text:
    A96A2350.
    GOODMAN v. LAKE BUCKHORN ESTATES HOMEOWNERS ASSOCIATION, INC.
    (481 SE2d 882)
   Ruffin, Judge.

Jesse Goodman appeals from the trial court’s order directing him to remove his “modular” home from property in Lake Buckhorn Estates, a subdivision in Carroll County, Georgia. For reasons which follow, we affirm.

The record reveals that Goodman purchased land within Lake Buckhorn Estates and began erecting a modular home on the property. Claiming that Goodman’s home violated various restrictive covenants, bylaws, rules and regulations governing the subdivision, the Lake Buckhorn Estates Homeowners Association, Inc. (“the Association”) sued Goodman, seeking removal of the home. The trial court granted a default judgment to the Association after Goodman failed to file a timely answer.

Goodman subsequently moved to vacate the default judgment. The trial court held a hearing on the motion, during which Goodman’s attorney, as well as attorneys and representatives of the Association, appeared and presented testimony and argument. The trial court agreed to open the default and then proceeded to address the merits of the action. Goodman’s attorney did not request a continuance or object to reaching the merits at that time. The parties and the court discussed the matter off the record, after which the trial court found in favor of the Association and ordered Goodman to remove his modular home within six months.

Through new counsel, Goodman filed a motion for new trial, claiming that the trial court had no evidence on which to base its decision, that he did not know the merits would be reached at the hearing, and that he possessed relevant evidence that should have been heard. The trial court denied Goodman’s motion, and this appeal followed.

1. In its brief, the Association contends that Goodman’s appeal is untimely and should be dismissed. Pursuant to OCGA § 5-6-38 (a), Goodman filed his notice of appeal within 30 days after entry of the trial court’s order denying his motion for new trial. The Association argues, however, that Goodman’s motion challenges only the trial court’s legal conclusions and judgment, rather than factual issues or errors contributing to the verdict, and thus was not a proper “motion for new trial.” According to the Association, Goodman should have filed his notice of appeal within 30 days after entry of judgment on the merits, which he failed to do. We disagree.

The trial court, sitting as factfinder, determined that Goodman violated the restrictive covenants governing the subdivision. Through his motion for .new trial, Goodman questioned the factual basis for this conclusion and argued that the trial court had no evidence from which to make its ruling. We conclude that Goodman’s motion challenged the determination of substantive facts by the factfinder and thus constituted a proper motion for new trial. See Bank South Mortgage v. Starr, 208 Ga. App. 19 (429 SE2d 700) (1993). Accordingly, we will reach the merits of this appeal.

2. In his first enumeration of error, Goodman claims that to the extent this case was settled during the hearing on the merits, the trial court should have obtained a written agreement executed by the parties. We disagree.

The record reveals that the trial court ruled in the Association’s favor on the merits: “[I] [f]ind in favor of the plaintiff, find that the defendant has violated the covenants written of the land.” The attorneys for the parties and the trial court then agreed that Goodman should be afforded six months to remove the modular home. The trial court next stated on the record that Goodman would have six months to comply and ultimately memorialized this requirement in its written order.

To the extent this agreement regarding Goodman’s deadline for compliance could be characterized as a “settlement,” no additional writing is necessary. An agreement reached in open court need not be reduced to writing. White v. Owens, 172 Ga. App. 373 (323 SE2d 167) (1984). This enumeration is without merit.

3. In his second enumeration of error, Goodman argues that the trial court had no basis on which to find for the Association because it received no evidence at the hearing on the merits.

That portion of the hearing during which the parties and the court addressed the merits was not fully reported. As a result, we do not know what evidence was presented to the trial court. “ ‘The burden is on the party alleging error to show it affirmatively by the record. (Cits.)’ [Cit.]” Gillespie v. Gillespie, 259 Ga. 838 (388 SE2d 688) (1990). “ Without a transcript of the evidence presented, we will in keeping with very old authority in this state presume in favor of public officers, in the absence of all proof to the contrary, that they discharged their duty in compliance with the law.’ [Cits.]” Id. Accordingly, we presume that the evidence supported the trial court’s ruling. Id.

4. In his final two enumerations of error, Goodman claims that the trial court erroneously reached the merits of the Association’s complaint in his absence and without affording him the opportunity to present evidence. We find no merit in these enumerations.

Although Goodman apparently did not attend the hearing, his attorney neither objected to reaching the merits nor moved to continue the proceedings. Instead, Goodman’s attorney agreed to address the merits following argument on the motion to vacate: “And I ask the Court to vacate this [default] judgment and set it aside and give him that opportunity. And then I have no objection to the court hearing the permanent injunction or doing whatever you want to do about it” (Emphasis supplied.) Furthermore, through his prior written motion to vacate the default judgment, Goodman announced “ready for trial.”

Goodman’s absence from the proceedings, and his claim that he has evidence not presented below, do not require reversal. As we have previously found, where “counsel goes to trial without the presence of the defendant, but makes no motion for a continuance and does not suggest [his] desire to have [his] client present at the trial, it will not require the granting of a new trial. This is true even though the defendant contends he possesses evidence which would have brought the trial to a different conclusion.” (Citations and punctuation omitted.) Bembry v. Pugh, 186 Ga. App. 144 (366 SE2d 812) (1988).

Decided February 20, 1997.

Barry Staples, for appellant.

Smith & Diment, Dana G. Diment, Head, Head & Head, David C. Head, Hamilton, Westby, Marshall & Antonowich, David C. Marshall, for appellee.

Rather than objecting or moving for a continuance, Goodman’s attorney agreed to proceed on the merits. This agreement was consistent with Goodman’s previous announcement in his motion to vacate the default that he was “ready for trial.” Goodman cannot now complain about the result.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A96A1698, A96A1699.
    TALMADGE et al. v. RESPESS et al.; and vice versa.
    (482 SE2d 709)
   Ruffin, Judge.

These two appeals concern seven promissory notes executed by Herman Talmadge, Jr., A. L. Gaynes, and Twelve Oaks Realty Company (“Twelve Oaks”) (collectively “the defendants”). Under the notes, the defendants promised to repay Edwin Respess various sums of money Respess loaned to them. Respess is now deceased, and the executors of his will (“Respess”) sued the defendants for money allegedly due under the notes. The trial court granted Respess summary judgment on the five notes attached to the complaint as Exhibits A, C, D, F, and G (“notes A, C, D, F, and G”) and denied Respess’ motion for summary judgment on the two remaining notes attached to the complaint as Exhibits B and E (“notes B and E”).

In Case No. A96A1698, the defendants assert that the trial court erred in granting Respess summary judgment because genuine issues of material fact exist concerning their liability under notes A, C, D, F, and G. In Case No. A96A1699, Respess asserts that the trial court erred in denying their motion for summary judgment on Talmadge’s and Gaynes’ liability under notes B and E and in denying Respess’ claims for interest and attorney fees under all the notes. For reasons which follow, we affirm the trial court’s judgment in Case No. A96A1698 and reverse the trial court’s judgment in Case No. A96A1699.

“[Sjummary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.” Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991).

Case No. A96A1698

1. Although the defendants do not dispute that they executed notes A, C, D, F, and G, they contend that Respess discharged the debts under a subsequent oral agreement between Respess and A. L. Gaynes. The record shows that the defendants owed Respess a total of $60,000 principal under the notes. According to Gaynes’ deposition and affidavit testimony, Respess offered to forgive the debts: “He said, buddy, I got $200,000. I want you to find me a deal and double my money on it. And if we could double the money, [Respess] would forgive the debt.” Gaynes stated that he arranged such a deal whereby Respess purchased a 96.66-acre tract for $193,328 and later sold it for $376,640. Gaynes further stated that even after expenses of sale, Respess made a profit of approximately $150,000. The trial court found that even if such an agreement existed, the evidence showed that Respess did not “double his money” and therefore the debt was not forgiven.

The defendants contend that the trial court erred in granting summary judgment to Respess because the evidence showed that Gaynes substantially performed under the contract. It is not necessary to resolve this issue, however, because other evidence in the record precludes consideration of Respess’ verbal offer to forgive the debt. That other evidence shows that Respess sold the 96.66-acre tract under a written sales contract. The sales contract lists Gaynes as the selling broker and provides that “Broker has rendered a valuable service for which reason Broker is made a party to enable Broker to enforce his commission rights. . . .” The written sales contract further provides that “[c]ommission to be paid in this transaction shall be 7.9% if [sic] the purchase price. $30,000.00.” Finally, the contract contains an entire agreement clause providing: “[t]his contract constitutes the sole and entire agreement between the parties hereto and no modification of this contract shall be binding unless attached hereto and signed by all parties to this agreement. No representation, promise, or inducement not included in this contract shall be binding upon any party hereto.” Both Respess and Gaynes executed the contract.

We find that the entire agreement clause bars the verbal agreement sought to be enforced. See Great American Builders v. Howard, 207 Ga. App. 236, 240 (2) (427 SE2d 588) (1993). The prior verbal agreement was nothing more than an offer by Respess to forgive the $60,000 debt as commission for doubling his investment. However, the sales contract is silent regarding any such offer. Accordingly, under the express terms of the sales contract, the prior verbal agreement is not “binding upon any party” to the contract. See id.

Similarly, “[a]part from [the] ‘entire agreement’. . . clause is the rule that ‘(p)arol contemporaneous evidence is generally inadmissible to contradict or vary the terms of a valid written instrument.’ . . . OCGA § 24-6-1.” (Emphasis in original.) Id. “An exception [to this general rule] is a separate and distinct, collateral oral agreement that is consistent with and forms part of the consideration or inducement for a written agreement. [Cit.]” Id. However, the exception cannot apply in this case because the parties expressly agreed to preclude enforcement of any prior inducement not included in the written contract. Id. Accordingly, the written contract bars defendants’ enforcement of Respess’ prior verbal agreement to “forgive the debt,” and the trial court did not err in granting Respess summary judgment on defendants’ liability under notes A, C, D, F, and G.

2. Gaynes and Talmadge also assert that even if Respess did not forgive the debt under note G, the trial court erred in holding them liable under that note because they executed it only as representatives of Twelve Oaks Realty. We disagree.

In the lower right corner of note G are the handwritten words “TWELVE OAKS REALTY.” Although Talmadge and Gaynes signed the note directly below these handwritten words, neither signature indicates that the individual executed the note in a representative capacity. “It is the form of the signature on the note, and not other printed information appearing on the page, that governs the capacity in which the signer executes the note.” Avery v. Whitworth, 202 Ga. App. 508, 509 (414 SE2d 725) (1992). Pursuant to former OCGA § 11-3-403 (2) (b) (amended by Ga. L. 1996, p. 1306, § 3), which governs the parties’ agreement in this case, “when an instrument names the person represented (in this case, a corporate entity) but does not show that the representative signed in a representative capacity, the signer is personally obligated except as otherwise established by parol evidence between the immediate parties. Even though [Gaynes and Talmadge] consistently denied [they were] individually obligated on the note, [they] presented no evidence establishing such an agreement between the parties.” Avery, supra at 509. And, if such evidence existed, Gaynes and Talmadge failed to reference it in their appellate brief. See Court of Appeals Rule 27 (c) (3) (i) (this Court will not consider an enumeration that is not supported by a specific reference to the record). Accordingly, the trial court properly granted summary judgment against both Talmadge and Gaynes individually on note G. Avery, supra.

Case No. A96A1699

3. Respess asserts that the trial court erred in denying summary judgment on Talmadge’s liability for $12,500 under note B and Gaynes’ liability for $12,500 under note E. Talmadge and Gaynes do not dispute that they executed the notes or that they each received $12,500. In interrogatory responses, however, they contended that Respess merged the debts into a larger loan he made to them later that day. Talmadge and Gaynes explained the purported agreement to merge the debts as follows: “Talmadge and Gaynes purchased certain property in Jonesboro, Georgia from Amros, Ltd. (an entity owned by decedent Respess). The original sales price was to be $150,000 with the Seller financing most of the purchase price. Respess loaned Talmadge and Gaynes $12,500 each on that day, and then increased the purchase price by $25,000, from $150,000 to $175,000, to cover these loans, so that the indebtedness evidenced by these two notes were part of the $155,000 mortgage which Respess held, which mortgage was paid in full in 1994. A copy of the sales contract dated April 17, 1990, showing that the price was changed from $150,000 to $175,000, and the closing statement, dated April 4, 1991, are attached hereto.”

As stated in the interrogatory response, the attached sales contract shows that the parties changed the purchase price from $150,000 to $175,000. The sales contract and closing statement also show that Gaynes and Talmadge made a $20,000 down payment on the purchase price and gave the seller a $155,000 purchase money note for the balance. Finally, although the record does not contain a copy of the purchase money note, the sales contract stated the terms under which the purchase money note would be satisfied.

As Respess points out, however, there is nothing in writing showing why the purchase price was raised or evidencing an agreement to merge notes B and E into the purchase money note. Moreover, the sales agreement, which evidences the change in the purchase price and the financing terms, contains an entire agreement clause identical to the one discussed in Division 1. The clause provides that “[t]his contract constitutes the sole and entire agreement between the parties hereto and no modification of this contract shall be binding unless attached hereto and signed by all parties to this agreement. No representation, promise, or inducement not included in this contract shall be binding upon any party hereto.” For the reasons stated in Division 1, we conclude that the entire agreement clause bars the verbal agreement concerning the merger which Gaynes and Talmadge seek to enforce. See Great American Builders, supra. Accordingly, because Respess established a prima facie right to judgment on notes B and E, and Gaynes and Talmadge failed to present any evidence of a written agreement to merge the notes, the trial court erred in denying Respess’ motion for summary judgment. See id.; Jay Gleason Advertising Svc. v. Gleason, 193 Ga. App. 445 (1) (388 SE2d 43) (1989).

4. Finally, Respess asserts that the trial court erred in failing to include an award for pre-maturity interest and attorney fees on all the notes. In its order granting summary judgment on notes A, C, D, F, and G, the trial court awarded the principal amount of those notes, “plus applicable pre-judgment interest from the date of the maturity of those notes, and costs of this action.” For the following reasons, we conclude that the trial court should have included in the judgment interest from the date of each note and attorney fees.

(a) OCGA § 9-12-10 provides that “[i]n all cases where judgment is obtained, the judgment shall be entered for the principal sum due, with interest, provided the claim upon which it was obtained draws interest.” In this case, each of the notes contained provisions for interest in varying amounts. Furthermore, a review of all the notes reveals when interest would begin to accrue on each note. Notes B, E, and F provide that interest will accrue from the date of the note. Similarly, note D provides that interest will begin to accrue after the date of the note. Finally, notes A, C, and G provide that interest accrues “until paid. . . .” Although these latter notes do not specifically provide that interest will begin to accrue on the date of the note, such is the construction of those notes under former OCGA § 11-3-118 (d), which applies to the notes in this case. (OCGA § 11-3-118 was amended by Ga. L. 1996, p. 1306, § 3, and is now codified at § 11-3-112 (a) (ii)). Former OCGA § 11-3-118 (d) provides that “[ujnless otherwise specified a provision for interest means interest. . . from the date of the instrument. . . .” Accordingly, the trial court should have granted interest from the dates of the notes and not from the dates the notes matured. Because we concluded in Division 3 that the trial court should have granted summary judgment on notes B and E, this ruling applies to those notes as well.

(b) Respess’ claim for attorney fees is governed by OCGA § 13-1-11. OCGA § 13-1-11 (a) provides that an obligation to pay attorney fees upon any note is enforceable and collectible as part of the debt if the note is collected through an attorney after maturity. The notes in this case were all collected through an attorney after maturity and each contained provisions for attorney fees of ten or fifteen percent, which are enforceable under OCGA § 13-1-11 (a) (1). The defendants argue, however, that Respess did not properly notify them that the attorney fees provision in the notes would be enforced. Specifically, the defendants contend that OCGA § 13-1-11 (a) (3) required Respess to notify them that they had exactly ten days from the receipt of the notices to pay the principal and interest without being obligated to pay any attorney fees. The defendants argue that Respess’ notices, which allowed them 20 days to pay the principal and interest without being obligated to pay attorney fees, violated OCGA § 13-1-11 (a) (3). We disagree.

Decided February 21, 1997.

David O. Harris, Deborah L. Britt, for appellants.

Thomas F. Choyce, for appellees.

Although the defendants are correct that OCGA § 13-1-11 (a) (3) provides that the notice must state that the debtor has ten days to pay the debt without being obligated to pay attorney fees, such provision has been construed to mean that the debtor must be given at least ten days to pay the debt. Gen. Elec. &c. Corp. v. Brooks, 242 Ga. 109, 113 (249 SE2d 596) (1978). As stated in Brooks, the legislative intent of such provision “ ‘was to require notice of an intention to sue to be given at least 10 days before suit should be brought, to allow the debtor until return day to pay the debt, and thus to save the creditor the necessity and expense of bringing suit at all.’ [Git.]” Id. Although the current version of the statute requires the notice to state that the debtor has ten days from receipt of the notice to pay the debt, the intent remains the same: “to require the creditor to give the debtor an opportunity to meet his obligation without incurring additional expenses in the nature of attorney fees.” Id. at 114. A notice allowing payment more than ten days from receipt of the notice certainly complies with the intended meaning of the statute. Accordingly, the trial court erred in failing to award attorney fees.

Judgment affirmed in Case No. A96A1698. Judgment reversed in Case No. A96A1699.

McMurray, P. J, and Johnson, J., concur.


author: McMurray, Presiding Judge.

text:
    A96A2038.
    MERRILL v. FIRST UNION NATIONAL BANK OF GEORGIA.
    (481 SE2d 890)
   McMurray, Presiding Judge.

Plaintiff First Union National Bank of Georgia as successor in interest to Decatur Federal Savings & Loan Association (“DFSL”) brought suit alleging that defendant Merrill was guarantor of certain obligations of two corporations under notes executed in favor of DFSL. Contending that the notes were in default, plaintiff brought this action against defendant who now appeals the grant of summary judgment in favor of plaintiff. Held:

1. In his first enumeration of error, defendant seeks to challenge the sufficiency of an affidavit submitted in support of plaintiffs motion for summary judgment arguing that it fails to show that it was based on personal knowledge of the affiant. As this issue was not raised below, it may not be entertained for the first time on appeal. Chapman v. McClelland, 248 Ga. 725, 726 (2) (286 SE2d 290); Neese v. Britt Home Furnishings, 222 Ga. App. 292 (1) (474 SE2d 44).

2. Defendant also maintains that a material issue of fact remains with regard to the obligations guaranteed. This arises from the fact that one of the notes executed by the two corporations incorporates by reference a “Loan Agreement” between the corporate makers of the note and DFSL which is not included in the record. Since the multiple notes are referenced in the multiple guaranty agreements, defendant reasons that the absence of the “Loan Agreement” leaves a gap in our knowledge of the contractual arrangements sufficient, upon application of the rule favoring a party opposing a motion for summary judgment, to preclude the entry of summary judgment in this case. However, this does not consider defendant’s admission in his affidavit that required payments to be made by the corporations under the notes that had not been made and that the corporations were in default under the notes. The evidence of record leaves no ambiguity concerning the fact that defendant’s obligations under the guaranty agreements had been triggered or that plaintiff had established its prima facie case. Under the guaranty agreements defendant guaranteed the full and prompt payment of the obligations of the corporations under the terms of the notes.

3. Next, defendant maintains that his liability is capped by the last of the guaranty agreements dated June 20, 1990. While the obligation under this last guaranty is limited to the amount of the principal sum, that obligation is explicitly stated to “be in addition to and shall not prejudice or be prejudiced by any other agreement, instrument, surety or guaranty. . . .” This attempt to limit defendant’s liability to the principal sum of this last guaranty is as stated in the state court’s order “apparently based upon a misreading of the documents and a failure to include all of the language of the documents.”

4. Finally, defendant contends that the grant of summary judgment in favor of plaintiff was error because required confirmations were not obtained after the foreclosure and sale of interests in real estate. Nonetheless, the record reveals that plaintiff disposed of one parcel of real estate which was confirmed. Apparently, defendant’s argument is addressed to the disposal by plaintiff of certain mortgage industrial revenue bonds. The bonds are personal property not subject to the confirmation procedure, and defendant is unable to present any authority suggesting otherwise. Compare OCGA § 44-14-161 (a). In this regard we specifically reject defendant’s suggestion that the bonds represented an interest in real estate within the meaning of OCGA § 44-1-2 (a) (3). See OCGA § 44-1-3.

Decided February 21, 1997

Wilson, Strickland & Benson, Daniel I. MacIntyre IV, Samuel I Brannan III, Gambrell & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, for appellant.

Nelson, Mullins, Riley & Scarborough, Richard B. Herzog, Jr., for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ., concur. Ruffin, J, disqualified.


author:
McMurray, Presiding Judge.
      Beasley, Judge, Ruffin, Judge,

text:
    A96A2354.
    GEOFFRION v. THE STATE.
    (482 SE2d 450)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of driving under the influence of drugs, namely methamphetamine, to the extent it was less safe for him to drive (Count 1), driving under the influence of a controlled substance, by operating a motor vehicle while there was methamphetamine in his urine (Count 2), violation of the Georgia Controlled Substances Act by possessing methamphetamine (Count 3), violation of the Georgia Controlled Substances Act by possessing marijuana, less than one ounce (Count 4), and possession of an open container of alcoholic beverage while operating a motor vehicle (Count 5). The evidence adduced at trial revealed that at 2:00 a.m. on April 15, 1995, Harris County Reserve Deputy Sheriff Martin and Sergeant Watson were on routine patrol when they observed defendant’s “Ford Truck driving very erratic, weaving across the center line, weaving on the roadway.” The driver “crossed the center line repeatedly as [the officers] followed him.” During a traffic stop, Sergeant Watson “could smell a strong odor of alcohol on [defendant’s] person as well as his breath and he appeared to be under the influence of alcohol or something to me [Sergeant Watson] at that point.” Defendant told the officers “he was drinking down [at Kim’s Cove] and was on his way back.” In response to the question of when was the last time he had something to drink, “[h]e replied that he had a drink coming up that road after we [the officers] got behind him[, . . . but he] dumped [it] in the passenger’s side of the floorboard of the vehicle.” At this point, defendant was placed under arrest and “advised of his implied consent warnings.” Defendant also received a Miranda warning. An inventory search of the vehicle revealed “partially smoked suspected marijuana cigarettes in the ashtray. What appeared to be marijuana and several hand-rolled cigarette butts that appeared to be marijuana cigarettes. There was a six-pack of [cold] beer on the passenger’s side of the floorboard that had not been opened.” Also, “a glass [was] found inside the truck like a regular drinking glass and it was still, had, what smelled like alcohol ... in it.” After a pat-down search, “[n]o weapons were found but there was a pill bottle in [defendant’s] upper left-hand pocket of his shirt and at that time [Deputy Martin] asked [defendant] what was in the pill bottle and he replied, he did not know. [Deputy Martin] asked [defendant] again what was in the pill bottle and he [defendant] replied pot.”

Vesna Stojkovic, a forensic chemist in the Drug Identification Unit at the Georgia Bureau of Investigation’s Crime Laboratory in Columbus examined “one amber plastic container containing four hand-rolled cigarettes, three hand-rolled cigarette butts and a razor blade containing residue.” She testified that defendant’s “hand-rolled cigarettes are positive for marijuana,” less than one ounce. Michelle Basham-Foster, a forensic toxicologist with the Georgia Bureau of Investigation, testified that defendant’s “urine specimen was positive for methamphetamine[,. . . and also] positive for ethyl alcohol equal to a blood alcohol of .09 grams percent.” She also testified that Ephedrine, an over-the-counter amphetamine-type drug, “would not give a response for methamphetamine.”

Defendant was granted permission to file out-of-time motions, and this direct appeal followed. Held:

1. Defendant first contends he was denied a fair trial because the State’s attorney “argued in opening [that] defendant was accused of Driving under the Influence of Alcohol when he was indicted for Driving under the Influence of a Controlled Substance.”

The State’s attorney referred in opening statement to “the offenses that you have heard us name. Which are driving under the influence of intoxicants, two counts, violation of the Georgia Controlled Substance Act in that he possessed methamphetamine, possession of marijuana, and violation of the open container law.” After describing the expected forensic evidence of both alcohol and methamphetamine found in defendant’s urine, the State’s attorney summarized for the jury: “So he’s D.U.I. for two reasons. One because of the alcohol in his system and secondly because of the methamphetamine in his system.”

In light of the specific allegations in the special presentment, this statement was misleading and inaccurate, for defendant was never charged with any offense involving the ingestion of alcohol or intoxication therefrom. This erroneous statement amounted to a theory of guilt unauthorized by the charges as laid by the State, even though there was forensic evidence before the jury that defendant had a blood alcohol level of .09 grams percent. Defense counsel rebutted this inaccurate statement in his own opening statement by reminding the jury that the “indictment alleges that the defendant was driving under the influence of methamphetamine and that’s it. The indictment does not charge him with driving under the influence of alcohol.” But no objection to the opening statement by the State’s attorney was ever interposed for a ruling by the trial court.

“The failure to make a timely and specific objection is treated as a waiver. Herrin v. State, 230 Ga. 476 (1) (197 SE2d 734) (1973).” Seabrooks v. State, 251 Ga. 564, 566 (1), 567 (308 SE2d 160). In the case sub judice, any valid issue arising from improper opening statements “has been waived due to the absence of any [timely] objection below. [Cit.]” Smith v. State, 221 Ga. App. 428 (3) (472 SE2d 4). Moreover, since there was no charge on intoxication from alcohol, nor any verdict form or jury determination of intoxication by alcohol, it cannot be said that this opening statement, even if improper, in any reasonable probability changed the result of trial. See Bright v. State, 265 Ga. 265, 285 (19) (a) (455 SE2d 37). This enumeration is without merit.

2. Defendant contends the trial court erred in denying his motion to suppress the results of urinalysis and also his motion in limine without the benefit of a hearing.

Defendant was arraigned on September 18, 1995, and counsel was “retained the day after arraignment,” but the motion to suppress was filed on September 22, 1995, along with a waiver of formal arraignment and discovery motions. The trial court denied the motion to suppress as untimely. Defense counsel then made an oral motion in limine, contending “the implied consent rule was not properly complied with. . . .” The trial court conducted a hearing where Deputy Martin testified he gave an “implied consent” warning to defendant; that he gave defendant a urine test; and that defendant never requested “any other kind of test.” Defense counsel informed the trial court: “We’re not going to put any evidence on at this time,” whereupon his motion in limine was overruled.

(a) The trial court did not err in refusing to hold a hearing on defendant’s tardy motion to suppress. Baseler v. State, 213 Ga. App. 822 (1) (446 SE2d 250).

(b) Contrary to defendant’s contentions, the trial court clearly overruled defendant’s motion in limine, after a hearing. Accordingly, we find no merit in this enumeration. See Cobb County v. Princeton Assoc., 205 Ga. App. 72 (1) (421 SE2d 102).

3. Next, defendant contends the trial court erred in failing to exclude the results of the urinalysis.

“A motion in limine is closely related to a motion to suppress. Ga. Crim. Trial Prac. (1993 ed.), § 14-52. The same appellate rules as to factfinding and witness credibility determination apply in both types of hearings." ' " ' “Factual and credibility determinations made by a trial judge after a suppression hearing (or a motion in limine hearing to exclude evidence) are accepted by appellate courts unless clearly erroneous.” ’ ” ’ Baldwin v. State, 263 Ga. 524, 525 (1) (435 SE2d 926).” State v. Leviner, 213 Ga. App. 99 (1) (443 SE2d 688).

The implied consent warning defendant received in the case sub judice properly informed him that he was “entitled to additional chemical tests of blood, breath, urine or other bodily substance at [his] own expense and from qualified personnel of [his] own choosing.” The evidence was in conflict whether defendant ever requested a second test of his own choosing. Deputy Martin denied that defendant “told Sergeant Watson that because of the urinalysis that he [defendant] also wanted to do a blood test. . . .” The evidence thus supports the trial court’s determination that the results of the State-administered urinalysis were admissible. Consequently, the trial court did not err in overruling defendant’s motion to exclude from evidence the results of that urinalysis.

4. Over defendant’s hearsay objection, the trial court admitted into evidence the police report written by Sergeant Watson. This evidentiary ruling is enumerated as error.

"[W]here the veracity of a witness is at issue, and that witness is present at trial, under oath, and subject to cross-examination, the prior consistent out-of-court statement of the witness is admissible. In this case the witness [Sergeant Watson] was [repeatedly] asked by the defense whether he [omitted several crucial details from his police report]. This is an attack on [Sergeant Watson’s] credibility whichjustifi.es the introduction of [his police report as a] prior consistent statement under Cuzzort[ v. State, 254 Ga. 745 (334 SE2d 661)].” Edwards v. State, 255 Ga. 149, 150 (2), 151 (335 SE2d 869). Furthermore, the admission of this police report does not mandate the giving of a jury instruction on impeachment. “Here there is no inconsistency between the testimony of [Sergeant Watson] at trial and [his] prior statements] [in the police report]. Impeachment is not involved.” Cuzzort v. State, supra at 745.

5. The fifth enumeration contends the trial court erroneously allowed the State’s attorney to “delve into [defendant’s] character.”

Our review of the transcript reveals that defendant himself first elicited reference to subsequent traffic stops, during cross-examination of Sergeant Watson.

“It is axiomatic that the defendant alone can place his character in issue in a criminal case. [Cits.] It is difficult to imagine a more conclusive method of doing so than for his own counsel to ask direct questions regarding [other] convictions [or] criminal offenses. Once the ‘character door’ is opened, it is opened for all evidence that bears on the defendant’s character — convictions of crimes, guilty and nolo contendere pleas, juvenile offense[s], and incidents which illustrate the defendant’s character. [Cits.]” Scarver v. State, 130 Ga. App. 297 (2) (202 SE2d 850). In our view, defendant cannot complain on appeal if the State followed up on issues he himself injected. Wilkes v. State, 221 Ga. App. 390, 393 (3) (471 SE2d 332).

6. Defendant’s sixth enumeration complains that “[t]he trial court erred in admitting the urinalysis and drug report into evidence because of a failure of the chain of custody.” But defendant’s brief fails to show where he made any such an objection to chain of custody. Our review of the transcript reveals that, on direct examination, Michelle Basham-Foster related the results of urinalysis as positive for methamphetamine without objection. She repeated her findings under cross-examination.

Chain of custody is preliminary proof, in the nature of foundation evidence. Since defendant raised no contemporaneous objection, he forfeited his right to insist that the forensic analysis of his urine be excluded from evidence. Sharpe v. Dept. of Transp., 267 Ga. 267 (1) (476 SE2d 722).

7. In his seventh and ninth enumerations, defendant urges the general grounds, as to his convictions on the “possession of methamphetamine charge, the DUI charges, and the open container charge. . . .” He does not challenge his conviction for possession of marijuana in Count 4.

The State presented sufficient circumstantial evidence to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of operating a motor vehicle while under the influence of the controlled substance methamphetamine, as alleged in Count 2. This same evidence also showed beyond a reasonable doubt that defendant unlawfully possessed the controlled substance methamphetamine, as alleged in Count 3. Green v. State, 260 Ga. 625 (1), 626 (398 SE2d 360). Proof that he weaved and crossed the centerline is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the verdict that defendant was a less safe driver due to the methamphetamine in his system, as alleged in Count 1. Grant v. State, 215 Ga. App. 10, 12 (449 SE2d 545). His admission against interest that he was drinking while driving, coupled with proof that a glass smelling of alcohol was hidden under the passenger seat and the carpet was wet where defendant had poured out his alcoholic beverage, is sufficient to authorize his conviction under OCGA § 40-6-253 (b), the open container law.

8. Defendant complains the State’s attorney used unfair and prejudicial closing argument.

(a) In all but two instances, defendant made no contemporaneous objection to the prosecutor’s closing argument. Nevertheless, he argues that the “cumulative acts of the [SJtate . . . prejudiced and inflamed the jury.”

“ ‘The time to object to improper closing argument is when the impropriety occurs at trial, when the trial judge may take remedial action to cure any possible error.’ Todd v. State, 261 Ga. 766, 767 (410 SE2d 725) (1991).” Simmons v. State, 266 Ga. 223, 228 (6) (b) (466 SE2d 205). “When no timely objection is interposed, the test for reversible error is not simply whether or not the argument is objectionable, or even if it might have contributed to the verdict; the test is whether the improper argument in reasonable probability changed the result of the trial. Ford v. State, 255 Ga. 81, 90 (335 SE2d 567) (1985).” Todd v. State, 261 Ga. 766, 767 (2) (a), supra. In the case sub judice, we have considered the closing arguments which purportedly bolster the testimony of the arresting officers and argue punishment to the jury, and find them to be within the “considerable latitude . . . allotted to prosecutors in making closing argument. Philmore v. State, 263 Ga. 67, 69 (428 SE2d 329) (1993).” Crowe v. State, 265 Ga. 582, 592 (18) (c) (458 SE2d 799).

(b) In two instances, defendant did object to closing argument. In response, the trial court observed that the State’s attorney “may draw logical conclusions from the evidence.” That “is ‘tantamount to a rebuke and sufficient under the circumstances.’ [Cit.]” Allstate Ins. Co. v. Brannon, 214 Ga. App. 300, 303 (4) (447 SE2d 666).

(c) Defendant also objected to the following characterization of defense counsel: “He’s not here to see justice. He’s not here to see the right thing is done. He’s not here to see that the streets of Harris County are safe from drunk drivers crossing the center line at 2:00 o’clock coming from Columbus.”

We agree that this closing argument, in the nature of “unflattering characterizations,” is not any reasonable and permissible inference to be drawn from the evidence adduced at trial and disapprove of it. “[W]e find it unnecessary and undesirable for prosecutors to resort to such characterizations.” Simmons v. State, 266 Ga. 223, 228 (6) (b), 229, supra. Nevertheless, given the scientific evidence in the case sub judice, we find it highly probable that this unnecessary and undesirable argument did not taint the verdict. Consequently, under the test of Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869), we conclude the erroneous closing argument was harmless in this instance.

Judgment affirmed.

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

Beasley, Judge,

concurring specially.

I concur in the judgment because the court’s failure to further chastise the prosecuting attorney’s improper argument or add further to its jury instruction at the time did not deprive defendant of a fair trial. Fulfillment of the court’s duty, codified in OCGA § 17-8-75, was incomplete at that stage.

There is no question that the state’s attorney spoke outside the broad parameters of permissible closing argument when he turned to commentary on defendant’s counsel. It was totally irrelevant to the issue of defendant’s guilt or innocence and focused on the wrong person, whose professional involvement in the case had nothing to do with the acts with which defendant was charged. The state’s attorney started this deviation by saying they were friends and that he was invited to counsel’s wedding the next weekend, but then he turned to the attack on counsel’s role, motive, and lack of responsibility for consequences of acquittal. Defendant’s counsel objected, explained as his ground that this was mischaracterization of defense counsel and of the law, and said “thank you.” No particular relief was requested, and no motion for mistrial was made.

Argument resumed along the same line, and again defendant’s counsel objected, this time asking for a ruling. The court instructed the jury that it “may draw logical conclusions and deductions from the evidence that is presented,” as it likewise instructed the jury when objection was made to another argument that similarly was not based on evidence. Defendant did not seek additional rectification.

In its charge to the jury immediately following the closing arguments, the court repeated and elaborated on that instruction. It paired the indictment with the plea of not guilty and explained that they were not evidence. It defined evidence and differentiated between direct and circumstantial evidence. It identified what was and what was not evidence, stating: “Evidence includes all the testimony of the witnesses and the exhibits admitted during the trial. It also includes any facts agreed to by counsel. It does not include the indictment, or the opening statements and closing arguments by the attorneys.” Five times, once for each crime of which defendant was accused, the court instructed the jury to decide the issue “after considering the testimony and evidence presented to you together with the charge of the Court.”

Thus, if there was any ambiguity about whether the court’s instruction, given when defendant called a halt to the prosecuting attorney’s improper aspersions, was a remonstrance or an approval, it was removed by the general charge. By it the court repeatedly made clear what the issues were and the basis upon which they were to be decided. There is little doubt that the jury understood that the prosecuting attorney’s remarks were not evidence and, where not based on evidence presented during the trial, were not to be factored into their deliberations. The express exclusion of the closing argument from the legitimate bricks and mortar on which factfinding could be built, together with the repeated reminders of what could constitute bricks and mortar, eliminated any error committed by the court at the time defendant sought the court’s intervention.

Ruffin, Judge,

dissenting in part.

In Division 8 (c), the majority finds the prosecutor’s improper closing arguments about defense counsel harmless in light of the scientific evidence produced at trial. Because I disagree with the majority’s conclusion that the weight of the evidence precludes prejudice from these improper comments, I respectfully dissent.

There is no tyrant like the tyrant “Harmless Error!” While it is the nature of appellate judges to make concessions to the doctrine of harmless error, and rightfully so, such concessions should be made only after scrupulous analysis demands that we do so. The error in this case is an error that is infinitely more worthy of our consideration than the majority would have us believe. Furthermore, the error is so egregious that it exhorts us to examine, not evade it.

The standard for determining whether improper argument of counsel resulted in a miscarriage of justice is whether “it is highly probable that the error did not contribute to the judgment.” (Citations and punctuation omitted.) Jones v. State, 159 Ga. App. 704, 705 (2) (285 SE2d 45) (1981). Although Georgia appellate courts have been reluctant to order new trials based upon improper argument in cases involving significant evidence of guilt, reversal is not without precedent. See, e.g., Houston v. Estelle, 569 F2d 372 (5th Cir. 1978) (prosecutor’s improper argument resulted in new trial for defendant convicted of heroin possession despite evidence that officer saw matchbook containing 92 foil wrappers of heroin fall from defendant’s body).

As recognized by the Eleventh Circuit, “overwhelming evidence of guilt” is not dispositive in considering whether a defendant has been afforded a fair trial. Coleman v. Kemp, 778 F2d 1487, 1540-1541 (11th Cir. 1985) (presumed prejudice from pretrial publicity resulted in new trial despite overwhelming evidence of guilt), cert. denied, 476 U. S. 1164 (106 SC 2289, 90 LE2d 730) (1986). “To hold otherwise would mean an obviously guilty defendant would have no right to a fair trial before an impartial jury, a holding which would be contrary to the well established and fundamental constitutional right of every defendant to a fair trial. In Irvin v. Dowd, the Supreme Court noted that a ‘fair trial in a fair tribunal is a basic requirement of due process’ and stated that ‘(t)his is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies.’ 366 U S. at 722, 81 S. Ct. at 1642.” Coleman, 778 F2d at 1541; see also Brooks v. Kemp, 762 F2d 1383, 1431, n. 2 (11th Cir. 1985) (Johnson, J., dissenting) (“[A] rule that where . . . evidence is strong, prejudice [from improper argument] is difficult or impossible to establish, is tantamount to an assertion that those procedural protections required by the Constitution apply only to those against whom the evidence is scant.”), vacated, 478 U. S. 1016 (106 SC 3325, 92 LE2d 732) (1986), opinion reinstated, 809 F2d 700 (11th Cir. 1987).

During closing argument in this case, the prosecutor improperly denigrated defense counsel and his role at trial. The prosecutor argued that defense counsel had portrayed the State’s case in the worst possible light “just like he’s supposed to do so that you can let his guilty defendant off over here. That’s what he’s here for and that’s what he does.” The prosecutor then stated: “He’s not here to see justice. He’s not here to see that the right thing is done. He’s not here to see that the streets of Harris County are safe from drunk drivers crossing the center line at 2:00 o’clock coming from Columbus.” Although defense counsel objected following these statements, the trial judge remained silent, and the prosecutor continued: “He’s here to represent the interest of that man sitting over there. And if that man goes out on his usual drunken ride up in Columbus tonight and wipes out a school bus or three citizens or a family coming home from Atlanta late at night or for some reason whatever somebody might be doing, that ain’t his problem. . . . He can go and say, well, hey, I just did my job and hey, they found him not guilty.” Defense counsel again objected but then requested a ruling. In response, the trial court merely stated: ‘You may draw logical deductions and conclusions from the evidence that is presented.”

Despite the fact that a profusion of oral irrelevancies is not proof of that which is relevant, either directly or indirectly, defense counsel did not preserve his first objection to the prosecution’s argument when he failed to request a ruling from the trial judge, resulting in waiver of the error. Johnson v. State, 170 Ga. App. 433, 436 (5) (317 SE2d 213) (1984). But the second objection and request for a ruling was not waived. Although somewhat ambiguous, the trial court’s response appears to have overruled the objection and embraced the prosecutor’s comments as “logical deductions and conclusions from the evidence.” Accordingly, the issue of whether the trial court erred by failing to sustain this objection has been preserved for appeal. Hall v. State, 180 Ga. App. 881, 882 (3) (350 SE2d 801) (1986). If the trial court improperly overruled the objection, this Court must consider whether “it is highly probable that the erroneous argument, unchecked by the trial court, did not contribute to the verdict.” Id. at 885.

During closing argument, the prosecution “is permitted to draw deductions from the evidence.” (Citation and punctuation omitted.) Clark v. State, 146 Ga. App. 697 (3) (247 SE2d 221) (1978). The comments about defense counsel, however, involved neither evidence nor deductions or conclusions therefrom. Rather, they were personal, denigrating, and improper remarks. As this Court has found previously, personal remarks about defense counsel have no place in the prosecution’s closing argument. Estep v. State, 129 Ga. App. 909, 915 (8) (201 SE2d 809) (1973) (physical precedent only). In Estep, the prosecuting attorney stated: “What [defense counsel] is trying to do — because he is a good lawyer and a good friend of mine — he knows he doesn’t have any merits on this case and he is just trying to confuse you.” (Punctuation omitted.) Id. at 915 (8). Finding the remark improper, this Court noted that “[particularly objectionable was the personal reference to defense counsel. As it is improper for a district attorney to urge his personal belief as to a defendant’s guilt (cit.) it is similarly wrong for the prosecuting attorney representing the majesty of the state to comment that opposing counsel knows the defendant to be guilty or knows his client’s case is not meritorious.” (Emphasis in original.) Id. at 915-916.

Confronted with such improper and irrelevant remarks, a trial judge should act properly and promptly so that the integrity of the proceeding and the rights of the accused are protected. Id. at 916. “Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.” (Emphasis supplied.) OCGA § 17-8-75; see also Earnest v. State, 262 Ga. 494, 495 (422 SE2d 188) (1992) (OCGA § 17-8-75 requires the trial court to act when counsel makes a timely objection).

As recognized by the majority, the prosecutor’s remarks in this case were clearly improper. Despite defense counsel’s objection, and the trial judge’s duty consistent with OCGA § 17-8-75, the trial judge did nothing to remove the improper impressions from the jurors’ minds. Instead, the court simply stated that logical deductions and conclusions may be drawn from the evidence, thus implying that the prosecution’s comments might be supported by the evidence.

The trial court erred in overruling Geoffrion’s objection and giving the prosecution’s argument “ ‘the apparent sanction of the court.’ [Cits.]” Estep, supra at 916. Accordingly, I cannot find this error harmless. It is improbable that such denigrating remarks, received without rebuke from the trial court, “did not contribute to the judgment.” (Citations and punctuation omitted.) Jones, supra at 705 (2). Regardless of the weight of the evidence received, the trial court sanctioned before the jury improper attacks on defense counsel’s role at trial.

Decided February 21, 1997.

David J. Grindle, for appellant.

J. Gray Conger, District Attorney, E. Wayne Jernigan, Jr., Assistant District Attorney, for appellee.

Harmless error is not a rule of systemic necessity, but a relic of judicial convenience. It has the noxious consequence of blunting our opportunity to scrutinize; hence, it should be used sparingly and only in the clearest instances. When used in questionable or dubious circumstances, it becomes the bigot of the law and compromises judicial integrity. Both our human fallibility and our institutional imperfections should cause us to subject the harmless error doctrine to our severest scrutiny.

Courts are primarily and ultimately duty bound to protect a defendant’s constitutional rights. See Davis v. Passman, 442 U. S. 228 (99 SC 2264, 60 LE2d 846) (1979); Byars v. United States, 273 U. S. 28 (47 SC 248, 71 LE 520) (1927). Here, the trial court failed to take the necessary steps to protect Geoffrion’s right to a fair trial. Moreover, the approval of the trial court’s inaction encourages prosecutors to cross the line of proper argument. Such improper argument compromises convictions and ultimately wastes the significant judicial and economic resources of the State expended in obtaining those convictions. If this Court allows prosecutors armed with overwhelming evidence of guilt to present improper argument without fear of reprisal, we are equally culpable in encouraging such conduct. We should not approach this error with such undeserved delicacy. As judges we cannot pursue the empty glory of popularity. We must not be ambitious for the applause of audiences or the approval of editors. Accordingly, I dissent.

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


author: Judge Harold R. Banke.

text:
    A97A0500.
    MILLS et al. v. JACK ECKERD CORPORATION.
    (482 SE2d 449)
   Judge Harold R. Banke.

Gudrun H. Mills and her husband, Ben B. Mills, Jr., sued Jack Eckerd Corporation (“Eckerd”), the owner of a store where Gudrun Mills was allegedly injured when a suspected shoplifter collided with her as he was attempting to flee Eckerd’s store. The Mills appeal the summary judgment granted to Eckerd.

Construed in the light most favorable to the Mills, the nonmovants, the evidence shows that while Gudrun Mills was shopping, Eckerd security personnel were attempting to interview Jeremiah Revitch about possible shoplifting activity. Revitch had voluntarily accompanied loss prevention personnel to an upstairs office at Eckerd’s Lenox Square Mall (“Lenox”) store. After either mall security or the Atlanta Police was contacted, suddenly and without warning, Revitch decided to flee. In order to escape, Revitch had to jump on a chair then leap over a four-foot wall directly onto the stairs. After Revitch bolted from the office and was running toward an exit, he allegedly slammed into Mills, knocking her down. Richard Cotton, Jr., the Lenox store manager, testified that in his approximately 24 years of service at various Eckerd store locations he had never before experienced a situation where a shoplifter attempted to escape after being apprehended. Cotton testified that in the infrequent situation where a suspected shoplifter is uncooperative, Eckerd’s policy is to not intervene but to contact mall security or police. Held:

In two enumerations of error, the Mills contend that the trial court erroneously granted summary judgment because Gudrun Mills was the foreseeable victim of a desperate shoplifter. A property owner cannot be held liable for the negligence of another unless the facts show, inter alia, that the property owner should have foreseen and guarded the plaintiff against that negligence. Eckerd-Walton, Inc. v. Adams, 126 Ga. App. 210, 212-213 (2) (190 SE2d 490) (1972). The exercise of ordinary care does not impose a duty to anticipate unlikely, remote, or slightly possible events. Id. Compare Matt v. Days Inns of America, 212 Ga. App. 792, 794 (443 SE2d 290) (1994) (defendant’s knowledge of prior substantially similar incidents forecloses summary judgment). Although the Mills assert that it was foreseeable that an eluding shoplifter might collide with an innocent patron, they failed to offer any evidence that Eckerd’s Lenox store had any prior incidents involving customers being injured by fleeing suspected shoplifters who initially voluntarily cooperated with security personnel. See Henderson v. Kroger Co., 217 Ga. App. 252, 253 (456 SE2d 752) (1995).

Notwithstanding the Mills’ claim to the contrary, whether store employee(s) attempted to apprehend Revitch is immaterial because the Mills failed to present any evidence of any prior incidents in which a patron sustained injuries inflicted by a fleeing thief. Inasmuch as it was not reasonably foreseeable that Revitch would unintentionally rush into Gudrun Mills, Eckerd was not negligent in failing to prevent the collision. Id. at 253. Finally, even assuming that the Mills could show Eckerd was negligent in failing to prevent Revitch’s flight from its store, the proximate cause of Gudrun Mills’ injuries would have been Revitch’s intervening act. See Cameron v. Moore, 199 Ga. App. 800, 801 (2) (406 SE2d 133) (1991); Whitt v. Walker County, 176 Ga. App. 643, 645-646 (337 SE2d 425) (1985).

Decided February 21, 1997

Ben B. Mills, Jr., pro se.

Mills & Chasteen, Paul D. Hermann, for appellants.

Harman, Owen, Saunders & Sweeney, David C. Will, Lawson, Davis & Pickren, Paul R. Jordan, for appellee.

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.

       The Mills sued Eckerd and Jeremiah Revitch, the teenager who allegedly collided with Gudrun Mills. The case against Revitch remains pending, and Revitch is not a party to this appeal.


author: Birdsong, Presiding Judge.

text:
    A96A2261.
    DORSEY v. CLARK ATLANTA UNIVERSITY, INC.
    (481 SE2d 848)
   Birdsong, Presiding Judge.

Pursuant to OCGA § 9-11-56 (h), Ely A. Dorsey appeals the grant of partial summary judgment to Clark Atlanta University on his claims that Clark Atlanta breached his employment agreement by terminating his employment before the expiration of the agreement and without timely notification that his agreement would not be renewed and that Clark Atlanta failed to respond timely to a formal grievance. Although the trial court also granted summary judgment to Clark Atlanta on Dorsey’s claims alleging fraud and infliction of emotional distress, Dorsey has not appealed the grant of summary judgment on those claims. Dorsey’s other claims on which summary judgment was denied remain pending in the trial court and, of course, are not affected by this decision.

Dorsey was hired as an associate professor for the 1991-1992 school year with a one-year appointment pursuant to a letter of appointment. At the end of his initial appointment, Dorsey and Clark Atlanta executed a nontenure faculty employment agreement and notice of salary for the 1992-1993 school year. This agreement provided that Dorsey was a probationary employee and set forth that the maximum period of probation would be four years. Upon the recommendation of Dorsey’s department head, however, Clark Atlanta decided not to appoint Dorsey for the 1993-1994 school year; under the terms of his employment agreement Dorsey was to receive notice of this action by December 15, 1992. Dorsey was orally informed of this decision in early December, and a certified letter was sent on December 8, 1992, formally advising Dorsey that he would not be reappointed. Dorsey, however, refused to accept this letter. Even though he challenged this decision in a formal grievance, Dorsey was ultimately not reappointed to his position.

The portions of Dorsey’s complaint relevant to this appeal alleged that Clark Atlanta breached his employment agreement with the university by terminating his employment before the end of the agreement and by failing to notify him in a timely manner that his employment was being terminated and also alleged that the president of Clark Atlanta failed to properly respond to his formal grievance. After Dorsey’s request for a temporary restraining order to prevent his termination, Clark Atlanta answered Dorsey’s complaint and then moved for summary judgment. The motion was granted, and Dorsey now contends the trial court erred by granting summary judgment on the length of Dorsey’s contract and the reasons for which the contract could be terminated; erred by granting summary judgment because Clark Atlanta failed to give Dorsey timely notice of his termination; and erred by granting summary judgment because the president of Clark Atlanta did not respond in a timely manner to Dorsey’s formal grievance. Held:

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). When ruling on a motion for summary judgment, the trial court should give the opposing party the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843). On appeal, a grant of summary judgment will be affirmed if it is right for any reason. Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (431 SE2d 746).

2. “The construction of a contract is a question of law for the court. WTiere any question of fact is involved, the jury should find the fact.” OCGA § 13-2-1. Here there were no question of fact for jury resolution. The trial court found that Dorsey was a probationary employee with an employment contract subject to termination or non-renewal. Moreover, the record shows the trial court correctly found that Dorsey’s own actions were responsible for his not receiving the letter of non-appointment by the date specified. Under the circumstances, he cannot complain that he did not receive the letter he had in his hands, but refused to accept. As Dorsey’s employment agreement with Clark Atlanta was clear and unambiguous, the trial court correctly interpreted the terms as a matter of law and found that the contract and faculty handbook provided for Dorsey’s non-reappointment, and not just for a termination for cause. Therefore, the trial court did not err by granting summary judgment on these claims. The trial court, however, left for the jury’s determination whether the non-renewal was based on Dorsey’s performance.

Decided February 7, 1997

Reconsideration denied February 24, 1997

David J. Llewellyn, for appellant.

Ronald J. Freeman, Michael A. Baskin, Lance P. Dunnings, for appellee.

3. In view of our decision above, any issue concerning the failure to respond timely to Dorsey’s purported formal grievance is moot.

Judgment affirmed.

Beasley and Blackburn, JJ., concur.


author: Birdsong, Presiding Judge. Beasley, Judge,

text:
    A96A1626.
    STATE FARM FIRE & CASUALTY COMPANY v. AMERICAN HARDWARE MUTUAL INSURANCE COMPANY. FRANKLIN et al. v. STATE FARM FIRE & CASUALTY COMPANY.
    A96A1779.
    (482 SE2d 714)
   Birdsong, Presiding Judge.

In Case No. A96A1626, appellant/plaintiff State Farm Fire & Casualty Company (State Farm) appeals from the order of the superior court granting appellee/defendant American Hardware Mutual Insurance Company’s (AHM) motion for summary judgment on the issue whether Paul Wilson was an insured under either insurance policy issued by AHM. In Case No. A96A1779, appellants/defendants John Russell Franklin (Franklin), Tractors Inc. d/b/a Franklin Ford Tractor, and AHM appeal from the order of the superior court granting summary judgment to appellee/plaintiff State Farm on the issue whether State Farm had a duty to indemnify Franklin and Franklin Ford Tractor; the trial court held any claim for indemnification is barred by the doctrine of res judicata. Certain collateral issues arising from this incident are addressed in State Farm Mut. &c. Ins. Co. v. Seeba, 209 Ga. App. 328 (433 SE2d 414).

These appeals arise from a suit for declaratory judgment brought by State Farm to determine whether AHM’s commercial garage insurance policy affords primary coverage and a duty to indemnify Franklin, Franklin Ford Tractor or Paul Wilson regarding wrongful death action claims arising out of a motor vehicle incident. State Farm also sought a declaration that AHM’s commercial umbrella policy and State Farm’s personal liability umbrella afforded excess coverage on a pro rata basis. AHM and Franklin Ford Tractor expanded this action by filing a cross-claim and third-party complaint for indemnification against Paul Wilson and State Farm. State Farm, Hartford Fire, and AHM entered into a non-waiver and reservation of rights agreement agreeing inter alia to reserve all questions regarding whether any insurer’s policy applies or affords coverage to any claims arising out of the motor vehicle collision and the underlying tort action, including questions of who an insured is and which policies provide primary or excess coverage or the stacking order of the respective policies.

At the time of the motor vehicle collision, Paul Wilson was driving a tractor-truck and pulling a horse trailer for purposes of exhibiting the trailer for sale in Alpharetta, Georgia. The complaint avers that Wilson negligently operated the motor vehicle causing a head-on collision resulting in the death of Katherine Marie Seeba. The trailer was owned by Edgar Pounds; the truck was owned by Metro Ambulance Services, Inc. and leased to Pounds who was Metro’s president. More than two weeks before the collision, Pounds had the truck and trailer delivered to Franklin’s business premises so the latter could transport and display the trailer in an effort to sell it. Pounds told Franklin that he would also sell the truck if necessary to facilitate the trailer sale. Franklin called Pounds and acknowledged when the truck and trailer arrived on his premises. Franklin had agreed to sell the trailer for Pounds who had been a good customer and had purchased the trailer from Franklin Ford Tractor. Franklin realized he might not make any money from the sale; however, he hoped to make a profit by selling the trailer for more than the sale price set by Pounds. Franklin subsequently contacted Paul Wilson, who previously had sold trailers on a commission basis for Franklin, and asked him to find a place in Alpharetta to show the trailer. Wilson was to share 50/50 in any money made from the sale in excess of Pounds’ established sale price. Wilson found a place to show the trailer. The truck and trailer apparently were released to his custody by Franklin, after approval was obtained from Pounds, so that Wilson could haul the trailer to Alpharetta. The truck and trailer had been on Franklin’s business premises for approximately two weeks before being driven away by Wilson, and Franklin had talked at least to one inquirer about it. Before Wilson departed the premises, Franklin instructed him not to leave the truck keys with anyone as Franklin did not want any unauthorized person driving it; however, Wilson was going to leave the trailer key at Alpharetta so potential customers could examine the trailer. (A factfinder could reasonably infer that the keys to both the trailer and truck had been left by Pounds’ driver either with Franklin or with Franklin Ford Tractor.) Franklin and Wilson conducted a joint safety inspection of the truck and trailer before Wilson left the premises. At the time of the collision, Pounds had in force a personal liability umbrella policy with State Farm insuring both himself and Metro Ambulance Service, Inc. Franklin and Franklin Ford Tractor were named insureds under a commercial lines policy and a commercial umbrella policy, both issued by AHM. Paul Wilson was insured by the Hartford Fire Insurance Company (Hartford Fire) under a personal automobile policy issued to him and his wife.

State Farm moved for summary judgment as to the issues of who an insured is, which policies provide primary or excess coverage, and the stacking order of the respective policies. AHM, Franklin and Franklin Ford Tractor moved for summary judgment as to the issue inter alia whether State Farm on behalf of its insured, Wilson, had a duty to indemnify them for all sums paid on their behalf to settle the underlying wrongful death action. Held:

Case Nos. A96A1626 and A96A1779

1. “ ‘To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.’ ” Mull v. Mickey’s Lumber &c. Co., 218 Ga. App. 343, 344 (1) (461 SE2d 270). “In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.” Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843).

Case No. A96A1626

2. “An insurance policy is governed by the ordinary rules of contract construction. [Cit.] The hallmark of contract construction is to ascertain the intention of the parties. [Cits.] However, when the terms of a written contract are clear and unambiguous, the court is to look to the contract alone to find the parties’ intent.” Park 'N Go &c. v. United States Fidelity &c. Co., 266 Ga. 787, 791 (471 SE2d 500). Generally it is the duty of the court to construe the terms of a contract applying the three-step process discussed in Duffett v. E & W Properties, 208 Ga. App. 484, 486 (2) (430 SE2d 858); a jury question arises (as to contract construction) only when there appears to be an ambiguity in the contract which cannot be negated by the court’s application of the statutory rules of construction. Id.

3. AHM issued both a commercial lines policy and a commercial umbrella policy to its named insureds, Franklin and Franklin Ford Tractor. Under the commercial lines policy, with certain exceptions not here applicable, anyone else also is an “insured” who is using, with the “permission” of said named insureds, “a covered auto” which the named insureds “own, hire or borrow.” The terms of the commercial umbrella policy include a substantially similar definition of an additional insured. The pivotal issue in this case, as relates to each policy, is whether the tractor-truck was a vehicle which the named insureds did “borrow” and whether the use thereof was with the named insureds’ “permission.” The parties rely upon several cases from other jurisdictions; the decisions of other jurisdictions are not binding on this Court and will be followed only when they are determined to be consistent with the orderly and fair development of the law of this state. Rice v. State Farm Fire &c. Co., 208 Ga. App. 166, 171 (2) (430 SE2d 75). Examination of the relevant common terms of the two AHM policies establishes that only if the named insureds, Franklin and Franklin Ford Tractor, borrowed the trailer-truck from Pounds and gave permission to Wilson to use it would Wilson be deemed an “insured.”

(a) The parties have proposed differing definitions of the word “borrow,” for our appellate consideration in interpreting the AHM policies at issue. We decline to adopt either party’s proposed definition of this word. In the AHM policies, the word “borrow” is not used as a technical word, word of art or with a unique or peculiar meaning such as may be employed in a particular trade or business. In the interpretation of contracts, “[w]ords generally bear their usual and common signification.” OCGA § 13-2-2 (2). The most authoritative, primary common signification of the word “borrow” is “to receive temporarily from another, implying or expressing the intention either of returning the thing received or of giving its equivalent to the lender.” Webster’s Third New International Dictionary (unabridged). This definition controls in the interpretation of these two AHM policies. (No element of this common signification requires, as asserted by appellee, that in order for the tractor-trailer to be borrowed by Franklin or Franklin Ford Tractor it must have been received and utilized by them solely for their own use; we decline to revise these policies by adding such an additional restrictive requirement. See generally Stuckey v. Kahn, 140 Ga. App. 602, 606 (1) (231 SE2d 565)). The common signification of the word “receive” is “to take possession or delivery of.” Webster’s Third New International Dictionary (unabridged). Therefore, in order to “receive” the tractor-trailer, Franklin or Franklin Ford Tractor must also, at some point before it was released to Wilson, have obtained possession of or otherwise have accepted delivery of the vehicle.

(b) Examination of the deposition testimony of Pounds, Franklin, and Wilson in accordance with the standards in Divisions 1 and 2 above reveals that genuine issues of material fact exist whether Franklin was a “borrower” of the truck, as that term is defined in Division 3 (a). Jury issues exist whether Franklin either obtained possession or otherwise accepted delivery of the truck before it was released to Wilson’s control; a jury issue also exists whether Franklin ultimately was to return either the vehicle or its equivalent to Pounds. Pounds testified that he was willing to sell the truck, if necessary to facilitate the sale of the tractor, and thát he had informed Franklin of that fact. Franklin testified that Pounds had set a sale price on the truck. Under such circumstances, a jury could conclude the return of the stated sales price would constitute the return of equivalent property within the meaning of the term “borrow.” Jury issues also exist as to whether Pounds merely permitted and vested Franklin (with whom he was dealing) with discretion to give Wilson (whom Pounds had never met) permission to use the truck; whether Pounds gave Wilson the permission merely using Franklin to transmit such permission; or, whether Pounds and Franklin jointly gave Wilson the permission. It is the jury’s function to draw an inference from the evidence when more than one inference can be drawn. Thompson v. Crownover, 259 Ga. 126 (6) (381 SE2d 283). The trial court erred in granting appellee AHM’s motion for summary judgment on the issue whether Wilson was an insured under the AHM policies.

Case No. A96A1779

4. Appellants Franklin, Franklin Ford Tractor and AHM assert inter alia that the trial court erred in granting summary judgment to appellee State Farm regarding certain claims for indemnification.

(a) The trial court’s order stated that it granted State Farm’s motion for summary judgment “on the issue of whether [State Farm] has a duty to indemnify defendants Russell Franklin and Franklin Ford Tractor. The [trial] court finds that any claim for indemnification is barred by the doctrine of res judicata.” State Farm argues that res judicata precludes consideration of indemnification claims because the underlying tort litigation was dismissed with prejudice by the plaintiff upon settlement.

However, in Marchman & Sons, Inc. v. Nelson, 251 Ga. 475, 478 (306 SE2d 290), the Georgia Supreme Court held that “the dismissal with prejudice of the underlying suit is not a bar to an action for contribution by one joint tortfeasor against another joint tortfeasor.” In that case, the plaintiff sued ten defendants. After negotiating a settlement with seven of the defendants, the plaintiff dismissed the suit with prejudice. Two of the defendants who had participated in the settlement subsequently brought a contribution action against two defendants who had not participated in the settlement. In holding that the dismissal with prejudice was not a bar to the contribution action, the court noted: “Our statute [OCGA § 51-12-32] recognizes the continuing existence of the right of contribution against a joint tortfeasor who has been released. It recognizes the existence of the right of contribution where there is no judgment at all in the underlying suit, and even where there is no underlying suit filed. Thus, the right of contribution arises out of, but exists separately from, the rights present in the underlying suit.” (Footnote omitted.) Id. at 477-478. (The principles set forth in Marchman are equally applicable to claims of indemnity. OCGA § 51-12-32, relied upon by the Supreme Court as the basis for its holding, deals with both contribution and indemnity claims.) See also Nat. Foundation Co. v. Post, Buckley, &c., 219 Ga. App. 431, 432 (1) (465 SE2d 726).

The fact that none of the defendants in the underlying tort suit filed cross-claims against each other for indemnity also does not operate to preclude the filing of such claims after dismissal of the tort action. See Johnson &c. Constr. Co. v. Bing, 220 Ga. App. 179, 180 (1) (469 SE2d 697) (“[i]t is therefore not requisite to a joint tortfeasor’s right of contribution that he file cross-claims against another joint tortfeasor in an underlying suit”). Accordingly, the trial court erred in finding that any indemnification claims were barred by res judicata.

(b) Nevertheless, since a summary judgment right for any reason will be affirmed, we must review the record to determine if State Farm was otherwise entitled to partial summary judgment.

The trial court held that State Farm has no duty to indemnify Franklin or Franklin Ford Tractor. However, neither Franklin nor Franklin Ford Tractor asserted an indemnification claim directly against State Farm. Therefore, it is unclear on what issues the court is granting summary judgment to State Farm.

Franklin, Franklin Ford Tractor, and AHM have raised two potential claims in this case which might be classified as indemnification claims. First, if the driver of the truck, Paul Wilson, is not covered under AHM’s policies, and AHM’s named insureds, Franklin and Franklin Ford Tractor, are not liable for Wilson’s acts under an agency or respondeat superior theory, then AHM contends it would not be liable for any damages arising out of the subject accident. As AHM has already paid $100,000 toward the settlement of the underlying tort suit, it contends it would be entitled to indemnification from State Farm for that amount, since State Farm would be the only liable insurer which has not paid its policy limits. Regardless whether this claim is properly termed an indemnification claim, it is clear that AHM’s ability to assert such claim against State Farm was preserved by the reservation of rights agreement entered into by the insurers when they agreed to fund the settlement before all coverage issues had been resolved.

The trial court’s order granting partial summary judgment to State Farm does not address any claim by AHM for indemnification. However, since any money paid by AHM toward the settlement was paid on behalf of its insureds, Franklin and Franklin Ford Tractor, the court’s order could arguably be read as granting summary judgment to State Farm on any indemnification claim by AHM for such amounts. In the event that the court intended to preclude such claim, it erred, as there clearly exist factual questions regarding this claim.

Second, Franklin and Franklin Ford Tractor contend that if they are determined to be liable for Wilson’s acts under a respondeat superior or agency theory, they would be entitled to indemnification from Wilson for any amounts paid on their behalf to fund the settlement, since they would be considered passive tortfeasors and Wilson was an active tortfeasor. See Colt Indus. Operating Corp. v. Coleman, 246 Ga. 559, 560 (272 SE2d 251).

The trial court found that State Farm had no duty to indemnify Franklin and Franklin Ford Tractor. While Franklin and Franklin Ford Tractor have not asserted an indemnification claim directly against State Farm, they have asserted such a claim against Wilson, for which State Farm could be liable as Wilson’s insurer. State Farm takes the position that the trial court’s order granted it summary judgment on any such claim. There exist genuine issues of material fact as to whether Franklin and Franklin Ford Tractor have a valid indemnification claim against Wilson. Accordingly, to the extent that the trial court may have intended to grant State Farm summary judgment on such claim, it erred.

Since the trial court’s order is vague with respect to the issues on which it granted summary judgment to State Farm, justice mandates that the order be vacated. The judgment in Case No. A96A1779 is vacated and the case remanded for further clarification and proceeding consistent with our holding in this opinion.

Judgment reversed in Case No. A96A1626; judgment vacated in Case No. A96A1779 and remanded with direction.

Andrews, C. J., McMurray, P. J, Pope, P. J, Johnson, Blackburn, Smith and Ruffin, JJ, concur. Beasley, J., concurs in part and dissents in part.

Beasley, Judge,

concurring in part and dissenting in part.

I respectfully concur in Divisions 1, 2, and 3 and dissent as to Division 4.

1. Before addressing Division 4, it is necessary to explain my concurrence in Division 3, which addresses the meaning of “borrow” in the AHM policies. The many definitions given the word “borrow” in Webster’s Third New International Dictionary (unabridged) in almost all instances connote that the transfer of possession is primarily for the use and benefit of the borrower. Even definition number 1, part of which is used in the instant opinion, includes: “obtain the temporary use of <he returned the pen that he had borrowed from her>: specif: to receive . . . from a lending library for temporary use outside the library premises. . . .”

In the New York case of Broome County Co-operative Fire Ins. Co. v. Aetna Life &c. Co., 347 NYS2d 778, 784 (N.Y. Sup. Ct. 1973), quoting an earlier New York case, a New York Supreme Court thought of “borrow” as connoting that the transfer of possession was for the use and benefit of the receiver. It also paraphrased the word in more general terms, in its own language, as being the “common everyday language.” In Broome, the friend was deemed not a borrower of the auto as a matter of law because she was just driving the disabled woman to the friend’s home in the disabled person’s car so they could visit at the friend’s home and then go together to an event. The auto was being “used primarily for [the disabled owner’s] benefit” and therefore the driver-friend was not a “borrower” so as to be included in the Aetna policy. Here AHM’s insureds had custody but not possession of the truck when the collision occurred; they had custody of it primarily for the benefit of the owner, Pounds. It is hard to say they “borrowed” it, but I can accept the reversal of summary judgment on this issue because, as even the New York court recognizes, the court will not supply words of limitation to an insurance contract where the insurers have not seen fit to do so. AHM did not say “borrow for own use” or words of similar import, but merely “borrow.”

This broad meaning might, then, also include bailments, such as when an auto is delivered to a parking attendant or garage mechanic, because the purpose of the temporary possession is regarded as irrelevant.

The Texas Supreme Court, in the 1977 case of Liberty Mut. Ins. Co. v. American Employers Ins. Co., 556 SW2d 242, 244 (Tx. 1977), also includes the purpose of the acquisition of temporary possession in its definition of “borrow,” thus giving the word a narrower meaning than the opinion in the instant case does. No authority is given, however, not even a dictionary; it apparently relies on what it regards as common use.

A 1984 Fifth Circuit case, Sturgeon v. Strachan Shipping Co., 731 F2d 255 (5th Cir. 1984), requires “use” and “possession” for the vehicle to be “borrowed.” AHM’s insureds had “dominion and control” of the truck at the time of the collision in the sense that they had custody of the truck from the owner, although they did not have physical possession at the time. Driver Wilson did. The Fifth Circuit views “borrow” as the correlative of “loan.” Under that view, it could be said that Pounds loaned the truck to Franklin for Pounds’ purposes.

Decided February 24, 1997.

Swift, Currie, McGhee & Hiers, Jonathan M. Engram, Victor J. Faenza, for State Farm Fire & Casualty Company.

Austin & Sparks, John B. Austin, for American Hardware Mutual Insurance Company and Russell Franklin et al.

Nevertheless, I agree with the broad definition of “borrow” in this case. I do not agree, however, that there are jury issues with regard to Wilson’s permission to use the truck. In the earlier appeal in this case, State Farm Mut. &c. Ins. Co. v. Seeba, 209 Ga. App. 328 (433 SE2d 414) (1993), we stated as an operative fact that Wilson “was driving the truck with Pounds’ express permission.” Id. at 328. This establishes the law of the case. Jebco Ventures v. City of Smyrna, 259 Ga. 599, 601-602 (1) (385 SE2d 397) (1989). Based on this and the record evidence, a jury could not find that Wilson was driving without Franklin’s permission also, as it was Franklin who asked Wilson to take the truck and trailer and instructed him about the keys.

2. With respect to Division 4,1 agree with the res judicata analyses, which lead to the conclusion that indemnification claims, whether the claim of Franklin, Franklin Tractor, Inc., or AHM, are not barred by the doctrine of res judicata. That being our ruling, there is no need to vacate the trial court’s order regarding its second paragraph and remand the case for clarification.

In Division 4 (b), we have held that if the court addressed the AHM’s indemnification claim, the trial court erred because fact issues exist as to whether Wilson was covered under AHM’s policy. We have also held that if the court intended to address Franklin and Franklin Tractor’s claims against Wilson and ultimately his insurer State Farm, it still erred as there are fact issues as to that, too. Because the trial court’s two possible rulings are both declared wrong, a clearer explanation of the order is not needed and the ingredient for another possible interlocutory appeal should not be created. The judgment should simply be reversed and the trial proceed for resolution of the issues of fact.


author: Johnson, Judge.

text:
    A96A2012.
    MOORE v. THE STATE.
    (481 SE2d 892)
   Johnson, Judge.

A Toombs County jury tried Tierrance S. Moore and his co-defendants, Dedrick Berry and Terrell Monroe, on charges of murder, felony murder, and armed robbery. Convicted only of armed robbery, Moore appeals, challenging the sufficiency of the evidence and several of the trial court’s rulings.

1. Moore challenges the sufficiency of the evidence supporting his armed robbery conviction. Pursuant to Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979), we review that evidence in a light most favorable to the verdict.

Moore and his co-defendants were charged in connection with the armed robbery of John Dixon’s convenience store, during which Dixon was killed by a shotgun blast. In his statement to police and his testimony at trial, Moore admitted he drove co-defendants Monroe and Berry, as well as Delwin Berry and Kiendal Tootle, to the store and waited outside in the car while Delwin Berry, Dedrick Berry, and Kiendal Tootle went in. Delwin Berry, who pled guilty and testified for the prosecution, stated that the five men agreed to do a “hit” on the store and took a shotgun for that purpose. Delwin Berry testified that while Moore remained in the car, the others entered the store. Kiendal Tootle aimed the shotgun at Dixon and told him to “give it up.” When Dixon tried to flee, Tootle shot and killed him. In his statement made before trial and testimony at trial, Moore stated he heard the shot and drove the men home after the robbery. He denied receiving any proceeds from the crime. Approximately 45 minutes before the attack, an independent witness saw the blue Ford Escort identified as Moore’s car drive slowly past the store and stop in front while its occupants looked in the direction of the store.

This evidence supports the conviction. The testimony of Moore’s accomplice, Delwin Berry, was corroborated by Moore’s own statements and by the independent witness who saw the men “casing” the convenience store. See Thurman v. State, 207 Ga. App. 96, 97-98 (1) (427 SE2d 69) (1993). From Moore’s presence, companionship, and conduct before and after the armed robbery, the jury could infer that he possessed the requisite criminal intent sufficient to support his conviction as a party to the armed robbery. Ellis v. State, 211 Ga. App. 605, 608 (1) (440 SE2d 235) (1994).

2. The trial court did not err by denying Moore’s motion to sever his trial from that of Dedrick Berry and Terrell Monroe. A trial court’s decision not to sever will be affirmed absent an abuse of discretion. Short v. State, 256 Ga. 165, 168 (4) (345 SE2d 340) (1986). To merit a severance in a non-death penalty case, a defendant must make a clear showing of prejudice amounting to a denial of due process. Owen v. State, 266 Ga. 312, 314 (2) (467 SE2d 325) (1996). Here, the defendants were not so numerous that the jury confused the facts and law applicable to each. See Mayfield v. State, 220 Ga. App. 19, 20 (2) (467 SE2d 352) (1996). It is clear the jury was able to sort out the law and evidence, as it convicted Moore of armed robbery only but convicted his co-defendants of armed robbery and felony murder. Thus, to the extent these defendants asserted antagonistic defenses, Moore has shown no resulting harm. See Davis v. State, 266 Ga. 801, 802 (3) (471 SE2d 191) (1996).

Moore argues that because the defendants were tried jointly, he could not cross-examine Terrell Monroe, whose statement was used against him. Moore has not shown how separate trials would have allowed him to compel Monroe’s testimony. Davis, supra. To the extent Moore contends the introduction of Monroe’s statement violated Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968) because it deprived him of the right to confront Monroe, that argument also fails. First, as Moore’s counsel established at trial, Monroe’s statement did not directly implicate Moore as having participated in planning the robbery even though it stated that he drove the car. See Durden v. State, 219 Ga. App. 732, 735-736 (5) (466 SE2d 641) (1995) (to violate Bruton, statement must directly implicate defendant). Furthermore, in Moore’s own statement he admitted he drove the car to the store, waited outside while the other men went inside, heard a shotgun blast, and drove the men away from the scene. The statement of Dedrick Berry, who testified at trial, implicated Moore as taking an active part in the crime, as did the trial testimony of Delwin Berry, who testified Moore helped plan the crime. Thus, the admission of Monroe’s statement was not error under the “interlocking confessions” exception to Bruton, and the trial court gave appropriate cautionary instructions limiting the jury’s use of each defendant’s statement to the issue of that defendant’s guilt. Freeman v. State, 265 Ga. 709, 710-711 (1) (462 SE2d 139) (1995); Tatum v. State, 249 Ga. 422, 424-425 (1) (291 SE2d 701) (1982). We find no abuse of discretion in the trial court’s denial of the motion to sever.

3. Moore contends the trial court erred by denying his motion for change of venue, in which he claimed pre-trial publicity and bias within the community and jury pool prevented a fair trial in Toombs County. To merit a change of venue based on these grounds, a defendant must show that a) the setting of the trial is inherently prejudicial; or b) the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible. Morrill v. State, 216 Ga. App. 468, 470 (3) (454 SE2d 796) (1995). That decision is entrusted to the discretion of the trial judge, and his determination will be affirmed absent an abuse of discretion. Id.

(a) Inherent Prejudice. Although Moore presented evidence that the robbery and murder of Dixon had been widely publicized in newspapers and on television, the trial court found the coverage did not rise to the level of a “barrage” of pretrial publicity sufficient to create inherent prejudice. See Chancey v. State, 256 Ga. 415, 430 (5) (A) (349 SE2d 717) (1986). As the trial court noted, many of the news accounts were published near the time of the crime, which was several months before trial. See Gardiner v. State, 264 Ga. 329, 333 (4) (444 SE2d 300) (1994). The trial court’s review of those news materials did not reveal any extreme sensationalism. Chancey, supra. This pretrial publicity did not create an inherently prejudicial atmosphere in which Moore could not obtain a fair trial. See Lemley v. State, 258 Ga. 554, 556 (4) (372 SE2d 421) (1988).

(b) Actual Prejudice. Neither does the evidence demand a finding that the jury pool in Toombs County was actually prejudiced against him due to either community bias or pretrial publicity. The potential jurors were individually questioned, and although many indicated they had heard of the crime, either through the media or friends, only one member of the venire stated he had a fixed opinion regarding the guilt of the defendants. That panelist was excused for cause. Because the trial court was able to seat a full panel of jurors who could determine Moore’s guilt or innocence based solely on in-court testimony and evidence, Moore has not shown the actual prejudice necessary to merit a change of venue. See Chancey, supra at 430-431 (5) (c); Morrill, supra at 471 (3).

Some prospective jurors apparently discussed the crime while waiting in the hallway prior to jury selection. However, each member of the venire who overheard that discussion denied hearing any opinion regarding the guilt of the defendants and stated the discussion would not affect his or her ability to decide the case based only on the evidence presented. Moore’s remaining arguments are unsupported by the record.

4. The trial court did not err in its questioning of a prospective juror during voir dire. Moore correctly notes that one prospective juror did doubt his ability to decide the case impartially. Before the trial court asked this venireman any questions, however, the panelist stated he could not say whether the defendants were guilty because “I have no evidence that they were even the ones that were there.” In an effort to clarify the venireman’s answer, the experienced trial judge made a football analogy and asked whether, even if the prospective juror had a preexisting opinion, he could lay aside that opinion and decide the case based on the evidence alone. The trial court’s question applied the proper standard. Chancey, supra at 425 (3) (B) (a). Moore’s contention that the trial court had no authority to question the venireman or try to explain the meaning of the voir dire inquiry in layman’s language is completely without merit. See id.; OCGA § 15-12-164 (b) (duty of judge to ascertain whether prospective juror is impartial).

5. The trial court did not err in its recharge on the law of parties to a crime by failing also to “include charges favorable to Appellant.” In this case, the trial court’s original charge and an earlier recharge included instructions on the issues Moore raises: mere presence and association. Then, in response to a specific jury question, the court again charged the law of parties to a crime. When the jury requests additional instructions on a specific issue of law, the trial court has discretion to recharge only that issue or to reinstfuct the jury completely. Burgan v. State, 258 Ga. 512, 514 (4) (371 SE2d 854) (1988). Here, the court’s failure to repeat for a third time the additional points of law “favorable” to Moore’s case was not error. See Davis v. State, 194 Ga. App. 902, 904-905 (3) (392 SE2d 327) (1990).

Decided February 24, 1997

Dubberly & McGovern, Bruce D. Dubberly III, for appellant.

Richard A. Malone, District Attorney, for appellee.

6. Moore’s next enumeration of error challenges the trial court’s failure to grant a new trial based on post-trial testimony of the jury foreman, an attorney who did not practice criminal law. That testimony, Moore asserts, shows the jury was confused regarding the law and indicates the foreman injected improper legal concepts into the jury’s deliberation. This testimony is not admissible to impeach the jury’s verdict, as it does not fall within any exception to OCGA § 17-9-41. Gardiner, supra at 332 (2). Therefore, this enumeration of error is without merit.

7. Finally, Moore challenges as prejudicial the trial court’s admission of a photograph and a videotape showing the crime scene and the deceased’s body. As Moore did not object to introduction of the photographic evidence, any alleged error is waived. See Cox v. State, 205 Ga. App. 375, 376 (4) (422 SE2d 68) (1992). The videotape was relevant to show the crime scene, the location of the victim’s body, and the wounds caused by the shotgun blast. Sterling v. State, 267 Ga. 209, 214 (10) (477 SE2d 807) (1996). It was not unduly repetitious of the photograph, and the trial court did not abuse its discretion in admitting it. See Kettman v. State, 257 Ga. 603, 604 (2) (362 SE2d 342) (1987).

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.