text:
    A91A1066.
    MILES RICH CHRYSLER-PLYMOUTH, INC. et al. v. MASS.
    (411 SE2d 901)
   Sognier, Chief Judge.

Maripat Mass brought suit against Miles Rich Chrysler-Plymouth, Inc. (MRCP) and Miles Rich alleging common law fraud, breach of contract, promissory estoppel, and intentional violation of the Georgia Fair Business Practices Act (FBPA), OCGA § 10-1-390 et seq., arising out of her attempt to purchase a 1987 Plymouth Grand Voyager. The jury found in favor of Mass on all claims. The trial court denied the motions for new trial and judgment notwithstanding the verdict made by Rich and MRCP, and they appeal.

1. We find no merit in appellants’ claim that the trial court erred by failing to bifurcate the trial of this case pursuant to OCGA § 51-12-5.1 (d). Pretermitting the question whether appellee’s cause of action arose on or after July 1, 1987, the effective date of the statute, OCGA § 51-12-5.1 (h), and even assuming the statute is applicable, the record reveals that appellants acquiesced in the trial court’s action of submitting the issue of punitive damages to the jury together with the liability issues, see generally Capes v. Bretz, 195 Ga. App. 467, 469 (2) (393 SE2d 702) (1990), and requested the trial court to take the very action they now challenge by proffering a verdict form which proposed submitting the issues of liability and punitive damages together. No fraud or mistake having been alleged or shown, appellants have no basis for complaint in this regard. Marsh v. White, 185 Ga. App. 642, 645 (4) (365 SE2d 464) (1988).

2. Appellants contend error in the denial of their motion for new trial made on the basis that the trial court erroneously admitted evidence concerning complaints made by other disgruntled customers against MRCP. While appellants effectively concede the propriety of the trial court’s ground for admitting this evidence, namely, to impeach appellants’ discovery responses that no documents of complaints by customers to government agencies existed, appellants argue appellee used this evidence not to impeach but to inflame the jury and to introduce similar transactions before the jury.

The transcript reveals that during cross-examination of Rich, the discovery request and appellants’ negative response were read to the jury and evidence of other complaints was introduced. Rich then explained appellants’ negative discovery response on the basis that the complainants were not memorable. Appellee’s counsel questioned Rich about the details of a few of the complaints, including one alleging Rich had obscenely and abusively ordered a customer out of his office. Upon objection, the trial court agreed with appellee that the questions were relevant to the impeachment of appellants because they enabled the jury to determine whether the complaints were or were not memorable. We find no abuse of the trial court’s discretion in admitting the challenged evidence. See generally Weaver v. Ross, 192 Ga. App. 568, 570 (1) (386 SE2d 43) (1989).

3. Appellants contend the trial court erred by denying their motions for directed verdict, judgment n.o.v., and new trial on appellee’s claims and by entering judgment on the jury’s award of damages and attorney fees. Applying the any evidence standard to the case sub judice, see Foreman v. Eastern Foods, 195 Ga. App. 332, 333 (393 SE2d 695) (1990), the jury was authorized to find from the evidence that appellee visited appellant MRCP on May 10, 1987 and spoke with MRCP’s sales representative, Lee Adams, about purchasing a 1987 Plymouth Grand Voyager with certain optional features.. Appellee testified that she told Adams she needed the van by midsummer at the latest because she had obligated herself to participate in a carpool for preschoolers. Many of the optional features she required were chosen specifically because of her carpool plans. Adams quoted her a price of $16,000 for the van.

Appellee testified that after comparing van prices at other dealerships, she returned to MRCP on May 16 and met with Adams. He confirmed the $16,000 price, and they discussed financing arrangements (particularly regarding appellee’s eligibility for a special financing package being offered by Chrysler) and the trade-in of appellee’s car. Adams produced a preprinted form entitled “Work Sheet Single and Invoice” on which he wrote his name and information about appellee, then filled in the form to reflect an order to Chrysler for a new 1987 Silver Grand Voyager LE with a list of the optional features appellee wanted. The document also set forth the total amount appellee would pay for the van after a trade allowance, various fees, and a down payment were calculated. Appellee testified she gave Adams a check for $500 as partial down payment and was told the van would be ready in four to six weeks. Appellee stated that after Adams photocopied the completed document, he gave appellee the unsigned copy and had her sign the original, which he kept.

Appellee testified that she telephoned Adams approximately four weeks later, in mid-June, to inquire about the van’s status and was told that it had been shipped, but that he could not tell her the exact arrival date because MRCP’s computer was down. The following six weeks appellee spoke several times with Adams and another MRCP employee regarding specifics of the financing and trade-in arrangements, with Adams continuing to represent that the van was scheduled to arrive shortly. At no point during these conversations was appellee informed that Chrysler had ceased manufacturing the 1987 model of the van she had ordered.

Near the end of August, appellee or her husband, Richard Mass, learned in a series of telephone calls that Adams was no longer employed at MRCP; that Tom McKenzie, MRCP’s sales manager, had found the file kept on appellee which contained the $500 check and the credit report, but not the work sheet; and that after double checking, McKenzie had determined no van had been ordered for appellee and that Adams had lied about the van arriving soon. Appellee then went to MRCP and, in order to convince her that her van had not been ordered, McKenzie showed appellee how Adams could have easily verified her order and the arrival date of the van under the computer printout system they used. McKenzie showed her two other vans on the lot, which he offered to sell to her for $16,000. The vans had features appellee did not want and lacked others she required; when she inquired whether one necessary option could be installed on an available van, she testified that McKenzie discouraged her by representing that the option would not operate properly when dealer-installed.

When appellant Rich joined appellee and McKenzie in the latter’s office, appellee was introduced to him as “the lady who has the problem with the [van].” Rich informed her there was a fully loaded 1988 Grand Voyager on the lot which he could offer her for an extra $1,500 to $2,000, and that the credit check they had done on appellee and her husband indicated they were “completely covered” for the additional amount. She testified that when she asked whether they could locate a 1987 model with the features she wanted at another dealership, McKenzie told her he had made a search but could not find any, and that McKenzie stated to Rich that appellee had already been told that the options she wanted would not function properly if installed by MRCP on one of the available vans. Appellee stated she felt that Rich and McKenzie were “putting the squeeze” on her because they knew she had to have the van for the carpool and they were taking advantage of her situation to pressure her into buying a more expensive vehicle. She also testified that Rich acknowledged the van had not been ordered but told her he could have “[gotten appellants] off the hook” by claiming the van had been ordered but that Chrysler refused to build it.

Mass testified that when he telephoned Rich after hearing from appellee, in contrast to Rich’s statements to appellee, Rich told him the van had been ordered but claimed that Chrysler had “refused to do the deal.” When Mass (who appellants were aware was an attorney) informed Rich that McKenzie had said otherwise, Rich responded that because there was no offer, acceptance, or consideration, “I don’t owe you a thing.” Mass testified that Rich became verbally abusive and ended the conversation by abruptly hanging up on Mass. Appellee testified that, unaware of this conversation, she was out in the showroom with McKenzie when Rich came “screaming” out of his office and ordered her off the premises, humiliating her in front of all the people in the showroom. She stated that she was so shaken and embarrassed that she was reduced to tears.

Testimony established that after complaint was made to the manufacturer about the events at MRCP, a few other vans at nearby dealerships were located and offered to appellee, but she rejected them because they were used or lacked the options she required. Appellee, who had to rent a van to meet her carpool obligations, soon purchased a 1988 model Grand Voyager for $16,604. At trial, she submitted evidence of the cost of renting the van, the difference in financing packages on the MRCP van and the van she purchased, and certain other expenses. The jury returned a verdict in her favor for $1,000 in actual damages.

(a) We find no error in the trial court’s denial of appellants’ motion for directed verdict on appellee’s FBPA claim. The jury was authorized to find that appellee was led to believe that she had ordered a vehicle and that the vehicle as ordered would soon arrive; that after misrepresenting the arrival date of the vehicle for over three months, appellants presented appellee with the information that no vehicle had been ordered, no similarly priced vehicles could be adequately modified, and no other dealership had the vehicle available; and that, after having run a credit check on appellee to ascertain she could afford a more expensive vehicle, appellants tried to pressure her into buying that more expensive vehicle. Thus, the jury could have found that the facts of this case presented a minor variation on the classic “bait and switch” scheme. See Greenbriar Dodge v. May, 155 Ga. App. 892 (273 SE2d 186) (1980). Contrary to appellants’ arguments, the facts of this case clearly come within the FBPA requirement that the offensive activity have taken place within the context of the consumer marketplace. See Zeeman v. Black, 156 Ga. App. 82-84 (273 SE2d 910) (1980).

Appellant Rich- argues the evidence was not sufficient to show that he intentionally violated the FBPA so as to support the verdict against him individually. “The intentional violation as contemplated by the FBPA is a volitional act constituting an unfair or deceptive act or practice conjoined with culpable knowledge of the nature (but not necessarily the illegality) of the act.” Colonial Lincoln-Mercury v. Molina, 152 Ga. App. 379, 383-384 (11) (262 SE2d 820) (1979). Given the evidence of Rich’s involvement in the attempt to pressure appellee into purchasing the more expensive van, we do not agree with Rich that the evidence was insufficient. Finally, we find no merit in appellants’ argument that the letter sent by certified mail to Rich at MRCP, which included, inter alia, a detailed narrative of the unfair and deceptive acts perpetrated upon appellee by Rich and other MRCP employees and a specific allegation that the conduct of MRCP violated the FBPA, together with a citation to the predecessor statute to OCGA § 10-1-399 (Ga. Code Ann. § 106-1210 (b)), was legally insufficient under OCGA § 10-1-399 (b). See Plaza Pontiac v. Shaw, 158 Ga. App. 799, 800 (2) (282 SE2d 383) (1981).

Although appellee adduced evidence that she had incurred over $67,000 in attorney fees in connection with her FBPA claim, the trial court found appellee was entitled to recover reasonable attorney fees and expenses of litigation in the total amount of $36,362.90. See OCGA § 10-1-399 (d). Given the statutory language that upon a finding of an intentional violation of the FBPA, the injured party “shall, in addition to other relief provided . . . and irrespective of the amount in controversy, be awarded reasonable attorneys’ fees and expenses of litigation,” (emphasis supplied), id., we find no merit in appellants’ argument that the attorney fees awarded by the trial court were excessive or improper because appellee proved less than $2,000 in actual damages.

(b) We find no error in the trial court’s denial of appellants’ motions on appellee’s fraud claim. “The five essential elements required to prove fraud are: a false representation made by the defendant, sci-enter, an intention to induce the plaintiff to act or refrain from acting in reliance upon the defendant’s representation, justifiable reliance by the plaintiff, and damage to the plaintiff as a proximate result of the representation. [Cit.]” Bramblett v. Bass, 189 Ga. App. 10, 11 (2) (375 SE2d 106) (1988). The jury was authorized to find that an MRCP employee knowingly misrepresented to appellee that the van she wanted was available, had been ordered for her, and would be arriving shortly; that the misrepresentations regarding the momentary arrival of the nonexistent van were made over a three month period with the intent to induce appellee to refrain from going elsewhere to purchase another van or, because the misrepresentations were made with the knowledge of appellee’s pressing need for a van, that they were made with the intent of inducing appellee to purchase a more expensive van; and that appellee, despite due diligence on her part, sustained damages as a result of appellants’ fraudulent acts. “Whether the operative facts and circumstances establish actionable fraud ‘is a matter peculiarly within the province of a jury to determine.’ [Cits.]” Marshall v. W. E. Marshall Co., 189 Ga. App. 510, 513 (6) (376 SE2d 393) (1988). We find there was sufficient evidence of the five elements of fraud to support the jury’s award against both appellants.

Although appellants argue there was no fraud because the misrepresentations made to appellee constituted promises to perform in the future, upon which appellee could not rely, citing Motors Ins. Corp. v. Morgan, 117 Ga. App. 654, 656 (161 SE2d 382) (1968), “[w]here promises as to future events are made with the present intention not to perform or where the utterer knows the future event will not take place, actionable fraud can arise. [Cit.]” Marshall, supra. We do not agree with appellants that the misrepresentations could not be fraud because the underlying contract (the work sheet order form) was unenforceable as against either party because it was not signed. See Alston v. Brown Transport Corp., 182 Ga. App. 632, 633 (1) (356 SE2d 517) (1987). The contract was enforceable as to appellee who signed the order form, and the jury was authorized to conclude from the evidence that appellants routinely fulfilled obligations under similar forms used in other sales transactions even without signing or initialling those contracts. Furthermore, contrary to appellants’ assertion, it is apparent that those misrepresentations made subsequent to the promised placing of the order, to the effect that the van she ordered had actually been manufactured and was in transit, did not constitute statements promissory in their nature as to future acts upon which she was not entitled to rely. Compare Motors Ins. Corp., supra.

(c) The jury returned a verdict of $50,000 in punitive damages, which appellants assert constituted an excessive fine under Colonial Pipeline Co. v. Brown, 258 Ga. 115 (365 SE2d 827) (1988). We do not agree with appellants that the evidence in this case demonstrated that their actions were mere innocent mistakes comparable to the passive negligence in Colonial Pipeline Co. Rather, the evidence supports the jury’s finding that appellants committed actual fraud upon appellee and acted intentionally to violate the FBPA, for which exemplary damages are statutorily authorized. See OCGA § 10-1-399 (a); Colonial Lincoln-Mercury, supra at 382 (7). Since under both Colonial Pipeline Co., supra at 122 (5), and OCGA § 51-12-5.1 (b) punitive damages are authorized where the evidence establishes that the tortfeasor’s actions showed willful misconduct or fraud, the trial court did not err by entering judgment on the jury’s award of punitive damages. See John D. Robinson Corp. v. Southern Marine &c., 196 Ga. App. 402, 405-406 (4) (395 SE2d 837) (1990).

(d) There was sufficient evidence of fraud and intentional violation of the FBPA to support the actual and punitive damages awarded by the jury and the attorney fees and treble damages awarded by the trial court pursuant to the FBPA. Although appellants do assert that appellee’s fraud claim must fail because she affirmed the contract, citing Hay v. McKinley, 154 Ga. App. 288, 289 (1) (267 SE2d 892) (1980), the record established that appellee had not elected to affirm the contract but rather was pursuing inconsistent remedies against appellants, see Price v. Mitchell, 154 Ga. App. 523, 524 (268 SE2d 743) (1980), which she could do since she was not required to elect her remedy prior to submission of the case to the jury. Waller v. Scheer, 175 Ga. App. 1, 5 (3) (332 SE2d 293) (1985). However, although appellants do not enumerate it as error, it appears that after the jury rendered an inconsistent verdict by finding in favor of appellee on all four causes of action, appellee did not make the required election and the trial court entered judgment on the verdict as rendered. While arguably the jury’s finding in favor of appellee on the breach of contract claim was not inconsistent with the verdict on the fraud claim given that the verdict on the latter claim may be based upon misrepresentations other than as to the existence of the contract, see Long v. Marion, 182 Ga. App. 361, 366 (5) (355 SE2d 711) (1987), even construing the evidence and every presumption and inference in favor of the verdict it is not possible to reconcile the verdict on the breach of contract claim and the promissory estoppel claim. See Christensen v. Intelligent Systems &c. Partnership, 197 Ga. App. 778, 779 (1) (399 SE2d 495) (1990) (cause of action under doctrine of promissory estoppel available when defendant not liable for breach of contract).

Decided October 31, 1991.

Macey, Wilensky, Cohen, Wittner & Kessler, Mark L. Golder, Susan L. Howick, for appellants.

Allen R. Mass, for appellee.

The inconsistency in the verdict was not enumerated as error by appellants nor argued in any cognizable form to this court or the trial court. The issue thus cannot be considered on appeal. Venture Design v. Original Appalachian Artworks, 197 Ga. App. 432, 434 (3) (398 SE2d 781) (1990). Given that we can uphold the verdict based solely on the evidence of fraud and intentional violation of the FBPA without reference to other claims inconsistent therewith, we need not determine whether the evidence was sufficient to support the remaining claims.

Judgment affirmed.

McMurray, P. J., concurs. Andrews, J., concurs in the judgment only.

       We note that the trial court entered judgment on the jury’s finding of intentional violation of the FBPA only against MRCP, holding Rich jointly and severally liable thereunder contingent upon MRCP’s failure to pay the damages awarded in the judgment. For the sake of judicial economy, however, we will consider Rich’s arguments in this opinion.


source: Caselaw Access Project

author: Sognier, Chief Judge.

license: Public Domain

text:
    A91A1362.
    CROLLEY et al. v. HAYGOOD CONTRACTING, INC.
    (411 SE2d 907)
   Sognier, Chief Judge.

Haygood Contracting, Inc. filed suit against Cherokee Falls Investments, Inc. (CFI) and William L. Crolley to recover amounts allegedly owed on a construction contract. CFI answered and filed a counterclaim arising from another construction contract, and Crolley filed an answer denying individual liability. The trial court granted partial summary judgment against Crolley and CFI, and they appeal.

This dispute arises from a contract executed on July 6, 1989 for paving work to be performed by appellee at Chota Hills Subdivision in Cherokee County. The contract comprises a standardized form prepared by appellee with the owner’s name, scope of work, and contract price typed in blank spaces on the form. The name “Chota Hills Subdivision” appears in the blank spaces designated for “proposal submitted to” and “job name.” The contract was signed by appellant Crolley with no indication of corporate office or title. Appellant CFI’s name does not appear on the form. Crolley testified by deposition that he is a majority stockholder and director of CFI, a corporation engaged in the business of buying and selling real estate, and that Chota Hills Subdivision is a residential subdivision owned by CFI. He deposed that he executed the contract at issue on behalf of CFI. Conversely, Scott Code, appellee’s superintendent, deposed that he understood appellee was dealing with Crolley personally.

The contract form specified a price of $29,345 for the work. In October 1989, Crolley and Code discussed the need for additional work to be performed because of poor soil conditions in some areas of the roadway. Code testified that he prepared a handwritten estimate indicating that this work would cost $7,275, which Crolley admits initialling on October 6. On the copy of this document entered in the record, there appear below Crolley’s initials additional notations delineating $500 for “equipment time” and $7,560 for “extra stone.” Code deposed that these notes were added by appellee’s office staff after Crolley initialled the document.

After the parties became embroiled in a dispute over the quality of appellee’s performance and the liability of appellants for the extra work, appellee filed this action to recover the contract price plus all amounts shown on the above-referenced document for additional work. The trial court granted partial summary judgment against both appellants for the original contract price, $29,345, plus $7,275 for extra work.

1. Appellants contend the trial court erred by awarding appellee $7,275 for extra work because the contract required a written change order and a fact question remains concerning appellants’ authorization of this work and their waiver of the written change order requirement. This enumeration is without merit, as the handwritten proposal prepared by appellee’s representative and initialled by appellant Crolley described the work to be performed and stated a sum certain for the performance of the work, and accordingly satisfied the contract change order requirement.

2. Appellants next maintain the grant of summary judgment to appellee on the contract claim was erroneous because it ignored CFI’s pending counterclaim. We agree with appellants that the decision in Mock v. Canterbury Realty Co., 152 Ga. App. 872 (1) (264 SE2d 489) (1980) controls this issue, but we do not agree that Mock requires reversal of the summary judgment entered on a portion of appellee’s complaint. The Mock court rejected the notion that summary judgment could not be entered in a case with a valid pending counterclaim, holding instead that the trial court may consider the motion for summary judgment on its merits, weigh the equities of the situation, and grant summary judgment to eliminate extraneous issues from the trial, and yet preserve the counterclaim plaintiff’s rights by not issuing final judgment until the counterclaim is concluded. Id. at 878-879. Accordingly, we hold the trial court did not err by holding appellee was entitled to partial summary judgment. See Shedd v. Goldsmith Chevrolet, 178 Ga. App. 554, 556 (2) (343 SE2d 733) (1986).

3. Finally, appellant Crolley contends the trial court erred by finding him individually liable to appellee, arguing that a fact question remains concerning whether he executed the contract in his representative capacity. Both parties have cited cases decided under Article 3, Section 3-403 of the Uniform Commercial Code (OCGA § 11-3-403). However, Article 3 applies only to negotiable instruments, Barton v. Scott Hudgens Realty, 136 Ga. App. 565, 566 (222 SE2d 126) (1975), and the contract at issue does not so qualify. The contract was not a negotiable instrument as defined in OCGA § 11-3-104 (1) because it was not “payable on demand or at a definite time,” id. at (c), but was “payable only upon an act or event uncertain as to time of occurrence,” OCGA § 11-3-109 (2) — i.e., when the work was performed. See Barton, supra. Accordingly, we must apply general common law principles rather than the UCC.

Appellant Crolley contends that “Chota Hills Subdivision” is a trade name of CFI, and thus the presence of this CFI trade name on the face of the contract created a fact question concerning whether the principal, CFI, was disclosed to appellee. “ ‘Where an agent wishes to avoid personal liability, the duty is on him to disclose his agency, and not on the party with whom he deals to discover it’ ... . [Cits.]” Brown-Wright &c. Corp. v. Bagen, 112 Ga. App. 300, 302 (145 SE2d 294) (1965). Whether the “fact of the agency and identity of the principal were disclosed or known to the other contracting party is a question of fact which may be shown by direct or circumstantial evidence. [Cit.]” Fletcher Emerson &c. Co. v. Davis, 134 Ga. App. 699, 700-701 (1) (215 SE2d 725) (1975). On motion for summary judgment, appellee, the movant, had the burden of proving its “lack of knowledge that [Crolley] was acting as an agent [for CFI].” Id. at 701 (3).

While the fact that a trade name was used is a factor to be considered on the issue of disclosure of agency, id. at 701 (1), “ ‘[t]he disclosure of an agency is not complete for the purpose of relieving the agent from personal liability unless it embraces the name of the principal [, and] the use of a trade name is not necessarily a sufficient disclosure of the identity of the principal and the fact of agency so as to protect the agent against personal liability.’ [Cits.]” Brown-Wright, supra. “A trade name is merely a name assumed or used by a person recognized as a legal entity. [Cits.] A judgment against one in an assumed or trade name is a judgment against him as an individual. [Cits.] ‘An undertaking by an individual in a fictitious or trade name is the obligation of the individual.’ [Cit.]” Samples v. Ga. Mut. Ins. Co., 110 Ga. App. 297, 299 (138 SE2d 463) (1964).

We agree with appellee that the contract at issue was not made under any circumstances that would give rise to a fact question concerning disclosure to appellee of an agency relátionship between Crolley and CFI. There is nothing on the face of the contract to suggest that “Chota Hills Subdivision” was a trade name used by CFI rather than by Crolley, the person who signed the contract. Compare Fletcher Emerson, supra (summary judgment for plaintiff not authorized where wording of trade name suggested representative capacity and there was circumstantial evidence of disclosure of principal). Similarly, there is no evidence the alleged trade name at issue was registered by CFI under OCGA § 10-1-490 so as to put appellee on notice of the usage of the name. Since the contract contains neither the name of CFI, the alleged corporate principal, nor any misnomer from which the existence of the corporate principal could be inferred, and the words “Chota Hills Subdivision” do not import the name of any legal or artificial person, it is obvious from the contract itself that the obligation was assumed by Crolley, the person signing the contract in the trade name, and that a person seeing the contract would be put on notice of Crolley’s interest therein but would have no notice of CFI’s interest. Accord National Cash Register Co. v. Sikes, 94 Ga. App. 391, 393 (94 SE2d 782) (1956) (where trade name on document did not import name of any individual or artificial entity, instrument held to be made in individual capacity); compare Hawkins v. Turner, 166 Ga. App. 50 (1) (303 SE2d 164) (1983) (use of misnomer of a corporation, not a fictitious or trade name, raised fact question as to individual liability). Although Crolley deposed that he executed the contract on behalf of CFI, unlike the agent in Fletcher Emerson, supra at 701 (2), Crolley proffered no evidence that he informed appellee of this agency relationship or that he provided to appellee any information from which such agency could be inferred. Accordingly, we hold appellee met its burden of proving its lack of knowledge that Crolley was acting as an agent for CFI.

Nonetheless, we agree with Crolley that the entry of judgment against both him and CFI is impermissible. “[0]ne who deals with an agent who fails to disclose his principal ‘may recover from the agent, where he so elects, or he may proceed against the principal, when made known, should he not elect to proceed against the agent.’ [Cits.]” Brown-Wright, supra at 302. Since CFI has admitted it was the principal and has conceded liability under the contract, appellee must make an election between Crolley and CFI. Accordingly, we vacate the judgment with direction that the trial court enter partial summary judgment against one of the appellants at the election of appellee.

Judgment affirmed in part; vacated and case remanded with direction.

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

Decided October 31, 1991.

Bovis, Kyle & Burch, C. Sam Thomas, for appellants.

Roach, Hasty & Geiger, Thomas A. Roach, Jr., William G. Hasty, Jr., for appellee.


author: Beasley, Judge.

text:
    A91A0864.
    WORLEY v. THE STATE.
    (411 SE2d 760)
   Beasley, Judge.

Following the denial of his motion for new trial, Worley appeals his conviction for the armed robbery of a fast food restaurant in Dalton, OCGA § 16-8-41. He and two co-defendants were charged with using a pistol and a large stick to commit the crime.

1. Approximately six weeks after appellate counsel (who was also trial counsel), filed the brief and enumerations of error, Worley filed a supplemental brief and supplemental enumerations of error pro se. Under the 1983 State Constitution, Art. I, Sec. I, Par. XII, a defendant does not have the right to simultaneous representation by counsel and self. Therefore, the supplemental errors raised will not be considered. Cook v. State, 195 Ga. App. 69, 70 (2) (392 SE2d 556) (1990).

2. Appellant contends that the trial court erred in denying his motion for a mistrial because the jury was permitted to hear evidence of similar transactions to which appellant could not lawfully be connected as the perpetrator, unfairly placing his character in issue in violation of OCGA § 24-2-2. On appeal it is also urged in the brief that there was a deficiency in the similarity of the crimes as well. This latter claim is not addressed because “[^numerations may not be enlarged by brief on appeal to cover issues not contained in the original enumeration. [Cit.]” Newberry v. State, 184 Ga. App. 356, 357 (1) (361 SE2d 499) (1987). The only issue is identity.

The State moved to present evidence of eight other armed robberies of fast food restaurants. Appellant challenges admission of evidence of three of them — one occurring in Cobb County on February 4, 1989, one in Cobb County on March 4, 1989, and one in Florida on April 11, 1989. Testimony describing the transactions was presented to the jury. Compare Stephens v. State, 261 Ga. 467 (405 SE2d 483) (1991). Co-defendant Hufstetler, who was tried with appellant, was granted a mistrial because of lack of evidence that he was a perpetrator in certain of the other transactions.

First, although appellant lodged a continuing objection to introduction of the similar transaction evidence, he, unlike Hufstetler, failed to move for a mistrial at any time contemporaneous with the objected-to testimony. His first request for a mistrial based on the similar transaction evidence came at the close of all the evidence and in conjunction with the renewal of Hufstetler’s motion. In fact, appellant’s counsel stated that he did not know if he had prior to that time moved for a mistrial. “A motion for mistrial not made at the time the testimony objected to is given is not timely and will be considered as waived because of the delay in making it. Peoples v. State, 184 Ga. App. 439 (361 SE2d 848) (1987).” Thaxton v. State, 260 Ga. 141, 143 (5) (390 SE2d 841) (1990).

Even if the motion had been timely, it was properly denied.

The evidence construed in favor of the verdict showed the following. On February 23, 1989, during normal business hours, two Caucasian men dressed in camouflage, with their faces covered by hats used as masks with cut-out eye holes, entered a fast food restaurant in Dalton. One man wielded a silver pistol and instructed everyone to get on the floor. He jumped over the counter separating the public area from the kitchen and demanded to see the manager. The manager was forced at gunpoint into the office and forced to remove money from a floor safe. The robber held out an open black bag and instructed the manager to place the money in it. The robber asked if there was more money and the manager responded that there was some in a file cabinet. The manager opened the file cabinet and surrendered that money also. The manager was then told to get on the floor. During this time, the other man remained in the front, brandishing a large stick and watching the employees and customers. After getting the money, both men left.

Approximately two weeks later, a police officer attempted to make a traffic stop of appellant’s vehicle. Appellant sped away. When the officer caught up, the vehicle was stopped and its occupants had fled. A search of the vehicle revealed two stocking caps, a wooden stick, a duffle bag, a canvas brown bag with straps and containing a stocking mask, camouflage clothing, a black vinyl or leather bag, and a court document addressed to appellant. Appellant told a passenger in the car during the chase that he did not want to be stopped because there were items in the trunk which had been used in some armed robberies.

The restaurant manager identified the camouflage clothing as resembling what the gunman wore, the black bag as the one that the gunman had him put the money in, the stick as the one used, and a mask as one that the gunman wore.

A customer at the time of the robbery was able to see straight into the gunman’s blue eyes through the mask eye holes and testified at trial that appellant had about the same eye color.

Appellant’s co-defendant Roland confessed to being the “stick man” in the robbery and identified appellant as the gunman and Hufstetler as the driver of the getaway vehicle, which was appellant’s car. Roland as the State’s witness described the robbery consistently with what was related by other State’s witnesses. He further gave detailed testimony about a multi-state crime spree from approximately January 1989 to April 1989, when he and Hufstetler lived together and committed a string of armed robberies.

The evidence of appellant as a perpetrator in the three other armed robberies consisted of the following.

(a) February 4, Cobb County. Evidence of this armed robbery first surfaced during the cross and re-direct examination of Roland. Although a co-participant in many of the transactions, Roland was not accused of being a participant in this instance. Roland related that appellant told him about committing the robbery, including that appellant exited the restaurant through the drive-through window. Later an investigating officer testified that an unusual fact of the robbery was that the lone perpetrator entering the restaurant, who was wearing a mask and camouflage fatigues, effected his getaway by diving through the drive-through window.

Inasmuch as Roland was not an alleged accomplice in this robbery, his testimony corroborated by that of the officer provided a valid basis on which the jury could conclude for its limited evidentiary value that appellant was the perpetrator of the transaction being tried. Compare Hill v. State, 236 Ga. 831, 832 (225 SE2d 281) (1976) in which the defendant was identified as a participant in other alleged armed robberies solely by the testimony of one alleged accomplice.

(b) March 4, Cobb County. Co-defendant Roland testified that he, appellant and Hufstetler committed the robbery. However, inasmuch as Roland was an accomplice, the State required more to identify appellant as the perpetrator. See subsection (a) supra. There was more.

The restaurant’s assistant manager testified that two men ran past the drive-through window with one entering the restaurant, slamming down a wooden stick, and giving instructions to everyone. At first the crew thought they knew the men and that it was a joke. The assistant manager felt a gun against his skin and was told by the gunman to go back to the safe. The gunman was wearing an army jacket and a homemade pullover mask with cut-out eye holes. The assistant manager was directed to open the floor safe and put the money in a white cloth bank bag and/or a “black bowling bag.” At trial, he identified the black bag, stick, and masks recovered from appellant’s car as resembling those used in the earlier robbery.

A year or two prior to the March 4 crime, appellant had worked for that restaurant for about three months. When the assistant manager had worked with appellant, he noticed that appellant had an accent. During the robbery, the assistant manager observed that the gunman had a real deep accent. Although the man could not identify appellant as the gunman with certainty, he suspected appellant.

The assistant manager’s testimony sufficiently identified appellant as a perpetrator of the earlier crime.

(c) April 11, Holly Hills, Florida. Roland testified that he and appellant committed the robbery. He, along with appellant and one Walker, went to Daytona, Florida, so that Roland could visit his family. Roland related that he and appellant (Walker was not involved) used as the getaway vehicle a truck they had taken from a man they caught breaking into Roland’s mother’s house.

Walker’s testimony placed appellant and Roland in a nearby Florida location at the time of the armed robbery; Holly Hills was a neighboring community to Daytona. Walker further testified that during the relevant time frame, appellant and Roland left together, were gone for a period of time, and returned with a sum of money they did not have previously.

The restaurant manager’s testimony showed that the robbery occurred in a similar manner to the one on trial. The gun-wielding perpetrator jumped over the counter, asked for the manager, forced him back to the office, made him open the safe, and then told him to lie down. This time the perpetrator was not dressed in camouflage, nor was a black bag or stick used, but these items had been confiscated from appellant’s car prior to April 11.

There was ample circumstantial evidence apart from testimony by accomplice Roland that appellant committed the Florida robbery.

Even if the admission of the three other questioned armed robberies had been error it would have been harmless under the standard in Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976), in light of the unquestioned linkage of appellant to at least three other armed robberies plus the quantity of direct and circumstantial evidence pointing to appellant as the gunman in the armed robbery on trial. See Durden v. State, 169 Ga. App. 777, 778 (1) (315 SE2d 291) (1984).

3. Appellant contends that the trial court erred in denying his motion for a mistrial because of the irregularity and conduct of a juror. Citing principally Evans v. State, 196 Ga. App. 1 (395 SE2d 342) (1990), appellant’s sole complaint is that the court failed to question the remaining jurors as to whether or not they had been affected by anything the subject juror might have related in the jury room or any discussion in the matter in their presence in the courtroom.

During a break in the evidentiary phase of the trial a juror sent the court the following note: “Could you ask [Roland] if he and two others, [Appellant and Hufstetler], went into [another named restaurant] on Walnut Avenue either before, or after the robbery at [the subject fast food restaurant]? Thank you.” The court made counsel aware of the question and Hufstetler’s attorney asked the court to inquire of the jury if anyone had changed his or her mind since voir dire and thought that he or she knew something about the case outside what had been heard in the courtroom. The jury was returned, the court read the note, and inquired about who had sent it.

The juror identified herself and the court asked if, since voir dire, she had come to realize she might know something about the case. The juror responded: “I think so, but I — I tried to check my dates to find out if I was at a certain place at a certain time and haven’t been able to check the date yet. And I’m not even sure I’d be able to really check the date. But, something is just kind of with me.” The court asked the juror her name and if she had discussed her question with the other jurors. The juror responded that she had not. The remaining jurors were removed from the courtroom.

The court asked the juror why she had asked the question. She responded that her only reason was that she had been in this other restaurant one evening and that Worley and Hufstetler looked familiar, i.e., she thought she might have seen them in that restaurant. The juror could not be sure of the date she had been in the restaurant. The court inquired what difference it would make to the juror if in fact the men had been there. The juror responded that if she had seen them in the other restaurant on the day of the armed robbery on trial, it would place the men in Dalton at that time. Extensive questioning continued, with the court repeatedly asking the juror if she could proceed with the case and base her decision solely upon the evidence heard in court. The juror consistently answered in the affirmative. The juror was sent out and the court asked counsel if they had any questions for her. Appellant’s counsel stated that he did and the court returned the juror to the courtroom.

Appellant’s counsel asked the juror if, after hearing what she had at trial and remembering what she had observed in the other restaurant, she believed that the men had been casing the robbed restaurant. The juror answered “no” because she was unsure of the date she might have seen the men. Hufstetler’s counsel asked if the juror would doubt any testimony by his client or Worley that they had not been in Dalton on the day of the armed robbery. The juror indicated she would be open minded in assessing any such testimony. She was again removed from the courtroom.

Counsel for both men contingently moved for a mistrial on the basis of the juror incident in the event the court refused to grant a mistrial based on introduction of the similar transaction evidence. The court reserved ruling, stating that a curative instruction would take care of what little had been said in front of the jury and that it would also reserve decision on whether or not to substitute the alternate juror. Defense counsel made no request that the court question the remaining jurors.

Decided October 21, 1991

Reconsideration denied November 1, 1991

J. Tracy Ward, for appellant.

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

Following the close of the evidence, the court brought the juror back for further questioning. She reiterated that she had not spoken of the situation to the other jurors and that she could and would base her decision solely upon the evidence heard in court. Counsel questioned her no further.

Appellant’s counsel moved for a mistrial “because of the fact of the Court having had a conversation with [the subject juror] regarding her question and the inference that it gives to the other jurors.” The motion was denied, the subject juror remained on the case, and the court in its final charge instructed the jury to disabuse itself of anything concerning the note inasmuch as it had nothing to do with the evidence or decision in the case.

First, the deficient procedure or questioning in regard to the remaining jurors which is now appellant’s sole claim was not raised before the trial court. When a point of alleged error is not brought before the trial court, it presents nothing for review on appeal. White v. State, 174 Ga. App. 699, 701 (3) (331 SE2d 72) (1985).

Moreover, unlike Evans, in which it was apparent that a juror had communicated to her fellow jurors that she knew defendant well enough to influence her decision, here the subject juror consistently maintained that she had not communicated any information whatsoever to her fellow jurors and that she could and would base her decision solely on the evidence presented. Furthermore, the reading of the note and the cursory and vague statements regarding the matter in the jury’s presence did not apprise the remaining jurors of the nature of their colleague’s concern. In fact, it was well into the court’s questioning of the subject juror outside the jury’s presence before the court and counsel understood the significance of her note.

Under such circumstances the record establishes beyond a reasonable doubt that no harm flowed to appellant from the incident. See Evans, supra, citing the standard in Lamons v. State, 255 Ga. 511, 512 (340 SE2d 183) (1986).

Judgment affirmed.

Carley, P. J., and Judge Arnold Shulman concur.


text:
    A91A0878.
    GRANT v. NEWSOME et al.
    (411 SE2d 796)
   Beasley, Judge.

Grant, a state prisoner, instituted the present action against the wardens of two prisons in which he has been incarcerated, as well as the Deputy Commissioner of the Department of Corrections. The court granted summary judgment to defendants and denied plaintiff’s motion for summary judgment. The undisputed facts are as follows.

The counter claimant in a federal suit obtained a $1,000 judgment against Grant. By letter accompanied by an uncertified copy of the judgment, the attorney representing that counterclaimant requested the warden of the prison in which Grant was held to freeze his inmate account and to advise of the procedure for obtaining the funds to pay the judgment. The warden froze the account and notified Grant that this had been done.

Grant complained in an inmate grievance filed pursuant to Board of Corrections Rule 125-2-4-.23 and internal prison rules. When he was transferred to another prison, his inmate account remained frozen, so Grant filed another inmate grievance against the warden of this prison. Each warden denied the relief sought. Grant appealed each denial to the deputy commissioner, who upheld the denial of the first grievance approximately 15 months after the appeal was taken and upheld the denial of the second grievance approximately nine months after that appeal was taken. Grant’s account remained frozen for approximately one year and five months.

After the lifting of the freeze (for undisclosed reasons), Grant instituted this action, which he asserts is a state tort claim under OCGA § 51-10-1. He also complains that his rights to due process and equal protection have been violated under the federal and state constitutions, (Art. I, Sec. I, Pars. I and II of the Ga. Const, of 1983). No development of a claim under the state constitution is made, but the federal claim is couched as one for relief under 42 USC § 1983.

1. We first consider the state tort claim. OCGA § 51-10-1 provides: “The owner of personalty is entitled to its possession. Any deprivation of such possession is a tort for which an action lies.”

This statute embodies the common law action of trover and conversion. See Youngblood v. Duncan, 49 Ga. App. 300 (175 SE 411) (1934); Bromley v. Bromley, 106 Ga. App. 606 (127 SE2d 836) (1962). It authorizes the recovery of damages where a government official, without lawful authority, has temporarily deprived an individual of his or her property. Norred v. Dispain, 119 Ga. App. 29 (166 SE2d 38) (1969); Vaughn v. Glenn, 44 Ga. App. 426 (161 SE 672) (1931). There can be a conversion of specific money as well as chattels. Carter v. Hornsby, 68 Ga. App. 424 (23 SE2d 95) (1942).

A plaintiff in an action for conversion of specific money may recover lost interest. Beaver v. Magid, 56 Ga. App. 272 (1) (192 SE 497) (1937); OCGA § 44-12-151 (2). Punitive damages are also recoverable. Sisk v. Carney, 121 Ga. App. 560, 564 (5) (174 SE2d 456) (1970). By the same reasoning as applied in Sisk, consequential damages, which are generally recoverable in tort actions under OCGA § 51-12-3 (b), can also be recovered in a conversion action. Thus, a cognizable claim was presented.

Under Federal Rule of Civil Procedure 69 (a), execution of a money judgment rendered by a federal district court is to be made in accordance with the practice and procedure of the State in which the district court sits. OCGA § 9-11-69 provides in pertinent part: “Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise.”

A writ of execution upon a money judgment has been defined as formal process issued by a court authorizing the sheriff or other competent officer to seize and sell so much of the judgment debtor’s nonexempt property as is necessary to satisfy the judgment. Black’s Law Dictionary, p. 568 (6th ed. 1990). “A fi. fa. is an execution and an execution is ‘a writ issued to a sheriff, constable, or a marshal authorizing and requiring him to execute a judgment of the court.’ Black’s Law Dictionary, 4th ed. p. 677.” Oxford v. Generator Exchange, 99 Ga. App. 290, 293 (108 SE2d 174) (1959). According to the fifth edition, it is “[a] writ of execution commanding the sheriff to levy and make the amount of a judgment from the goods and chattels of the judgment debtor.”

Another method of enforcing a money judgment is through postjudgment garnishment proceedings. OCGA § 18-4-60 et seq. In Gaston v. Jackson Nat. Bank, 45 Ga. App. 106 (2) (163 SE 265) (1932), this Court, distinguishing Connolly v. Thurber, 92 Ga. 651 (1) (18 SE 1004) (1893), held that money belonging to an inmate and placed for safekeeping in the possession of the warden is not exempt from the process of garnishment.

OCGA §§ 18-4-40 through 18-4-48 establish procedures for garnishing debts owed by the garnishee to the judgment debtor, OCGA § 18-4-20 (b), as well as property, money, or effects of the debtor in the possession or control of the garnishee. OCGA § 18-4-20 (c).

None of these procedures was followed in this case, and we find no authority for the defendants to freeze the account. OCGA § 17-14-13, authorizing the seizure of money from a prisoner’s inmate account for payment of court-ordered restitution as a result of damage to state property by the inmate, and OCGA § 9-10-14 (c), authorizing prison officials to remit money from an inmate account in order to pay court costs in an action by the inmate against a state or local governmental agency or officer, are not applicable here. It necessarily follows that Grant was tortiously denied the use and possession of his property.

Summary judgment therefore was improperly granted to defendants on the tort claim, and the trial court erred in denying Grant’s motion for summary judgment as to liability but not as to damages, which are unliquidated.

2. Grant does not have a Section 1983 claim, however. “[T]he initial inquiry must focus on whether the two essential elements to a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived [plaintiff] of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Parratt v. Taylor, 451 U. S. 527, 535 (101 SC 1908, 68 LE2d 420) (1981). In conducting our inquiry, the analysis given in Parratt is applied.

As in Parratt, there is little question that defendants were acting under color of state law when they froze and held his inmate account upon receipt of the letter from the judgment creditor’s attorney and when they refused relief in the two grievance procedures. Plaintiff was in their custody, or at least, as to some, his money was in their control, and they were acting pursuant to their official capacities as employees of the state corrections department.

The harder question is whether a federal constitutional deprivation is involved. Plaintiff asserts but makes no showing that tenets of equal protection are brought into place. See Terrell v. Shope, 687 FSupp. 579, 581 (3) (N.D. Ga. 1988). Respecting the Due Process Clause of the Fourteenth Amendment simpliciter, there is, similar to Parratt, supra at 536, satisfaction of the three prerequisites of a valid due process claim: The defendants “acted under color of state law”; the money “falls within the definition of property”; and the alleged loss, here deliberately rather than negligently caused as in Parratt, “amounted to a deprivation.” This does not end the inquiry, however, because these three elements do not establish a violation of the Fourteenth Amendment, which forbids deprivations “without due process of law.” Parratt, supra at 537, citing Baker v. McCollan, 443 U. S. 137, 145 (99 SC 2689, 61 LE2d 433) (1979).

What must be examined is “whether the tort remedies which the State . . . provides as a means of redress for property deprivations satisfy the requirements of procedural due process.” Parratt, supra at 537. In this case the post-taking grievance procedures afforded by the corrections department did not suffice. But there is an adequate state remedy to redress plaintiff’s property damage, by way of OCGA §§ 51-10-1 and 9-11-69. The latter governs the process for enforcement of a judgment; the former is actually invoked by plaintiff currently and authorizes a suit for wrongful deprivation of possession, which would occur if money is held for a judgment, outside of lawful procedure.

Decided November 1, 1991.

Eugene Grant, Jr., pro se.

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Terry L. Long, Assistant Attorney General, for appellees.

The Eleventh Circuit has recognized that OCGA § 51-10-1 provides an adequate post-deprivation remedy for seizure and retention of personal property without due process of law. Byrd v. Stewart, 811 F2d 554, 555 (n. 1) (11th Cir. 1987).

As in Parratt, the alleged deprivation here “did not occur as the result of some established state procedure.” Parratt, supra at 543. Instead, it occurred in derogation of such procedure, as shown in Division 1. Nor is the nature of plaintiff’s federal claim one that involves substantive due process, as did the claim in Gilmer v. City of Atlanta, 774 F2d 1495 (11th Cir. 1985) (en banc) cert. den., 476 U. S. 1115 (106 SC 1979, 90 LE2d 654) (1986). See also Terrell, supra.

Summary judgment was proper on the federal claim.

Judgment affirmed in part and reversed in part.

Carley, P. J., and Judge Arnold Shulman concur.

       This is confirmed by the state attorney general’s representation of them in this case throughout.


text:
    A91A1080, A91A1081.
    TIGNER v. SHEARSON-LEHMAN HUTTON, INC. et al. (two cases).
    (411 SE2d 800)
   Beasley, Judge.

As to Case No. A91A1081, we granted the application for interlocutory review by which plaintiff Tigner sought reversal of an order compelling arbitration, staying the case pending arbitration and denying the request for punitive damages. Case No. A91A1080 is the direct appeal from the same order.

Tigner had brought an action against Shearson and its agents for mismanagement of his brokerage account resulting in the loss of over $1,000,000. Shearson moved to compel arbitration under the terms of the brokerage account and to stay the proceedings pending arbitration. Shearson relied upon three client agreements which Tigner had signed, each providing for arbitration of disputes or controversies between the parties. Tigner opposed the motion to compel because he contended the arbitration provision was fraudulently represented to him. Shearson asserted that an attack on the entire contract, rather than specifically the arbitration agreement, based on fraud or breach of fiduciary duty would not forestall arbitration. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395, 404 (87 SC 1801, 18 LE2d 1270) (1967); Merrill Lynch &c. v. Wilbanks, 162 Ga. App. 154 (290 SE2d 122) (1982).

Tigner had sustained injuries as a result of a 1982 incident for which he received $1,380,000 in damages. This money was invested with Shearson and lost. Tigner contended that he was unable to read and because of the 1982 injuries he suffered mental deficiencies and periodic loss of memory. Therefore he was unable to manage his affairs and specifically the money he entrusted to Shearson. Shearson was informed of this and accepted the account with the understanding that Tigner needed complete guidance in the management and handling of his money. By affidavit Tigner showed that he was misinformed as to the contents of the three agreements he signed and did not know they contained provisions for arbitration.

The trial court, recognizing that this claim falls within the purview of the Federal Arbitration Act, 9 USC § 1 et seq., and that all doubts should be resolved in favor of arbitration (ADC Constr. Co. v. McDaniel Grading, 177 Ga. App. 223, 226 (338 SE2d 733) (1985)), considered the grounds advocated by Tigner as to why arbitration should be denied. He found that Tigner and Shearson had not entered into a fiduciary relationship; that Tigner’s mental deficiencies did not excuse his failure to ascertain the contents of the contracts he signed; that “fraud in the factum” (Tigner’s assertion that the subject matter of the representations made by Shearson’s agent were totally different from the subject matter contained in the written client agreements) was not present. Thus, the court found no basis to preclude arbitration. See generally Rodriguez-de Quijas v. Shearson/ American Express, 490 U. S. 477 (109 SC 2023, 104 LE2d 675) (1989); Shearson/American Express v. McMahon, 482 U. S. 220 (107 SC 2332, 96 LE2d 185) (1987).

The initial issue involves our standard of review vis-a-vis the trial court’s ruling, because a question exists regarding the authority of the trial court to consider the factual issues raised rather than permitting a jury to determine them. Shearson contends that the applicable test is whether the trial court’s findings were “clearly erroneous.” See Eassa Properties v. Shearson Lehman Bros., 851 F2d 1301, 1303 (11th Cir. 1988).

Title 9 of the United States Code contains several provisions pertaining to the right to assert arbitration. 9 USC § 2 states that a provision for arbitration shall be valid and enforceable “save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 USC § 3 imposes upon trial courts, both federal and state, the duty to determine if the issue involved in a suit or proceeding is referable to arbitration. 9 USC § 4 provides for a party to petition a federal district court for an order directing arbitration and if an issue is raised in that regard to proceed summarily to trial. It also recognizes that absent demand, the trial court shall determine the matter, but upon demand a jury trial must be had. 9 USC § 6 states that otherwise any application for arbitration “shall be made and heard in the manner provided by law for the making and hearing of motions, except as otherwise herein expressly provided.”

Our Civil Practice Act mandates a jury trial in all cases at law except when by written stipulation a party consents to trial by the court sitting without a jury. OCGA § 9-11-39; Raintree Farms v. Stripping Center, Ltd., 166 Ga. App. 848 (1) (305 SE2d 660) (1983). If section 4 is read in conjunction with OCGA § 9-11-39 a jury trial was the proper vehicle to decide the existence of a valid contract of arbitration. Three Valleys Mun. Water Dist. v. E. F. Hutton & Co., 925 F2d 1136, 1141 (9th Cir. 1991); Par-Knit Mills v. Stockbridge Fabrics Co., Ltd., 636 F2d 51, 54 (3rd Cir. 1980). However, the language of section 4, in particular, refers to actions brought in federal court to obtain arbitration, not to motions for arbitration filed in response to actions in state or federal courts. See United Nuclear Corp. v. General Atomic Co., 597 P2d 290, 308 (NM 1979). See also World Brilliance Corp. v. Bethlehem Steel Corp., 342 F2d 362, 365 (1965).

Nevertheless, the tenor of the Arbitration Act focuses on the necessity for a jury determination of contested issues. See National Fidelity Life Ins. Co. v. Lane, 197 Ga. App. 423 (398 SE2d 775) (1990).

Section 2 recognizes that the grounds for declaring a contract invalid apply to arbitration provisions. When considered with Georgia code provisions for a pretrial judgment on the merits through the summary judgment process, involving the elimination of all genuine issues of material fact, the standard becomes whether the trial court was correct as a matter of law. See Par-Knit Mills, supra.

The question then is whether the trial court, having undertaken to consider the factual issues presented, correctly determined whether there was a fiduciary relationship between the parties.

Where one person sustains towards another a relation of trust and confidence, his silence when he should speak or his failure to disclose what he ought to disclose constitutes fraud in law just as do actual affirmative false representations. Perkins v. First Nat. Bank, 221 Ga. 82, 95 (143 SE2d 474) (1965); Brown v. Brown, 209 Ga. 620, 621 (6) (75 SE2d 13) (1953). Tigner made a showing that Shearson was aware of his problems and undertook an obligation to manage in his financial interest. Kienel v. Lanier, 190 Ga. App. 201, 203 (378 SE2d 359) (1989) (cited by the trial court to reach a contrary conclusion), is authority for the proposition that a confidential relationship may exist between businessmen, depending on the facts. “The showing of a relationship in fact which justifies the reposing of confidence by one party in another is all the law requires.” Cochran v. Murrah, 235 Ga. 304, 307 (219 SE2d 421) (1975). OCGA § 23-2-58 defines a confidential relationship as one “where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith.” One of the areas where the law finds a confidential or fiduciary relationship is in the case of principal and agent. Stewart v. Boykin, 165 Ga. App. 868 (303 SE2d 50) (1983). Here the proof points directly to the fact that Shearson exercised a “controlling influence” over Tigner and that he relied upon the relationship. Van Den Berg v. Northside Realty Assoc., 172 Ga. App. 591, 592 (323 SE2d 839) (1984). Compare Yee v. Barnwell, 193 Ga. App. 820, 822 (1) (389 SE2d 392) (1989). Because of his disabilities of which Shearson was aware, a fiduciary relationship was created.

Decided November 1, 1991.

Fortson & White, Marion Smith II, John A. Howard, Claude P. Czaja, Johnson & Ward, William C. Lanham, Clark H. McGehee, for appellant.

Peterson, Dillard, Young, Self & Asselin, Peter J. Anderson, David C. Jensen, J. Stuart Teague, Jr., for appellees.

Because of the controlling factor of a fiduciary relation as to whether there was fraud, Case No. A91A1081 must be reversed with direction that the trial court make its determination based upon the fact that such relationship existed. The appeal in Case No. A91A1080 is dismissed.

Judgment reversed with direction in Case No. A91A1081. Appeal dismissed in Case No. A91A1080.

Carley, P. J., and Judge Arnold Shulman concur.


text:
    A91A1157.
    MARTIN v. THE STATE.
    (411 SE2d 910)
   Beasley, Judge.

Defendant appeals his convictions of possession of a controlled substance, OCGA § 16-13-30, and theft by taking a motor vehicle, OCGA § 16-8-2. On appeal he enumerates as error the trial court’s denial of his motion to suppress and further contends that the evidence was insufficient to sustain his conviction of possession of marijuana. With regard to the theft by taking conviction, which is not connected, he urges error in the admission of certain testimony referring to what he contends was similar transaction evidence.

1. (a) Defendant’s motion to suppress was first heard in November 1987 and granted. A few days later, the State filed a motion for rehearing, to present further evidence. A hearing was held, the original order was vacated, and the motion to suppress was denied.

At trial, the following evidence was introduced. At 1:00 a.m. on July 3, 1987, a deputy sheriff stopped defendant’s vehicle after it twice left the road. A license check revealed defendant was driving with a suspended license and he was arrested. When defendant refused a DUI test after being administered a field test, the arrest was compounded for driving under the influence. Defendant advised the deputy that the vehicle was rented. The officer, who was unable to remove the vehicle from its location, decided that it was unsafe to leave it there because it would cause a road hazard the next morning since it would be blocking the driveway of a bank.

Defendant asked if someone could come get the vehicle but was unable to give the deputy a definite time when this could be accomplished, so the officer called for a wrecker. The deputy then began an inventory search of the vehicle and was aided by two police officers who arrived as back-ups. The officers found marijuana in a cooler in the back seat of the car and in a drink holder in the front seat and found marijuana cigarette butts in the ashtray.

The original grant of the motion to suppress was predicated upon the failure to introduce evidence of an inventory policy on the part of the sheriff’s department. The State moved for a rehearing to permit the introduction of evidence which would establish that such a policy was in existence at the time of the search. Because no transcript of the hearing is provided the record is silent as to what transpired. Defendant now argues that because the arresting officer did not know of such policy the fact that such policy was in existence would not validate the search.

Reconsideration of a ruling on a motion to suppress is permissible. Chastain v. State, 158 Ga. App. 654 (281 SE2d 627) (1981). Accord Martinez-Rodriguez v. State, 195 Ga. App. 491, 493 (4) (393 SE2d 748) (1990).

Whether there was a department inventory policy, and whether the officer knew it, if there was one, is not determinative of the issue although the existence or nonexistence of a policy would be relevant. “[IJnventory searches have been upheld because they serve three legitimate interests: (1) protection of the property while in custody; (2) protection of the police from potential dangers; and (3) protection of the police against claims of lost or stolen property.” Strobhert v. State, 165 Ga. App. 515 (301 SE2d 681) (1983). “Justification of such a search, however, is premised upon the validity of the impoundment of the vehicle.” Id. “Impoundment of a vehicle is valid only if there is some necessity for the police to take charge of the property. See South Dakota v. Opperman, 428 U. S. 364 (96 SC 3092, 49 LE2d 1000) (1976).” Whisnant v. State, 185 Ga. App. 51, 52 (2), 53 (363 SE2d 341) (1987). “Where the impoundment is unreasonable the resulting inventory search is invalid. [Cit.]” State v. King, 191 Ga. App. 706, 707 (382 SE2d 613) (1989).

“ ‘[A] police seizure and inventory is not dependent for its validity upon the absolute necessity for the police to take charge of property to preserve it. They are permitted to take charge of property under broader circumstances than that.’ Mooney v. State, 243 Ga. 373, 375 (254 SE2d 337) (1979). Although absolute necessity is not required, however, a seizure must still be reasonable under the circumstances of a case, and the rationale for inventory searches must inhere in the decision to impound. [Cits.]” Strobhert, supra at 515. See State v. Ludvicek, 147 Ga. App. 784, 785 (250 SE2d 503) (1978).

The circumstances here demonstrate the action of the officers in impounding and inventorying the vehicle was reasonable when measured against the Fourth Amendment’s interest in protecting the individual’s right to privacy. See Gooden v. State, 196 Ga. App. 295 (395 SE2d 634) (1990); Duvall v. State, 194 Ga. App. 420 (390 SE2d 647) (1990); Jones v. State, 187 Ga. App. 421 (370 SE2d 784) (1988); State v. Gilchrist, 174 Ga. App. 499 (1) (330 SE2d 430) (1985). There was no error in vacating the original order nor in thereafter denying the motion to suppress.

(b) Defendant contends that the evidence did not support the verdict because of the principle that mere presence in the vicinity of contraband, without more, does not establish possession. See Ridgeway v. State, 187 Ga. App. 381, 382 (370 SE2d 216) (1988). There was more than presence. “Possession can be proven by circumstantial as well as direct evidence.” Norton v. State, 195 Ga. App. 737, 738 (395 SE2d 34) (1990). Whether the circumstantial evidence is sufficient to exclude every reasonable hypothesis save that of defendant’s guilt is a question for the jury unless the verdict is insupportable as a matter of law. Brewer v. State, 156 Ga. App. 468 (2) (274 SE2d 817) (1980).

There was no evidence that anyone else had equal access to the car and the items were found in places in close proximity to and within the control of the driver. Mendez v. State, 185 Ga. App. 1 (363 SE2d 262) (1987); Fears v. State, 169 Ga. App. 172, 173 (1) (312 SE2d 174) (1983). The evidence was sufficient for a rational trier of fact to find defendant guilty beyond a reasonable doubt.

2. The State sought to introduce evidence about a shotgun found in the stolen vehicle when defendant was arrested for theft of the vehide. (This was not the vehicle which defendant was driving on an occasion two years earlier, in which the marijuana was found.) Defendant objected on the ground that he was not notified ten days before trial as required by USCR 31.1 and 31.3 regarding evidence of a similar transaction. The court agreed but ruled that limited evidence would be permitted, as a circumstance of the arrest, about finding the shotgun in the stolen vehicle and that it was previously in the possession of a third party about a day and a half before the arrest. The court instructed the State to restrict its proof as to the circumstances and not to show that the weapon was stolen.

During direct examination of the party formerly in possession of the shotgun, the prosecuting attorney asked: “when was the gun no longer in your possession?” The witness responded: “The first time I noticed it was missing was on the morning of October the 25th.” The court denied defendant’s motion to strike the testimony that the gun was “missing,” which motion presumedly was made on the same ground raised earlier, that he had not been notified in advance pursuant to USCR 31.1 and 31.3. Later, defendant moved for mistrial on the ground that the testimony exceeded the “parameters” of the trial court’s directions. This motion was denied because the court did not find a violation of its order.

On appeal defendant asserts that the testimony put his character in evidence. This basis was not raised in the lower court, Clark v. State, 180 Ga. App. 280, 282 (2) (348 SE2d 916) (1986), and the sole issue for our consideration is whether the testimony violated the limits of the court’s instructions. During argument, the court stated concerning the extent of the State’s evidence that it could “put the gun in the store and show when it got gone, but not the fact that it was stolen.” The prosecution was also permitted to ask, “when was the last time . . . that gun was in the store.”

The question posed complied with the court’s instructions. Despite the choice of the word “missing,” the response also came within the guidelines imposed by the court’s ruling. “Missing” is the substantial equivalent of when the shotgun was no longer there. Webster’s Unabridged Dictionary defines “missing” as “absent from the place where it was expected to be found; lost; wanting; not present when called or looked for.” The failure to strike the testimony or grant a mistrial was not error on the ground raised and preserved.

Judgments affirmed.

Carley, P. J., and Judge Arnold Shulman concur.

Decided November 1, 1991.

Lynwood D. Jordan, Jr., for appellant.

Garry T. Moss, District Attorney, T. Russell McClelland III, Gregory A. Hicks, Assistant District Attorneys, for appellee.

       Appellant was convicted of the burglary in which the weapon was taken. Martin v. State, 198 Ga. App. 488 (402 SE2d 95) (1991).


text:
    A91A1299.
    TURNER v. REGAL INSURANCE COMPANY.
    (411 SE2d 802)
   Beasley, Judge.

Turner filed a claim against his automobile insurer for failure to have the fire-damaged car properly repaired. The trial court granted the insurer’s motion for summary judgment. The question is whether, as a matter of law, the undisputed facts show that defendant insurer complied with its obligations under the policy by paying a portion of the repair bill.

Turner owned a 1978 Mercury Cougar which was insured by Georgia American Insurance Company, now Regal Insurance Company. The car was damaged by fire. Turner instructed the towing company to take the car to Montezuma Motor Company, the nearest Ford dealer.

He disputed that he authorized repairs and testified that after the car was towed, he asked the insurance agent “about fixing my car on what they were going to do and he told me the Ford place was fixing it.” He testified that the repairs were made at the behest of the insurance company. On the other hand, the president and shop manager of Montezuma stated in affidavits that they had repaired the car at Turner’s request, that he had instructed them to do only a “patch” job so that he could “pocket” remaining insurance proceeds, but that they had made the repairs necessary for the safe operation of the vehicle.

The total cost of repairs billed by Montezuma was $1,107.82. After subtracting the insurance policy deductible of $250 as well as depreciation and/or repairs not attributable to the fire, the insurer issued a draft in the amount of $731.02 payable to Turner and Citizens Bank (a lienholder).

Turner testified in his deposition that when he went to Montezuma to pick up the car, the repairs which had been made were incomplete and faulty, and he refused to negotiate the draft or accept delivery of the car. He testified that when he returned a second time, needed repairs still had not been made. Turner neither paid the balance of the repair bill nor made further demand upon the insurer. Eventually, the insurer issued a draft in the amount of $723.01, payable to Montezuma and Citizens Bank, and excluding Turner as a payee. Montezuma retained possession of the car and eventually sold it to pay for repair costs and storage charges.

Its response to the action was that it satisfied its contractual obligation for repairs by issuing the draft to Montezuma for that amount of the repair bill for which it was liable.

The insurance policy provides that the insurer’s liability for loss shall not exceed the actual cash value of the automobile, what it would cost to repair or replace the automobile with a deduction for depreciation, or the applicable limit of liability under the policy. The policy also states that the insurer “may pay for the loss in money or may repair or replace the automobile.”

On the evidence, a jury would be authorized to find that the insurer breached its contractual obligations by undertaking to repair the fire damage to the automobile and then not effectuating the necessary and complete repairs. See Carter v. Allstate Ins. Co., 197 Ga. App. 738, 741 (2) (399 SE2d 500) (1990).

A jury might instead find in favor of the insurer if it found that the policyholder selected the dealership to repair the damage to the car and that the insurer did not exercise control over the performance, so that after paying for the repairs, the insurer was not contractually liable for negligence by the dealership in making the repairs. See Caruso v. Aetna Cas. &c. Co., 181 Ga. App. 829, 830 (354 SE2d 18) (1987).

“The burden is upon the movant [for summary judgment] to affirmatively show that there is no genuine issue and that he is entitled to a summary judgment. The party opposing the motion for a summary judgment is to be given the benefit of all reasonable doubts in determining whether a genuine issue exists. The evidence must be construed most favorably to the opposing party, and the trial court must give him the benefit of all favorable inferences that may be drawn from the evidence. [Cits.]” Peachtree Bottle Shop v. Bessemer Securities Corp., 134 Ga. App. 729, 730-731 (215 SE2d 692) (1975). However, “a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case. Rather, that party must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991).

Since there were at least the above-noted genuine issues of material fact, and defendant did not bear its summary judgment burden, the grant of summary judgment to insurer was unauthorized.

Judgment reversed.

Carley, P. J., and Judge Arnold Shulman concur.

Decided November 1, 1991.

G. Leonard Liggin, for appellant.

Daniel Bullard IV, for appellee.


author: Pope, Judge.

text:
    A91A1390.
    COLEY v. THE STATE.
    (411 SE2d 804)
   Pope, Judge.

Appellant/defendant Bennie Lee Coley appeals his conviction for aggravated assault. Defendant was convicted of shooting his former brother-in-law following an argument between his former brother-in-law and his sister. Although there is some dispute regarding the severity of physical violence associated with the altercation between the victim and defendant’s sister, the victim testified that he slapped the defendant’s sister several times during the dispute. The shooting occurred at least 45 minutes after the victim’s altercation with defendant’s sister ended and outside the presence of defendant’s sister.

At trial, defendant’s sole defense was defense of another. Defendant sought to introduce evidence concerning prior acts of violence between the victim and defendant’s sister to show that he reasonably believed that the use of deadly force was necessary against the victim to prohibit the victim from killing his sister or harming her further.

1. Defendant contends that the trial court erred in refusing to allow evidence of specific acts of violence by the victim against defendant’s sister. OCGA § 16-3-21 (a) defines when the use of force in the defense of self or others is justified. Two elements must be present before the use of deadly force is justified under that statute: (1) the danger to either the actor or a third person must be imminent; and (2) the actor must reasonably believe that such force is necessary to prevent death or great bodily injury to himself or a third person. Although there was evidence that the victim had threatened to harm the defendant’s sister further, the undisputed evidence showed that at the time of the shooting the defendant’s sister was not in imminent danger. The victim had left the defendant’s sister’s home before the defendant learned that the victim had battered his sister. After his sister told him what happened, the defendant obtained a gun and began searching for the victim. The shooting occurred at least 45 minutes after the victim had left defendant’s sister and approximately 50 to 75 yards from defendant’s sister’s home. Thus, the defendant failed to make a prima facie case of defense of a third person. As the Georgia Supreme Court held in Chapman v. State, 259 Ga. 706, 707 (2) (386 SE2d 129) (1989), absent a prima facie case of self-defense or defense of a third person, the victim’s “character may be shown through evidence of his general reputation in the community, [but] specific bad acts [will not be] admissible. [Cit.]” Accordingly, the trial court did not err by ruling that evidence of acts of violence between the victim and defendant’s sister were inadmissible.

Decided November 1, 1991.

Hugh J. McCullough, for appellant.

Dupont K. Cheney, District Attorney, J. Stephen Archer, Assistant District Attorney, for appellee.

2. For the reasons set forth above, the trial court did not err in refusing to allow the police chief to testify concerning prior acts of violence between the victim and defendant’s sister as defendant contends.

Judgment affirmed.

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


text:
    A91A0726.
    HAMM v. WILLIS et al.
    (411 SE2d 771)
   Sognier, Chief Judge.

George Hamm, a prison inmate, filed suit under 42 USC § 1983 against Gerald Willis and other prison officials and employees alleging that his loss of certain items of personal property was caused by the defendants in violation of his constitutional rights. A jury found in favor of the defendants. The trial court accepted the jury’s verdict and then pursuant to OCGA § 9-15-14 entered judgment against Hamm for the defendants’ attorney fees and expenses of litigation. Hamm appeals.

1. Appellant contends the evidence was not sufficient to support the jury’s verdict against him and enumerates five other errors regarding what transpired at trial. However, the record reflects that appellant did not request that a transcript be prepared and transmitted with the record on appeal (for the cost of which appellant would be responsible, see Jackson v. Young, 134 Ga. App. 368 (214 SE2d 380) (1975)). Accordingly, in the absence of either a transcript or an agreed statement of the events at trial, see OCGA § 5-6-41 (f), we must presume the trial judge ruled correctly on all issues presented and that the evidence was sufficient to support the judgment. See generally Triple A Distrib. v. Carrier Reps, USA, 193 Ga. App. 348, 349 (1) (387 SE2d 624) (1989); Attwell v. Heritage Bank Mt. Pleasant, 161 Ga. App. 193, 194 (291 SE2d 28) (1982).

2. No showing was made that the denial of appellant’s motion seeking appointed counsel would result in fundamental unfairness impinging upon appellant’s due process rights or that the circumstances of the case made the presence of counsel necessary. Brown v. Diaz, 184 Ga. App. 409, 411 (4) (361 SE2d 490) (1987). Thus, although appellant alleges the trial court’s denial of his motion rendered him bereft of effective assistance of counsel, we cannot say the trial court abused its discretion. See id.

3. (a) The record reflects that appellant named Gary White as a defendant in his original complaint. While White was listed in the summons that was issued, the record shows he was never served with process. There being no service upon White and the record not indicating that White waived service, it follows that he was not required to answer appellant’s complaint, OCGA § 9-11-12 (a), and since “[a] default judgment based upon other than legal service is a nullity, [cit.],” Collins v. Peacock, 147 Ga. App. 424, 427 (2) (249 SE2d 142) (1978), the trial court did not err by refusing to enter default judgment against White.

(b) Appellant also contends the trial court erred by failing to enter default judgment against David Evans, Commissioner of the Department of Corrections. The record reveals that appellant moved to amend his complaint, which the trial court denied on the basis that because no pretrial order had been entered, under OCGA § 9-11-15 (a) appellant could amend his complaint as a matter of course without the court’s permission. Appellant then filed on June 7, 1988 what was denominated an amended complaint, in which he sought to add Evans as a party defendant. It does not appear that appellant ever moved the court to join Evans as a person needed for the just adjudication of the case as provided by OCGA § 9-11-19 (a). See Smith v. Foster, 230 Ga. 207, 208-209 (1) (196 SE2d 431) (1973). No summons was issued and Evans was never served. Appellant moved for entry of default judgment against Evans on August 1, 1988, which the trial court denied in January 1989. We need not address the trial court’s misplaced reliance upon OCGA § 9-11-15 (a) and Building Assoc. v. Crider, 141 Ga. App. 825 (1) (234 SE2d 666) (1977) (holding that a defendant who is already a party to a suit need not file responsive pleadings to an amended complaint), because, as we held in Division 3 (a), supra, default judgment cannot be entered against a defendant who has not been served with process.

However, the record next reflects that on June 30, 1989, Evans and the other appellees (not including White) filed a motion to dismiss. Although a motion to dismiss is the proper vehicle to seek resolution of the issue of lack of service or insufficient service of process, see Terrell v. Porter, 189 Ga. App. 778, 779 (2) (377 SE2d 540) (1989), Evans did not challenge the lack of service in the motion to dismiss but instead addressed the merits of appellant’s claim, requiring consideration of evidence outside the pleadings. The trial court thus properly treated the motion to dismiss as a motion for summary judgment, OCGA § 9-11-12 (b), and partially granted the motion, disposing of all matters except those which were the subject of the jury trial sub judice. (We note that no exception was taken to the trial court’s ruling on appellees’ motion.)

In Bigley v. Lawrence, 149 Ga. App. 249 (253 SE2d 870) (1979), the appellees filed suit in October 1976 but service was never perfected. A year later appellants filed a motion for summary judgment and the trial court entered default judgment against appellants. This court held that when a defendant files a motion for summary judgment on the merits of the case without having raised an issue as to sufficiency of service of process, he has made a general appearance and thereby waived any alleged defect in the service. Id. at 250; see also Roberts v. Bienert, 183 Ga. App. 751, 753 (2) (360 SE2d 25) (1987). We then went on to hold that “a defendant has 30 days to file an answer after he waives service by making an appearance in the case because the time jurisdiction is waived is the equivalent of the time service of process is made in a normal case. In the present case, appellants were never served and their motion for summary judgment was filed within the time for filing defensive pleadings although they never did file an answer to the complaint. Therefore, it was error for the trial court to enter a default judgment while a motion was pending before the court which was filed within the time to plead. [Cit.]” Bigley, supra at 250. It thus appears that Evans was required within 30 days of making his general appearance in the case (the date of filing of the motion to dismiss/summary judgment) to file his answer, id., and that his motion would not serve in lieu of an answer unless the grant of the motion terminated appellant’s suit against Evans. See Cato Oil &c. Co. v. Lewis, 250 Ga. 24, 25-26 (2) (295 SE2d 527) (1982); Mock v. Copeland, 160 Ga. App. 876 (288 SE2d 591) (1982). In the instant case, the trial court’s order on Evans’ motion did not obviate the requirement for a timely filed answer because it did not completely dispose of the underlying action. It follows that Evans was in default on the issues remaining in appellant’s complaint 31 days after Evans made his general appearance in this case.

Nonetheless, even though the action was in default as to Evans, the record reveals that appellant did not raise the issue of default once Evans had made a general appearance, nor did appellant move for entry of default judgment prior to trial, during trial, nor after trial, until this appeal. “The statutory right to judgment following default is not an indefeasible right, but may or may not be asserted ([cits.]), and may be waived by a plaintiff by proceeding with the action without taking advantage of his right to judgment in a timely and proper manner. [Cits.] Such waiver need not be expressed, but may be implied in law by conduct or circumstances inconsistent with the right to judgment. [Cits.] Acts which have been held to constitute waiver include: . . . joining issue upon the pleadings ([cit.]), going to trial on the merits ([cit.]), or announcing ready for trial and introducing evidence on the merits ([Cit.]). . . . [T]hese indicia of waiver are present in the instant case.” Ewing v. Johnston, 175 Ga. App. 760, 764-765 (1) (334 SE2d 703) (1985).

Therefore, we find under the facts of this case that appellant waived his right to default judgment, and the trial court did not err by failing to enter default judgment, sua sponte. Id. at 765 (1).

4. Appellant contends the trial court abused its discretion by not allowing him to take discovery. The record reflects that appellees filed answers to appellant’s interrogatories; that the trial court denied appellant’s motion for leave to take the depositions of appellees because leave of court was not required and informed appellant that he was free to utilize standard discovery procedures; and that appellant’s motion to compel production of documents was first denied because it was premature and, despite the trial court’s reference to the proper procedures set forth in the Uniform Superior Court Rules and OCGA § 9-11-34, the second denial of appellant’s motion was due to appellant’s improper utilization of federal court discovery procedures. There is no evidence that appellant was prevented by the trial court from conducting discovery. Brown, supra at 409-410 (2).

5. Regarding appellant’s enumeration in which he contends the trial court erred by not ruling on his motions in a timely fashion, even assuming, arguendo, that the record supports that claim, appellant has failed to demonstrate how he was harmed by the alleged delay. Accordingly, this enumeration presents no reversible error. See generally Mitchell v. Southern Gen. Ins. Co., 194 Ga. App. 218, 220 (4) (390 SE2d 79) (1990).

6. Appellant contends in two enumerations that the trial court erred by awarding appellees attorney fees and expenses of litigation (“court costs”) under OCGA § 9-15-14 after having denied appellees’ motion converted by the court into one for summary judgment. The judgment entered by the trial court on appellees’ OCGA § 9-15-14 motion reflects that based on the evidence at trial, the court concluded that appellant’s action lacked substantial justification and that there was a complete absence of any justiciable issue of law and fact that it could not be reasonably believed that a court would accept the asserted claim. The court also found it evident that appellant’s lawsuit was brought for purposes of harassment of appellees. Thus, the trial court made the requisite findings. Felker v. Fenlason, 201 Ga. App. 207, 208 (4) (410 SE2d 326) (1991).

“Although the trial court’s order makes the requisite findings, the issue yet remains as to whether the evidence authorized the trial court to make those findings. . . . ‘(A) trial court’s award to a party whose motion for summary judgment was denied must be vacated except in unusual cases where the trial judge could not, at the summary judgment stage, foresee facts authorizing the grant of attorney fees.’ . . . Porter v. Felker, [261 Ga. 421 (405 SE2d 31) (1991)].” Id. at 209 (5). A review of the record demonstrates no evidence that the instant suit is such an “unusual case.” Accordingly, we must reverse the award of attorney fees. Id.

Decided October 23, 1991

Reconsideration denied November 4, 1991.

George Hamm, pro se.

Michael J. Bowers, Attorney General, John C. Jones, Senior Assistant Attorney General, for appellee.

Judgment affirmed in part and reversed in part.

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


author: Andrews, Judge.

text:
    A91A0755.
    WILLIS v. THE STATE.
    (411 SE2d 714)
   Andrews, Judge.

Willis appeals from a jury conviction of theft by shoplifting and aggravated assault.

Viewing the evidence in the light most favorable to the verdict, Ridgeway v. State, 187 Ga. App. 381 (370 SE2d 216) (1988), the facts established that at 8:15 p.m. on December 29, 1989, Willis accompanied by his friend and co-defendant here, Colson, entered a store. While Colson looked at the cordless phone display, Willis attempted to engage the assistance of a nearby clerk. After his apparent attempt at diverting the clerk’s attention failed, Willis stood blocking the view of a store surveillance camera, while Colson placed a cordless phone under the large dress she was wearing and held it between her legs.

As shown in the surveillance videotape played at trial, after placing the phone under her dress, Colson and Willis began to leave the store and a store security officer stopped them at the store’s exit. The security guard, who had observed the theft, grabbed Colson by the arm in an attempt to restrain her. Willis pulled a knife out of his pocket and threatened to cut the guard if he did not release Colson. A chase to the parking lot ensued, during which the phone fell out of Colson’s dress. Willis and Colson ran to a nearby car and drove off.

1. In his first enumeration of error, Willis, who is a young black man, claims that the trial court erred by failing to require the prosecutor to give a non-discriminatory reason for using eight of his ten peremptory jury challenges against young black men.

At the outset, we note that in Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), the United States Supreme Court held that the discriminatory use of peremptory challenges to exclude members of the defendant’s race was a denial of equal protection. Thus, in inquiring into the trial court’s alleged failure to comply with Batson here, we inquire only as to the alleged racial discrimination in the State’s use of its peremptory challenges.

From the record before us, it appears that out of the jury pool of 47 citizens, 17 of the citizens were black and 30 were white. The prosecution struck eight blacks from the pool. The jury selected was comprised of six blacks and six whites, and the alternate juror was black. Evaluating these numbers in percentage terms, the jury panel was 36.2 percent black and the jury selected was 50 percent black.

With these figures before us, the question becomes whether this statistical data raises the inference necessary to dictate a prima facie case of discrimination. Since the record here indicates that after the jury selection had ended, the percentage of blacks on the jury had increased from the number of blacks on the panel, Willis failed to make a prima facie showing of discrimination. See Williams v. State, 258 Ga. 80, 81 (3) (365 SE2d 408) (1988); Aldridge v. State, 258 Ga. 75 (365 SE2d 111) (1988). Since there was no prima facie case of discrimination, the trial court did not err in failing to require that the prosecutor provide an explanation for such strikes, see Stewart v. State, 190 Ga. App. 162 (1) (378 SE2d 387) (1989).

Willis argues here that he has set forth a prima facie case of discrimination since the percentage of strikes the prosecution exercised against blacks was greater than the percentage of blacks in the community. We find this enumeration without merit without addressing the substance of this argument, since the argument was not raised in the court below and no evidence was presented on this point. See Aldridge, supra; MacDonald v. MacDonald, 156 Ga. App. 565 (275 SE2d 142) (1980).

2. In his second enumeration of error, Willis claims that the trial court erred by not severing the trial of co-defendant Colson, who chose not to testify at the trial. Willis argues that had a separate trial been provided, Colson would have testified and that her testimony would have been exculpatory. From our review of the record, we find no evidence as to what Colson’s testimony would have been, nor is there sufficient evidence that she would have testified in a separate trial.

“In order to be entitled to a severance on the ground urged, the movant must demonstrate: (1) a bona fide need for the testimony; (2) the substance of the testimony; (3) its exculpatory nature and effect; and (4) that the co-defendant will in fact testify if the cases are severed. (Cits.)” Habersham v. State, 190 Ga. App. 211, 212 (378 SE2d 489) (1989).

Decided September 3, 1991

Reconsideration denied November 4, 1991

Sinnreich & Francisco, John R. Francisco, for appellant.

Willis B. Sparks III, District Attorney, Edward C. Bresee, Assistant District Attorney, for appellee.

Here, Willis presented no evidence regarding the content of Col-son’s allegedly exculpatory testimony. He simply concluded that Col-son would testify and that her testimony would benefit him. Therefore, Willis’ showing was insufficient on all four prongs of the test outlined above, and the trial court’s denial of his motion was proper.

3. Finally, Willis argues that the evidence was insufficient to support his conviction under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We have reviewed the evidence, and find it legally sufficient and accordingly find this enumeration without merit.

Judgment affirmed.

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