 193 Ga. App. 445 (1) (388 SE2d 43) (1989). Burks did not assert any affirmative defenses in his responsive pleadings, and thus any defense that he may have had is now deemed waived. See OCGA § 9-11-12 (b).

While he maintains that the terms of one of the contractual agreements were changed based upon an oral agreement that he made with McNair, “[a]n oral agreement between the parties, made contemporaneously with the execution of the note or prior thereto relating to a condition not expressed in the note is incompetent to change the contract as represented on the face of the note.” (Citations and punctuation omitted.) Leventhal v. Seiter, 208 Ga. App. 158, 162 (4) (430 SE2d 378) (1993). Hence, this parol evidence is insufficient to challenge the unambiguous terms of the contract. See id.

Consequently, we conclude that the trial court did not err in granting summary judgment in favor of CNB.

Judgment affirmed.

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

James H. Moore III, for appellee.

       Hutto failed to respond to the petition and a default judgment was entered against him with respect to certain items of equipment in Hutto’s possession. CNB subsequently took possession of certain items of equipment Hutto had in its possession. Hutto is not involved in this appeal.