text:
    A99A0436.
    DEPARTMENT OF TRANSPORTATION v. MENDEL.
    (517 SE2d 365)
   Johnson, Chief Judge.

This suit arises from a condemnation action in which the Department of Transportation took square footage from and acquired a permanent slope easement on commercial property in order to widen and raise the elevation of State Road 120. After the road project was completed, the property was left approximately eight to ten feet lower from road grade than it was before the taking. In some locations, the property was left 16 feet below road grade.

In 1994, the DOT filed an action in rem to acquire fee simple title to a portion of the subject property for the right-of-way and to acquire a permanent slope easement for maintenance of the right-of-way. The Russell Corporation, the original condemnee, owned the property at the time the action was filed. On the date of the taking, the Russell Corporation had filed for bankruptcy, and a bankruptcy trustee had been appointed. After the taking, the trustee filed an appeal. More than a year after the taking, Herbert A. Mendel offered to purchase the remainder of the property for $187,500. He subsequently raised his offer and purchased the remainder for $220,000. In addition to the remainder, Mendel received an assignment of the trustee’s pending claim in this case. The purchase was approved by the bankruptcy court, and Mendel was substituted as the sole condemnee.

The case proceeded to trial, with the parties contesting the value of the property on the date of taking. The jury returned a verdict for $165,000 in favor of Mendel, and judgment was entered on the verdict. The DOT filed a motion for new trial. The trial court denied the motion, and the DOT appeals. For the following reasons, we affirm.

1. Before trial, the DOT filed a motion to limit Mendel’s testimony regarding value to that amount which Mendel allegedly lost; that is, to the amount he paid for the assignment of rights from the trustee. The DOT contended the amount paid for the assignment was $32,500, that being the difference between the final purchase price of $220,000, which allegedly included the assignment, and Mendel’s original purchase offer of $187,500. On appeal the DOT asserts that the trial court erred by denying its motion in limine. We disagree.

Rights of action are assignable in condemnation cases. See OCGA § 44-12-24; Henson v. Dept. of Transp., 160 Ga. App. 521, 522 (1) (287 SE2d 299) (1981). The assignment was valid, and Mendel stands in the shoes of the original condemnee, the Russell Corporation.

The DOT argues, inter alia, that unless Mendel is limited in his recovery to the amount he paid for the assignment, he will receive an unauthorized windfall. We find that Mendel did not obtain a windfall. Unlike the situation in Durden v. Reynolds, 264 Ga. 34 (440 SE2d 170) (1994), which did not involve the assignment of a condemnation claim, Mendel was not asserting his own independent cause of action, but litigating the cause of action arising from the taking of property from the original condemnee. The case of Merritt v. Dept. of Transp., 147 Ga. App. 316, 320 (4) (248 SE2d 689) (1978), rev’d on other grounds, 243 Ga. 52 (252 SE2d 508) (1979), is also distinguishable. In Merritt, there was an approved guardian sale of the property just three months prior to the taking, and this sale was found to be relevant to a determination of the property’s value at the time of the taking.

In this case, the DOT is attempting to limit Mendel’s recovery to the amount which he allegedly paid for his assignment without regard to the fair market value of the property. The only relevant inquiry is the fair market value of the property at the time of the taking. Dept. of Transp. v. Petkas, 189 Ga. App. 633, 638 (5) (377 SE2d 166) (1988). The amount of money which Mendel may have paid for the assignment is not relevant to this determination. The real issue is what is just and fair compensation for the taking. Just compensation must be based on the value of the rights taken, without regard to the owner’s personal relationship to the property taken. Dept. of Transp. v. Metts, 208 Ga. App. 401, 402 (2) (430 SE2d 622) (1993). The trial court did not abuse its discretion in denying the DOT’s motion in limine. See Dept. of Transp. v. Petkas, supra; see also Dept. of Transp. v. Wright, 169 Ga. App. 332, 335 (1) (312 SE2d 824) (1983).

2. During trial the DOT attempted to introduce evidence of the subsequent sale of the remainder to Mendel. The DOT argued that although its expert had formed an opinion as to fair market value before the sale of the remainder and had not since changed his opinion, the sale was admissible as an “additional comparable” and relevant to bolster the expert’s opinion. The trial court ruled that the evidence was inadmissible because the price paid by Mendel was for both the remainder and the assignment, and there was no way to ascertain the exact amount paid for the remainder. The trial court noted that the DOT’s analysis placed no value on the assignment and the assignment was, in fact, valuable.

Where the value of property is in dispute, evidence of sales of comparable property that is not too remote in point of time generally is admissible using one of the following methods: First, an expert witness, in explaining the basis of his or her opinion as to the value of the property, may refer to other comparable sales of property which the expert took into account and which influenced the expert’s opinion. Second, after a suitable foundation has been laid to show the similarity of the property, the fact and amount of sales of such property may be directly introduced in evidence without requiring the testimony of an expert as a prerequisite to admissibility. In the latter instance, exact similarity is generally not attainable and any dissimilarities in the land or its transfer are matters which go to the weight of the evidence and not to its admissibility. See generally Hollywood Baptist Church &c. v. State Hwy. Dept., 114 Ga. App. 98, 100 (4) (150 SE2d 271) (1966); Pursley’s Ga. Eminent Domain (1993 ed.), § 7-6. Contracts for the sale of the remainder of the property after taking have been “treated as sales for the purpose of comparative valuation by [a party’s] expert witness.” Jordan v. Dept. of Transp., 178 Ga. App. 133, 134 (2) (342 SE2d 482) (1986). This case, however, differs significantly from Jordan, as the total price paid by Mendel included both the undisclosed purchase price of the remainder and the undisclosed price paid for the assignment of rights. Thus, Jordan, supra, is not controlling in this case.

Inherent in the trial court’s ruling was its determination that the $220,000 price paid by Mendel did not accurately reflect the actual purchase price of the remainder, the jury would be left to speculate as to that amount, and the potential for prejudice in admitting misleading evidence for jury consideration substantially outweighed the probative value of the evidence. The admission of evidence lies in the sound discretion of the trial court. See Gully v. Glover, 190 Ga. App. 238, 242 (4) (378 SE2d 411) (1989). In this case, the jury would have been misled if they had been informed that Mendel had paid $220,000 to purchase the remainder; and if the parties had been allowed to extensively litigate the collateral issue of the price paid for the assignment, a fair risk exists that the jury would have become confused as to the primary issue under consideration. A trial court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. See generally Hicks v. State, 256 Ga. 715, 720-721 (13) (352 SE2d 762) (1987). These matters are appropriately within the sound discretion of the trial court. Id. at 721. The DOT has failed to establish that the trial court abused its discretion in excluding this evidence. Thus, the DOT’s claim of error is unpersuasive.

3. The DOT contends that the trial court erred in allowing Mendel’s expert to testify as to consequential damages because the expert did not use a proper “before and after” analysis to determine the value of the remainder. See generally Dept. of Transp. v. Gunnels, 175 Ga. App. 632 (1) (334 SE2d 197) (1985), rev’d on other grounds, 255 Ga. 495 (340 SE2d 12) (1986). The DOT also contends that the trial court erred in allowing Mendel to introduce evidence of cost of cure as a separate element of damages.

(a) The DOT argues that Mendel’s expert failed to use a genuine market approach in determining the value of the remainder just after the taking because he did not consider after-taking com-parables. We disagree.

The expert repeatedly testified that he used a market approach and that his analysis was of a type typically used by appraisers and developers in this type of circumstance. He also testified that he looked at comparable sales both before and after the taking but did not make any adjustments, based on comparable sales, to the after-taking market value because there were no comparables in the neighborhood that were similarly situated at lower than road grade. The expert explained that he then considered cost of cure as a factor in his analysis, because that is what a developer or appraiser would consider in order to value this type of property. As this was a partial taking, the expert could consider the cost to cure at the time of the taking as a factor in determining the amount of recoverable consequential damages to the remainder. Metts, supra at 403 (4); compare Dept. of Transp. v. Scott, 224 Ga. App. 231, 233 (3) (480 SE2d 272), rev’d on other grounds, 268 Ga. 579 (492 SE2d 216) (1997). The expert was not required to make an adjustment for comparables in the “after” portion of his analysis. “Testimony of an expert can be considered even though he did not base his opinion entirely on comparable transactions.” 5 Nichols on Eminent Domain (3rd ed.), § 23.07 [1], p. 23-81.

(b) During the course of his testimony, the expert testified that it would cost $131,000 to raise the property to an acceptable grade level. The expert did not err by assigning a specific monetary value to the cost to cure. See Scott, supra. Before using cost to cure as a meaningful factor, an expert would first have to ascertain the cost of the cure. Thus, the issue is not whether a specific monetary amount is assigned as the cost to cure but whether that evidence is improperly used to claim cost to cure as a separate element of damage, rather than to properly explain how cost to cure was used as a permissible factor in determining consequential damages. See Dept. of Transp. v. Adams, 193 Ga. App. 866, 867-868 (2) (389 SE2d 343) (1989). Viewing the evidence in a light most favorable to support the verdict, we find that Mendel’s expert properly used cost to cure as a factor in determining the amount of recoverable consequential damages. See Scott, supra.

4. The DOT contends that the trial court erred by allowing Mendel’s expert to introduce evidence of marketing damage as a separate element of damage. During trial, Mendel’s expert testified that it would take an additional year to cure the damage done to the remainder by the taking and that a developer or purchaser of the remainder would consider this factor, and the cost associated with it, in determining how much he would be willing to pay for the property. The expert stated that this factor is relevant in determining the value of the remainder after the taking. The record establishes that the expert used time to cure only as a factor in determining consequential damages and not as a separate element of damage. The trial court did not err as enumerated by the DOT.

The DOT argues that this evidence would also be inadmissible because it constitutes a claim of damage for temporary inconvenience due to construction of the project. Review of the record, as cited by the parties, reveals that contrary to the DOT’s contention, it did not timely object to this evidence on this specific ground. Thus, this issue is not preserved on appeal. Nodvin v. West, 197 Ga. App. 92, 95 (3) (a) (397 SE2d 581) (1990).

5. The DOT claims that the trial court erred in admitting a photograph showing temporary inconvenience due to construction. The photograph was offered only to show the difference in elevation between the road and the remainder of the property. The picture depicted the completed grading of the slope and accurately depicted the final condition of the area shown in the photograph, except that grass had not been planted on the slope. Before the photograph was shown to the jury, the trial court instructed that: “what [the photograph] depicts is the slope, the relationship to the road. It does not depict the final condition of the property. It depicts the slope and the condition of the road, and that is the sole purpose for which it’s admitted.”

The trial court did not abuse its discretion in admitting the photograph. See Dept. of Transp. v. Ballard, 208 Ga. App. 474, 475 (3) (430 SE2d 848) (1993). There was an adequate evidentiary basis to authorize a jury to find that the conditions of the slope depicted in the photograph were continuous and permanent incidents of the public improvement of the state highway system. See Dept. of Transp. v. Millen, 222 Ga. App. 519, 521 (2) (474 SE2d 687) (1996); Ballard, supra.

Even assuming that error had occurred in admitting this photograph, which showed a slope without grass, in view of the limiting instruction given by the trial court, we are satisfied that such error would have been harmless.

Decided May 5,1999.

Thurbert E. Baker, Attorney General, R. O. Lerer, Senior Assistant Attorney General, Weiner, Yancey, Dempsey & Diggs, Thomas C. Dempsey, Bryan P. Hilton, Jennifer A. Riddick, for appellant.

Crecelius & Crecelius, Bill W. Crecelius, Jr., A. Joseph Nardone, Jr., for appellee.

6. The DOT asserts the trial court erred by giving the jury the following quotient verdict charge:

The law requires that your verdict be unanimous, that is, agreed to by all after the amount is determined. This would make it unlawful for you to agree in advance to be bound by the figure to be calculated by each of you writing down your own figure, then adding it up and dividing by twelve. If you wish to use this method to arrive at an amount for discussion without binding yourself in advance to accept the result, you may do so, and you are not prohibited from accepting the result and adopting it as your verdict after the amount is determined.

We disagree with the DOT’S assertion.

In the case of Dept. of Transp. v. Katz, 169 Ga. App. 310, 313 (3) (312 SE2d 635) (1983), a quotient verdict charge was found to constitute reversible error because the charge expressly informed the jury that a vote of no damages could be proposed and considered in determining the average amount of damages to be considered. Because a condemnee must be awarded payment of just and adequate compensation for property taken and consequential damages, if any, to the property remaining after the taking, a charge authorizing a vote of no damages is not adjusted to the evidence in a condemnation case. Id. at 314. Unlike Katz, the charge in this case did not inform the jury that they could cast a vote of no damages in arriving at a quotient sum for consideration. Therefore, the charge did not constitute reversible error. Compare Clayton County Water Auth. v. Harbin, 192 Ga. App. 257, 259 (5) (384 SE2d 453) (1989).

Judgment affirmed.

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

       As a result of this action, the DOT acquired a permanent slope easement of 5,405.7 square feet and took approximately 32.5 square feet of the subject property.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A99A0150.
    A99A0151.
    GURR v. THE STATE. MILLER v. THE STATE.
    (516 SE2d 553)
   Judge Harold R. Banke.

Concluding that Dimple Gurr and her brother Vanderbilt Miller jointly possessed 248.5 grams of cocaine found in her backyard, a jury found each guilty of trafficking in cocaine (OCGA § 16-13-31 (a)). The jury also found Miller guilty of tampering with evidence (OCGA § 16-10-94). Challenged on appeal are (i) the sufficiency of the evidence, (ii) the admission of similar transactions, (iii) the State’s use of a witness’ testimony that contradicted his pre-trial affidavit, (iv) the dismissal of a juror who was contacted regarding the case during an overnight break in the deliberations, and (v) the effectiveness of trial counsel.

1. Viewing the evidence favorable to the verdict, could any rational trier of fact have found the essential elements of the crimes beyond a reasonable doubt? See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(a) Gurr’s trafficking in cocaine. Any person knowingly in possession of 28 grams or more of cocaine is guilty of trafficking in cocaine. OCGA § 16-13-31 (a) (1). When contraband is found on residential property, an inference may arise that the occupying owner or tenant is the knowing possessor of such. Shreve v. State, 172 Ga. App. 190, 191 (322 SE2d 362) (1984). Gurr and her husband were the only occupants of the residence where an officer witnessed an informant enter with $150 in cash and return with a corresponding amount of cocaine. Officers returned the next day with a search warrant and found 248.5 grams of cocaine in a dirty green latex kitchen glove buried in a hole in the fenced-in backyard. Located behind a shed near a doghouse, the hole was under the fence with access only from the backyard of Gurr. Similar dirty gloves were found in the shed and master bedroom of the residence. Vantonio Cook testified that when he had previously sold cocaine for Gurr and Miller, he observed Gurr retrieve the cocaine from a hole in the backyard near a doghouse.

The evidence sufficed to sustain Gurr’s conviction of trafficking. More than mere occupancy of the residence was shown, rendering inapplicable the “equal access” doctrine. Barfield v. State, 160 Ga. App. 228, 230 (3) (286 SE2d 516) (1981). Moreover, for the equal access rule to rebut the inference of possession of contraband, affirmative evidence must show that a person other than the defendant or a member of his immediate household had equal access to the specific location where the contraband was found. Cochran v. State, 190 Ga. App. 884, 885-886 (1) (380 SE2d 319) (1989); Mobley v. State, 190 Ga. App. 771, 772 (1) (380 SE2d 290) (1989). No such evidence was shown, for the only other possible person, the housekeeper, told police he was hired simply to clean the house, not maintain the backyard.

(b) Miller’s trafficking in cocaine. The evidence also sustained a trafficking conviction against Miller. Cook testified that when he had previously sold drugs for Miller, he had gone to Gurr’s residence to obtain the drugs, which drugs he witnessed were kept in a hole in the backyard. He testified that to differentiate between ownership of the cocaine, cocaine belonging to Vanderbilt Miller was marked with a “V.” Over 238 grams of the cocaine found in the green glove were in a paper sack marked with a “V.” Cook had previously seen Miller with cocaine, and Miller later threatened and pressured Cook to change his testimony about Miller’s role in the scheme.

(c) Miller’s tampering with evidence. OCGA § 16-10-94 defines tampering with evidence as knowingly altering physical evidence with the intent to obstruct the prosecution of a crime. On the day of the search, Miller told Gurr’s attorney cocaine had been found in a hole along the back fence of the Gurr residence. The attorney asked him to take photographs of the hole. The following morning Miller brought a set of photographs to the attorney that were presented as evidence at the probable cause hearing that day. These photos showed a new hole on the neighbor’s side of the fence that led to the drug cache. The photos taken by the police of the neighbor’s side of the fence the day before showed no such hole, but showed only an access hole from Gurr’s side of the fence.

The evidence sustained the conviction. A jury could have inferred that when Miller went to take the photographs, he dug a new hole on the neighbor’s side of the fence to give the impression that the neighbor had equal access to the cache. See Parrish v. State, 182 Ga. App. 247, 250 (5) (355 SE2d 682) (1987). That Gurr’s dogs dug holes on Gurr’s side of the fence has nothing to do with holes dug from the neighbor’s side. Moreover, the evidence showed the digger of the new hole pulled leaves and vines back, cleared the area out, moved the fresh dirt, and dug a new hole directly connecting to the drug cache, which likely would not have been the work of an animal.

2. Gurr and Miller claim the court erred in admitting the similar transaction testimony because the State failed to make the affirmative showings required by Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). But defendants failed to object to the testimony at trial, thereby waiving this issue. McClarity v. State, 234 Ga. App. 348, 349-350 (2) (506 SE2d 392) (1998).

3. Gurr and Miller contend they were denied their right to a fair trial because the State’s evidence included Cook’s testimony and hearsay statements. They point to Cook’s contradicting pre-trial affidavits: in the first Cook denied that Gurr and Miller had ever been involved in drugs and in the other (and at trial) he swore that both had trafficked in drugs. He explained that he signed the first affidavit because Miller threatened him. Citing OCGA § 24-9-85 (b), they argue that Cook’s false swearing required the jury to disregard his uncorroborated testimony entirely.

But OCGA § 24-9-85 (b) requires that the false swearing be wilful. Evidence that Cook gave in to coercive threats allowed the jury to find he did not act wilfully, but involuntarily. Montgomery v. State, 224 Ga. 845, 848 (1) (165 SE2d 145) (1968); Johnson v. State, 188 Ga. App. 499, 501 (4) (373 SE2d 284) (1988).

Defendants’ arguments regarding hearsay statements are waived because they did not object to the statements at trial. Sears v. State, 268 Ga. 759, 765 (13) (493 SE2d 180) (1997).

4. Gurr and Miller claim the court erred in dismissing a juror who had been contacted by his former student during the overnight break in the deliberations. During the abbreviated conversation, the student commented negatively on the court proceedings.

Based on the conduct of the audience in the courtroom during the trial, the judge was particularly concerned that an effort would be made to contact the jurors. He gave a specific warning to the jurors before they left for their overnight break that if anyone tried to contact a juror, that juror should inform the court, and the court would then excuse that juror. When the juror told the court the next morning of the contact, the court replaced the juror with an alternate.

Darden v. State, 212 Ga. App. 345, 347 (4) (441 SE2d 816) (1994), held:

Decided April 20, 1999

Reconsideration denied May 6, 1999 — Cert. applied for.

Tony L. Axam, for appellants.

Charles H. Weston, District Attorney, Kimberly S. Schwartz, Dorothy A. Vinson, Assistant District Attorneys, for appellee.

Under OCGA § 15-12-172, the trial court has discretion to discharge a juror and replace him or her with an alternate at any time, and we will not reverse as long as the court’s exercise of discretion has a sound legal basis. [Cits.]

Replacing jurors who are contacted by persons interested in the case is not an abuse of discretion, for such preserves the integrity of the judicial process. Miller v. State, 261 Ga. 679, 680 (6) (410 SE2d 101) (1991); Worthy v. State, 223 Ga. App. 612, 613 (1) (478 SE2d 421) (1996).

5. To prevail on their ineffective assistance of counsel claim, Gurr and Miller were required to show that counsel’s performances were deficient and that these deficient performances prejudiced their defenses. Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).

They contend their two attorneys failed to adequately prepare for trial by failing to interview various potential witnesses. One such witness was Clarence Clark, who was interviewed. Both attorneys, experienced in criminal defense, testified that (i) they extensively prepared, (ii) all material witnesses were interviewed, and (iii) the decision not to call witnesses was strategic and based on discussions with their clients. See Johnson v. State, 214 Ga. App. 77, 79 (1) (447 SE2d 74) (1994). “Declining to present evidence (other than the defendant’s own testimony) so as to preserve the final word in closing argument is a well-recognized trial tactic.” Sewell v. State, 229 Ga. App. 685, 689 (1) (c) (494 SE2d 512) (1997). Because evidence supported a finding of effective assistance, the court’s denial of a new trial was not clearly erroneous. Id. at 687 (1).

Judgment affirmed.


text:
    A99A0347.
    KING v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA.
    (516 SE2d 581)
   Judge Harold R. Banke.

This is the second appearance of this case before this court. See King v. Bd. of Regents &c., 215 Ga. App. 570 (451 SE2d 482) (1994) (“King F). Only facts pertinent to the present appeal will be repeated.

Michael King, an attorney, sued the Board of Regents of the University System of Georgia pro se based on his unsuccessful tenure as a student at Georgia State University’s College of Law. Based on difficulties in scheduling depositions, the court on September 8, 1993 ordered King to sit for his deposition within 30 days. Despite a properly-noticed deposition for the afternoon of September 27,1993, King announced he would not sit for his deposition at that time. The Board moved for sanctions, and he countered by moving for a protective order shortly before the scheduled deposition. He further notified the Board he would not sit for any deposition until the court ruled on his motion for a protective order.

In December 1993 the court held a hearing on the Board’s motion for sanctions and King’s motion for protective order. The court first denied the motion for protective order as lacking any credible legal or factual,basis, and then dismissed King’s complaint for his wilful refusal to cooperate with discovery. King I reversed, holding the dismissal had to be set aside for failing to notify King of the hearing, as required by OCGA § 9-11-6 (d). 215 Ga. App. at 571.

On remand, the court re-scheduled the hearing and the Board served a timely written notice on King. Once again King did not attend, and the court adopted its December order with the additional finding that King had received proper notice of the rescheduled hearing. King appeals. Held:

1. King first contends he was not notified of the re-scheduled hearing. This contention is specious, as the record plainly reflects otherwise.

2. Citing Dismuke v. Dismuke, 195 Ga. App. 613, 615 (3) (394 SE2d 371) (1990), and Corey v. Renard, 151 Ga. App. 584 (260 SE2d 538) (1979), King contends that because his motion for protective order was pending, the court was without authority to sanction his refusal to appear for his deposition. This contention is likewise specious, for the court denied the motion for protective order before it ruled on the motion for sanctions.

3. King’s final enumeration of error is that the Board did not show he wilfully refused to be deposed. Refusal to be deposed is grounds for dismissal under OCGA § 9-11-37 (d). Washington v. South Ga. Med. Ctr., 221 Ga. App. 640, 641 (1) (472 SE2d 328) (1996). Before imposing this sanction, the court must find the refusal was wilful. Schrembs v. Atlanta Classic Cars, 261 Ga. 182 (402 SE2d 723) (1991); Frady v. Irvin, 245 Ga. 307, 308 (2) (264 SE2d 866) (1980).

In an eight-page order, the court detailed the evidence of King’s wilfulness and repeated abuse of the discovery process. We will not repeat that evidence in detail here. Despite a court order requiring his deposition within 30 days, King refused to sit for a properly-noticed deposition on a day on which he was unquestionably available, and then announced in direct contravention of the court order that he would not sit for a deposition until a newly-filed motion for protective order was determined. “ ‘The trial court is the trier of fact and its finding of wilfulness from the evidence presented will not be reversed where there is any evidence to support it.’ [Cit.]” Oliff v. Smith, 214 Ga. App. 358, 359 (447 SE2d 707) (1994).

Decided April 22, 1999

Reconsideration denied May 6, 1999 — Cert applied for.

Michael B. King, pro se.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, for appellee.

The court did not err in dismissing King’s complaint.

Judgment affirmed.

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


author: Andrews, Judge.

text:
    A99A0408.
    LEWIS v. SMITH.
    (517 SE2d 538)
   Andrews, Judge.

Deborah Lewis sued Don Smith alleging that she was injured in an automobile accident which occurred when Smith negligently lost control of his automobile, crossed over into the oncoming lane of traffic, and struck her automobile. In granting summary judgment in favor of Smith, the trial court concluded that the accident occurred without any negligence on the part of Smith when Smith lost control of the automobile after he suddenly and unforeseeably lost consciousness. On appeal, Lewis contends the trial court erred because there is evidence in the record showing Smith was negligent in that, (a) his loss of consciousness was foreseeable, and (b) he could have taken action to avoid the accident when he began to feel like he was going to lose consciousness.

Under appropriate circumstances, it may be established as a matter of law that an act of God was the sole proximate cause of an automobile accident, thus entitling a defendant to summary judgment on a claim that his alleged negligent operation of an automobile caused an accident.

[T]he term . . . ‘[a]ct of God’ means an accident produced by physical causes which are irresistible or inevitable, such as lightning, storms, perils of the sea, earthquakes, inundations, sudden death, or illness. This expression excludes all idea of human agency.

OCGA § 1-3-3 (3). It follows that, where the driver of an automobile suffers an unforeseeable illness which causes him to suddenly lose consciousness and control of the automobile, the driver’s loss of control is not negligent, and he is not liable for any damages caused by the out-of-control automobile. Freeman v. Martin, 116 Ga. App. 237, 239 (156 SE2d 511) (1967); compare Langston v. Allen, 268 Ga. 733, 734-735 (493 SE2d 401) (1997). Rather, a sudden and unforeseeable loss of consciousness by a driver is a complete defense to a claim that the driver negligently lost control of the automobile and proximately caused an ensuing accident. Id. It also follows that, to establish an act of God defense based on illness producing a loss of consciousness, the driver must show that the loss of consciousness produced the accident without any contributing negligence on the part of the driver. Jackson v. Co-Op Cab Co., 102 Ga. App. 688, 691 (117 SE2d 627) (1960); Battey v. Savannah Transit Auth., 123 Ga. App. 685 (182 SE2d 129) (1971). Accordingly, loss of consciousness by a driver would not be a complete defense if by the exercise of ordinary care it was foreseeable to the driver that he might lose consciousness while driving. Id. And even if loss of consciousness was not foreseeable, it would still not be a complete defense if the evidence showed the loss of consciousness occurred, not suddenly, but in a manner that would have allowed a reasonable driver to take some action to avoid the ensuing accident.

Moreover, an act of God is an affirmative defense upon which the defendant carries the burden of proof at trial and on summary judgment. Alabama Great Southern R. Co. v. McBryar, 65 Ga. App. 153, 155-156 (15 SE2d 563) (1941); Eidson v. Mathews, 120 Ga. App. 711, 713-714 (172 SE2d 144) (1969) (physical precedent); Metro. Publishers Rep. v. Arnsdorff, 153 Ga. App. 877, 878 (267 SE2d 260) (1980). Accordingly, a defendant moving for summary judgment on this basis may not rely upon an absence of evidence in the record disproving the affirmative defense but must carry the burden of affirmatively proving the defense. Hodge v. SADA Enterprises, 217 Ga. App. 688, 691 (458 SE2d 876) (1995).

The evidence showed that Lewis was driving on a five-lane highway (two lanes of traffic in each direction divided by a turning lane) in the outside lane of traffic. Lewis testified she saw an automobile approaching from the opposite direction that had crossed over the center turning lane, was in the inside lane of traffic on her side of the road, and was coming head-on at her automobile without swerving. The approaching automobile struck a glancing blow to the rear of Lewis’ automobile causing her to spin out of control and collide with another automobile. The automobile which crossed the center line and struck Lewis was driven by Smith. Smith testified that, as he was driving his automobile, he felt a sudden rush to his head and does not remember anything else until he was in an ambulance after the accident. Smith was admitted to the hospital with an initial diagnosis that he lost consciousness as a result of a syncopal episode of undetermined origin. However, after Smith was examined and tests were conducted, Smith’s physician stated that he was unable to determine any cause for a loss of consciousness.

Lewis does not take issue on appeal with Smith’s contention that he lost consciousness as he was driving. In fact, Lewis’ testimony that Smith’s automobile came directly at her without swerving across two lanes of the highway tends to support Smith’s claim that he was unconscious at the time. On appeal, Lewis does not contend that Smith was conscious when the accident occurred, but argues that the record shows Smith negligently contributed to the accident because he should have foreseen he would lose consciousness while driving and that he could have taken action to avoid the accident before he lost consciousness, but he failed to do so.

Lewis contends that Smith’s loss of consciousness was foreseeable because, at the time of the accident, he was taking the prescription drug, Hytrin, which carried a warning that it could cause dizziness, faintness, or light-headedness. The physician who prescribed Hytrin for Smith testified that, although there was a low possibility Hytrin could have been a cause of Smith’s loss of consciousness, it was probable that Hytrin did not contribute to his loss of consciousness. The physician testified that there was nothing in Smith’s medical history that indicated Smith had previously suffered or might suffer a loss of consciousness. The record also showed that, approximately two hours before the accident, Smith had an appointment with another physician he had been previously referred to for evaluation of an intestinal problem unrelated to his Hytrin prescription. During that appointment, Smith’s blood pressure and pulse were taken and both appeared normal. The physician who examined Smith during that appointment testified that no medical procedures were performed on or medications given to Smith, and that nothing in his examination of Smith gave any indication that Smith might suffer a blackout. Smith testified that he had never before suffered a loss of consciousness.

Lewis also contends that Smith’s deposition testimony shows he had an opportunity to take action to avoid the accident after he first felt faint, but before he lost consciousness, and he negligently failed to do so. During his deposition, Smith was confronted with a notation in his physician’s medical records about the accident which indicated that Smith told his physician that, as he was driving, he felt like he was going to pass out and felt like he should get his car off the road and then he saw a white light and did not remember anything after that. Although Smith could not recall whether that was the exact manner in which he described the accident to his physician, he conceded that, when he felt the sudden rush to his head, he might have “tried or thought something.” He further explained, however, in the deposition errata sheet authorized by OCGA § 9-11-30 (e) that, “When I felt this 1st [sic] sensation of a sudden rush to my head my first thought was to get off the road, but before I had time to react to it everything turned very white and I do not remember anything else until I was in the ambulance.” Young v. YMCA of Metro. Atlanta, 204 Ga. App. 224, 225 (419 SE2d 97) (1992). Smith also testified that he could not recall the passage of any seconds or trying to maneuver his automobile between the time he first felt the sudden rush to his head and his loss of memory.

Accordingly, the issue presented is whether in moving for summary judgment Smith established a prima facie case in support of his affirmative defense by showing that his loss of consciousness caused the accident without any contributing negligence on his part. Kelley v. Piggly Wiggly Southern, 230 Ga. App. 508 (496 SE2d 732) (1997). In other words, the issue is whether Smith showed that his loss of consciousness was unforeseeable and that it happened so suddenly that he could not reasonably have taken any action to avoid the accident. If Smith established a prima facie case in support of his affirmative defense, the burden of production would shift to Lewis to produce evidence by way of affidavit or otherwise setting forth specific facts rebutting the affirmative defense and showing that there was a genuine issue for trial. Smith v. Steinemann Dev. Co., 230 Ga. App. 635, 637 (497 SE2d 255) (1998); Garrett v. NationsBank, N.A., 228 Ga. App. 114, 116 (491 SE2d 158) (1997).

As to Lewis’ contention that Smith’s use of the prescription drug, Hytrin, made it foreseeable to him that he would lose consciousness while driving, and that he was negligent in continuing to. drive, this contention presented a medical question beyond the ken of a layman, therefore its resolution depended on expert medical testimony. Cherokee County Hosp. Auth. v. Beaver, 179 Ga. App. 200, 204 (345 SE2d 904) (1986). In cases involving causation issues which can be resolved solely by expert medical testimony, the testimony must be based at least on reasonable probability. Maurer v. Chyatte, 173 Ga. App. 343, 344-345 (326 SE2d 543) (1985). Therefore, expert medical testimony as to the possibility of a causal relation between a negligent act and the injuries alleged to have been caused by the negligence will not suffice to establish a legally sufficient causal relation. Id. at 344-345. Smith produced expert medical testimony that it was probable his use of Hytrin did not contribute to his loss of consciousness. This testimony established the absence of a sufficient causal relation between Hytrin and Smith’s loss of consciousness and was a prima facie showing that Smith’s loss of consciousness was not foreseeable. The expert medical testimony produced by Lewis in rebuttal stating only that there was a small possibility Smith’s use of Hytrin contributed to his loss of consciousness failed to establish a sufficient causal relation and thus failed to create a genuine issue of fact as to foreseeability. Maurer, 173 Ga. App. at 344-345.

Decided May 6, 1999 — Cert. applied for.

Gerry E. Holmes, for appellant.

Brinson, Askew, Berry, Seigler, Richardson & Davis, J. Anderson Davis, for appellee.

As to Lewis’ contention that Smith negligently contributed to the cause of the accident because he could have but failed to take action to avoid the accident before losing consciousness, Smith testified that he felt a sudden rush to his head, then everything turned white, and he had no further memory of the events until he remembered being in the ambulance. Smith also testified that, although his first thought when he felt the sudden rush to his head was to get off the road, he did not have time to react before he lost consciousness. He could not recall there being any passage of time in which he could have reacted between the sudden rush to his head and his loss of consciousness. This testimony by Smith was sufficient to make a prima facie showing in support of his affirmative defense that his loss of consciousness was so sudden that he had no reasonable opportunity to take action to avoid the accident. Lewis produced no evidence rebutting this prima facie defense. Compare Waits v. Makowski, 191 Ga. App. 794, 795-796 (383 SE2d 175) (1989) (evidence produced from which it could be reasonably inferred that the driver was not unconscious at the time of the collision or that he lost consciousness only after the collision).

Since Lewis failed to produce any specific facts rebutting Smith’s affirmative defense and showing there was a genuine issue for trial, the trial court properly granted summary judgment in favor of Smith. Freeman, 116 Ga. App. at 239-240, 245.

Judgment affirmed.

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


author: Blackburn, Presiding Judge.

text:
    A99A1034.
    NELOMS v. THE STATE.
    (517 SE2d 537)
   Blackburn, Presiding Judge.

Oscar Neloms appeals his conviction, following a jury trial, of possession of cocaine. In his sole enumeration of error, Neloms contends that the trial court erred in denying his right to cross-examine the arresting officers regarding arrests they made directly after he was arrested. Neloms asserts that this testimony was relevant to show that the officers had a motive to fabricate their testimony regarding his possession of cocaine. As the trial court did not abuse its discretion, we affirm.

“The scope of cross-examination lies within the trial court’s discretion, which, absent abuse, will not be disturbed on review. Questions which are immaterial to the issues in the case are properly excluded.” (Citations and punctuation omitted.) Mercer v. State, 169 Ga. App. 723, 727 (3) (314 SE2d 729) (1984).

Viewing the facts in the light most favorable to the verdict, they reveal that Terry Griffin, Benny Inman, and Anthony Branham, all agents of the Lowndes County Sheriff’s Department Narcotics Investigation Division, patrolled an area in the 900 block of Oliver Street in a Bronco with the removable top taken off so that the vehicle was “open air.” As they were patrolling, they saw Neloms sitting in a Cutlass separating crack cocaine on the seat of the car. The agents stopped their vehicle and apprehended Neloms as he attempted to leave his vehicle with the cocaine in his hand.

During Neloms’ offer of proof, outside the presence of the jury, Agents Inman and Griffin testified that, as they arrested Neloms, he said, “You need to be over there across the street where the dope is at.” The agents then went across the street, obtained permission from the owner to search the house, and subsequently made two arrests as a result of the search. Agent Inman testified, during the proffer, that the only reason the agents went to the house was Neloms’ statement.

Neloms contends that he did not have any cocaine in the car, and he argues that the agents’ testimony regarding the subsequent arrests is some evidence of the agents’ motive to fabricate their testimony regarding his possession. Neloms’ theory is speculative, and we find no abuse of the trial court’s discretion in refusing to allow cross-examination regarding the agents’ subsequent arrests. See cf. Smith v. State, 270 Ga. 68, 71 (7) (508 SE2d 145) (1998).

Judgment affirmed.

Barnes, J., and Senior Appellate Judge Harold R. Banke concur.

Decided May 6, 1999.

Closson & Bass, J. Michael Bass, for appellant.

J. David Miller, District Attorney, Jennifer A. Thomas, Assistant District Attorney, for appellee.


text:
    A99A0448.
    OTI SHELF, INC. et al. v. SCHAIR & ASSOCIATES, INC.
    (517 SE2d 542)
   Judge Harold R. Banke.

Schair & Associates, Inc., a real estate brokerage firm, filed this multi-count complaint against OTI Shelf, Inc. (formerly Outdoor Telecommunications, Inc.), Orlando Wilson, and others. The dispute concerns whether a brokerage contract entered into between Outdoor and Schair entitles Schair to a commission as a result of Outdoor’s sale of the property which is the subject of the contract.

Wilson testified that in his capacity as one of Outdoor’s principals, he began trying to sell Building 100 in an office complex in 1989 and, in June 1990, received a letter from prospective buyers evidencing their intent to make the purchase. Wilson was later introduced to Schair’s principal. In August, Outdoor and Schair entered into the subject contract, styled “exclusive listing agreement.” In November, Wilson sold the building to a company formed by the parties who had sent the letter of intent. Wilson and the purchasers testified that Schair had no involvement whatsoever in the sale.

Under paragraph one of the listing agreement, Outdoor employed Schair as its “sole and exclusive agent” to sell the building. Under paragraph two, the initial term of the agreement began in August 1990 and ended in February 1991. If, during the term of the agreement, the property was sold or a contract for the sale was entered into by owner and a purchaser, paragraph five obligated the owner to pay the broker a commission equal to five percent of the gross sales price upon closing. If, within 60 days after expiration of the agreement, the property was sold, or a sales contract was entered with any person or persons to whom the property was actually exhibited by broker during term of the contract, paragraph six similarly obligated the owner to pay the broker the five percent commission. Paragraph ten stated that “[t]his is an exclusive right to sell agreement.”

Evidence was presented by the defense showing that Wilson signed a virtually identical exclusive listing agreement employing Schair as broker for the sale of Buildings 200 and 300 in the same complex, and it was the oral understanding of all concerned that Schair was only being employed to sell those two buildings.

Schair moved for partial summary judgment on the question of whether the agreement between it and Outdoor requires payment of a commission to it as a result of the sale of Building 100. Defendants filed a cross-motion for complete summary judgment. The court denied defendants’ motion for summary judgment and granted partial summary judgment to Schair on the issue of contract construction, while expressly reserving ruling on the question of whether the agreement itself is enforceable. Outdoor and Wilson appeal. Held:

Our analysis of this case begins with OCGA § 10-6-32. It is comprised of two sentences, each setting forth a separate principle. The statute provides:

The fact that property is placed in the hands of a broker to sell shall not prevent the owner from selling, unless otherwise agreed. The broker’s commissions are earned when, during the agency, he finds a purchaser who is ready, able, and willing to buy and who actually offers to buy on the terms stipulated by the owner.

Under the statute’s first principle, the rule has been well established by the courts of this State that though the owner appoints a real estate broker his exclusive agent to sell designated property, “in the absence of a contractual provision to the contrary” the owner may sell the property independently of all brokers and through his personal efforts without incurring liability to the broker for a commission. Bradbury v. Morrison, 93 Ga. App. 704, 706-707 (1) (92 SE2d 607) (1956); see Irish v. Fisher, 74 Ga. App. 631, 632-633 (40 SE2d 588) (1946). It has also been established that granting a broker an exclusive right to sell property does not, in and of itself, have the effect of preventing the owner from selling independently through his own efforts without liability for a commission. See Barrington v. Dunwody, 35 Ga. App. 517, 520-521 (134 SE 130) (1926) (Luke, J., dissenting). Thus, paragraphs one and ten of the parties’ agreement do not alone or in combination obligate the owner to pay a commission to the broker upon sale of the property to a buyer procured by the owner.

In determining whether the remaining provisions of the agreement have such an effect, we are guided by the following rules:

“(E)ach contract by which one employs another to sell real estate must be construed according to its particular stipulations.” [Cit.] . . . “(T)he first rule that courts must apply when construing contracts, including real estate contracts, is to look to the plain meaning of the words of the contract.” [Cit.]

Goodman v. Frolik & Co., 233 Ga. App. 376, 377 (1) (504 SE2d 223) (1998).

Although the agreement in this case does not expressly state that Outdoor is obligated to pay Schair a commission if Outdoor sells the building through its own efforts, compare Thompson v. Hudson, 76 Ga. App. 807 (47 SE2d 112) (1948), paragraph five imposes an unqualified obligation on Outdoor to pay the commission if the property is sold during the contract term, and paragraph six then obligates Outdoor to pay the commission upon a post-expiration sale of the property only if Schair exhibited the property to the purchaser during the contract term. Viewed together, these paragraphs plainly and unambiguously establish that the owner is liable for payment of a commission if the property is sold during the term of the agreement, even if the sale is accomplished without the broker’s involvement. The contract cannot be interpreted as permitting a sale of the property by the owner during the contract term without any liability to the broker for a commission, because paragraphs five and six are “contractual provision[s] to the contrary.” Bradbury v. Morrison, supra.

Since Schair’s entitlement to a commission is not predicated on its procurement of a buyer, we do not apply OCGA § 10-6-32’s second principle, i.e., that the broker’s commissions are earned when it procures a buyer ready, willing and able to buy on terms stipulated by the owner. See generally Bentley Group, Ltd. v. Paces Ferry Anesthesiology Assocs., 180 Ga. App. 818, 819 (350 SE2d 826) (1986); compare King-Williams Realty & Mtg. v. State Farm Life Ins. Co., 142 Ga. App. 620 (236 SE2d 695) (1977) (where the brokerage contract apparently required the broker to procure a purchaser). Outdoor and Wilson’s reliance on Stone v. Reinhard, 124 Ga. App. 355 (183 SE2d 601) (1971), is misplaced as that case is a physical precedent only. Court of Appeals Rule 33 (a).

The court did not err in granting partial summary judgment to Schair on the question of contract interpretation. Additional issues raised in this appeal relate to other claims, such as whether the agreement is unenforceable because of fraud by Schair. These claims have not been ruled on by the trial court and thus are not properly before this Court for review. Dewberry Painting Centers v. Duron, Inc., 235 Ga. App. 40, 42 (2) (a) (508 SE2d 438) (1998).

Judgment affirmed.

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

Decided May 7, 1999.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Carol V. Clark, Scott H. Michalove, for appellants.

Cashin, Morton & Mullins, William T. McKenzie, for appellee.


text:
    A99A0788.
    ELLIOTT et al. v. HENRY COUNTY WATER & SEWERAGE AUTHORITY.
    (517 SE2d 545)
   Judge Harold R. Banke.

Henry County Water & Sewerage Authority condemned approximately 50 acres of land owned by Silas and Betty Elliott. The Elliotts appealed the special master’s award of $137,000 to Henry County Superior Court (see OCGA § 22-2-112), and a jury awarded $144,000. The Elliotts appeal to this Court, asserting five errors by the superior court: (i) sua sponte striking certain cross-examination testimony of an expert as irrelevant; (ii) striking Silas Elliott’s testimony regarding an unsubstantiated comparable sale; (iii) refusing to allow the Elliotts to use an unauthenticated plat for demonstrative purposes; (iv) instructing the jury that it should not consider other uses of the property if such use were a mere possibility; and (v) entering judgment on the verdict. Held:

1. The Authority presented two expert witnesses who valued the property at $137,000. As part of their experience qualifying them to give valuations, both experts indicated they had appraised property for estates for estate tax purposes. On cross-examination of the second expert, the Elliotts’ counsel asked him several questions about how taxes are reduced on estate tax returns by lower property appraisals; the expert was generally equivocal about such. Sua sponte, the court interrupted the questioning and asked for its relevance. Not allowing counsel to respond, the court then stated that counsel’s questions reflected an inaccurate understanding of estate tax precepts, and that he would not allow the jury to be misled. Ruling that the expert was unqualified to respond to the questions, the court sustained its own objection to the questions as irrelevant, immaterial, and inadmissible. The court also struck the equivocal responses to the tax questions. The Elliotts claim the court abridged their right to a thorough and sifting cross-examination (OCGA § 24-9-64) and argue the stricken testimony discredited the appraisers.

A party is entitled to a thorough and sifting cross-examination of a witness, but the scope of such cross-examination is within the sound discretion of the trial court which may curtail inquiries that are not relevant or material. Daniels v. State, 235 Ga. App. 296, 297 (1) (509 SE2d 368) (1998); see generally Duckworth v. State, 223 Ga. App. 250, 251-253 (1) (477 SE2d 336) (1996), aff’d, 268 Ga. 566 (492 SE2d 201) (1997).

The court erred in striking the testimony and in stopping the line of inquiry. The clear import of the questions was to demonstrate that the two experts’ experience in appraising properties for estates had colored their perspective. The Elliotts sought to show that tax laws encouraged estates to have properties valued at lower amounts to minimize estate tax liabilities. Because the estates paying the experts for the valuations may have indicated a desire for a lower amount, the experts may have acquiesced and grown accustomed to minimizing values.

Indicative of the relevance of this line of inquiry is the silence of the Authority’s counsel at trial, who made no objection nor argument on the issue. The court’s refusal to allow the Elliotts’ counsel to explain the relevance of the questions deprived them of the opportunity to link the inquiries to the credibility of the experts. They were denied their right to a thorough and sifting cross-examination of the experts, whose testimony was critical to the ultimate valuation question. Reversal is required. See Snelling v. State, 215 Ga. App. 263 (1) (450 SE2d 299) (1994); McGinty v. State, 59 Ga. App. 675, hn. 1 (2 SE2d 134) (1939).

Because we reverse, we exercise our discretion to consider the enumerations of error that may have an impact on the re-trial.

2. In establishing the basis for his valuation of the property at $500,000, Silas Elliott testified he “believed” some nearby property sold for $5,400 per acre. He conceded he did not know the parties to the sale and that he only “believed” the $5,400 amount was correct. At the request of the Authority, the court struck the testimony as hearsay and speculative.

Hearsay testimony is generally inadmissible. See OCGA § 24-3-1 (b); Dept. of Transp. v. Shugart, 198 Ga. App. 884, 885 (2) (403 SE2d 870) (1991). True, to give a valuation a condemnee must first set forth the basis for his opinion, which may in part include reliable hearsay. State Highway Dept. v. Parker, 114 Ga. App. 270, 273 (2) (150 SE2d 875) (1966). But the hearsay at issue was unreliable, for its source could not be identified and Mr. Elliott qualified his testimony as only a belief. See Wade v. State, 261 Ga. 105, 108 (7) (401 SE2d 701) (1991). The court did not err in striking the testimony.

3. Because the court allowed the Elliotts to refer to the demonstrative plat during their case, the third enumeration of error is moot. During their testimony Silas Elliott and his wife both pointed to a visual exhibit reflecting the sizes and relative locations of the two adjoining properties.

4. The Elliotts contend the court erred in giving the following instruction:

The mere possibility that land might be used for a certain purpose is not enough to authorize a jury to consider the effect of such a possibility in determining the value of land. At least a reasonable probability must be shown by competent evidence to authorize consideration of such a prospective use in determining the value.

This language comes from Ga. Power Co. v. Livingston, 103 Ga. App. 512, 513 (3) (119 SE2d 802) (1961). See Dept. of Transp. v. Great Southern Enterprises, 137 Ga. App. 710, 713 (225 SE2d 80) (1976), and State Hwy. Dept. v. Stevens, 128 Ga. App. 418, 420 (3) (196 SE2d 890) (1973), which approved similar jury charges.

OCGA § 22-2-62 (d), applicable to special master proceedings and corresponding jury trials (OCGA § 22-2-108), directs that in determining the value of the property or interest the trier of fact is not restricted to the agricultural or productive qualities of the land. “[Enquiry may be made as to all other legitimate purposes to which the property or interest could be appropriated.” OCGA § 22-2-62 (d). “It is appropriate for a jury to be allowed to inquire into all legitimate purposes, capabilities and uses to which the property might be adapted, provided that such use is reasonable and probable and not remote or speculative” (Citations and punctuation omitted; emphasis in original.) Flint v. Dept. of Transp., 223 Ga. App. 815, 817 (1) (479 SE2d 160) (1996). Further,

[t]he fact that the property is merely adaptable to a different use is not in itself a sufficient showing in law to consider such different use as a basis for compensation. It must be shown that such use of the property is so reasonably probable as to have an effect on the present value of the land.

(Citations and punctuation omitted; emphasis in original.) Colonial Pipeline Co. v. Williams, 206 Ga. App. 303, 304 (425 SE2d 380) (1992).

The Elliotts argue that no evidence supported the giving of this instruction. In effect, they contend that the jury was required as a matter of law to find that the use of this land as a residential subdivision was reasonably probable. Yet in their appellate brief they concede that “no plats purporting to show a proposed subdivision had been ordered, nor had the property been rezoned for a subdivision on the date of taking.” The land was undeveloped. Moreover, they had removed all merchantable timber from the land, leaving it unsightly and less desirable for residential development. The evidence supported an instruction that the jury would decide whether the prospective use of the property for a residential subdivision was a mere possibility and not reasonably probable. See generally Southern Bell Tel. &c. Co. v. Don Hammond, Inc., 198 Ga. App. 517, 518 (402 SE2d 112) (1991).

Decided May 7, 1999.

Albert B. Wallace, Stephen B. Wallace II, for appellants.

Smith, Welch, Studdard & Brittain, A. J. Welch, Jr., Katharyne C. Johnson, for appellee.

5. The fifth enumeration of error is moot.

Judgment reversed and case remanded.

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


author: McMurray, Presiding Judge.

text:
    A99A0782.
    FULLER v. DREISCHARF et al.
    (517 SE2d 89)
   McMurray, Presiding Judge.

Plaintiffs J. Spencer Dreischarf and Mary Jane Landis sued defendant Cleo W. Fuller, Jr., seeking to recover money they invested in a nonexistent corporation, allegedly as a result of defendant’s fraudulent inducements. The jury found for defendant on plaintiffs’ common law fraud count, but found him liable for securities fraud under OCGA §§ 10-5-12 and 10-5-14, awarding $10,000 in damages but no attorney fees. Defendant’s motion for judgment notwithstanding the verdict was denied, and this appeal followed. Held:

1. Defendant first contends the trial court erred in charging the jury that plaintiffs could recover under the Georgia Securities Act of 1973, OCGA § 10-5-1 et seq., because plaintiffs’ right to recover the consideration paid for a security sold in violation of that Act, accorded by OCGA § 10-5-14 (a), is barred by the two-year statute of limitation established by OCGA § 10-5-14 (d). We agree and reverse.

(a) “Any person who violates subsection (a) of Code Section 10-5-12 shall be liable to the person buying such security; and such buyer may sue ... to recover the consideration paid. . . .” OCGA § 10-5-14 (a). But “no person may sue under this Code section more than two years from the date of the contract for sale or sale, if there is no contract for sale.” OCGA § 10-5-14 (d).

In the case sub judice, the undisputed evidence is that plaintiffs invested $10,000 in a venture called Irish American Technologies, Ltd. (“IATL”) by giving defendant a post-dated check for that amount with instructions to hold the check until July 3, 1995. The check, made payable to non-party Wesley E. Sanborn, was cashed on July 7, 1995. On April 30, 1997, defendant hand-delivered a letter to plaintiffs, informing them that “a certain A1 Hendricks, who was the chairman of I.A.T.L.,. . . has vanished with the [investment] money.” The instant fraud complaint was not filed until September 10, 1997. Plaintiffs contend the investment contract was not completed until October 9, 1995, because that is when plaintiff J. Spencer Dreischarf received a receipt from Wesley E. Sanborn, acknowledging plaintiffs’ vested interest in IATL, and so the claim is timely. We disagree.

It has long been recognized and is well established that a statute of limitation begins to run on the date a cause of action on a claim accrues. In other words, the period within which a suit must be brought is measured from the date upon which the plaintiff could have successfully maintained the action.

Jankowski v. Taylor, Bishop & Lee, 246 Ga. 804, 805 (1) (273 SE2d 16). In the case sub judice, plaintiffs had enforceable rights to either rescission or specific performance of the investment contract as soon as their check was cashed on July 7, 1995. Such a right of action is not dependent upon defendant’s receipt, acknowledging plaintiffs’ vested interest. Nor is it necessary that a plaintiff sustain all, or even the greater part of his damages, before the statute of limitation commences to run. Id. at 806 (1). Consequently, it is undisputed that the case sub judice was not commenced until some sixty days after the two-year limitation period expired.

(b) Nevertheless, plaintiffs contend the limitation period was tolled by defendant’s fraud. The evidence of fraud, viewed in the light most favorable to plaintiffs, who obtained a favorable verdict, is that plaintiffs and defendant became neighbors in 1993. Plaintiff J. Spencer Dreischarf first invested small amounts with defendant, e.g., $1,000, and defendant “guaranteed [plaintiffs would] get twelve hundred fifty back or fifteen hundred dollars back, and generally those came true.” As for IATL, defendant said the company was manufacturing an antimicrobial hand cream “that would protect the skin from germs, everything from bacteria to HIV.” Defendant told plaintiffs that a facility already existed; the technology already existed; some experimental batches of the cream already existed; and that he had seen the cream in action. Plaintiffs understood their money was “to help start up production and also to fill an existing order . . . for one hundred forty-four thousand dollars worth of this antimicrobial cream.” Defendant guaranteed that, at the very least, “after a couple of years [plaintiffs] would come out with a 20 percent profit. . . .” Plaintiff J. Spencer Dreischarf never telephoned Wesley E. Sanborn, to whom the $10,000 check was made out, because he trusted defendant, who instructed plaintiffs to direct all their questions to him. Plaintiffs never received a stock certificate, even though, “from the get-go, [they] asked for proper documentation what [they] were investing in. [They] wanted to have in writing . . . what the profits would be and all the details.”

Absent a confidential relationship, “The fraud which tolls a statute of limitation must be such actual fraud as could not have been discovered by the exercise of ordinary diligence. [Cits.] . . . This rule is applied even where actual fraud is the gravamen of the action.” Bahadori v. Nat. Union Fire Ins. Co., 270 Ga. 203, 205 (3) (507 SE2d 467). See also Middleton v. Pruden, 57 Ga. App. 555, hn. 2 (196 SE 259).

Plaintiffs uncritically accepted the word of defendant, their neighbor, without ever inquiring of a licensed stock broker (or the Irish consulate) about the status (or even existence) of IATL. Nor did they take steps to confirm IATL’s ownership of an alleged patent regarding antimicrobial technology or the existence of a major purchase order before they parted with $10,000. Although there is evidence plaintiff J. Spencer Dreischarf insisted on proper documentation, plaintiffs nevertheless chose to invest without ever receiving anything resembling a prospectus or financial statements prepared according to generally accepted accounting principles. In our view, this is not due diligence.

The buyer and seller of property are not, by virtue of such fact, placed in a confidential relationship to each other, but on the contrary are presumed to be dealing at arm’s length. Gardiner v. McDaniel, 202 Ga. App. 663 (1), 664 (415 SE2d 303). Even though actual fraud is the gravamen of this cause of action, we conclude that plaintiffs cannot rely on the equitable tolling provisions of OCGA § 9-3-96 because they failed to exercise reasonable diligence to discover the fraud before they invested $10,000 in a non-existent foreign company. See Stricker v. Epstein, 213 Ga. App. 226, 229 (2) (444 SE2d 91). Moreover, since they had actual knowledge of the alleged fraud more than two months before the expiration of the limitation period, they cannot claim to have been deterred or debarred from bringing a timely claim.

2. Remaining contentions, having been considered, are rendered moot.

Judgment reversed.

Andrews and Ruffin, JJ, concur.

Decided April 29, 1999

Reconsideration denied May 10, 1999 — Cert. applied for.

Wagner, Johnston & Rosenthal, C. David Johnston, for appellant.

Whelchel & Dunlap, Charles N. Kelley, Jr., for appellees.

       Exceptions to the charge were preserved by order of the trial court.

       In connection with an offer to sell, sale, offer to purchase, or purchase of any security, it is unlawful, directly or indirectly, to “employ a device, scheme or artifice to defraud.” OCGA § 10-5-12 (a) (2) (A). The term “security” includes an investment contract. OCGA § 10-5-2 (a) (26).


text:
    A99A0632.
    A99A0721.
    IN THE INTEREST OF A. N. M. et al., children. In the Interest of B. C. W. M. et al., children.
    (517 SE2d 548)
   Blackburn, Presiding Judge.

In Case No. A99A0632, Melissa Moore, the biological mother of A. N. M., B. C. W. M., C. J. M., and D. J. T. M., minor children, appeals the juvenile court’s termination of her parental rights. In Case No. A99A0721, Benjamin Moore, the biological father of B. C. W. M., C. J. M., and D. J. T. M., appeals the juvenile court’s termination of his parental rights. For the reasons discussed below, we affirm.

On appeal, we must determine whether,

after reviewing the evidence in a light most favorable to the lower court’s judgments, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. This Court neither ' weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.

(Punctuation omitted.) In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).

Case No. A99A0632

1. Melissa Moore asserts that the trial court erred in terminating her parental rights, contending that the evidence did not clearly and convincingly support such a determination.

The Butts County Department of Family & Children Services (DFACS) has worked with this family on and off since 1992 with issues involving lack of supervision, drug use, including drug use during the pregnancy of the youngest child, and neglect. After the Moores failed to comply with several safety and case plans, the children were found to be deprived and were removed from their custody on January 8, 1997. Specifically, the parents failed to comply with the court-ordered case plans requiring them to provide a stable home environment, to stop using drugs, and to cooperate with counseling. After the Moores lost custody, DFACS formulated another case plan requiring that they maintain an income to meet the children’s needs, obtain and maintain a hazard-free residence, attend counseling, attend parenting classes, visit the children regularly, maintain sobriety and remain drug free.

A DFACS report dated February 14,1997, indicated that Melissa Moore had failed to comply with the case plan goals. She had failed to begin counseling, drug treatment, or parenting education. She had changed residences at least once and had missed one of two scheduled visitations. DFACS filed its petition for termination of parental rights on December 31, 1997. The juvenile court held several hearings on the petition before granting it by order dated September 30, 1998.

Before terminating a parent’s rights, a juvenile court must employ a two-prong test. In the first prong, the court must decide whether there is “present clear and convincing evidence of parental misconduct or inability.” OCGA § 15-11-81 (a). Parental misconduct or inability, in turn, is proven by evidence showing: (1) that the child is deprived; (2) that lack of proper parental care or control is the cause of deprivation; (3) that the cause of deprivation is likely to continue or will not likely be remedied; and (4) that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). ... In the second prong of the termination test, the juvenile court must consider whether termination of parental rights would be in the best interest of the child.

In the Interest of V. S., 230 Ga. App. 26, 27 (495 SE2d 142) (1997).

(a) Because the Moores did not appeal the trial court’s orders finding that the children were deprived, that finding is established for the purposes of this appeal, and we need to consider only the remaining three criteria. See id. at 29.

(b) The evidence of record supports the juvenile court’s determination that Melissa Moore’s inability to adequately care for her children was the cause of their deprivation. DFACS received reports that the children were not supervised, that they had no toilet facilities, that they had sores on their bodies, and that they were begging for food. Melissa Moore failed to comply with the case plan goals. Melissa Moore failed to pay the court-ordered child support. She refused to submit to drug screens and admitted that she had used cocaine as recently as June 1998, only a few months before the termination hearing, and at a time when she was pregnant. A. N. M. testified Benjamin Moore sexually molested her when she was eight years old and continued to do so until she was thirteen. Melissa Moore testified that she did not believe Benjamin Moore abused A. N. M.

Melissa Moore was incarcerated several times while her children were in DFACS’ custody. She had been arrested and jailed for theft, theft by receiving stolen property, illegal loitering for sex, possession of cocaine, and obstruction of a police officer. Melissa Moore admitted that she was a cocaine addict and that she needed additional therapy. She failed to retain permanent employment and failed to obtain adequate housing for herself and her children. Additionally, she did not visit her children on a regular basis, seeing them only once in the five months prior to the hearing.

(c) The record also supports a finding that the children’s deprivation would be likely to continue under Melissa Moore’s care.

Although past deprivation is not sufficient for termination without a showing of present deprivation, the court can consider a parent’s past conduct in determining whether such conditions of deprivation are likely to continue. The court was entitled to infer from the evidence that, despite the best efforts of DFACS and many other social workers and charities, the same pattern of deprivation would continue [if] the children were reunited with their mother.

(Punctuation omitted.) In the Interest of R. N., supra at 204 (1) (c). In this case, Melissa Moore was given numerous chances to modify her behavior, both before and after she lost custody of her children. However, even after years of effort by DFACS, she has failed to find permanent employment, establish a stable home for her children, remain drug free, stay out of jail, or satisfy the other goals of her reunification plan.

(d) The juvenile court’s finding that the children would likely be harmed by the continued deprivation is also well founded. As Melissa Moore had a history of neglecting her children, exhibited no effort to attain reunification, and failed to comply with DFACS’ case plan, the evidence is clear and convincing that reuniting these children with Melissa Moore would cause harm to them.

(e)

Finally, the record supports a finding that the best interests of the children are served by termination of [Melissa Moore’s] rights. The same factors which show [her] inability to rear her children may also provide evidence that termination of her rights would be in the best interests of her children.

In the Interest of D. W., 235 Ga. App. 281, 283 (509 SE2d 345) (1998). Although Melissa Moore contends that she can effectively parent her four minor children and unborn baby, the outcome of her appeal does not change. “ ‘[T]he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.’ ” In the Interest of D. 1. W., 215 Ga. App. 644, 646 (1) (451 SE2d 804) (1994). Therefore, the termination of Melissa Moore’s parental rights is affirmed.

Case No. A99A0721

2. Benjamin Moore enumerates several errors regarding the trial court’s decisions concerning surrenders for adoption that were signed by him and his wife.

The record indicates that the termination hearing was held on August 20, 1998; however, the court left the record open to allow Benjamin Moore to obtain his psychiatrist’s deposition. The final hearing was held on September 30, 1998. On August 31, 1998, both Benjamin and Melissa Moore executed documents surrendering their parental rights in favor of an adoption by John and Jane Moore, the paternal grandparents. By letter, dated September 3, 1998, Melissa Moore withdrew her surrender of rights.

(a) Benjamin Moore contends that Melissa Moore’s withdrawal was invalid because she did not follow the specific provisions of the law. OCGA § 19-8-26 allows for the withdrawal of a surrender of parental rights by giving written notice, delivered in person or mailed by registered mail, to the person listed in the surrender form within ten days from the date the surrender form is signed. In the present case, Melissa Moore’s attorney wrote a letter to Richard Watkins, the person listed in the surrender form, within ten days from the date the surrender of parental rights was signed, indicating that Melissa Moore was incarcerated and that she had requested that her attorney withdraw the surrender of parental rights on her behalf. Benjamin Moore contends that the withdrawal was ineffective because it was not delivered in person or by registered mail. The evidence shows that the correct person timely received written notice of Melissa Moore’s withdrawal of her surrender of parental rights. While Benjamin Moore correctly argues that the statutes governing the surrender of parental rights and adoption must be strictly construed, such statutes are construed in favor of the surrendering biological parent. See Johnson v. Eidson, 235 Ga. 820, 821 (221 SE2d 813) (1976). Therefore, the trial court did not err in recognizing the validity of Melissa Moore’s withdrawal of her surrender of parental rights.

(b) Benjamin Moore asserts that the juvenile court erred in denying his motion to dismiss based on the surrenders of parental rights. He argues that the juvenile court lost jurisdiction to terminate his parental rights after he voluntarily surrendered them in favor of an adoption. This argument fails to consider that the adoption could not take place after the biological mother validly withdrew her surrender of parental rights. Furthermore, the trial court specifically found that the Moores had executed the surrenders of parental rights for the purpose of thwarting the anticipated termination of their parental rights. After a finding of subterfuge, “nothing would preclude the court from proceeding with the termination-of-parental-rights hearing.” Skipper v. Smith, 239 Ga. 854, 857 (2) (238 SE2d 917) (1977).

3. Benjamin Moore also contends that the trial court erred in refusing him a copy of the psychological profiles of himself and his children. The record reveals that the juvenile court did order that such reports be made available to Benjamin Moore if DFACS intended to use them in the termination proceeding. Additionally, the court also agreed to review the evaluations in camera and produce any evidence which it considered “analogous to exculpatory information or information [it thought] would be favorable ... or harmful to [Benjamin Moore] if it were not disclosed.” Although the juvenile court did not further address this issue, there is no evidence that the trial court did not complete its in-camera inspection. DFACS did not use the psychological reports during the termination hearing. Therefore, the juvenile court did not abuse its discretion in refusing to allow the discovery of the unused psychological reports. See In re C. M., 179 Ga. App. 508, 509 (1) (347 SE2d 328) (1986) (juvenile court did not abuse its discretion in refusing to allow discovery of caseworker-generated documents not used in termination proceeding).

4. Benjamin Moore further contends that the juvenile court erred by basing its decision on the findings and recommendations of two citizens review panel reports which contained hearsay. However, there is no evidence that the juvenile court relied on any hearsay contained in the reports. Furthermore, it is very clear that the juvenile court made its own factual findings based on the evidence before it, unlike the court in In the Interest of M. L. P., 231 Ga. App. 223 (498 SE2d 786) (1998), relied upon by Benjamin Moore. Therein we determined that the juvenile court erred by failing to make its own independent factual findings and in relying almost exclusively on the findings contained in the citizens review panel reports. Id. The present case is distinguishable from In the Interest of M. L. P. The trial court did not err in allowing the subject reports into evidence.

Decided May 10, 1999.

Juliet K. Rowell, for appellant (case no. A99A0632).

Richard W. Watkins, Jr., for appellant (case no. A99A0721).

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie B. Hope, Assistant Attorneys General, W Ashley Hawkins, for appellee.

5. Benjamin Moore contends that the termination of his parental rights was not based on clear and convincing evidence. In addition to the evidence outlined in Division 1, the record reveals that A. N. M. testified that Benjamin Moore began molesting her when she was nine or ten years old. She testified that he fondled her breasts, penetrated her vagina with his fingers, and placed his penis on her vagina. Benjamin Moore asked A. N. M. to “suck his penis” which she refused to do. A. N. M. acknowledged that she had recanted the allegations in the past, but she explained that she recanted because she did not want to be separated from her mother and siblings; she also testified that her recantation was false. Benjamin Moore testified that he did not molest A. N. M. He also acknowledged that he did not participate in sexual offender counseling as required by the case plan goals.

Benjamin Moore tested positive for cocaine in April, June, October, and December 1997. Although Benjamin Moore completed a substance abuse treatment program in March 1998, he relapsed and tested positive for cocaine in June 1998. Although he received social security disability income and was working part time, Benjamin Moore failed to make the child support payments required by DFACS. He also failed to obtain independent housing.

Benjamin Moore did comply with some of his case plan goals: he completed a parenting program in March 1998, and he visited the children regularly. However, in September 1997, the juvenile court had terminated visitation between Benjamin Moore and B. C. W. M. because the child indicated that he was afraid of Benjamin Moore.

This evidence supports the juvenile court’s determination that Benjamin Moore’s inability to adequately care for his children was the cause of their deprivation and that such deprivation was harmful and was likely to continue. See In the Interest of V. S., supra; In the Interest of R. N., supra; In the Interest of D. W., supra. The evidence also supports the juvenile court’s finding that termination of Benjamin Moore’s parental rights was in the best interest of the children. See In the Interest of R. N., supra. Therefore, the juvenile court did not err by terminating Benjamin Moore’s parental rights.

Judgments affirmed.

Barnes, J, and Senior Appellate Judge Harold R. Banke concur.

       The biological father of A. N. M. does not appeal the termination of his parental rights.


text:
    A99A0769.
    McLARTY v. THE STATE.
    (516 SE2d 818)
   Judge Harold R. Banke.

Based on information supplied by two informants, police obtained a search warrant for drugs at the residence of attorney Scott McLarty. They did not immediately execute the warrant, but waited for confirming information from one of the informants, Michelle Scholtz, who visited McLarty’s residence frequently. Two days later Scholtz called police and told them that only minutes earlier she had been at the residence where she had seen illegal drugs. Police immediately executed the warrant and found marijuana, 37 grams of cocaine, and smoking devices with cocaine residue.

McLarty unsuccessfully moved to suppress the fruits of the search. He was convicted of cocaine trafficking (OCGA § 16-13-31 (a)), cocaine possession (OCGA § 16-13-30 (a)), and marijuana possession (OCGA § 16-13-30 (j) (1)). On appeal he argues the court erred in denying the motion to suppress and in allowing Scholtz to testify even though she was not on the State’s witness list. Held:

1. McLarty contends that probable cause did not support the issuance of the warrant. Once McLarty challenged the search warrant, the State bore the burden of proving its lawfulness. Davis v. State, 266 Ga. 212, 213 (465 SE2d 438) (1996). Holding the State carried that burden based on Detective Hunsinger’s detailed affidavit, the court found probable cause existed.

Hill v. State, 224 Ga. App. 208 (480 SE2d 256) (1997), held:

In reviewing a trial court’s decision on a motion to suppress, its findings will not be disturbed if there is any evidence to support them; all relevant evidence of record, including evidence introduced at trial, as well as evidence introduced at the motion to suppress hearing, may be considered. [Cits.]

A magistrate issuing a warrant need conclude, based on the totality of the circumstances, only that there is a fair probability that contraband or evidence of a crime will be found in a particular place. State v. Stephens, 252 Ga. 181, 184 (311 SE2d 823) (1984).

Hunsinger’s August 16, 1996 affidavit (based on the information received from the informants) provided probable cause. Scholtz, whose name was kept confidential at the time, had on four previous occasions provided information to Hunsinger leading to the seizure of illegal drugs and arrests. She told him that when she had been with McLarty at his residence on numerous occasions during the past several months (including on or immediately before August 16), she had observed him possessing, using, and purchasing cocaine. On August 15, a known drug dealer told Hunsinger that she had supplied McLarty with cocaine for the past two weeks on a daily basis, with the last delivery on August 13.

McLarty’s argument that probable cause dissipated because the last supply of drugs to him on August 13 had probably been used up fails not only because Scholtz testified she saw drugs there immediately before or on August 16, but also because the continuing nature of McLarty’s usage created a reasonable belief that the conditions described in the affidavit still prevailed when the warrant was issued. White v. State, 225 Ga. App. 74, 75 (1) (483 SE2d 329) (1997).

Hunsinger’s decision to delay the execution of the McLarty search warrant, until he received confirming information from a person who had just left the premises that drugs were present, was authorized so long as the search occurred within ten days of the warrant’s issuance. OCGA § 17-5-25; Franklin v. State, 179 Ga. App. 220, 221 (2) (345 SE2d 912) (1986); see State v. Banks, 185 Ga. App. 760, 762 (365 SE2d 855) (1988). The warrant by its terms authorized a search within ten days. Moreover, “ ‘(w)hen the affidavit indicates the existence of an ongoing scheme . . ., the passage of time becomes less significant than would be the case with a single, isolated transaction.’ [Cit.]” Franklin, supra, 179 Ga. App. at 221 (2).

2. Citing Bentley v. State, 210 Ga. App. 862 (2) (438 SE2d 110) (1993), McLarty argues that OCGA § 17-16-21 required the exclusion of Scholtz’s testimony because she was not included on the formal witness list provided by the State pursuant to its discovery obligations.

OCGA § 17-16-21, which applies only to misdemeanor cases or to felony cases docketed prior to 1995, does not apply here. OCGA § 17-16-20. Bentley relies on the “newly-discovered witness” showing required by OCGA § 17-7-110, which statute was repealed as of January 1, 1995. Ga. L. 1994, p. 1895, § 1.

McLarty elected to have OCGA § 17-16-1 et seq. apply to his case. The relevant Code section is OCGA § 17-16-8 (a), which requires the State to provide a defendant with the names of its witnesses not later than ten days before trial, “unless for good cause the judge allows an exception to this requirement, in which event the counsel shall be afforded an opportunity to interview such witnesses prior to the witnesses being called to testify.” Mize v. State, 269 Ga. 646, 653 (7) (501 SE2d 219) (1998), explained:

A defendant has a constitutional and statutory right to a list of State witnesses before trial. Ga. Const., Art. I, Sec. I, Par. XIV; OCGA §§ 17-16-3; 17-16-8; USCR 30.3. [But an] omission does not require a reversal [if] the purpose of the rule was satisfied. The witness list rule is designed to prevent a defendant from being surprised at trial by a witness that the defendant has not had an opportunity to interview. [Cit.]

See generally White v. State, 253 Ga. 106, 109 (3) (317 SE2d 196) (1984).

When the identity and involvement of a witness are otherwise disclosed to defendant in discovery provided to him by the State, the purpose of the witness list rule is served and the court may allow the State to call the witness even though he or she was not listed on the State’s formal witness list. Gossett v. State, 199 Ga. App. 286, 288 (2) (404 SE2d 595) (1991); see State v. McBride, 258 Ga. 321 (368 SE2d 758) (1988); Redmond v. State, 252 Ga. 142 (2) (312 SE2d 315) (1984).

Though her name was not on the State’s witness list, the State’s formal disclosure of Scholtz as the confidential informant six weeks prior to trial, combined with (i) the summary of her testimony found in the search warrant affidavit given to McLarty, (ii) McLarty’s admitted knowledge of her identity prior to the formal disclosure, (iii) McLarty’s own pre-trial reference to her as a material witness, and (iv) McLarty’s attempts to interview her prior to trial, fulfills the purpose of the witness list rule in that McLarty could not have been surprised by her appearance as a witness. Indeed, when the State announced she would be the next witness, McLarty’s counsel did not express surprise but responded with the single word, “Good”; and following her testimony, that same counsel frankly admitted to the court that they were not necessarily surprised that she testified. McLarty’s inaccurate remark in his opening statement that she would not be testifying was either a tactical ploy or an unjustified assumption. See Redmond, 252 Ga. at 142 (2).

Moreover, even if the State had failed to disclose her name pretrial, OCGA § 17-16-8 (a) provides that for good cause shown the judge may allow an unlisted witness to testify so long as counsel is afforded an opportunity to interview the witness prior to her testimony. Good cause was shown in that Scholtz did not agree to testify for the State until the night before her testimony, and the prosecutor himself had thus not interviewed her until the morning of her testimony. See Sheriff v. State, 197 Ga. App. 143, 144 (3) (397 SE2d 732) (1990). McLarty’s counsel had the opportunity to interview her prior to trial and indeed contacted her; she simply declined an interview, “as was her prerogative. [Cit.]” Knight v. State, 266 Ga. 47, 49 (4) (a) (464 SE2d 201) (1995).

Decided April 27, 1999

Reconsideration denied May 11, 1999 — Cert. applied for.

Hudson, Montgomery & Kalivoda, James E. Hudson, Steven H. Sadow, Bruce S. Harvey, for appellant.

Daniel J. Porter, District Attorney, for appellee.

Melanie R. Metcalf, amicus curiae.

McLarty’s counsel requested and received the opportunity to ask for a recess to interview Scholtz after her direct testimony. Allowing the defendant the opportunity to interview unlisted witnesses satisfies the purpose of the rule. White, supra, 253 Ga. at 109-110 (3); see Mize, supra, 269 Ga. at 653 (7). Counsel did not ask for that recess at the close of Scholtz’s direct, but went immediately into a thorough and sifting cross-examination that consumed 67 pages of transcript. “Appellant cannot complain of a ruling his own procedure or conduct aided in causing.” Chezem v. State, 199 Ga. App. 869, 870 (1) (406 SE2d 522) (1991).

The court did not err in allowing Scholtz to testify.

Judgment affirmed.

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