text:
    A90A1786.
    DOCTORS BUILDING PARTNERS v. GRIMES BRIDGE ASSOCIATES.
    (404 SE2d 582)
   Cooper, Judge.

This case arises from the sale of a medical office building bj Grimes Bridge Associates (“Grimes”) to Doctors Building Partners (“Doctors”). In the first appearance of the parties to this contract dispute, Grimes Bridge Assoc. v. Doctors Bldg. Partners, 192 Ga. App. 809 (386 SE2d 388) (1989), we held that the contractual provision^ which Doctors alleged were breached by Grimes had been waived bj the actions of Doctors. Thus, we reversed the trial court’s grant oil summary judgment to Doctors. On remittitur from this court, the trial court treated Grimes’ renewed motion for judgment on the pleadings as a motion for summary judgment. Doctors brings this apj peal from the trial court’s grant of summary judgment to Grimes.

1. Doctors first contends that the trial court erred in finding thaj it waived the warranty in Section 2 (c) of the contract which prol vided: “Seller warrants that as of the date of closing ... all leases arf triple net with tenants paying all property expenses on a pro rata baj sis (including taxes, insurance, maintenance, water and any othe| common utilities). . . .” Doctors argues that even if the acceptance the non-conforming estoppel letter constituted a waiver of Section (a), which required Grimes to obtain, prior to closing, estoppel letters from each of the tenants confirming pro rata payment of all expenses on the property, there was no waiver of the warranty found in Section 2 (c). We disagree. In the first appearance of this case we considered both Sections 2 (a) and 2 (c) of the contract and held that by electing to close the sale after receipt of the non-conforming estoppel letter “[Doctors] must be deemed to have waived the benefit of the contractual provisions at issue. . . .” (Emphasis supplied.) Therefore, we find Doctors’ first enumeration of error to be without merit.

Decided February 13, 1991

Rehearing denied March 22, 1991

2. In their second enumeration of error, Doctors contends that the trial court erred in granting summary judgment to Grimes because questions of fact existed. Doctors argues that the effect of our first decision was merely to send the case back to the trial court for a trial on the issues and not to send the case back for entry of a judgment in favor of Grimes. Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). Doctors contends that there are factual questions remaining as to oral warranties and representations made by Grimes at the closing. Doctors submitted the affidavit of Emil Boassy, who stated that he acted on Doctors’ behalf in negotiating the contract with Grimes and attended the closing, at which Grimes’ representative, Alex Klopman, Istated that all of the tenants had paid their pro rata share of the ¡expenses. Grimes submitted the affidavit of Alex Klopman, who [stated that prior to the closing he secured an estoppel letter from Dr. ¡Schwartz which was altered to indicate that Dr. Schwartz was not liable for any expenses under the lease. Grimes’ affiant also stated that lie attended the closing and made no representations that the estop-pel letter contained any terms other than those stated therein. It appears from our first decision that we reviewed the affidavits submitted muring the motion for summary judgment and that we reversed the Irial court not because there were issues of fact remaining but because ■Doctors was not entitled to a judgment as a matter of law. We now lonclude that the trial court’s grant of summary judgment to Grimes was consistent with our previous holding that the contractual provi-lions regarding the pro rata payment of the expenses had been J/aived. Accordingly, we find no error with the trial court’s ruling.

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.

Greer, Klosik & Daugherty, Jeffrey F. Leasendale, for appellant.

Jeffrey C. Hamling, for appellee.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A90A1871.
    GREENHILL v. THE STATE.
    (404 SE2d 577)
   Cooper, Judge.

On February 23,1988, appellant was indicted on 19 counts of violations of the Georgia Securities Act of 1973, as amended. Appellant represented himself at trial and the jury convicted him on 13 counts of the indictment for selling securities while neither appellant nor the security was registered, and for employing a device, scheme or artifice to defraud in connection with the sale of securities in violation of OCGA §§ 10-5-3; 10-5-5; 10-5-12 (thereby including violations of 10-5-12 (a) (1)) and 10-5-12 (d) (1) as these statutes existed prior to the July 1, 1986 amendments.

The indictment was based upon appellant’s plan of obtaining investment money from Harvey Starr (“Starr”). Beginning in October 1983, Starr loaned appellant money for appellant’s plans to publish a Born-Again Study Bible. Appellant represented himself as the president of Paul Benjamin Publishers, the publisher of the bible. Starr continued to make loans to appellant through September 1984, re ceiving promissory notes for the loans, which totaled between $58,000 and $65,000. Two repayment checks from appellant bounced, and one repayment of $500 was made; the rest of the money was not repaid to| Starr. Starr was unaware that appellant had obtained large sums o: money from many other investors to complete these bibles; that man; of these investors had pursued legal action against appellant for th recovery of their money; that appellant’s original supply of bibles hai been seized in satisfaction of a judgment against him; and that appel-j lant had filed for bankruptcy during the time he was obtaining mone; from Starr. A securities investigator for the Secretary of State testi fied at trial that in an interview with appellant, appellant stated b him that Paul Benjamin Publishers was not an active business, tha although he had “test marketed” some sample bibles, he had not for mally published any bibles and that he understood the loans he wai obtaining to be personal loans to him so that he could “decide to g< to the moon or the Bahamas or whatever with personal loans.” Star: testified at trial that he had no understanding that the money he wa¡ lending appellant was to be used by him for personal purposes.

Appellant appeals the jury verdict, the sentence and the denial his motion for a new trial. Appellant raises 22 enumerations of erro: however appellant’s arguments and citations of authority in his bri relate to only 13 of those enumerations. Thus, the other enumerd tions, which are not supported in the brief by citation of authority or argument shall be deemed to have been abandoned. Court of Appeals Rule 15 (c) (2). In his pro se brief, appellant presents six substantive arguments which encompass the remaining 13 enumerations. Herein, we will address the six substantive legal arguments raised by appellant in his brief.

1. Appellant first argues that the prosecution against him should have abated due to the 1986 repeal and reenactment of OCGA § 10-5-12. On July 1, 1986, Section 12 was repealed in its entirety and replaced with a new Section 12, without the inclusion of a saving clause. Section 12 (a) (1), which made it “unlawful for any person ... to offer to sell or to sell any security in violation of Code Section 10-5-3, 10-5-5, or 10-5-19 or any rule, regulation, or order promulgated or issued by the commissioner under this chapter” was continued verbatim into the new Section 12. Section 12 (d) (1), which made it “unlawful for any person in connection with the offer, sale, or purchase of any security, directly or indirectly ... to employ any device, scheme, or artifice to defraud” was included in the new Section 12 practically verbatim at Section 12 (a) (2) (A), which states “it shall be unlawful for any person ... in connection with an offer to sell, sale, offer to purchase, or purchase of any security, directly or indirectly ... to employ a device, scheme, or artifice to defraud.” Sections 3 and 5 of the Securities Act of 1973, also charged in the indictment, were not repealed in the 1986 amendments.

Appellant cites Robinson v. State, 256 Ga. 564 (350 SE2d 464 (1986), for the proposition that “[w]hen a statute making described [conduct a crime is repealed prior to final judgment on a conviction, [the repeal ends the prosecution if the legislature has not provided [otherwise in a saving clause.” Robinson, supra at 565. However, this [court, in Barrett v. State, 183 Ga. App. 729 (360 SE2d 400) (1987), [acknowledged that “a saving clause is not the only mechanism by [which a prosecution might be validated” after the law which was in effect when the conduct was committed has been repealed. Barrett, supra at Division 1 (a). If there is a “clear ‘demonstration of (legislative) intent’ [cit.] that prosecution of the conduct. . . under the for-Jner law should not abate with the re-defining of the crime,” Barrett, supra, then abatement will not be upheld. In Barrett, such legislative Intent was demonstrated because the conduct at issue had not ceased |o be a crime despite the redefinition in the statute. The same is true In this case. The conduct with which appellant was charged and con-licted was not decriminalized at any time during the various redefinitions of the statute. Therefore, the prosecution did not abate. See State v. Benzaquen, 184 Ga. App. 392 (361 SE2d 503) (1987).

I 2. Appellant next argues that the indictment charging violations if OCGA §§ 10-5-3 and 10-5-5 failed because it did not state that the activities charged were not exempt transactions. Since the statutes at issue describe offenses generally applicable to all persons or to all persons in certain categories and the exemptions provided limits to the operation of the statutes, the issue of exemptions is “merely [a] matter of defense, and it is incumbent upon the defendant to prove that he falls into such exception, rather than upon the State to prove that he does not.” Flynn v. State, 88 Ga. App. 52, 57 (3) (76 SE2d 38) (1953). The indictment did not fail. Similarly, appellant’s argument that the State failed to prove at trial the non-exempt nature of the transactions is without merit. OCGA § 10-5-22 places the burden of going forward with the evidence of a claim of exemption on the person claiming the exemption. Appellant did not meet this burden. The record reveals that appellant’s only attempt to raise this issue involved appellant’s testimony in which he offered his interpretation of the law but involved no evidence that the exemption applied. Appellant’s contention that OCGA § 10-5-22 is unconstitutional was not included in his enumerations of error, only argued in his brief, therefore it will not be considered here. Bowen v. State, 191 Ga. App. 760 (382 SE2d 694) (1989). Further, such an argument finds exclusive jurisdiction with the Supreme Court of Georgia. Ga. Const. 1983, Art. VI, Sec. VI, Par. II. As to appellant’s argument that he is not a “dealer” under OCGA § 10-5-3, we agree with appellee that the evidence at trial was sufficient for a jury to find appellant was a salesman pursuant to OCGA § 10-5-2 (a) (25) so that appellant’s argument that he is not a “dealer” is immaterial.

3. Appellant next contends that neither the indictment, the proof at trial, nor the jury instructions were sufficient on the issue of theB wilfulness or the intent of appellant’s actions. OCGA § 10-5-24 re-B quires the State to prove that appellant wilfully violated the statutes.™ The indictment so charged. The trial court’s instruction that wilfulB means knowingly and intentionally committing the acts that consti-B tuted the violation was not in error. Further, the evidence at trial waaB sufficient to support the verdict that appellant was guilty of wilfully® i.e., knowingly and intentionally, selling unregistered securities wherM he was also unregistered and of employing a device to defraud. Evi-M dence at trial of previous investment plans attempted by appellan® showed his awareness of registration requirements, and testimony afl trial indicated that appellant treated his deals as personal loans alH though his investors were never so informed. This argument of appelH lant has no merit. H

4. Appellant also argues that he was denied his right to .effectivM assistance of counsel. The record shows that appellant rejected thH first attorney that was appointed to represent him, and when appelH lant moved for the appointment of another attorney, a hearing waH held, after which the trial court issued an order that appellant did noH meet the income standards of indigence and denied appellant appointed counsel. Appellant contends that despite his non-indigent status, the court erred in not appointing an attorney since he in reality could not afford the large fees demanded by lawyers for a complicated securities case. Appellant cites no authority supporting this relative standard for a right to counsel which is based upon the type and complexity of the case involved. Appellant had a right to appointed counsel only if he were determined to be indigent. See OCGA § 17-12-4 et seq. We find no merit in appellant’s contention.

5. Appellant’s argument that the State failed to prove venue in Gwinnett County also fails. “OCGA § 10-5-15 specifies venue for violations of the Georgia Securities Act of 1973 . . .: ‘For the purposes of venue for any . . . criminal action under this chapter, any violation of this chapter . . . shall be considered to have been committed in any county in which any act was performed in furtherance of the transaction which violated the chapter.’ ” Thayer v. State, 189 Ga. App. 321, 322 (1) (376 SE2d 199) (1988). The testimony of Starr at trial clearly shows that the acts of appellant in furtherance of the charged transactions were committed at the home of Starr, in Gwinnett County.

6. Contrary to appellant’s contentions, the prosecution was not arred by the statute of limitation. The four-year limitation period pplicable to appellant’s case does not include any period in which he perpetrator of the crime or the crime is unknown. OCGA § 17-3-2 2). “The knowledge placed at issue by OCGA § 17-3-2 (2) is the nowledge of the State, which knowledge includes that imputed to he State through the knowledge not only of the prosecution, but also ncludes the knowledge of someone interested in the prosecution, or njured by the offense. [Cit.]” Duncan v. State, 193 Ga. App. 793, 794 389 SE2d 365) (1989). Starr’s testimony indicates that the earliest he ecame aware that a crime may have been committed was in early ecember 1984, when he began efforts to collect on the loans, the last f which had been made in September 1984. Starr testified that he ent to the prosecutor in December 1984 or January 1985. The in-ictment was returned in February 1988, well within the four-year eriod.

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.

On Motion for Rehearing.

In his motion for rehearing, appellant, who has now retained mnsel, first argues that the trial court erred in determining that ap-lellant was not indigent and in failing to appoint counsel for him. |fter a review of the hearing on appellant’s indigence, it is clear to us jiat appellant did not meet the standards of indigence. Appellant and is wife reported a sizable income on their tax return, and appellant, who is college educated, had been free on bond since the indictment was returned, thus able to secure extra income for his defense. See Boles v. State, 178 Ga. App. 508 (3) (343 SE2d 729) (1986). “[I]t is only indigent defendants for whom the trial court must appoint counsel.” Burnett v. State, 182 Ga. App. 539, 540 (356 SE2d 231) (1987). The court did not err in failing to appoint counsel. Appellant next asserts that the court erred in failing to warn appellant of the dangers of proceeding to trial pro se. After a review of the transcripts of all the pre-trial hearings, it is again clear to us that appellant was in fact warned by the court of the dangers of proceeding pro se, and consequently this argument of appellant has no merit.

Appellant also asks the court to consider an enumeration of error that was not raised at trial or enumerated in the initial appeal. In light of appellant’s pro se status at trial and on appeal, we will con sider the contention of error on this motion for rehearing. Appellant asserts that the court’s charge to the jury was fatally flawed because the court did not charge the jury on OCGA § 10-5-12 (a) (2) (A) which makes it unlawful for any person “[i]n connection with an offer to sell, sale, offer to purchase, or purchase of any security, directly or indirectly . . . [to] employ a device, scheme, or artifice to defraud.5 Appellant was indicted on the predecessor to this statute and wa¡ convicted of violating it on several counts. Appellant contends that pursuant to OCGA § 5-5-24 (c), there was “a substantial error in th charge which was harmful as a matter of law, regardless of whethei objection was made” thereto. In fact, no objection on this basis wa¡ made to the court’s charge. “To constitute harmful error within thi meaning of [OCGA § 5-5-24 (c)], an erroneous charge or failure t( charge must result in a gross injustice, such as to raise a question a¡ to whether the appellant has been deprived of a fair trial.” Hamrick v. Wood, 175 Ga. App. 67, 68 (2) (332 SE2d 367) (1985). We hav carefully reviewed the court’s charge. The court read all the charge; under the indictment and the detailed factual basis for each chargi As to the charges under OCGA § 10-5-12 (a) (2) (A), the facts givin; rise to charges of fraud were clearly stated. The court also in hi| charge defined all the legal terms and the state of mind involved i: the charges against appellant. Considering the charge as a whole, th| jury did not lack instructions to determine if OCGA § 10-5-12 (a) (: (A) had been violated. We do not feel that appellant was deprived a fair trial. Also, contrary to appellant’s assertions, appellant w¡ given a chance to make objections to the court’s charge and while a; pellant did make certain objections, the one considered herein w; not made. For the reasons stated herein, the motion for rehearing denied.

Decided February 6, 1991

Rehearing denied March 13, 1991

Rehearing dismissed March 22, 1991

Roy E. Greenhill, Sr., pro se.

Thomas C. Lawler III, District Attorney, George P. Shingler, Senior Assistant Attorney General, for appellee.


author: McMurray, Presiding Judge.

text:
    A90A1877.
    GILSTRAP v. THE STATE.
    (404 SE2d 629)
   McMurray, Presiding Judge.

Defendant was found guilty of one count of aggravated child molestation and two counts of child molestation and this appeal followed. Held:

1. In his first three enumerations of error, defendant contends that the trial court erred in refusing to disqualify three veniremen, Sheridan, Pittman and Richards, for cause.

“ ‘ “When a prospective juror has formed an opinion based on hearsay (as opposed to being based on his having seen the crime committed or having heard the testimony under oath), to disqualify such individual as a juror on the ground that he has formed an opinion on the guilt or innocence of a defendant, the opinion must be so fixed and definite that it would not be changed by the evidence or charge of the court upon the trial of the case.” (Cits.)’ Waters v. State, 248 Ga. 1355, 362 (283 SE2d 238) (1981).” Childs v. State, 257 Ga. 243, 250 (8) (357 SE2d 48) (1987).

I “ ‘Whether to strike a juror for favor lies within the sound discretion of the trial court ((cits.)), and absent manifest abuse of that discretion, appellate courts will not reverse. (Cit.) . . . The fact that a potential juror may have some doubt as to his impartiality, or complete freedom from all bias, does not demand as a matter of law that Ihe juror be excused for cause. (Cits.)’ Harris v. State, 178 Ga. App. 735, 736 (1) (344 SE2d 528) (1986).” Scott v. State, 193 Ga. App. 577, 578 (2) (388 SE2d 416).

I Under the particular facts and circumstances of the case sub ludice, the trial court’s refusal to excuse these three prospective jurors lor cause was not a manifest abuse of discretion.

1 2. Defendant contends in his fourth enumeration that the trial lourt erred in limiting his voir dire examination of three prospective ■rrors, Sheridan, Richards and Pittman, who indicated that they had preconceived ideas of defendant’s guilt or innocence, but affirmed lat they could set aside their prejudices and decide the case based •lely upon the evidence presented at trial and instructions given by the trial court. More specifically, defendant contends he should have been allowed to ask: “How would [your preconceived notions about the case] ever be erased from your mind? Would the defendant have to prove to you that he didn’t do these things? What would it take to erase those notions from your mind. ..?... What would it take to [erase partiality from your mind]? What would it take to erase that preconceived notion [of partiality from your mind]?”

“The trial court has broad discretion as to what questions should be allowed on voir dire, and that discretion will not be disturbed absent abuse. Wilcox v. State, 250 Ga. 745, [759] (301 SE2d 251) (1983); Ridgeway v. State, 174 Ga. App. 663 (330 SE2d 916) (1985).” Coleman v. State, 189 Ga. App. 366 (3), 367 (375 SE2d 663). In the case sub judice, the trial court did not abuse its discretion in refusing to allow defense counsel’s pursuit of the above lines of inquiry as the questions were not dispositive of the jurors’ qualifications.

It is unnecessary that partiality be “erased” from a prospective juror’s mind. To say otherwise “would be to establish an impossible standard.” Irvin v. Dowd, 366 U. S. 717, 723 (81 SC 1639, 6 LE2d 751). It is sufficient if the prospective juror can lay aside his impression or opinion of an accused’s guilt or innocence and decide the case based solely on the evidence adduced at trial and instruction given by the trial court. Irvin v. Dowd, 366 U. S. 717, 723, supra. Under such circumstances, the only relevant inquiry would be to determine whether the prospective juror’s preconceived views of the case are “so fixed that [the juror] would not follow the instructions of the trial court.” Wilcox v. State, 250 Ga. 745, 757 (301 SE2d 251).

3. In his fifth enumeration, defendant contends the trial courtl erred in refusing his request to ask prospective jurors the following:) “Can you restrict your deliberation to this case based upon the evi dence submitted and the charge given by the Court as to whether o: not the defendant has committed any act of child molestation on [tb victims]?”

The record reveals that no ruling was invoked on this specific! question, which was an amended version of a previous question. “Ac cordingly, ‘(t)here is nothing for us to review since appellant failed ti make his objection at trial on the specific ground he attempts to rais on appeal.’ [Cit.]” Ingram v. State, 192 Ga. App. 196, 198 (2) (384 SE2d 262).

4. In his sixth enumeration, defendant contends the trial cour erred in prohibiting him from questioning “similar transaction wit nesses” about “sexual relations” they had with persons other than de fendant. Defendant argues that this evidence was relevant to sho' that the “similar transaction witnesses” were molested by someon other than defendant.

Three adult witnesses testified that they attended organized youth activities directed by defendant when they were children; that these activities included visits to defendant’s summer cottage and that defendant molested them at his summer cottage. Two of the witnesses remembered that defendant’s cottage was painted red. Later, defendant presented testimony showing that his cabin has never been painted red, but that “[i]t was always green.” Defendant then presented testimony showing that defendant’s youth activities were also conducted on the property of Louis Timms and that Mr. Timms “had a barn that was barn red.” Defendant argues that this evidence and proffered testimony that Louis Timms had molested the three “similar transaction witnesses” when they were children was relevant to show that defendant did not molest the “similar transaction witnesses.” This argument is without merit.

“The introduction of past sexual experiences of the [similar transaction] victims is not only irrelevant and prejudicial, but it also fails to address the issue of credibility. A child is no more or no less credible because of prior incidents of molestation.” Ortiz v. State, 188 Ga. App. 532 (1), 533 (374 SE2d 92). Further, even assuming this evidence had some probative value in discrediting the similar transaction victims’ testimony, we find no harmful error in its exclusion. These witnesses’ identification testimony carried a high degree of reliability, i.e., defendant was a leader of the witnesses’ religious organization, the witnesses gave detailed descriptions of the acts of molestation and they described repeated incidents of molestation committed against them by defendant at locations other than defendant’s summer cottage. This enumeration is without merit.

5. Defendant contends in his seventh enumeration of error, “[t]he trial court erred in admitting [eight] similar transactions which were from 6 to 30 years old. . . .” Defendant argues that these prior sexual acts were too far removed in time to be admissible as similar acts or [transactions.

| “Although lapse of time is one of the more important factors to [weigh in considering the admissibility of evidence of similar crimes, it |is not wholly determinative. Campbell v. State, 234 Ga. 130, 132 (214 SE2d 656) (1975).” Cooper v. State, 173 Ga. App. 254 (1), 255 (325 SE2d 877). The primary conditions which must be satisfied for the Introduction of such evidence are as follows: “First, there must be evidence that the defendant was, in fact, the perpetrator of the crime; ■second, there must be sufficient similarity or connection between the Independent crimes and the offense charged that proof of the former lends to prove the latter. Davis v. State, 249 Ga. 309, 311 (1) (290 SE2d 273) (1982).” Cooper v. State, 173 Ga. App. 254 (1), 255, supra.

In the case sub judice, eight adult witnesses testified that defendant committed acts of child molestation against them when they were loung boys. These acts of child molestation were similar in. method and object to the acts of child molestation committed against the male victims. More specifically, the boys were approached by defendant and molested after he gained their confidence as a leader in the community and as a leader of young children in a religious organization. “Under such circumstances, we do not believe the lapse of time between the independent crimes and the offenses charged is a determinative factor which would make such evidence inadmissible. Campbell, supra. The lapse of time between the prior occurrences and the offenses charged goes to the weight and credibility of such testimony, not its admissibility. Milton v. State, 245 Ga. 20, 26 (262 SE2d 789) (1980); Barnes v. State, 157 Ga. App. 582, 583 (1) (277 SE2d 916) (1981).” Cooper v. State, 173 Ga. App. 254 (1), 255, supra. See Oller v. State, 187 Ga. App. 818, 819 (2) (371 SE2d 455).

Defendant also contends that “[t] he trial court erred in admitting evidence of similar transactions ... for which the State was unable to provide [him] with the times of the alleged transactions sufficient to allow him to present a defense as to those claims.”

The State concedes in its “Notice of Intent to Introduce Evidence of Similar Transactions” that it was unable to give specific dates of the alleged similar crimes because it was not aware of the exact dates. However, the State’s “Notice of Intent to Introduce Evidence of Similar Transactions” does contain the names of the victims of the similar acts, the general span of time of the alleged similar acts, the specific similar acts of molestation and the locations of the similar acts. Under these circumstances, we find the State’s notice to defendant of its intent to introduce evidence of similar transactions sufficient to enable defendant to prepare a defense to those claims. See Patten v. State, 184 Ga. App. 152, 153 (3) (361 SE2d 203) and Eidson v. State, 182 Ga. App. 321, 322 (2) (355 SE2d 691).

6. Next, defendant complains of the admission of evidence of similar transactions in violation of Rules 31.1 and 31.3 of the Uniform Rules for the Superior Courts. This evidence was not discovered by the State until one witness volunteered the information four days before trial, and another revealed it three days after the trial had commenced. Defendant was promptly served with notice of the newly-discovered evidence after the prosecutor became aware of it. The trial court ruled these similar transactions would be admissible once defense counsel had an opportunity to interview the witnesses; defendant was also offered additional time to investigate one transaction, which his attorney declined. “Under such circumstances we find no error in overruling appellant’s objection to the presentation on such evidence. Common sense dictates that the State cannot give no-l tice of its intention to introduce evidence ten days prior to trial wherl it is not aware of the existence of such evidence [at that time].” Roman v. State, 185 Ga. App. 32, 33 (1) (363 SE2d 329). “Rule 31.1 authorizes the trial judge to shorten the time required for giving such notice, and we find no abuse of discretion here. . . .” Willis v. State, 191 Ga. App. 251, 252 (1) (a) (381 SE2d 416).

Decided March 11, 1991

Rehearing denied March 22, 1991

Cook & Palmour, Bobby Lee Cook, Robert E. Andrews, Alan J. Baverman, for appellant.

C. Andrew Fuller, District Attorney, Lee Darragh, Leonard C. Parks, Jr. Assistant District Attorneys, for appellee.

Additionally, defendant contends it was error for the trial court to permit the admission of similar transaction evidence by the State based upon a statement in place by the prosecutor as to what the evidence was expected to be. Defendant protests that this was an abuse of discretion. We do not agree. This Court has repeatedly approved such a hearing procedure as being in substantial compliance with Rule 31.3 of the Uniform Rules for the Superior Courts requiring the trial judge to hold a hearing out of the presence of the jury and receive evidence on any issue of fact necessary to determine the request to permit evidence of similar transactions. E.g., Grogan v. State, 192 Ga. App. 234 (384 SE2d 441); Houston v. State, 187 Ga. App. 335, 337 (2), 338 (370 SE2d 178); Hall v. State, 181 Ga. App. 92 (1) (351 SE2d 236). “[The] primary consideration [is] whether defendant was deprived of any substantial rights in the State’s execution of the intent of the Rule. [Cit.] ‘The burden is on the party claiming error not only to show error, but error which injured him, and unless the error results in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right, an appellate court will not reverse.’ [Cit.] We find substantial compliance with the Rule [cit.], and no reversible error.” Houston v. State, 187 Ga. App. 335, supra at 338.

7. In his last enumeration, defendant contends the trial court erred in allowing the State to present similar transaction evidence before presenting “any evidence concerning the charged offenses.”

“The order in which evidence is allowed to be introduced, must rest, to a considerable extent, in the sound discretion of the presiding judge.” Williams v. State, 123 Ga. 138, 140 (1) (51 SE 322). In the case sub judice, we find no abuse in allowing the State to introduce similar transaction evidence before presenting evidence “concerning the charged offenses.” See Green, Ga. Law of Evidence (3d ed.), p. 37, § 16.

Judgment affirmed.

Sognier, C. J., concurs; Carley, J., concurs in Divisions 1, 3, 4, 5, 6, 7 and in the judgment.


author: Andrews, Judge.

text:
    A91A0163.
    ALEXANDER v. THE STATE.
    (404 SE2d 616)
   Andrews, Judge.

Alexander appeals his conviction of two counts of child molestation for acts involving his two daughters.

1. We address first the second and third enumerations which allege, respectively, error in denial of his motion for new trial on the general grounds and the insufficiency of the evidence. With regard to the motion for new trial, as it addresses the sufficiency of the evidence, we consider it under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 660) (1979). Stinson v. State, 185 Ga. App. 543 (364 SE2d 910) (1988); Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988).

Viewed in favor of the verdict, the evidence was that defendant, divorced from the children’s mother, went with two co-workers to pick the girls up for his Christmas Eve visitation. He got in the back seat with Rebecca, then 11, and Nicole, then eight. Defendant, who had been drinking, then put his hands up Rebecca’s shirt and down Nicole’s pants and licked their faces, while the two men in the front seat laughed. When Nicole said she would tell, defendant threatened to beat her head in with the claw end of a hammer.

Defendant and his daughters then went to his mother’s house for a party, after which the girls were returned to their mother.

The day after Christmas Day, while riding in the car with their mother, the girls related what happened and the investigation and prosecution ensued.

Defendant contended that the story was fabricated by his ex-wife and the two other men in the car reported that “nothing unusual” occurred, although one acknowledged that defendant wrestled with the girls in the back seat. This testimony, however, merely raised credibility issues, resolved against defendant at trial. OCGA § 24-9-80. “The jurors in this case heard the witness [es], and are better qualified to judge the reasonableness of a hypothesis raised by the evidence . . . than is this court which is restricted to a cold record and to issues of law. [Cit.]” Burns v. State, 166 Ga. App. 766, 769 (3) (305 SE2d 398) (1983). We examine not the weight but only the sufficiency of the evidence presented. Thomas v. State, 173 Ga. App. 810, 812 (2) (328 SE2d 422) (1985).

Having so examined the evidence, we find it sufficient to prove the elements of OCGA § 16-6-4 (a), including proof of venue. There was no challenge below to the proof of venue and the DFACS investigator went to the locale described to her by the children and concluded it was in Gwinnett County. “[W]hen the evidence is not conflicting and when no challenge to venue is raised at trial, slight evidence is sufficient to prove venue. [Cit.]” Minter v. State, 258 Ga. 629 (373 SE2d 359) (1988).

2. Defendant also contends that the allowance of testimony by the children’s mother, the DFACS worker, and a police detective repeating what the children told them about the incident was error. The only objection voiced below was that made during the mother’s recitation that “this is some hearsay here. If the little girls are here to testify, I believe they can testify themselves.”

No objection was made during the testimony of the DFACS worker and the policeman, and objection may not be made here to it for the first time. Hight v. State, 195 Ga. App. 727, 730 (6) (394 SE2d 636) (1990). Also, defendant argues for the first time here that he was denied his right to confrontation, which will not be considered.

In response to the objection made, the State relied on OCGA § 24-3-16, which is dispositive. That section provides that “[a] statement made by a child under the age of 14 years describing any act of sexual conduct or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” OCGA § 24-9-5, which in subsection (a) provides that children who do not understand the nature of an oath are incompetent witnesses, provides in subsection (b) that, notwithstanding subsection (a), in “criminal cases involving child molestation, . . . any such child shall be competent to testify, and his credibility shall be determined as provided in [OCGA § 24-9-80 et seq.].”

Therefore, the testimony of the mother, while hearsay, was nonetheless admissible. In the Interest of T. M. H., 197 Ga. App. 416, 418 (1b) (398 SE2d 766) (1990).

Here, defendant argues that the procedural requirements of Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987) were not complied with in that there was no specific determination by the court on the record of the indicia of reliability of the statements. Pretermitting the fact that this objection was not raised below and that the children, 12 and ten at the time of trial, were both called to the stand by the State, took the oath, and were subject to cross-examination by [defendant, “[b]y the court’s admission of the out-of-court declarations, the court implicitly found the testimony to have sufficient indi-cia of reliability as the statute requires. [Cits.]” Rayburn v. State, 194 Ga. App. 676 (3) (391 SE2d 780) (1990). See Reynolds v. State, 257 Ga. 725, 726 (2) (363 SE2d 249) (1988).

Decided March 8, 1991

Rehearing denied March 22, 1991.

Mears & Associates, B. Michael Mears, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       The claimed error of law is addressed in the following division of this opinion.


text:
    A90A1988.
    HOLLOMAN v. THE STATE.
    (404 SE2d 651)
   Cooper, Judge.

Appellant was convicted in probate court of driving under the influence and speeding and appealed his conviction to the superior court pursuant to OCGA § 40-13-28. At the hearing in superior court, appellant argued that there was insufficient evidence to support the conviction; however, there was no transcript of the probate court proceedings. The trial court affirmed the judgment of the probate court, finding that since there was no transcript of the proceedings in pro bate court, the probate court’s judgment must be assumed to be cor rect.

Appellant contends that the superior court erred in affirming the judgment of the probate court because without a transcript there was no evidence of his guilt. “OCGA § 40-13-28, having eliminated the jury feature of an appeal to the superior court, then provides that the] appeal ‘shall be on the record of the hearing as certified by the judge] of that court who presided at the hearing below.’ ” Anderson v. City of Alpharetta, 187 Ga. App. 148, 149 (369 SE2d 521) (1988). The trial court, citing Mindock v. State, 187 Ga. App. 508 (1) (370 SE2d 670) (1988), presumed that the verdict of the probate court was corree since there was no transcript reflecting evidence to the contrary. W< conclude that the trial court did not accord appellant the de nov review to which he was entitled. See generally Judd v. Valdosta Lowndes County Zoning Bd. &c., 147 Ga. App. 128 (1b) (248 SE2d 196) (1978). Therefore, we remand this case to the superior court for de novo proceeding to be conducted. We find that the trial court hai authority to issue such orders as necessary to obtain any transcript o: certified record from the probate court to aid in its jurisdiction oi| appeal. See OCGA § 5-3-28 (b).

Case remanded with direction. Banke, P. J., and BirdsongI

Decided March 22, 1991.

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, for appellant.

Tommy K. Floyd, District Attorney, for appellee.

P. J., concur.


author: Banke, Presiding Judge.

text:
    A90A1564.
    MOORE v. THE STATE.
    (404 SE2d 612)
   Banke, Presiding Judge.

The appellant, acting pro se, appeals his convictions of three counts of kidnapping, two counts of aggravated assault, and one count of possession of a firearm by a convicted felon. Although counsel was appointed to represent him in the court below, he chose to conduct his own defense at trial, with the appointed counsel acting in a “standby” capacity. He was sentenced on July 15, 1987; and the following September, a public defender was appointed to represent him on appeal. The latter filed a motion for new trial on his behalf on September 9, 1987; and the appellant thereafter filed a plethora of pro se pleadings, including motions to remove his appointed counsel, in which he indicated a desire to waive his appeal rights. On April 4, 1990, the trial court entered an order allowing the public defender to withdraw from the case and dismissing the motion for new trial based on the appellant’s stated desire not to pursue his appeal. Thereafter, on April 20, 1990, the appellant filed a pro se notice of appeal; and since that time, he has filed various motions seeking the appointment of another appellate counsel. The trial court determined, however, that he had “freely, voluntarily and knowingly waived his right to appointed counsel . . . [and] the right to an appeal in this case.” Held:

I “[T]here can be no public policy that would forbid a criminal defendant from making a voluntary, knowing, and intelligent waiver of the . . . right [of appeal]. Furthermore, there is no constitutional or statutory provision that prohibits a criminal defendant from waiving his statutory right to appeal.” Thomas v. State, 260 Ga. 262, 263-264 (392 SE2d 520) (1990). Because the record supports the trial court’s ¡determination that the appellant voluntarily and knowingly elected ¡not to pursue his appeal, the trial court’s order dismissing the motion por new trial is affirmed.

Judgment affirmed.

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

Decided March 5, 1991

Rehearing denied March 25, 1991.

James Moore, pro se.

Frank C. Winn, District Attorney, David J. McDade, Assistant District Attorney, for appellee.


text:
    A90A1684.
    ESCO v. THE STATE.
    (404 SE2d 584)
   Cooper, Judge.

Appellant appeals his convictions for rape, aggravated sodomy, burglary, and cruelty to children. He enumerates two bases of error: the admission of the testimony of a GBI agent as to prior consistent statements made by one of the victims and the general grounds.

Viewing the evidence in favor of the verdict, it appears that Joyce Rawlings and her four-year-old son, Nicholas, were awakened at approximately 1:30 a.m. by a man standing beside the bed wearing a blue bandanna over his face and holding a knife against her throat. The man ordered Ms. Rawlings to roll over, and she grabbed her son and ran from the bedroom into the living room where she and the man scuffled. During the scuffle, the man was struck in the head with a lamp, and Ms. Rawlings was thrown across a coffee table. Ms. Rawl-ings’ face was also cut, and the man demanded that she stop screaming or he would kill her and Nicholas. The assailant pulled Ms. Rawl-ings’ gown off and forced her to perform oral sex; he then had intercourse with her and sodomized her anally. During the entire episode, Nicholas was present, crying and asking the man not to hurt his mother. The man tied Ms. Rawlings up with Nicholas’ pajama top and socks. However, while doing so, the bandanna fell from the man’s face, and Nicholas recognized him as appellant. Ms. Rawlings testified that she did not see the assailant’s face, but she recognized his voice as appellant’s, having known appellant prior to the incident. A search of appellant’s car produced a blue bandanna and a pair of work boots, which fit the description given by Ms. Rawlings of what her assailant wore. In addition, footprints discovered behind the Rawlings home were similar to appellant’s boots. Defense witnesses testified that appellant was at home at 11:30 p.m. on the evening in question; however, none could positively place appellant at home at the time Ms.! Rawlings said the attack occurred. There was also testimony which indicated that appellant displayed no visible signs of struggle follow-| ing the incident.

1. Appellant contends he was prejudiced by the cumulative effeci of a GBI agent’s testimony regarding Nicholas’ interview with the po-| lice. Testifying as a witness for the State, Nicholas identified appellant as the assailant and described the attack. On cross-examination, appellant’s counsel challenged Nicholas’ credibility, eliciting from him that his mother told him that appellant was their attacker. An agent who was present during Nicholas’ initial interview testified in rebuttal, over appellant’s objection, that Nicholas had identified appellant earlier and that Ms. Rawlings had been surprised by Nicholas’ statement. We find no error in the admission of the testimony. “Because the credibility and veracity of [a] witness [was] under ^attack, the State sought to show by the [agent] that the witness had made prior consistent statements to the investigators. The prior consistent out-of-court statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence. [Cits.]” Hayes v. State, 189 Ga. App. 39 (1 a) (375 SE2d 114) (1988). Further, the testimony did not improperly bolster Nicholas’ statements. See Moon v. State, 258 Ga. 748 (28) (375 SE2d 442) (1988).

Decided February 13, 1991

Rehearing denied March 25, 1991.

J. Richardson Brannon, for appellant.

Timothy G. Madison, District Attorney, Deborah S. Wilbanks, Jeffrey G. Morrow, Assistant District Attorneys, for appellee.

2. Appellant argues that the State’s evidence was insufficient to support the verdicts and that the defense witnesses, as well as his own testimony, provided a credible alibi. “[I]n every case the jury is the arbiter of credibility including as to the defendant’s explanation, and the jury is the body which resolves conflicting evidence, and where the jury has done so, the appellate court cannot merely substitute its judgment for that of the jury. [Cit.]” Adams v. State, 187 Ga. App. 340, 344 (370 SE2d 197) (1988). We find that the evidence was sufficient so that a rational finder of fact could have found appellant guilty of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.


text:
    A90A1790.
    MOORE v. HARRY NORMAN, INC., REALTORS et al.
    (404 SE2d 793)
   Banke, Presiding Judge.

During a period of time when the appellant’s residence was listed for sale with Harry Norman, Inc., Realtors, the property was burglarized. There were indications that the burglar had gained access to the premises by using a key taken from a realtor’s lock box which had been installed outside the house. The appellant brought the present action against Harry Norman, Inc., Realtors and First Multiple Listing Service, Inc., (FMLS), seeking actual and punitive damages, plus attorney fees, based on allegations that they had been aware that several other homes in the metropolitan Atlanta area had been burglarized in the same manner but had failed either to disclose this information to her or to take reasonable steps to prevent unauthorized access to her house key. Concluding that the defendants owed no such duty to the appellant, the trial court granted their motion for summary judgment, and this appeal followed.

FMLS is a Georgia corporation which provides services to residential real estate brokerage companies located in the metropolitan Atlanta area, its primary purpose being to facilitate sales of such real estate by circulating listings among its member companies for use by their sales agents. Harry Norman, Inc., is a member company of FMLS; and its president, Harry Norman, is FMLS’s vice-president as well° as a member of its board of directors.

On June 30, 1987, the appellant entered into an exclusive listing agreement with Harry Norman, Inc., for the sale of her home. The agreement was on a printed form provided by FMLS, captioned, “Exclusive right to sell contract for listing property with First Multiple Listing Service, Inc., Atlanta, Georgia.” It was executed by the appellant as “owner,” by Kay Riegal (a sales agent employed by Harry Norman, Inc.) as “broker’s authorized agent,” and by Jim Campbell, a vice-president of Harry Norman, Inc., on behalf of the “company.” "The agreement specified that “members of FMLS may act in association with broker in procuring or attempting to procure a purchaser” and further specified that the owner would be obligated to pay the broker a sales commission “in the event broker or any member of FMLS procures a [purchaser]. ...”

Prior to executing the agreement, the appellant expressed concern to Riegal about the security risks involved in using a lock box, but was advised by the latter that in her 15 years of selling real estate, the only problem she had encountered in this connection was a missing ashtray. The appellant thereafter delivered a house key to Riegal for placement in the lock box. Although the box was owned by Harry Norman, Inc., FMLS retained ownership of Riegal’s key to it pursuant to the terms of a “title key agreement” it had entered into with her. There was evidence that FMLS was aware that during the preceding year there had been approximately 16 burglaries of residences in the metropolitan Atlanta area where lock boxes were being used; and the appellant averred that if she had been informed of this,! she would not have authorized the use of a lock box at her home. It is! undisputed that Riegal had no knowledge of these burglaries at the! time the appellant questioned her about the security risks involved in using a lock box; however, there is a dispute as to whether Harry Norman, Inc., had such knowledge. The appellant testified during her deposition that after her home was burglarized, both Harry Norman and Jim Campbell (the vice-president for Harry Norman, Inc., who had signed the exclusive listing agreement on the company’s behalf) told her that other lock box burglaries had occurred prior to hers; however, both men denied this. Held:

1. The trial court erred in concluding as a matter of law that Harry Norman, Inc., owed no duty of care to the appellant. There is no question that Harry Norman, Inc., was a party to the listing agreement at issue in this case; and when a homeowner and a broker enter into such an agreement, the relation of principal and agent clearly is established between them. See Dolvin Realty Co. v. Holley, 203 Ga. 618, 622 (48 SE2d 109) (1948); Johnson Realty v. Hand, 189 Ga. App. 706 (6) (377 SE2d 176) (1988). See generally OCGA § 10-6-1.

A principal-agent relationship is, of course, fiduciary in character, imposing upon the agent the duty to exercise the utmost good faith toward the principal. See Reisman v. Massey, 84 Ga. App. 796 (1) (67 SE2d 585) (1951); OCGA § 23-2-28. “Where a confidential relationship exists, concealment when there is a duty to disclose, if resulting in injury is itself actionable fraud.” Scott v. Lumpkin, 153 Ga. App. 17, 19 (264 SE2d 514) (1980). We conclude that a question of fact exists in this case as to whether Harry Norman, Inc., breached a fiduciary duty to the appellant in failing to disclose to her information .allegedly in its possession regarding the occurrence of other “lock box burglaries” in the Atlanta metropolitan area.

2. We conclude that an issue of fact also exists as to whether FMLS breached a duty to the appellant by failing to exercise due care in maintaining the integrity of its box system and preventing unauthorized access to them. “ ‘The most common test of negligence is [whether the consequences of the alleged wrongful act are reasonably Ito be foreseen as injurious to others coming within the range of such pets, and what is reasonably to be foreseen is generally a question for [the jury. (Cits.) The question for the jury is whether danger should [have been recognized by common experience, or by the special experience of the alleged wrongdoer, or by a person of ordinary prudence end foresight (cits.).’ [Cit.]” Stuckey’s Carriage Inn v. Phillips, 122 Ga. App. 681, 689 (178 SE2d 543) (1970).

I There was evidence that FMLS had “concerns” about the previous burglaries involving its lock boxes and was in contact with local fcolice concerning them but that its board of directors had made a deliberate decision not to communicate that information to its member brokers. Moreover, while FMLS normally changed locks on its 'Ck boxes every three to four years, no such change had taken place for five years preceding the burglary of the appellant’s home. Based on the record currently before us, we are unable to conclude as a matter of law that FMLS has no liability to the appellant.

3. FMLS contends that even if it was guilty of negligence with respect to the maintenance of its lock boxes, it was nevertheless insulated from liability under an indemnification clause contained in the listing agreement, by which the owner agreed to hold FMLS harmless on any claims “which result from any negligent acts of persons who are employees of FMLS, whenever said acts occur during the period of this agreement.” As previously indicated, the appellant’s claim against FMLS is predicated on evidence that FMLS made a deliberate decision, through its board of directors, to withhold information from its member brokers concerning other “lock box burglaries” in the metropolitan Atlanta area. Because the corporation’s alleged liability is predicated on its own official actions as a corporation rather than on the negligence of individual employees, we hold that it is not shielded from liability by this indemnity clause. Cf. Peck v. Rollins Protective Svcs., 189 Ga. App. 381 (2) (375 SE2d 494) (1988).

4. The appellant contends that the trial court erred in ruling that no bailment was created between her and the appellees with respect to her house key. “A bailment is a delivery of goods or property upon a contract, express or implied, to carry out the execution of a special object beneficial either to the bailor or bailee or both and to dispose of the property in conformity with the purpose of the trust.” OCGA § 44-12-40. “In order to constitute a bailment, it is essential that the bailee acquire an independent and temporarily exclusive possession of the property.” A.A.A. Parking v. Bigger, 113 Ga. App. 578, 583 (149 SE2d 255) (1966). It was established in this case that approximately 7,000 real estate agents had access to the appellant’s house key by virtue of the lock box keys distributed by FMLS. Under these circumstances, the appellees clearly did not have “exclusive possession” of the appellant’s house key; and we consequently hold that the appel-lees were properly granted summary judgment on this theory of liability.

5. The evidence currently of record does not conclusively negate the appellant’s allegation that the appellees acted with conscious disregard of her interests in continuing to utilize a lock box system the integrity of which was known to have been compromised. We accordingly hold that the trial court erred in awarding them summary judgment on the appellant’s punitive damage claim. See generally Gaither v. Barclaysamerican/Financial of Ga., 194 Ga. App. 188 (390 SE2d 97) (1990).

Judgment affirmed in part and reversed in part.

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

Decided March 8, 1991

Rehearings denied March 15, 1991 and March 25, 1991

Stowers, Hayes, Clark & Roane, E. Hearst Roane, Jr., for appellant.

McCalla, Raymer, Padrick, Cobb & Nichols, Daniel D. Phelan, Carol V. Clark, for appellees.


author: Birdsong, Presiding Judge.

text:
    A90A1868.
    WOMACK INDUSTRIES, INC. et al. v. TIFTON-TIFT COUNTY AIRPORT AUTHORITY et al.
    (404 SE2d 618)
   Birdsong, Presiding Judge.

Womack Industries, Inc. (“Womack”) appeals from the trial court’s grant of a default judgment to the Tifton-Tift County Airport Authority (“the Authority”). The record shows the Authority filed a complaint in the Superior Court of Tift County to obtain an injunction to stop Womack from continuing construction at the Tifton-Tift County Airport on land that the Authority contends was erroneously leased to Womack after it had been earlier leased to another. Wo-mack, a resident of Cook County, contested the jurisdiction in Tift County and moved to dismiss the complaint. After the trial court granted the Authority’s motion to transfer the case to Cook County, Womack failed to answer the complaint filed in Tift County within the time prescribed by law. Womack contends the trial court erred by granting the Authority’s motion to strike its answer and enter default judgment and by not opening the default because the complaint was filed in Tift County and then transferred to Cook County, and the trial court ruled that the time for answering the complaint ran from original service of the complaint filed in Tift County. Held:

1. The first issue is whether, in a case which was transferred from one trial court to another under Uniform Superior Court Rule 19 (“USCR 19”), because of improper venue, the time in which to answer the complaint runs from the date of original service of the complaint in the transferor court or from some other date after the case is filed in the transferee court. The Uniform Superior Court Rules were adopted to “ ‘provide for the speedy, efficient, and inexpensive resolution of disputes and prosecutions.’ Constitution of Georgia of 1983, Art. VI, Sec. IX, Par. I.” Hillis v. Hillis, 256 Ga. 438 (349 SE2d 746). Our law on the requirements for filing the answer is not complicated. See OCGA §§ 9-11-12 (a); 9-11-5 (d). Consideration of this issue in light of the purpose of the rules with USCR 19.1 and in connection with Ga. Const. 1983, Art. VI, Sec. I, Par. VIII, and OCGA §§ 9-11-5; 9-11-6; 9-11-12; and 9-11-55 leads us to the conclusion that the time in which to answer begins when service of process is made upon a defendant in the transferor court, and, unless directed by the trans-feror court under USCR 19.1 (E), the time in which to answer is not tolled by the filing of a motion to transfer venue or the action of the transferor court ordering the transfer of the case.

In reaching this conclusion, we also rely on the provisions of USCR 19.1 (I) which specifically state that “[t]he action thereafter shall continue in the transferee court as though initially commenced there . . . and [i]t shall not be necessary that service of process be perfected a second time. . . .” The clear effect of USCR 19.1 (H) and (I) is to continue the case as if filed in the transferee court as if there was no interruption. The necessary consequence of USCR 19.1 is that Womack’s answer was required to be filed within the 30-day period after Womack was served with the complaint. Accordingly, when Wo-mack’s answer was not filed by December 26, 1989, the case was in default. Thus, the answer filed on January 3, 1990, was untimely, and although the answer was filed within the 15-day grace period provided by OCGA § 9-11-55 (a), the costs were not paid prior to the filing of the answer as required by OCGA § 9-11-55 (a) and thus the filing was not effective. Hazzard v. Phillips, 249 Ga. 24, 25 (287 SE2d 191). Further, the record shows that the answer filed did not respond to the complaint served with the summons, but instead responded to a subsequent pleading. Accordingly, the trial court did not err by entering a default judgment against Womack.

2. Womack next alleges that the trial court erred by refusing to open default under OCGA § 9-11-55 (b). This section allows a prejudgment default to be opened if Womack shows one of the following grounds: (1) providential cause, (2) excusable neglect, and (3) a proper case. Copeland v. Carter, 247 Ga. 542, 544 (277 SE2d 500). Since the trial court did not find one of the grounds for opening a default existed, we need not consider whether Womack established the four conditions for opening a default. See Muscogee Realty Dev. Corp. v. Jefferson Co., 252 Ga. 400, 401 (314 SE2d 199).

Review of the record shows that the trial court did not abuse its discretion in finding that Womack failed to establish the grounds for opening a default. Although on appeal Womack asserts all three grounds, before the trial court Womack asserted only excusable neglect and that there was no default because the complaint had been dismissed. The facts of this case do not show that Womack failed to answer because of excusable neglect. See Sears, Roebuck & Co. v. Ramey, 170 Ga. App. 873, 875 (318 SE2d 740). Instead, the record indicates a pattern of intentional delay in filing pleadings which would subject Womack to the jurisdiction of the trial court. Moreover, Womack’s argument shows that it apparently relied on what it considered a dismissal of the complaint to avoid answering the complaint. As the transferor court’s order plainly shows, it was transferred and not dismissed. This cannot constitute excusable neglect. See Market Ins. Corp. v. IHM, 192 Ga. App. 441, 442 (385 SE2d 307). “Upon review of the circumstances, we cannot conclude as a matter of law the court’s denial of the request to open the default was a manifest abuse of discretion. [Cit.]” Barone v. McRae & Holloway P.C., 179 Ga. App. 812, 815 (348 SE2d 320).

Decided March 8, 1991

Rehearing denied March 25, 1991

Thompson & McClure, Douglas R. Thompson, John L. Adair, Jr., for appellants.

Reinhardt, Whitley & Wilmot, Bob Reinhardt, John R. Reinhardt, Ralph G. McCallum, 0. Wayne Ellerbee, Howard E. McClain, for appellees.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


author: Pope, Judge.

text:
    A90A1879.
    BRUCE et al. v. McMULLEN et al.
    (404 SE2d 620)
   Pope, Judge.

Appellees, the executrixes of the will of decedent Garland C. Bag-ley, submitted what they purported to be the decedent’s last will and testament for probate. The probate court denied the petition for probate because of lack of evidence that the document submittéd was in fact the last will and testament of the decedent.

A class of legatees and debtors, including appellants Charles Bruce and Penny Profit Foods, Inc., filed suit in the superior court against the executrixes alleging fraud in the execution of the decedent’s will and the documents submitted to the probate court. The parties to the superior court action entered into a consent order pursuant to which the probate court order denying probate of the will was set aside, and the executrixes were ordered to resubmit the will for probate. The consent order expressly directed that the class of legatees and debtors be given notice of the renewed probate proceeding.

The record shows appellants were served with notice of the second hearing of the probate court on the petition to probate the decedent’s will although they filed no pleading in the proceeding. The probate court again denied probate to the resubmitted will. Appellants filed a notice of appeal to the superior court but the superior court dismissed the appeal on the ground that appellants had no standing to appeal because they were not parties to the probate proceeding. We hold the superior court erred in dismissing the appeal from the probate court proceeding.

The issue here is how does one become a party with standing to appeal an order of the probate court. According to the ruling of the superior court, to be a party to a probate court proceeding with standing to appeal the court’s order, one must have submitted a pleading in the probate court proceeding. According to earlier rulings of the Georgia Supreme Court, however, one becomes a party to a probate court proceeding with standing to appeal the ruling in that proceeding if one is served with notice of the proceeding, even if no pleading is filed. In Mitchell v. Pyron, 17 Ga. 416 (1854), the Supreme Court held a creditor who was served with notice of the proceeding in the court of ordinary (now probate court) “was a party to the proceeding, whether he made objection to the proceeding before the Ordinary or not, and had a right to appeal ... if dissatisfied with the Ordinary’s decision. ...” Id. at 417. See also Underwood v. Stanford, 143 Ga. 325 (85 SE 102) (1915); cf. Samples v. Samples, 194 Ga. 383 (1) (21 SE2d 601) (1942); Swift v. Thomas, 101 Ga. 89 (1) (28 SE 618) (1897) (in which the Supreme Court held that parties who had neither appeared to contest by caveat the probate of a will at the probate court level nor presented evidence on appeal to the superior court had no standing to appeal the judgment of the superior court affirming the setting up of the will).

The record shows appellants were served with notice of the second hearing on the petition to probate the decedent’s will. Thus, they were parties to the proceeding and had standing to bring the appeal for de novo review to the superior court. Those cases relied upon by the superior court for its ruling that the appellants have no standing to bring the appeal involve parties who tried to enter a proceeding by filing an objection to the petition but whose pleading was not allowed, showing the probate court ruled they were not proper parties to the proceeding. See Townsend v. Cain, 140 Ga. App. 251 (230 SE2d 504) (1976); Sutherland v. Donovan, 34 Ga. App. 643 (2) (130 SE 688) (1925). Here, by contrast, and in Mitchell and Underwood, cited above, the probate court indicated its intent to consider the appellants to be parties to the probate proceeding by providing notice to them as interested parties. Thus, they had standing to appeal thej proceeding and the superior court erred in dismissing their appeal.

Judgment reversed.

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

On Motion for Rehearing.

On motion for rehearing, appellees argue that the Georgia Su-j preme Court cases cited in the opinion set forth two conflicting lines of reasoning on the issue of how one becomes a party with standing to appeal an order of the probate court. Appellees attempt to distinguish the facts of this case from those in Mitchell v. Pyron, 17 Ga. 416 (1854) and Underwood v. Stanford, 143 Ga. 325 (85 SE 102) (1915), in which an appeal was allowed. Appellees argue this case should be governed by Samples v. Samples, 194 Ga. 383 (1) (21 SE2d 601) (1942) and Swift v. Thomas, 101 Ga. 89 (1) (28 SE 618) (1897), in which an appeal was not allowed. To the extent that the two lines of cases are conflicting, the conflict cannot be resolved by this court. It is our task to apply the law which we believe is most applicable to the factual and procedural posture of the case before us. Because the record shows a clear intent by all parties, including appellees, who participated in the consent order filed in the fraud action, to make appellants parties to the renewed probate proceedings, we believe appellants must be considered parties with standing to appeal the probate court order.

Decided March 8, 1991

Rehearing denied March 25, 1991

Lynwood D. Jordan, Jr., for appellants.

Shinall & Jackson, John M. Shinall, for appellees.

Motion for rehearing denied.


text:
    A90A1911.
    GARVEY v. MENDENHALL.
    (404 SE2d 613)
   Birdsong, Presiding Judge.

We granted this interlocutory appeal to review the denial of Garvey’s motion to dismiss Mendenhall’s complaint for breach of promise to marry and paternity because of lack of personal jurisdiction.

The record shows that at all times relevant to this appeal Garvey was a resident of California and Mendenhall was a resident of Georgia and, that for over two years prior to the initiation of the action, Gar-Ivey and Mendenhall dated and engaged in sexual relations in Georgia, [other states, and certain foreign countries. Subsequently, Mendenhall [and Garvey, while in California, agreed to marry and although the [marriage was to take place in Georgia, they intended to establish fheir marital domicile in California. The record also shows that while Jendenhall visited Garvey in California a child was conceived.

Thereafter, Garvey ended the relationship and ultimately Men-enhall filed this action seeking damages for breach of promise to marry and to establish paternity of the child. Garvey moved to dismiss the complaint for lack of personal jurisdiction under either the Georgia long arm statute, OCGA § 9-10-91 (1), or the paternity statute, OCGA § 19-7-41. He contended that his social visits to Georgia to date Mendenhall and other social contact with her in this state, e.g., letters, telephone calls, etc., did not constitute transacting business under OCGA § 9-10-91 (1) and that jurisdiction did not attach under OCGA § 19-7-41 because the child was not conceived as a result of an act of sexual intercourse in Georgia.

The trial court found, however, that Garvey’s visits to this state were sufficient for jurisdiction to attach under the long arm statute and that there was no requirement for conception to have occurred in Georgia under our state’s paternity statute. Garvey appeals from that decision. Held:

1. Considering first the paternity count, as the language of OCGA § 19-7-41 is plain and can have but one natural and reasonable construction, this court has no authority to give it a different one. OCGA § 1-3-1; Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430). OCGA § 19-7-41 provides that a court may order service outside the state in a paternity action “upon a finding that there is a constitutionally permissible basis for jurisdiction over the person arising out of the fact that the child was conceived as a result of an act of sexual intercourse within this state while either parent was a resident of this state.” (Emphasis supplied.) Thus, personal service outside this state may be made on the alleged father only when that condition is met. Since Mendenhall asserted that her child was conceived as a result of an act of sexual intercourse in California, the essential fact necessary to support personal service of process outside of this state under OCGA § 19-7-41 is absent. Mendenhall’s argument that such a result favors one act of sexual intercourse outside the state that results in conception over numerous other acts of sexual intercourse in this state which did not result in conception fails to appreciate that the significance of a paternity action is conception. Without conception no cause of action for paternity lies, and thus acts of intercourse not resulting in| conception are of no legal significance for that purpose. Accordingly, the trial court erred by finding that the codal requirement for concep tion as a result of sexual intercourse within the state was merely illus trative of other acts which would support jurisdiction under OCGA 19-7-41.

2. Garvey also argues that no grounds exist for the exercise o: personal jurisdiction over him under the long arm statute because personal jurisdiction could only be based on a finding that he trans acted business in this state. The other bases for exercise of jurisdic tion obviously do not apply, and Garvey maintains that he did no transact business within this state. See OCGA § 9-10-91. Mendenha contends, however, that while Garvey may not have transacted business in the usual sense, his social visits were sufficient since we are to interpret this section liberally (Davis Metals v. Allen, 230 Ga. 623, 626 (198 SE2d 285)) and Garvey’s visits satisfy the definition for transacting business in this state since he purposely did some act or consummated some transaction in Georgia, and the cause of action arose or was connected with those acts or transactions in this state. Thus she contends the trial court correctly denied Garvey’s motion to dismiss on this ground.

We disagree. Our Supreme Court has refused to extend the scope of “transacts any business” portion of the long arm statute, OCGA § 9-10-91 (1), to include non-commercial claims arising from personal relationships. See Frasca v. Frasca, 254 Ga. 532, 534 (330 SE2d 889); Warren v. Warren, 249 Ga. 130, 131 (287 SE2d 524). Moreover, this result is consistent with the United States Supreme Court’s recognition that commercial activity is different from situations in which the defendant has no economic interest. Kulko v. Superior Court of California, 436 U. S. 84 (98 SC 1690, 56 LE2d 132); Marbury v. Marbury, 256 Ga. 651, 654 (352 SE2d 564). Transacts any business “has been interpreted to mean that ‘purposeful acts’ must have been performed by the defendant to tie [him] to the State, and ‘(m)ere telephone or nail contact with an out-of-state defendant, or even the defendant’s visits to this state, is insufficient to establish the purposeful activity ith Georgia required by the “Long Arm” statute. (Cit.)’ Wise v. tate Board &c. of Architects, 247 Ga. 206 (2) (274 SE2d 544) 1981).” Mayacamas Corp. v. Gulfstream Aerospace Corp., 190 Ga. pp. 892, 893 (380 SE2d 303).

Further, “[d]ue process requires that individuals have ‘fair warning that a particular activity may subject them to the jurisdiction of a oreign sovereign.’ Burger King v. Rudzewicz, 471 U. S. 462 (105 SC 174, 85 LE2d 528) (1985). In evaluating whether a defendant could easonably expect to be haled into court in a particular forum, courts xamine defendant’s contacts with the state, focusing on whether (1) efendant has done some act to avail himself of the law of the forum ate; (2) the claim is related to those acts; and (3) the exercise of risdiction is reasonable, that is, it does not violate notions of fair 'lay and substantial justice. Straus v. Straus, 260 Ga. 327 (393 SE2d 48) (1990); Smith v. Smith, 254 Ga. 450 (330 SE2d 706) (1985).” Beasley v. Beasley, 260 Ga. 419, 421 (396 SE2d 222). Applying those iteria to the facts revealed in the record of this case, we find it clear at Garvey is not subject to the jurisdiction of the courts of this ate.

Therefore, the trial court erred by finding that personal jurisdic-lon existed under OCGA § 9-10-91 (1). Further, since there is no ba-s for the exercise of personal jurisdiction over Garvey, the case must be dismissed.

Decided March 6, 1991

Rehearing denied March 25, 1991

Troutman, Sanders, Lockerman & Ashmore, Daniel S. Reinhardt, Anne G. McGlamry, Susan S. Lanigan, for appellant.

Neely & Player, Richard K. Hines V, Lisa M. Radtke, for appel-lee.

Judgment reversed and case remanded to the trial court with instruction that the case be dismissed for lack of personal jurisdiction.

Banke, P. J., and Cooper, J., concur.


text:
    A90A1961.
    WILSON v. VALENTINE.
    (404 SE2d 600)
   Banke, Presiding Judge.

The appellee filed this action to recover for personal injuries allegedly sustained when a motor vehicle in which she was riding was struck by another vehicle. Named as defendants are the driver of the vehicle in which the appellee was riding, who is the appellant herein, the driver of the other vehicle, whose name is Rackley, and Rackley’s employer. The appellee settled her claims against Rackley and his employer, following which the appellant moved for summary judg ment. The case is before us on interlocutory appeal from the denial of j that motion.

Although the appellee neither filed a written response to the appellant’s motion for summary judgment within the time required by Uniform Superior Court Rule 6.2 nor requested oral argument on the motion, a hearing was nevertheless scheduled; and on the day of the] hearing, the appellee filed her own and Rackley’s depositions. Th trial court’s denial of the motion for summary judgment was based o: a determination that Rackley’s deposition raised a jury issue as ti whether the appellant had been negligent. Held:

1. The appellant contends that he was entitled to summary judg ment based on the appellee’s failure to file a written response to th motion within the time required by Rule 6.2. This contention is with out merit. “There is no such thing as a ‘default summary judgment. By failing to respond to a motion for summary judgment, a part; merely waives his right to present evidence in opposition to the mo tion. It does not automatically follow that the motion should b granted. ‘A motion for summary judgment should not be granted un less it affirmatively appears from the pleadings and the evidence tha¡ the party so moving is entitled to prevail.’ [Cits.]” McGivern v. First Capital Income Prop., 188 Ga. App. 716, 717 (373 SE2d 817) (1988).

Decided March 5, 1991

Rehearing denied March 25, 1991.

Downey, Cleveland, Parker & Williams, G. Lee Welborn, for appellant.

2. The appellant alternatively contends that the trial court erred in considering Rackley’s deposition because it was not timely filed. However, the record does not reflect that the appellant objected to the filing of the deposition or to the trial court’s consideration of it in ruling on the motion for summary judgment. Accordingly, this contention provides no ground for reversal. Accord O’Quinn v. Southeast Radio Corp., 190 Ga. App. 608, 610 (1) (380 SE2d 487) (1989).

3. The appellant contends that the evidence established without dispute that the collision was not proximately caused by any negligence on his part. The evidence showed that the appellant was in a left turn lane on Atlanta Road at the time the collision occurred, proceeding towards an intersection at a speed of 10 to 15 miles per hour. He testified that the traffic light at the intersection was green in his direction and that as he was preparing to make his left turn, he was struck on the right passenger door by Rackley, who had just turned left onto Atlanta Road from a side street. The appellant testified that he had observed Rackley edging out onto Atlanta Road and that “[h]e [Rackley] just looked to the right and then pulled out without looking to the left at all.” The appellee similarly testified that she did not observe Rackley look to his left before he pulled out onto Atlanta Road and further stated that the appellant had not acted in a negligent manner. However, Rackley maintained that he had in fact looked to his left before pulling out onto the roadway.

“ ‘ “It is generally a question for a fact-finding body to determine [questions of negligence and whose negligence and what negligence involved is the sole proximate cause of the injury. It is only where the [negligent conduct alleged is susceptible of but one inference that it [becomes a question of law for the court to determine.” ’ [Cits.]” Lewis L. Duggan, 184 Ga. App. 563, 565 (362 SE2d 73) (1987). We believe the evidence of record in the present case, including the appellee’s fcwn testimony, conclusively negates any allegation that the collision Ivas proximately caused by negligence on the part of the appellant fcnd establishes as a matter of law that Rackley simply drove directly Into the appellant’s vehicle from a side street. We accordingly hold ■hat the trial court erred in denying the appellant’s motion for sum-Inary judgment.

Judgment reversed.

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

Wain & Miningham, William M. Miningham III, for appellee.


text:
    A90A2042.
    LEE v. THE STATE.
    (404 SE2d 598)
   Banke, Presiding Judge.

The appellant was found guilty of misdemeanor theft by taking and was sentenced to six months’ incarceration. She brings this direct appeal from her conviction and sentence. Held:

1. The appellant contends that the evidence was insufficient to support the conviction because the state’s case was based on the uncorroborated testimony of an alleged accomplice. However, “ ‘[i]n numerous decisions our courts have held that corroboration of an accomplice is not necessary to sustain a misdemeanor conviction. (Cits.)’ [Cit.]” Dabney v. State, 154 Ga. App. 355 (2) (268 SE2d 408) (1980). Consequently, this enumeration is without merit.

2. The appellant received a harsher sentence than did her accomplice, who had pled guilty to felony theft by taking; and during the sentencing, the trial court explained this discrepancy as follows: “[T]his defendant [referring to the appellant] was offered probation yesterday if she took the first step and admitted her guilt. She’s not taken that step. Her co-defendant has admitted her guilt. . . .” The appellant contends that these comments demonstrate an intention to penalize her for exercising her right to jury trial, in violation of Uniform Superior Court Rule 33.6 (B), which provides as follows: “The judge should not impose upon a defendant any sentence in excess of that which would be justified by any of the rehabilitative, protective, deterrent or other purposes of the criminal law merely because the defendant has chosen to require the prosecution to prove his guilt at trial rather than to enter a plea of guilty or nolo contendere.” The appellant’s argument, however, ignores Section A of the rule, which provides in pertinent part, that “[i]t is proper for the judge to grant charge and sentence leniency to defendants who enter pleas of guilty or nolo contendere when the interests of the public in the effective administration of criminal justice are thereby served. Among the considerations which are appropriate in determining this question are:! . . . (2) that the defendant has acknowledged guilt and shown a willingness to assume responsibility for conduct. . . .” As we interpret the judge’s remarks, they reflect a permissible extension of leniency towards the co-defendant for taking a “first step toward rehabilitation,” rather than an impermissible increase in the appellant’s sen-1 tence for exercising her right to trial. Accord Thompson v. State, 1541 Ga. App. 704 (5) (269 SE2d 474) (1980); Sparks v. State, 176 Ga. App. 8, 12 (3) (335 SE2d 298) (1985).

3. The appellant contends on appeal that she did not receive effective assistance of counsel during the trial. The appellant’s trial counsel filed a notice of appeal on February 27, 1990, the same day the conviction and sentence were entered; and the appellant’s current counsel did not begin representing her until approximately four months later. Under these circumstances, the appellant cannot be deemed to have waived this ground of appeal. See generally Johnson v. State, 259 Ga. 428 (3) (383 SE2d 115) (1989).

To establish ineffective assistance of counsel, “ ‘(t)he defendant must show both that counsel’s performance was deficient and that this deficiency prejudiced the defense.’ [Cits.]” Williams v. State, 257 Ga. 311, 312 (2) (357 SE2d 578) (1987). The appellant argues that her trial counsel was ineffective both because he failed to conduct a “substantial investigation of alternative lines of defense” and because, by presenting a defense, he gave the state an “opportunity to rehabilitate its case via a rebuttal witness.” The first of these somewhat contradictory assertions fails to establish ineffectiveness of counsel because the appellant has not suggested what alternative line of defense was available to her, and the second clearly has to do with a matter of trial tactics or strategy. “Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant’s original representation was inadequate.” Hosch v. State, 185 Ga. App. 71 (2), 72 (363 SE2d 258) (1987).

The appellant further complains that counsel failed to impeach the state’s rebuttal witness through the use of a certified copy of the transcript of a prior hearing at which the witness had testified. However, the appellant has not suggested how the witness could have been impeached by this transcript. The appellant’s final contention is that her trial counsel was ineffective due to his failure to present character [witnesses on her behalf. We find that this contention, alone among [those advanced by the appellant in support of this enumeration of [error, cannot be rejected summarily. Accordingly, we remand the case [to the trial court for an evidentiary hearing on this issue, following Ivhich, if the trial court determines that ineffectiveness of counsel has fceen demonstrated, the appellant shall be entitled to file another appeal directed to that issue and that issue alone.

I Judgment affirmed with direction.

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

Decided March 4, 1991

Rehearing denied March 25, 1991

Michael E. Bergin, for appellant.

Robert E. Keller, District Attorney, Tracy G. Gladden, Assistant District Attorney, for appellee.


text:
    A90A2175.
    TOWER FINANCIAL SERVICES, INC. v. JARRETT.
    (404 SE2d 622)
   Banke, Presiding Judge.

The appellee sued the appellant herein, Tower Financial Services, Inc., along with Jesse and Rosa Smith, who are not parties to this appeal, seeking to recover actual and punitive damages based on allegations that they had defrauded him in connection with a real estate transaction. The action was filed in DeKalb County, the county of the Smiths’ residence. However, after the case was called for trial, but before a jury had been selected, the fraud claim against the Smiths was dismissed, and a consent judgment was entered against them based on breach of contract. The next day, after jury selection had been completed, the appellant moved the court to dismiss the fraud claim against it or, in the alternative, to transfer the case to Fulton County, the location of its only office, arguing that with the Smiths no longer in the case, venue was no longer proper in DeKalb County. The trial court denied the motion, and the jury thereafter returned a verdict against the appellant for actual damages in the amount of $18,103.49 plus punitive damages in the amount oí $21,697.03. The appellant brings this appeal from the denial of its subsequent motion for judgment notwithstanding the verdict, contending that there was no evidence to support a finding of actionable fraud on its part.

In 1985, the appellee contracted to sell a house to Mr. Smith, foi $17,500, $2,000 of which was to be payable in cash at closing and the balance of which was to be financed “in the form of one Purchase Money Note from Purchaser to Seller, secured by a First Deed to Se cure Debt. . . .” Mr. Smith, who was both an acquaintance of thl appellee’s and a licensed real estate broker, subsequently arranged tl borrow $6,000 from the appellant finance company for the purpose ol financing the $2,000 down payment and obtaining funds to make rel pairs on the house. The appellant informed Mr. Smith that it woull handle the closing, and the latter hand-delivered a copy of the sail contract to its office. Subsequently, the appellant discovered a probl lem with the title to the property and contacted the appellee to ail range for its correction.

At the closing, which was performed by the appellant’s corporate counsel, the appellee signed a warranty deed conveying the property to Mr. Smith and his wife, and the Smiths signed a security deed in favor of the appellant. Although the appellee testified that he thought the closing was being carried out in accordance with the terms of the sale contract, he left the meeting empty-handed, having received neither cash nor a promissory note. The appellant’s counsel had no recollection of the transaction and apparently prepared no closing statement in connection with it.

Soon after the closing, either that same day or a few days later, Smith obtained a check from the appellant for $6,000 made payable to himself and the appellee jointly. He then procured the appellee’s endorsement on this check, giving him in return a check for $2,000, along with a purported security deed to the property which he (Smith) had prepared personally. Mr. Smith told the appellee that this security deed would protect him in the event he did not receive the loan payments due him under the sale contract and further advised him that it was not necessary to record it because the documents already on file at the courthouse would show that he had the first mortgage on the property.

i Approximately a year later, Mr. Smith borrowed an additional $46,000 from the appellant, which indebtedness was also secured by the security deed to the property which he and his wife had executed at the closing. Approximately six months later, he defaulted both on his loan payments to the appellee and on his loan payments to the appellant, whereupon the appellant foreclosed on the property, leaving the appellee with no recourse against it. It appears that the security deed which Mr. Smith had given to the appellee had not been feigned by Mrs. Smith and had not been properly witnessed, with the [result that it was not recordable; however, because the appellee had [never attempted to record it, he had not learned of these defects. IHeld:

I 1. “The controlling fact which governs the retention of jurisdiction over the non-resident is the legal resolution of liability on the cart of the resident.” Motor Convoy v. Brannen, 194 Ga. App. 795, «97 (391 SE2d 671) (1990). “Moreover, a consent judgment recognizes lhat a verdict against the resident defendant was authorized.” Id. See liso Long v. Bruner, 171 Ga. App. 124 (1) (318 SE2d 818) (1984). ■Accordingly, the trial court did not err in denying the appellant’s mo-lion for dismissal or transferal of the case based on improper venue. I

2. The appellant contends that the verdict was not authorized, loth because there was no evidence that it made any misrepresentation to the appellee and because the evidence established as a matter If law that the appellee had failed to use due diligence to protect himself.

“ ‘ “Fraud may exist as much in intentional concealment of material facts, as in false statements in regard to facts. One is as fraudulent as the other, if it is used as a means of deceiving the opposite party.” ’ Friedman v. Goodman, 222 Ga. 613, 623 (151 SE2d 455) (1966), quoting from Jordan v. Harber, 172 Ga. 139 (4) (157 SE 652) (1931). ‘Suppression of a material fact which a party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.’ (Emphasis supplied.) OCGA § 23-2-53. See also OCGA § 51-6-2.” Clay v. Dept. of Transp., 198 Ga. App. 155, 157 (400 SE2d 684) (1990).

While the appellant may not, strictly speaking, have been under any obligation to protect the appellee’s interests in performing the closing, it clearly was the understanding of all the parties to the transaction that the closing would be conducted in accordance with the sale contract. Although the appellant contends that there was no evidence that it was ever provided with a copy of the contract, Mr. Smith testified that he personally delivered a copy to the appellant’s office and gave it to the receptionist for delivery to the vice-president. Furthermore, there simply was no legitimate basis upon which the appellant could have performed the closing except by reference to a contract. Certainly, the appellant could not reasonably have believed that the appellee was simply giving the land to Mr. and Mrs. Smith. Under the circumstances, we hold that the jury was authorized to conclude that the appellant was guilty of fraudulent concealment in failing to disclose to the appellee that the closing was being conducted in aj manner which was entirely inconsistent with the sale contract.

With regard to the due diligence issue, we conclude from a reviewl of the relevant authorities that the burden on a fraud claimant to] protect himself by investigating the facts before proceeding with transaction tends to diminish in proportion to the egregiousness oil the alleged fraud. Thus, while the claimant is “bound to make inquiry] and examination for himself so as to ascertain the truth” in case where the alleged fraud “consists of general commendations or mer expressions of opinion, hope, expectation and the like,” Miller v Clabby, 178 Ga. App. 821, 822 (344 SE2d 751) (1986), it has been hel that this burden does not “place the law in the untenable position o: throwing a mantle of protection about people who have engaged in cheating and swindling operation” and that “the perpetrator of gross and vicious fraud should not be permitted to set up as a defense that the plaintiff should not have relied upon his good faith and honj esty.” Smith v. Holman, 117 Ga. App. 248, 249 (160 SE2d 533) (1968) “[Wjhether, under these circumstances, plaintiff has been guilty of such negligence in not informing himself of the facts as to defeat hi right of recovery is a jury question.” Id. See also Galanty v. Kirk, 91 Ga. App. 25, 30-31 (84 SE2d 688) (1954).

There is no question that the appellee in this case demonstrated both an overabundance of trust and a lack of sophistication in not insisting upon his cash down payment, promissory note, and security deed at the closing. However, as previously indicated, there was no basis whatever upon which the appellant could legitimately have claimed entitlement to a first security interest in the property. Rather, it is apparent from the evidence that the appellant simply abused its control over the closing to misappropriate the first security interest to which the appellee was undeniably entitled under the terms of the sale contract. We hold that it was properly left to the jury under these circumstances to determine whether the appellee’s failure to take steps to protect himself against such conduct barred him from any recovery.

3. The appellant enumerates as error the admission of certain evidence “regarding the calculation of interest on the loan between the appellant and Jesse Smith.” It is evident from the transcript that during his opening statement, the appellant’s attorney made a comment to the effect that the appellant had lost money on the transaction. In response to this assertion, the appellee elicited testimony from the appellant’s vice-president to the effect that the appellant had received $3,404.42 from the Smiths in payments on the 1985 loan and had thereafter sold the property for $19,824.44 following foreclosure, giving it total receipts on the transaction of $23,226.86. The appellant’s counsel objected that this figure was “irrelevant and . . . deliberately misleading” because it included interest, arguing that “[i]f they made the interest, then the money would have been in the bank or on another loan.”

In view of the fact that the appellant had interjected into the case the issue of whether it made money on the transaction, its objection to this evidence on grounds of relevance was properly overruled. Generally speaking, “[a]ny evidence is relevant which logically tends to prove or to disprove any material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant. [Cit.] It is the accepted rule in this state that where the relevancy or competence of evidence is Idoubtful, it should be admitted and its weight left to the determination of the jury under appropriate instruction. [Cits.]” Department of Transp. v. Delta Machine Prods. Co., 157 Ga. App. 423, 426 (278 SE2d 73) (1981).

I The extent to which the loan payments received from the Smiths lhad or had not included interest was a matter which the appellant ¡was entitled to develop and clarify on redirect examination. Further-ore, the appellant’s account cards showing the amount of these payments had already been introduced into evidence without objection. We consequently find this enumeration of error to be wholly without merit.

Decided March 8, 1991

Rehearing denied March 25, 1991

Spix, Krupp & Reece, Mark V. Spix, for appellant.

Robert P. Wilson, Gary C. Harris, for appellee.

Judgment affirmed.

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