text:
    A99A2303.
    KENDRICK v. THE STATE.
    (523 SE2d 414)
   McMurray, Presiding Judge.

Tommy Lee Kendrick, Jr. pleaded guilty to violating the Georgia Controlled Substances Act (unlawful possession of amphetamine) and driving under the influence. His three-year sentence was probated, subject to the general conditions, and further subject to Kendrick’s residing at the Diversion Center for twelve months, with the express proviso that “[a]ny violation of rules and regulations of [the] Center will be considered a violation of this probated sentence.” The State subsequently petitioned to revoke Kendrick’s probation, alleging he violated the terms of probation for his failure to avoid injurious and vicious habits and his failure to abide by the rules of the Griffin Diversion Center, in that he tested positive for alcohol and cocaine. At the hearing on this petition, over Kendrick’s objections as to sufficient foundation and hearsay, the State introduced two disciplinary forms purporting to document Kendrick’s infractions. The superior court admitted these exhibits as business records. Based thereon, the superior court concluded Kendrick had committed serious infractions of the rules regulating a community corrections facility and revoked Kendrick’s probation for two years. Kendrick’s application for discretionary appeal was granted by this Court, and a timely notice of appeal was filed. Held-.

The superior court’s reasoning that the disciplinary reports were admissible as business records was in error, but because Kendrick adopted the unsworn statements contained therein by his signature pleading guilty, they constituted admissions against interest. We affirm.

1. The State’s only witness was Probation Officer Mary Ann Conkle, the Disciplinary Hearing Officer for Griffin Diversion Center, who had no personal knowledge whether Kendrick tested positive for alcohol or cocaine or whether he admitted being in violation of the Center’s regulations prohibiting consumption of alcohol or cocaine by the inmates. Rather, the disciplinary reports were prepared by another probation officer, Ron Pitts, who did not testify. Although Conkle testified she is the custodian of disciplinary records at the Diversion Center; these exhibits were the original, unaltered disciplinary reports; and they were kept in the ordinary course of the Diversion Center’s business, this is an inadequate foundation to admit the documents as business records. Under OCGA § 24-3-14 (b), the proper inquiry is whether it is in the regular course of the Diversion Center’s Control Officer to make an incident or disciplinary report and whether these reports were in fact made in the regular course of the Center’s business.

2. Exhibit S-l describes the cocaine violation as follows:

DESCRIPTION OF INFRACTION On 04/09/99 at 1930 hrs I Officer Ron Pitts [was] on duty as control room officer, when resident Kendrick . . . returned to the center from work[.] A suspect urine sample was [obtained] from resident Kendrick and was tested using the ontrack testing stickL] The urine sample tested positive for cocaine. . . .
RESIDENT NOTIFICATION A. By my signature I acknowledge that I have been advised of the above charges. I hereby admit guilt and voluntarily and without coercion waive the right to a disciplinary hearing. I understand that the hearing officer will review these charges and recommend sanctions to the superintendent. I understand that I may appeal any sanctions imposed.

On a signature line captioned “RESIDENT SIGNATURE” is what purports and appears to be Kendrick’s signature.

Under the controlling authority of Hubbard v. State, 207 Ga. App. 703, 704 (429 SE2d 123), the ontrack system for drug detection is not (yet) sufficiently recognized as reliable and so is not admissible evidence without expert testimony supporting its verifiable certainty. There was no such expert testimony in this case. So even if a proper business record foundation were laid, the disciplinary report documenting the administration of the ontrack test and its results would contain no probative evidence that Kendrick violated the terms of his probation. But Kendrick adopted the statement that he tested positive for cocaine in violation of Diversion Center rules by pleading guilty to the infraction, thereby rendering the document competent evidence as an admission against the penal interest of a party. OCGA § 24-3-31; Howard v. State, 227 Ga. App. 5, 7 (2) (488 SE2d 489).

3. The disciplinary report for alcohol infraction, Exhibit S-2, recites:

I Officer Ron Pitts, was on duty as Control Room Officer, when resident Kendrick . . . returned to the Center from work with the smell of alcohol on his person [.] I administered an alcosensor III test to resident Kendrick which registered .04 positive for alcohol. I ask[ed] resident if he had been drinking alcohol and resident Kendrick stated he had [drunk] one beer before returning to the Center. He is in violation of Center Rule C17 using unauthorized drugs or alcohol.

Decided October 14, 1999

Reconsideration denied October 27, 1999

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

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

Kendrick also signed this report, voluntarily pleading guilty to the infraction.

This disciplinary report recites facts rather than opinions, and so does not suffer from the defect of those disciplinary reports considered in Finch v. Caldwell, 155 Ga. App. 813 (273 SE2d 216). We need not, however, determine whether this disciplinary report would be admissible at a probation revocation hearing as a business record under Oldham v. State, 205 Ga. App. 268, 270 (422 SE2d 38) in order to show the unquantified presence of alcohol in a Diversion Center resident, or whether the alcosensor III test results indicating a blood alcohol level of .04 grams percent must be excluded under Adams v. State, 217 Ga. App. 706, 707 (2) (459 SE2d 182) for being inadmissible opinions and conclusions or unconfronted hearsay. Defendant’s signed guilty plea is sufficient to render the document competent proof of the facts recited, as an admission against interest by a party. OCGA § 24-3-31; Howard v. State, 227 Ga. App. at 7 (2), supra.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur in the judgment only.

       We are mindful the Supreme Court of Georgia has stated that Georgia does not recognize a hearsay exception under OCGA § 24-3-8 for statements against penal interest. Barksdale v. State, 265 Ga. 9, 11 (2) (a), fn. 3, 12 (453 SE2d 2). But a statement against penal interest is a strong indicium of reliability in determining whether the hearsay statements of a co-conspirator should be admitted under OCGA § 24-3-5. Copeland v. State, 266 Ga. 664, 666 (2) (b) (469 SE2d 672). The precise holding in Green v. State, 242 Ga. 261, 273 (14) (249 SE2d 1), sentence vacated and case remanded, Green v. Georgia, 442 U. S. 95 (99 SC 2150, 60 LE2d 738), is that, “[w]hile we do not hold that there would never be a case in which the declaration against interest exception to the hearsay rule should be extended to declarations against penal interest, the facts of [Green’s capital murder] case do not justify such an extension [to hearsay relating declarations against the penal interests of a third party].” See Jordan v. State, 195 Ga. App. 405, 407 (2) (393 SE2d 461). “[I]t is an old and sound rule which excludes as incompetent any hearsay testimony relating statements attributed to an out-of-court declarant to the effect that the declarant, and not the accused, was the perpetrator of a crime!.] [Cit.]” Grant v. State, 212 Ga. App. 565, 566 (1) (a) (442 SE2d 898). But that long-standing rule is not authority for the proposition that statements against penal interest by a party are not admissible under OCGA § 24-3-31.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A99A2422.
    CARROLL COUNTY WATER AUTHORITY v. BUNCH et al.
    (523 SE2d 412)
   McMurray, Presiding Judge.

After successfully defending itself against fraud and Georgia Racketeer Influenced & Corrupt Organizations Act claims made by H. Gilbert Maddox, M.D., the Carroll County Water Authority filed a complaint for abusive litigation under OCGA § 51-7-80 et seq., naming as defendants Dr. Maddox and his counsel, appellee Gary Bunch, plus counsel’s professional corporation, appellee Gary Bunch, P.C. The trial court granted summary judgment to attorney Bunch and his professional corporation because the Water Authority’s ante litem notice failed to identify counsel as an intended defendant. The Water Authority appeals, contending in three related enumerations that the notice was sufficient and that the trial court misinterpreted both the abusive litigation statute and the case law of this Court. Held:

The trial court correctly granted summary judgment to attorney Bunch and his professional corporation because the notice fails to identify them as intended defendants. The material facts are undisputed: The notice relied upon was sent through the U. S. Postal Service, return receipt requested, addressed to: “Dr. H. Gilbert Maddox, Jr., by and through his attorney of record, Gary Bunch. . . .” The notice recites:

Dear Dr. Maddox: This letter is written ... to you through your attorney of record. . . . This letter is written as notice to you pursuant to O.C.G.A. § 51-7-84 that the . . . Water Authority [believes] that the above-referenced civil action constitutes abusive litigation as defined in O.C.G.A. § 51-7-80 et seq. . . . [The] Water Authority is not a proper party . . . to . . . these claims . . . and you have failed in the requirements of law to . . . state such claims.

As can be seen, this letter does not express any intent to name Gary Bunch or Gary Bunch, P. C. as a defendant in any subsequent action for abusive litigation.

“Any person who takes an active part in the initiation, continuation, or procurement of civil proceedings against another shall be liable for abusive litigation if such person acts [with malice and without] substantial justification.” OCGA § 51-7-81.

“As a condition precedent to any claim for abusive litigation, the person injured by such act shall give written notice by registered or certified mail ... to any person against whom such injured person intends to assert a claim for abusive litigation.” (Emphasis supplied.) OCGA § 51-7-84 (a).

The statutory tort of abusive litigation is in derogation of the common law and its notice provisions are “strictly construed in order to accomplish its overriding purpose to give a prospective defendant the chance to change position and avoid liability[.] [Cits.]” Talbert v. Allstate Ins. Co., 200 Ga. App. 312, 314 (2) (408 SE2d 125) (1991).

Paino v. Connell, 207 Ga. App. 553 (2) (428 SE2d 446). The result of strict judicial construction is that every person against whom an injured litigant would seek damages for abusive litigation must be given specific notice of that intent. The Water Authority’s letter fails to specify attorney Bunch or Gary Bunch, PC., as a party against whom damages for abusive litigation would be sought. “As a result, the letter] ] did not meet the prerequisite of notice under the Code section.” Talbert v. Allstate Ins. Co., 200 Ga. App. at 314 (2), supra. Compare Owens v. Generali U S. Branch, 224 Ga. App. 290, 292 (1) (480 SE2d 863), where that abusive litigation notice specified the client, the law firm, and the attorney by name. The trial court correctly granted summary judgment to Gary Bunch and his professional corporation.

Decided October 14, 1999

Reconsideration denied October 27, 1999.

Johnson, Word & Simmons, William P. Johnson, Price, Pyles, Dangle, Parmer & Rooks, Thomas E. Parmer, for appellant.

Gary P. Bunch, for appellees.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.


author: Eldridge, Judge.

text:
    A99A1958.
    BERNSTEIN v. FLAGSTAR BANK, FSN.
    (524 SE2d 241)
   Eldridge, Judge.

Defendant-appellant Steven Bernstein, a mortgage broker licensed in Georgia and owner of Georgia Mortgage Assistance (GMA), appeals from the DeKalb County State Court’s grant of summary judgment in favor of plaintiff-appellee Flagstar Bank, FSN, formerly known as First Security Savings Bank (“Flagstar”). We affirm.

This case arises out of a verified complaint for breach of contract filed by Flagstar in July 1997. The contract was an August 1993 correspondent agreement between Bernstein and Flagstar, a mortgage underwriter. Under the contract, Bernstein agreed to offer for sale to Flagstar his interest in residential mortgage loans originated by his company. The contract did not allow Bernstein to sell loans originated by third parties. Section 6 of the contract also required Bernstein to be licensed and qualified to transact business as a mortgage broker in Georgia.

Further, section 2 of the contract read as follows:

C. Correspondent [Bernstein] represents, covenants and warrants that any loan it submits to [Flagstar] for approval shall be in compliance with all applicable federal, state, and local statutes, ordinances, and regulations[.] . . . E. Correspondent agrees that upon written request Correspondent shall immediately repurchase from [Flagstar] any closed loan that is not in compliance with the above statutes, ordinances, and regulations ... or if [Flagstar] discovers that the correspondent or the individual borrower committed fraud in connection with the Mortgage Loan.

In May 1995, pursuant to an investigation by the Federal Bureau of Investigation, Flagstar discovered that several mortgage loans submitted by Bernstein under this contract had been fraudulently obtained. The FBI found that an individual paid Bernstein a fee to use Bernstein’s broker’s license and fax machine to obtain loans from several mortgage companies. Such loans were based upon applications which contained fictitious borrowers and fraudulent qualifying paperwork.

However, the summaries of these loans identified Bernstein as the correspondent, and the loan documents identified GMA as the originator. Bernstein was the only licensed mortgage broker working for GMA, and the loans were submitted under the authority of this license pursuant to the correspondent agreement. Origination fees were paid directly to Bernstein by closing attorneys. Bernstein then paid the individual, later identified as John Greene, 80 percent of the origination fee, while Bernstein retained 20 percent.

Upon discovering the fraud, Flagstar mailed to Bernstein a letter demanding that Bernstein repurchase the loans for a total of $1,719,372.40, pursuant to Section 2. E. of the contract. When Bernstein refused, Flagstar mitigated its losses by selling the properties at foreclosure. The remaining balance on the loans, plus costs of foreclosure and sale, was $270,569.57. Flagstar filed suit in July 1997 and filed a motion for summary judgment in May 1998. The trial court granted the motion in April 1999, and Bernstein appealed. Held:

1. In his first enumeration, Bernstein contends that venue was improper. However, Bernstein failed to raise this defense in his answer to the complaint and, further, admitted that jurisdiction and venue were proper. Therefore, this asserted error is waived. OCGA § 9-11-12 (h) (1) (B); see also Michigan Court Rules § 2.221.

2. In his second enumeration, Bernstein claims that summary judgment was inappropriate because a genuine issue of fact exists as to whether the correspondent agreement applied only to loans originated by Bernstein and not to loans originated by others. This claim is without merit.

In its order granting summary judgment, the trial court found as a matter of law that the contract terms were not ambiguous. See OCGA §§ 13-2-1; 13-2-2; see also Wickliffe v. Wickliffe, 227 Ga. App. 432, 435 (2) (489 SE2d 153) (1997); Zurich Ins. Co. v. CCR & Co., 226 Mich. App. 599, 604 (576 NW2d 392) (1997). Neither party disputes this finding. In its summary judgment order, the trial court specifically found as an undisputed fact that “[t]he agreement did not provide that [Bernstein] could sell residential mortgage loans originated by third parties.” Accordingly, the trial court agreed with Bernstein’s contention that the agreement applied only to loans “originated” by him. There was no error.

3. However, Bernstein contends that a jury issue exists as to who actually “originated” the loans at issue in this litigation. In support of his contention, Bernstein claims that John Greene performed many of the preliminary functions in preparing the loan application documents, i.e., meeting the buyers, verifying employment and tax returns, ordering credit reports, and obtaining appraisals. Bernstein contends that he should be relieved of liability under the agreement if it is established that Greene, in fact, originated the loans. This argument lacks merit.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation and punctuation omitted.) McCoy v. West Bldg. Materials, 232 Ga. App. 620 (502 SE2d 559) (1998). See also Pitsch v. ESE Mich., 233 Mich. App. 578 (593 NW2d 565) (1999); Marcelle v. Taubman, 224 Mich. App. 215 (568 NW2d 393) (1997). A case may be decided as a matter of law “where, as here, the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion. [Cit.]” Feely v. First American Bank, 206 Ga. App. 53, 55 (1) (424 SE2d 345) (1992). See also Moll v. Abbott Labs., 444 Mich. 1, 28 (506 NW2d 816) (1993).

The correspondent agreement was between Bernstein, in his personal capacity as sole proprietor of GMA, and Flagstar; no other parties were involved. The agreement specifically states that Bernstein agreed to offer for sale its interest in loans “originated by Correspondent,” i.e., Bernstein. Further, the repurchase provision of the contract applied only to loan applications “submit[ted]” to Flagstar under its agreement with Bernstein. Simply stated, Bernstein was the only person who could submit loan documents to Flagstar under the correspondent agreement, and Bernstein was the only person who could be held liable for the repurchase of any loans which were submitted under the correspondent agreement if the loans either violated the contract provisions or were secured through fraud. Therefore, the fact that Bernstein allowed the loan documents to be submitted to Flagstar under the agreement and obtained the benefit therefrom serves as an admission that Bernstein “originated” such applications, and he is estopped from asserting otherwise. See OCGA § 24-4-24 (b) (8); Walker v. Sutton, 222 Ga. App. 638, 639 (1) (476 SE2d 34) (1996); see also Matter of Estate of Williams, 164 Mich. App. 601 (417 NW2d 556) (1987).

Further, in his answer to the complaint and through his deposition testimony, Bernstein admitted the following: (a) Greene was not a licensed mortgage broker; (b) Bernstein was aware that Greene could not obtain a broker’s license because of his history of writing bad checks; (c) Bernstein supervised the preparation of the loan documents and confirmed some of the data on the loans prior to submission to Flagstar; (d) Bernstein’s broker’s license provided the authority for submission of the loan documents to Flagstar; (e) the loan documents were submitted pursuant to the correspondent agreement; (f) the loan documents did not contain the name of any originator or broker other than Bernstein or GMA; (g) Bernstein received the origination fee directly from the closing attorneys under the contract; (h) Bernstein retained 20 percent of the origination fee and gave Greene 80 percent; (i) the loan documents contained fraudulent material; and (j) the borrowers on these loans were involved to some extent in the fraud. See also OCGA §§ 7-1-1000 (7), (11); 7-1-1002 (a) (requiring mortgage brokers to be licensed by the state).

As such, there was no evidence to support Bernstein’s contention that he should be relieved from liability under the contract because Greene allegedly “originated” the loan applications. Summary judgment was appropriate.

4. In his final enumeration, Bernstein cites as error the trial court’s decision to strike the affidavit of Douglas Davis, an attorney who specializes in real estate law and residential mortgage loans. In his affidavit, Davis defined the term “origination” and offered his conclusions regarding the proper construction of the correspondent agreement.

The trial court granted Flagstar’s motion to strike the affidavit, ruling that it was filled with “inadmissible, irrelevant and conclusory statements. The terms of the correspondent agreement are not ambiguous [,] and matters outside a contract may not be used to vary or explain unambiguous terms of an agreement.” Such ruling was consistent with both Georgia and Michigan law. See OCGA §§ 13-2-1; 13-2-2 (a); Zurich Ins. Co. v. CCR & Co., supra. Accordingly, there was no error.

Judgment affirmed.

Blackburn, R J., and Barnes, J., concur.

Decided October 27, 1999.

Baum & McGahren, David E. Baum, for appellant.

Holland & Knight, Susan W. Housen, Scott L. Bonder, for appellee.

       Although the correspondent agreement provided that Michigan law applied to disputes arising from the contract, Bernstein relies on Georgia law in his brief to this Court. Regardless, the result in this appeal is the same under either Georgia or Michigan law. Further, an agreement to apply foreign law applies only to substantive law and not to procedure; the procedural law of the forum state applies. See Lloyd v. Prudential Securities, 211 Ga. App. 247, 248 (1) (438 SE2d 703) (1993).


author: Phipps, Judge.

text:
    A99A2005.
    THOMPSON v. THE STATE.
    (524 SE2d 239)
   Phipps, Judge.

After officers found weapons and cocaine in Thompson’s possession during a search following a traffic stop, he was indicted on nine charges. Following the trial court’s denial of his motion to suppress the evidence, in a negotiated plea agreement, he pled guilty to possession of cocaine and possession of a firearm by a convicted felon. He was sentenced to five years in prison for each offense. Although Thompson was represented by counsel below, he appeals pro se.

1. First, Thompson contends that the trial judge erred in accepting his guilty plea (a) without reading the indictment to him, (b) without ensuring that he understood the elements of the offenses to which he was pleading guilty, and (c) without eliciting from him a confession of guilt.

(a) The judge is required to read the indictment “[u]pon the arraignment of a person accused of committing a crime.” In this case, Thompson initially pled not guilty and waived arraignment. A guilty plea hearing was held in lieu of a bench trial after Thompson opted to plead guilty. A reading of the indictment was not required at the guilty plea hearing.

(b) Nonetheless, Uniform Superior Court Rule (USCR) 33.8 (A) states that the judge shall not accept a plea of guilty from a defendant without first “ [determining on the record that the defendant understands the nature of the charge(s).”

[B]ut the law does not require the trial court to personally inform the accused of the elements of the crime to which he is pleading guilty. [Cit.] ..." ‘(I)t may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.’ (Cit.) . . .” [Cits.]

In Thompson’s signed guilty plea, he acknowledged that his attorney had explained the nature of the charges to him. The trial court was not required to explain the elements of the offenses, which were self-evident from their nomenclature.

(c) When questioned by the judge at the hearing, Thompson affirmed that, pursuant to a negotiated plea agreement, he was pleading guilty to possession of cocaine and possession of a firearm by a convicted felon. A factual basis for the plea was established, as required by USCR 33.9. In addition, Thompson stated in his written plea of guilty and waiver of trial by jury that he did in fact commit the offenses to which he was pleading guilty. A guilty plea is a confession of guilt.

2. Next Thompson contends that the court erred in denying his motion to suppress. This issue was waived by Thompson’s guilty plea.

3. Alternatively, Thompson asserts that his guilty plea was coerced by the court’s erroneous denial of his motion to suppress.

A direct appeal from a judgment of conviction entered on a guilty plea lies only if the issues raised on appeal can be resolved by reference to facts in the record. It does not appear from matters of record that the court’s denial of Thompson’s motion to suppress rendered his guilty plea involuntary. Based on the record of the guilty plea hearing, the State has carried its burden of showing that the guilty plea was voluntarily entered.

4. Thompson challenges the validity of his guilty plea on the ground that the trial court did not fully comply with USCR 33.8 (B) and (C).

Subsection (B) of this rule states that before accepting a guilty plea the judge shall first inform the defendant on the record that by entering the plea he waives: the right to trial by jury; the presumption of innocence; the right to confront witnesses against oneself; the right to subpoena witnesses; the right to testify and to offer other evidence; the right to assistance of counsel during trial; and the right not to incriminate oneself. Subsection (C) requires that the defendant be informed on the record of the maximum possible sentence on the charge and that by pleading not guilty or remaining silent and not entering a plea, one obtains a jury trial. But “ ‘[t]he question is not whether the trial court followed the letter of USCR 33.8 but whether the record, as a whole, affirmatively shows [Thompson’s] plea was knowing and voluntary.’ [Cits.]”

Decided October 27, 1999

Oscar Thompson, pro se.

J. Gray Conger, District Attorney, Roger H. Anderson, Assistant District Attorney, for appellee.

The judge advised Thompson that by pleading guilty he would be waiving his rights to have a trial by jury, to present evidence, to confront the State’s witnesses, and to subpoena defense witnesses. The court also informed Thompson that at trial the State would have the burden of proving guilt. Although the court did not inform Thompson of the maximum possible sentence on the charges, Thompson stated in his written guilty plea that counsel had done so. The record shows that Thompson’s plea was voluntarily, knowingly and intelligently entered.

5. Finally, Thompson claims that he is entitled to discharge and acquittal because the State did not comply with his demand for speedy trial under OCGA § 17-7-170. Thompson filed his speedy trial demand during the June term of the Muscogee Superior Court, thereby requiring the State to try him during the August term. During the August term, the guilty plea hearing was held in lieu of a bench trial. Under these circumstances, the guilty plea constituted a withdrawal of the speedy trial demand. Thus Thompson was not entitled to discharge and acquittal.

Judgment affirmed.

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

       OCGA § 17-7-93 (a).

        Mock v. State, 218 Ga. App. 514, 517 (2) (462 SE2d 429) (1995).

       See Hooten v. State, 212 Ga. App. 770 (1) (442 SE2d 836) (1994), overruling the conditional plea procedures established in Mims v. State, 201 Ga. App. 277, 278 (1) (410 SE2d 824) (1991).

        Echols v. State, 231 Ga. App. 501 (498 SE2d 66) (1998).

       See, e.g., White v. State, 211 Ga. App. 779 (440 SE2d 527) (1994).

        Stephens v. State, 235 Ga. App. 756, 758 (510 SE2d 575) (1998).

       See OCGA §§ 17-7-170; 15-6-3 (8) (D).

       See generally Singleton v. State, 198 Ga. App. 539, 540 (402 SE2d 132) (1991); compare Ballew v. State, 211 Ga. App. 672 (440 SE2d 76) (1994), disapproved in Hooten v. State, supra at 774.


text:
    A99A1902.
    JUDGE v. THE STATE.
    (524 SE2d 4)
   Eldridge, Judge.

A Cook County jury found Charles Judge guilty of three counts of obstruction of an officer and one count of simple battery, arising from an incident that occurred when Judge became angry while incarcerated at the Adel Police Department. Without challenging the sufficiency of the evidence introduced against him, Judge raises three issues of law that allegedly require reversal. We have reviewed these issues, and, finding them meritless, we affirm his convictions.

The above-referenced incident at the Adel Police Department occurred on March 13,1994. Judge bonded out on March 14,1994. He was indicted and pled “not guilty” on July 20, 1994. Attorney Jon McClure filed a notice of appearance and discovery motions on Judge’s behalf on July 29, 1994. Cook County has two trial terms each year on the second Monday in January and July. OCGA § 15-6-3 (1) (D).

Judge’s case was placed on the January 1995 trial calendar. Attorney McClure sought a continuance, which was granted. Thereafter, McClure agreed to a continuance from the July 1995 trial calendar. Between the July 1995 trial term and the January 1998 trial term, Judge’s case was not again placed on a trial calendar. No demand for trial was filed, and in the interim, attorney McClure represented Judge in a civil action in Lowndes County. Also in the interim, and for reasons unexplained, Judge filed a bar complaint and lawsuit against attorney McClure. When Judge’s case appeared on the calendar for the July 1998 trial term, attorney McClure filed a motion to withdraw from his representation of Judge because of a conflict of interest. The motion was granted on August 5, 1998. Judge’s case was moved to the January 1999 term and was scheduled for trial on February 15, 1999.

On February 5, 1999, Judge retained attorney John D. Holt. Attorney Holt filed an entry of appearance and discovery motions on Judge’s behalf on February 10, 1999. He filed a motion to continue the case on February 12, 1999. On February 15, 1999, he filed a motion to dismiss the case based upon a violation of Judge’s constitutional right to a speedy trial. During trial, both motions were denied. Held:

1. Judge claims error in the trial court’s denial of his motion to dismiss based upon an alleged violation of his constitutional right to a speedy trial.

The 36-month delay between the July 1995 continuance and the case’s next appearance on the trial calendar in July 1998 creates a threshold presumption of prejudice; however, delay alone does not constitute a violation of the Sixth Amendment right to a speedy trial. Thomas v. State, 233 Ga. App. 224, 225 (2) (504 SE2d 59) (1998). Instead, we must balance the following factors outlined in Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972): (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right, and (4) the prejudice to the defendant. See also Johnson v. State, 268 Ga. 416, 417 (2) (490 SE2d 91) (1997). The trial court’s decision will not be reversed unless an abuse of discretion is shown. Thomas v. State, supra at 225.

Upon consideration of the factors described above, it is clear that Judge contributed to the initial delay of the trial of the case by both seeking and agreeing to continue the case. Thereafter, when the case finally came up for trial again, further delay was engendered because Judge was dissatisfied with his defense attorney. Following that delay, Judge’s new defense counsel sought to continue the case again, because Judge delayed in hiring him. At no time did Judge ever assert his right to trial or file a demand for trial. Moreover, Judge remained out on bond during the entire 36 months prior to trial. Finally, the only prejudice asserted by Judge is the loss of the testimony of one witness, Ann Overstreet, who was not present during the acts for which Judge was indicted; who could not testify regarding the acts for which Judge was indicted; whose proffered testimony appeared to be inadmissible hearsay; and whose testimony was cumulative of another defense witness, her son-in-law Terry Lump-kin, who was present at trial and testified on Judge’s behalf.

Balancing the factors pursuant to Barker v. Wingo, supra at 533, we find no abuse of discretion in the trial court’s determination that the State did not violate Judge’s Sixth Amendment right to a speedy trial. Thus, Judge’s motion to dismiss based thereon was properly denied.

2. We likewise find no error in the trial court’s denial of Judge’s motion for continuance based upon his new attorney’s lack of time to prepare for trial. Judge’s case was continued from the July 1998 trial calendar because of a conflict with his prior defense attorney. Judge was aware that his case was to be placed on the next trial calender, i.e., the January 1999 trial term. Judge, therefore, had six months to hire an attorney to represent him. He waited until ten days before trial to hire an attorney.

A motion for a continuance predicated on the basis of counsel’s lack of preparation for trial addresses itself to the sound discretion of the trial court and a ruling denying such a motion will not be interfered with unless the court has abused its discretion in denying the motion. In these cases we have noted that the conduct of the party is a relevant and proper consideration of the court in the exercise of its discretion in order to prevent a party using the discharge and employment of counsel as a dilatory tactic. In all cases, the party making an application for a continuance must show that he has used due diligence. OCGA § 17-8-20.

(Citations and punctuation omitted.) Marion v. State, 224 Ga. App. 413, 414 (480 SE2d 869) (1997).

Decided October 15, 1999

Reconsideration denied October 28, 1999.

John D. Holt, for appellant.

Robert B. Ellis, Jr., District Attorney, Timothy L. Eidson, Assistant District Attorney, for appellee.

Here, the trial court specifically noted that Judge delayed in hiring defense counsel, thereby dragging the case out further:

And I told him that I was going to give him one more term and then we were going to try this case. I had to get rid of it and that was it. Now, the fact that he didn’t call you till [sic] ten days ago, whenever it was, I mean, it’s not your fault. . . . I’m going to turn the continuance down.

On its face, the court’s determination appears reasonable under the circumstances. Further, before this Court, Judge has not alleged how a continuance would have benefited the defense. The bare assertion in Judge’s brief that more, time was needed to “locate and interview witnesses” rings hollow when ten days prior to trial, Judge’s new defense counsel furnished the State with a discovery notice listing approximately seventeen witnesses and the substance to which such witnesses would testify. Notably, almost all of the listed witnesses had no knowledge of the acts for which Judge was indicted. However, the representations in the notice demonstrated that, for the most part, the attorney knew the location of the witnesses and knew what they would say. Accordingly, Judge has failed to show the trial court abused its discretion in denying the motion for continuance.

3. Judge contends that the trial court failed to take judicial notice of the trial notices contained in the clerk’s file. He claims that taking such judicial notice “would have been helpful to the jury as the notices would have been available in evidence for the jury to consider.” However, the trial notices are applicable only to Judge’s contentions regarding his right to a speedy trial. They have absolutely no evidentiary value with regard to the issues the jury was to decide. Moreover, the trial notices are part of the record in this case. The trial court considered them in evaluating Judge’s speedy trial claim. And so has this Court. Judge’s contention is without merit.

Judgment affirmed.

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


author: Barnes, Judge. Blackburn, Presiding Judge, Ellington, Judge,

text:
    A99A1260.
    A99A1261.
    A99A1262.
    BASS et al. v. MERCER et al. HEALTHCARE MANAGEMENT CORPORATION v. BASS et al. EDGE et al. v. BASS et al.
    (524 SE2d 260)
   Barnes, Judge.

Case No. A99A1260 is before the Court from an order dismissing appellants’ notice of appeal in a personal injury suit. Two cross appeals by the defendants in the personal injury suit (Case Nos. A99A1261 and A99A1262) are also pending and have been consolidated with this case. We affirm the trial court’s dismissal of the appeal and therefore dismiss the subsequent cross appeals.

The parents of two minors sued several parties seeking compensation for injuries their daughters suffered in an automobile collision. Following a trial, the jury returned a verdict for both sets of parents, awarding in both cases medical expenses, but no damages for pain and suffering.

Case No. A99A1260

The plaintiffs-appellants timely filed their notice of appeal on May 5, 1997, and directed the clerk to include the trial transcript in the record to be sent to this Court. They then moved on November 19, 1997, for an extension of time to file the transcript on the ground that their attorney had “just become aware that the transcript of trial was not ordered on May [5], 1997, at the time the Notice of Appeal was filed nor in July when costs for the appeal record were forwarded” to the trial court.

The trial court granted the motion for an extension of time the same day it was filed, and one week later, the defendants opposed the motion and moved the court to dismiss the appeal. On January 9, 1998, the defendants moved to vacate and reconsider the order granting plaintiffs an extension of time to file the transcript, averring they first received notice of the court’s order on December 23, 1997. They also moved again to dismiss the appeal on the ground that plaintiffs failed to order the transcript until more than 190 days after their notice of appeal was filed and therefore delayed the transmission of the record to this Court. Finally, the defendants submitted affidavits from the court reporter confirming that the trial transcript was not ordered until November 13, 1997, and from the clerk of court confirming that the record was ready, but could not be transmitted because she had not received the transcript. The transcript was finally filed with the clerk of court on February 19, 1998.

After a hearing in March 1998, the trial court granted the defendants’ motion to vacate, explaining that it had erroneously believed the motion for an extension of time to file the transcript was unopposed and timely. Given that the defendants filed timely responses opposing the extension, the trial court concluded that its November 19,1997 order granting the extension was premature. The trial court then considered whether to grant plaintiffs’ motion for an extension of time and concluded that under OCGA § 5-6-39 (d), any application for an extension had to be made “before expiration of the period for filing as originally prescribed.” Since the plaintiffs sought their first extension more than 190 days after the notice of appeal was filed, far past the 30-day deadline set out in OCGA § 5-6-42, the trial court denied their motion.

“The failure to apply for an extension does not automatically convert the delay into one which fits all of the conditions necessary to vest the trial court with the discretion to dismiss the appeal.” Baker v. Southern R. Co., 260 Ga. 115, 116 (390 SE2d 576) (1990). Therefore, the trial court then considered whether the appeal should be dismissed under OCGA § 5-6-48 (c), under which a trial court may dismiss an appeal because the delay was caused by the appellants, was unreasonable, and was inexcusable.

First, the trial court considered the court clerk’s affidavit stating the record was ready for submission to this Court except for the trial transcript. Because the appellants failed to order the transcript in a timely manner, the trial court found they delayed the record’s transmittal.

The court then found the transcript filing delay of more than six months was unreasonable, noting that we have found filing delays of ninety days and one hundred fifty days inexcusable. Crocker v. Stevens, 210 Ga. App. 231, 239-241 (10) (435 SE2d 690) (1993); Burton v. Hamilton, 204 Ga. App. 18, 19 (418 SE2d 398) (1992).

Finally, the court concluded that the delay was inexcusable. The only excuse appellants’ counsel gave for failing to order the transcript was that he thought, in good faith, it had already been ordered. Citing Jackson v. Beech Aircraft Corp., 217 Ga. App. 498, 500 (2) (458 SE2d 377) (1995), the trial court noted that

[w]hile good faith is a factor in determining whether conduct is inexcusable or excusable, it is but one factor to be considered; existence of good faith does not automatically render an unreasonable delay excusable. Whether conduct is incapable of being justified and thus inexcusable must be determined by examining the totality of the circumstances of a given appeal. Among the factors which should be considered is the existence of negligence on the part of the appealing party causing unreasonable delay, whether such delay reasonably should have been detected and timely corrected, and whether any such negligence was so severe as to prejudice the opposing party or to cause the appeal to become stale. . . .

(Citations omitted; emphasis in original.) Considering the totality of the circumstances, the trial court concluded that the delay of several months caused by appellants’ negligence allowed the appeal to become stale.

We review a trial court’s dismissal of an appeal for abuse of discretion. Durden v. Griffin, 270 Ga. 293, 294 (1) (509 SE2d 54) (1998). The Supreme Court of Georgia has upheld such a dismissal when the appellant ordered the transcript only four days after the statutory time expired. Id. We conclude the trial court did not abuse its discretion in dismissing the appeal. .

Case Nos. A99A1261, A99A1262

In view of the holding above, the related cross appeals are dismissed.

Judgment affirmed in Case No. A99A1260. Appeals dismissed in Case Nos. A99A1261 and A99A1262.

Blackburn, P. J, and Ellington, J., concur specially.

Blackburn, Presiding Judge,

concurring specially.

I concur only in the judgment of the majority, not the analysis. I write separately to discuss the reasons why the trial court appropriately dismissed the appellants’ case for their failure to file a transcript.

Unless an extension of time is properly requested, a transcript must be filed within 30 days of the notice of appeal in a case. OCGA § 5-6-42. “The trial court may, after notice and hearing, order an appeal dismissed for a party’s failure to file a transcript on time only if the delay was (1) unreasonable, (2) inexcusable, and (3) caused by such party. OCGA § 5-6-48.” Dalton v. Vo, 224 Ga. App. 382 (480 SE2d 377) (1997).

In this case, it is clear that the appellants are responsible for the omission of the transcript because they failed to request its filing in a timely manner. Likewise, as discussed by the majority, the appellants’ six-month failure to request the transcript is inexcusable, especially since they were told that the record could not be transferred to this Court without it. The only remaining question is whether the appellants’ six-month delay in requesting a transcript was unreasonable.

The threshold question of whether a delay in filing a transcript is unreasonable is a separate matter from the issue of whether such a delay is inexcusable, and refers principally to the length and effect of the delay rather than the cause of the delay. ... In Jackson v. Beech Aircraft Corp., 213 Ga. App. 172 [(444 SE2d 359), this Court] said that an unreasonable delay may be defined as a delay which may affect an appeal by: (a) directly prejudicing the position of a party by allowing an intermediate change of conditions or otherwise resulting in inequity; or (b) causing the appeal to be stale (see, e.g., Cousins Mtg. &c. v. Hamilton, 147 Ga. App. 210 (248 SE2d 516)), such as, by delaying just disposition of the case, by preventing placement of the case on the earliest possible appellate court calendar, or by delaying the docketing of the appeal and hearing of the case by an appellate court.

(Punctuation omitted.) Cook v. McNamee, 223 Ga. App. 460, 461 (477 SE2d 884) (1996).

In this case, the appellants inexcusably failed to take any action regarding the filing of a transcript for over 190 days after the filing of their notice of appeal. There is no doubt that this mismanagement of this appeal prevented its placement on the earliest possible appellate court calendar and delayed both its docketing and hearing. Therefore, this appeal should be considered stale, and the trial court correctly dismissed it.

The special concurrence by Judge Ellington contends that in dismissing appeals the primary focus should be on a determination of prejudice rather than delay and, as such, a six-month delay should not presumptively render modern litigation stale. While this position may be appropriate at the trial level, it is not at the appellate level where prejudice must be presumed. This is so because there has been an adjudication on the merits which is presumptively correct, and justice delayed is justice denied.

At the point that a notice of appeal has been filed, the litigation has reached a discrete stopping point at which a trial court has made some decision and a transcript can be drawn up reflecting the matter’s development. At that point, to prevent inequitable delays, a notice of appeal must be filed within 30 days, OCGA § 5-6-37, and a transcript must be filed 30 days thereafter, OCGA § 5-6-42. The reason for these deadlines is to prevent staleness and ensure that matters can be heard by this Court as quickly as possible. At this point, the law presumes that justice has been done. The party disputing this fact has a heavy burden which must be timely met. Justice delayed is justice denied. As the overwhelming majority of cases which are appealed are affirmed, it is important that the correct rulings of the trial court be affirmed as quickly as is reasonable. To that end, a framework, of which OCGA § 5-6-48 (c) and the concept of staleness are integral parts, has been developed which not only facilitates, but mandates the timely filing of materials for our consideration. To preserve this Court’s judicial function, this framework must be strongly enforced, whether the litigation below has lasted for days or years.

If this were not the case, justice would be inappropriately denied. Also, this Court’s ability to follow the two-term rule could be unduly compromised. If the trial court has ruled properly, an appellee should not be held in an appellate limbo in which its rights cannot be enforced. On the other hand, if an incorrect decision has been made, an appellant should receive relief therefrom post haste. To ensure this equitable result, the procedural process, including time limitations, must be followed. Otherwise, legal rights obtained at trial are unenforceable, and the system is frustrated.

Ellington, Judge,

concurring specially.

Given existing precedent, I must concur in the judgment of the majority. However, I write separately to note my concern about the way the “unreasonable delay” element of OCGA § 5-6-48 (c) has been treated over the years. In reaching a decision about whether the delay in filing a transcript is unreasonable, the trial and appellate courts have more often than not focused their inquiry on how many days or months a transcript is tardy. See, e.g., Wagner v. Howell, 257 Ga. 801 (363 SE2d 759) (1988); Fuller v. Mayor &c. of Savannah, 193 Ga. App. 716 (389 SE2d 7) (1989); Burton v. Hamilton, 204 Ga. App. 18 (418 SE2d 398) (1992). While certainly the length of the delay is an important consideration, whether the delay prejudiced the opposing party or caused the appeal to become stale should be determinative of whether the delay was unreasonable. See Sellers v. Nodvin, 262 Ga. 205-207 (1) (a), (b) (415 SE2d 908) (1992); Jackson v. Beech Aircraft Corp., 213 Ga. App. 172, 173 (444 SE2d 359) (1994). After all, “[ijt is the policy of both appellate courts in Georgia to attempt to avoid dismissing appeals and to try to reach the merits of every case when it can be done consistent with the mandate of law.” (Punctuation omitted.) Johnson v. Daniel, 135 Ga. App. 926, 927 (1) (219 SE2d 579) (1975); Galletta v. Hillcrest Abbey West, 185 Ga. App. 20, 21 (1) (363 SE2d 265) (1987). Keeping the inquiry focused on a finding of prejudice rather than the length of the delay would be more consistent with this policy.

In this case, appellants filed their transcript more than six months late. Both the majority and the trial court concluded, without explanation, that the delay rendered the appeal “stale.” I am not convinced that a six-month delay always presumptively renders an appeal stale. Rather, in each case the length of delay should be considered against the totality of circumstances unique to that case, and the decision to dismiss the appeal should be supported by a finding of resulting inequity. Courts are perfectly capable of determining when or if a party has been prejudiced or if an injustice would result from a delay. Because a party’s significant appellate rights are subject to being lost due to the application of this technical, non-jurisdictional rule, the courts should scrutinize whether and explain how the opposing party was prejudiced before concluding the delay was unreasonable.

Decided October 28, 1999.

Salter, Shook & Craig, Mitchell M. Shook, Jason A. Craig, for Bass et al.

Weissman, Nowack, Curry & Wilco, William C. Thompson, for Healthcare Management Corporation and Mercer et al.

Jones & Smith, Julian B. Smith, Jr., Arrington & Hollowell, Mark W. Wortham, for Edge et al.


text:
    A99A1705.
    SWANIGAN et al. v. LEROUX.
    (524 SE2d 244)
   McMurray, Presiding Judge.

Plaintiffs Cordelia Swanigan, Mamie E. Swanigan and Kirby Choates appeal from an order granting defendant Roger Leroux’s motion for summary judgment based on insufficient service of process under Georgia’s Nonresident Motorist Act, OCGA § 40-12-1 et seq. The trial court disposed of plaintiffs’ complaint in response to defendant’s motion for summary judgment because plaintiffs served defendant, a resident of Canada, by regular mail — not registered or certified mail as required by OCGA § 40-12-2. Held:

1. Because it is undisputed that defendant received the summons and complaint by regular mail, plaintiffs contend the trial court erred in disposing of their complaint in response to defendant’s motion for summary judgment. We do not agree.

Service must be effected in compliance with the applicable statute. Bible v. Bible, 259 Ga. 418 (383 SE2d 108) (1989). The fact that a defendant may have actual knowledge of a complaint by virtue of a process not in compliance with the statute is not adequate under the theory of “substantial compliance.” Id. at 419.'. . . “[T]he appropriate method for serving a nonresident motorist is prescribed in OCGA § 40-12-2. The requirements of this Code section are in derogation of the common law and must be strictly construed and fully complied with before a court of this State may obtain jurisdiction over a nonresident motorist. (Cit.) . . .” Babb v. Cook, 203 Ga. App. 437, 439 (2) (417 SE2d 63) (1992).

Decided October 28, 1999.

Yokely & Associates, Daryl V. Yokely, Tracy L. Parsons, for appellants.

Benedict & Spiegel, Noel H. Benedict, Jodi A. Spiegel, for appellee.

Rose v. Ryan, 209 Ga. App. 160, 161 (2) (433 SE2d 291).

Since it is undisputed in the case sub judice that plaintiffs did not serve defendant by registered or certified mail as required by OCGA § 40-12-2, the trial court did not err in granting defendant’s motion for summary judgment based on lack of service of process.

2. Because the trial court appropriately disposed of the case sub judice based on insufficient service of process, we do not reach plaintiffs’ contention that they exercised due diligence in serving defendant with process after expiration of the applicable statute of limitation.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.


text:
    A99A1755.
    In THE INTEREST OF R. H. et al., children.
    (524 SE2d 257)
   McMurray, Presiding Judge.

The father of R. H. and L. H. appeals from the termination of his parental rights. The juvenile court’s findings reveal that the father is an undocumented Iranian immigrant; that the father pleaded guilty for distributing cocaine in 1989; that the father jumped bond and fled the United States before he could be sentenced for this offense; and that the father thereafter moved to Japan, Iran, Romania and then Canada. The father was detained in Canada about seven years later and returned to the United States where he is serving a federal prison sentence for the 1989 cocaine distribution offense. He is not due to be released from prison until after the year 2000. And according to an officer with the United States Immigration & Naturalization Service, the father will be subject to deportation under federal law (8 USC §§ 1228 and 1229) when he is released from prison based on his conviction for distributing cocaine and his status as an illegal alien.

The children have not seen the father for almost ten years. L. H. was two years old when the father left, and R. H. was an infant. Neither child can remember the father well, if at all, and neither child recognized him in a photograph. The father rarely communicated with the children while he was on the run, and even though the father admits that he was employed during this time, the father did not provide the children with any regular or meaningful support. The father sent only a few hundred dollars for the children on a couple of occasions during his seven-year flight from justice, and he has sent less than $50 for their support since 1997.

After the father was apprehended in Canada in 1997, he did not comply with a court-ordered case plan that was based on a goal for family reunification. And while the father asserts that his imprisonment renders it impossible for him to comply with most of this plan, it is undisputed that the father did not comply with an element of the plan that he could have accomplished from prison — the goal for regular monthly contact with the children. Rather than communicating with the children on a monthly basis, the father sent eight randomly posted letters to the children during their thirty-five-month stay in protective custody.

While the father was on the run, the children’s mother lost control of her life. She became a drug addict and has been in and out of jail for various oflenses. In the meantime, the children were left with relatives who could not or would not provide for them. L. H. testified to being sexually abused during this time, and R. H. remembered watching adults with illegal drugs in his presence. When it was discovered that the children were not attending school in January 1997, they were committed to the custody of the Department of Family & Children Services (“DFACS”). The children are now in foster care, attending school and are doing well. Both children explained that they are aware of their father, but neither expressed a desire to be placed in his custody. Held:

1. DFACS’s motion to strike the father’s enumeration of errors and brief is hereby denied.

2. The father contends the juvenile court erred in terminating his parental rights, arguing that there is not clear and convincing proof that he failed to communicate or make a bona fide attempt to communicate with the children; that he failed to care and support the children, and that he failed to comply with the court-ordered plan for family reunification. The father explains he left the children in 1990 because he loved them too much to be separated from them by imprisonment; that this love drove him overseas to carry out his own plan for family reunification, but that this plan was thwarted by the treachery and misdeeds of the children’s mother and other family members.

The father’s motives for his actions are not the controlling issue. When considering whether to terminate parental rights, the juvenile court must first determine whether there is present clear and convincing evidence of parental misconduct or inability. OCGA § 15-11-81 (a). This determination is made by finding that the children are deprived, that the cause of this deprivation is lack of proper parental care or control, that the cause of deprivation will likely continue, and that the continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the children. OCGA § 15-11-81 (b) (4) (A). When determining whether children are without proper parental care and control, the juvenile court is authorized to consider any felony conviction by the parent which has a demonstrable negative effect on the quality of the parent-child relationship. OCGA § 15-11-81 (b) (4) (B) (iii). Upon a showing by clear and convincing evidence of such parental misconduct or inability, the juvenile court is authorized to then consider whether termination of parental rights is in the best interest of the children. OCGA § 15-11-81 (a).

Although criminal conviction and incarceration do not always compel termination of parental rights, serving time as a convicted felon will support a termination of parental rights when adequate aggravating circumstances are shown to exist — such as failure to comply with goals for family reunification or failure to provide parental care and support. In the Interest of B. M. L., 239 Ga. App. 511 (521 SE2d 448). Not only are both these aggravating circumstances present in the case sub judice, but the father’s status as a convicted felon and a nonresident alien renders it likely that he will be forced out of the United States when he is released from prison and that he will thus be unable to provide the children with proper parental care and control. On the other hand, it appears undisputed that R. H. and L. H. are now in a stable and well-adjusted home environment; that both children are doing well in school; and that a large uncertainty has been lifted in their lives — whether their father will interfere with their hopes for being kept together in a stable home environment. Contrary to the father’s explanations for his past parental shortcomings, the father’s criminal history, his illegal presence in the United States, his failure to support the children while he was a fugitive from justice, his disrespect for this country’s system of criminal justice, and his current justification for disregarding the law and his parental responsibilities provide clear and convincing proof that R. H.’s and L. H.’s deprivation is likely to continue even after the father is released from prison. See In the Interest of C. L. R., 232 Ga. App. 134, 138 (1) (c) (501 SE2d 296); In the Interest of S. N. N., 230 Ga. App. 109, 110 (1) (495 SE2d 602).

Decided October 28, 1999

Ninfo & Ledbetter, Mario S. Ninfo, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Sheri E. Capes, for appellees.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

       Although the mother’s parental rights were also terminated, she is not a party to this appeal.


text:
    A99A1818.
    PORTER v. THE STATE.
    (524 SE2d 259)
   Phipps, Judge.

Following the denial of his motion for new trial, Howard Porter appeals his conviction of possession of cocaine with intent to distribute. He contends that the trial court erred in ruling that testimony given by him on direct examination opened the door to his impeachment by evidence of prior drug convictions. Because we hold that Porter’s testimony did open the door, we affirm.

Porter was driving a car in the City of Chamblee when he was stopped for traffic violations. Kevin Judy was seated in the front passenger seat. No one else was in the car. After Porter and Judy were removed from the car, crack cocaine packaged for distribution was found in the front seat and back seat areas, in a cup discarded by Judy as he was exiting the car, and in the rear of a patrol car where Porter had been placed after he was arrested on traffic charges. Judy denied having thrown down the cup, Porter denied possession of the cocaine found in the patrol car, and each claimed that the cocaine found in Porter’s car belonged to the other.

On direct examination, Porter testified that he told the officers, “I don’t carry no drugs,” but that they nonetheless offered to drop the charges against him if he would provide information concerning other drug dealers, to which he responded, “I don’t know nobody in Chamblee. I don’t even associate around Chamblee.” When asked by defense counsel whether he possessed or sold drugs “on that day,” Porter responded that he had not.

In cross-examining Porter, the prosecuting attorney inquired, “You did not have any drugs on you at the time?” Porter responded, “I did not have no drugs on me period.” The prosecutor then asked what that meant. As Porter began to respond, saying “I ain’t never,” he was interrupted by defense counsel who asked for a bench conference.

Decided October 28, 1999.

Maryann F. Blend, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Jeanne M. Canavan, Assistant District Attorneys, for appellee.

Following arguments of counsel, the trial court ruled that Porter’s testimony on direct examination had opened the door to admission of evidence of prior drug convictions. Over objection, evidence was presented showing a number of prior convictions of possession of cocaine or possession of cocaine with intent to distribute in Gwinnett, Fulton, and DeKalb Counties.

The general rule is that evidence of a criminal defendant’s general bad character or prior convictions is inadmissible unless he first puts his character in issue. This prohibition does not, however, preclude the state from rebutting testimony of a defendant by disproving the facts to which he testified, even though this incidentally places his character in issue. But “[i]n an impeachment situation, the State may introduce evidence reflecting negatively on the defendant’s character only insofar as that evidence proves the falsity of specific testimony of the defendant.”

Here, Porter’s testimony that “I don’t carry no drugs” clearly implied that he was neither in possession of drugs at the time in question nor on other occasions. His prior convictions involving possession of cocaine were properly admitted as impeachment evidence.

Judgment affirmed.

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

       See OCGA § 24-9-20 (b); Williams v. State, 187 Ga. App. 564, 566 (2) (370 SE2d 821) (1988).

       See Cobb v. State, 236 Ga. App. 265, 269 (3) (c) (511 SE2d 522) (1999); Lucas v. State, 234 Ga. App. 534, 538 (3) (507 SE2d 253) (1998).

       (Citations and punctuation omitted.) Williams v. State, supra; see Bryant v. State, 226 Ga. App. 135, 138 (4) (486 SE2d 374) (1997).

       See Lucas v. State, supra (defendant opened the door to evidence of prior DUI convictions by testifying that he would not disobey by driving under the influence); compare Williams v. State, 197 Ga. App. 299 (398 SE2d 285) (1990) (defendant did not open the door to evidence of arrests in one county by testifying that he had not had any dealings with the sheriff in another county); Williams v. State, supra, 187 Ga. App. at 566 (defendant did not open the door to admission of evidence of prior burglary and theft convictions by denying that he had ever obstructed an officer).


text:
    A99A1945.
    RODEN ELECTRICAL SUPPLY, INC. v. FAULKNER.
    (524 SE2d 247)
   McMurray, Presiding Judge.

Appellant-plaintiff Roden Electrical Supply, Inc. (“Roden”) brought suit against appellee-defendant Donald V. Faulkner alleging he was liable under an individual personal guaranty as to payments due on account for certain electrical supplies purchased by Anvic International, Inc. (“Anvic”). To its complaint, Roden attached a copy of the credit application and personal guaranty on which it relies, a two-page document, the personal guaranty portion of which appears at page two. In his answer, Faulkner pleaded the violation of the statute of frauds as a complete defense for the failure of his guaranty to identify the principal debtor. Upon cross-motions for summary judgment, the state court found that “the guaranty at issue does not comply with the statute of frauds inasmuch as the guaranty agreement does not explicitly state who is the principal debtor.” Roden appeals from the state court’s grant of summary judgment to Faulkner and the contemporaneous denial of its own motion for summary judgment. Held:

1. In its first and second enumerations of error, Roden contends that the state court erred in granting summary judgment to Faulkner, arguing that Faulkner’s personal guaranty was sufficient to identify Anvic as the principal debtor foreclosing any violation of the statute of frauds, Sysco Food Svcs. v. Coleman, 227 Ga. App. 460 (489 SE2d 568), to the contrary notwithstanding. OCGA § 13-5-30 (2). We disagree.

In support of its claims of error, Roden argues that Faulkner’s personal guaranty sufficiently identifies Anvic as the principal debtor by reference — that is, by referring to the principal debtor as “the above business” in the text of the guaranty at page two of the credit application pointing to Anvic as the single business identified on page one. Roden does not indicate, however, that page one of the credit application does not identify Anvic as a principal debtor. Rather, it lists Anvic as the billable party only and identifies no principal debtor.

[W]here a guaranty omits the name of the principal debtor, it is unenforceable as a matter of law. Builder’s Supply Corp. v. Taylor, 164 Ga. App. 127, 128 (296 SE2d 417) (1982) (failure of document to state the identity of the entity whom guarantor agreed to indemnify is fatal). See Ellis v. Curtis-Toledo, Inc., 204 Ga. App. 704, 705 (2) (420 SE2d 756) (1992)[;] Northside Bldg. Supply Co. v. Foures, 201 Ga. App. 259, 260 (411 SE2d 87) (1991).

Sysco Food Svcs. v. Coleman, 227 Ga. App. at 461, supra. This is true “[e]ven where the intent of the parties is manifestly obvious. . . .’’Id. Further, this Court is not authorized to determine the identity of the principal debtor by inference as this would entail consideration of impermissible parol evidence. See Sawyer v. Roberts, 208 Ga. App. 870, 871 (432 SE2d 610). Neither may we construe the defect sub judice as in the nature of contractual ambiguity. Parol evidence is inadmissible to provide a description of that which is wholly omitted. Builder’s Supply Corp. v. Taylor, 164 Ga. App. at 128, supra. Finally, Roden’s effort to characterize Sysco Food Svcs. v. Coleman, 227 Ga. App. at 461, supra, as inapposite to this case fails for the letter written by Faulkner which it attaches as an exhibit to the affidavit supporting its motion for summary judgment is not germane. Inasmuch as the letter was written with a view to compromise, neither it nor that portion of the affidavit relying on it is admissible in evidence on motion for summary judgment or at trial. OCGA §§ 24-3-37; 9-11-56 (e); Davidson v. American Fitness Centers, 171 Ga. App. 691, 693 (2) (320 SE2d 824); Vickers v. Chrysler Credit Corp., 158 Ga. App. 434, 440 (4) (280 SE2d 842).

2. Roden last enumerates as error that the state court erred in granting Faulkner’s cross-motion for summary judgment upon the claim that his guaranty violated the statute of frauds and in denying its motion for summary judgment, as opposed by Faulkner’s cross-motion alone.

The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988). Further, this court conducts a de novo review of the law and the evidence. Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997).

Clark v. Cauthen, 239 Ga. App. 226, 227 (1) (520 SE2d 477). In light of our disposition of Division 1 and construing the evidence favorably to Roden de novo, id., we conclude that this claim of error is also without merit.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

Decided October 28, 1999

Krause & Hirons, Wayne A. Krause, for appellant.

Thomas P. Stamps, for appellee.


text:
    A99A2210.
    ROACH v. KAPUR.
    (524 SE2d 246)
   McMurray, Presiding Judge.

This Court granted an interlocutory appeal in this case from the superior court’s order denying appellant-plaintiff mother’s motion to dismiss or transfer appellee-defendant father’s counterclaim for custody of the parties’ minor child. The question presented is whether the father, in this case the noncustodial parent, may counterclaim for change of custody in an action for modification and contempt brought by the mother/custodial parent in the father’s place of residence. Held:

OCGA § 19-9-23 pertinently provides:

(a) Except as otherwise provided in this Code section, after a court has determined who is to be the legal custodian of a child, any complaint seeking to obtain a change of legal custody of the child shall be brought as a separate action in the county of residence of the legal custodian of the child, (b) A complaint by the legal custodian seeking a change of legal custody or visitation rights shall be brought as a separate action in compliance with Article VI, Section II, Paragraph VI of the Constitution of this state, (c) No complaint specified in subsection (a) or (b) of this Code section shall be made: (1) As a counterclaim or in any other manner in response to a petition for a writ of habeas corpus seeking to enforce a child custody order; or (2) In response to any other action or motion seeking to enforce a child custody order.

The record reflects that the mother originally brought her action for contempt and modification in Walker County. The father filed his answer and motion to dismiss asserting, among other things, that proper venue was in Whitfield rather than Walker County. The mother agreed, and the matter was transferred to Whitfield County. Thereafter, the father amended his answer to counterclaim seeking sole legal custody of the child. As in Jones v. Jones, 256 Ga. 742 (352 SE2d 754), however, the father’s counterclaim seeking a change in custody violated OCGA § 19-9-23 (a): “(1) by failing to bring a separate action to have custody changed, and (2) by failing to bring such an action in the county of residence of the legal custodian of the child.” Id. at 743. See also In the Interest of S. K. R., 229 Ga. App. 652, 653 (494 SE2d 558) (“[A] petition to change custody must be brought as a separate action in the county where the custodial parent resides.”) (emphasis in original). The father’s counterclaim was therefore improper, and the superior court erred in denying the mother’s motion that the counterclaim be dismissed or transferred to Walker County.

Decided October 28, 1999

Amy A. Petulla, for appellant.

Coppedge & Leman, Warren N. Coppedge, Jr., David L. McGuffey, for appellee.

Judgment reversed and remanded.

Johnson, C. J., and Phipps, J., concur.


author: McMURRAY, Presiding Judge.

text:
    A99A2248.
    A99A2249.
    BUTLER v. THE STATE. RIDLEY v. THE STATE.
    (524 SE2d 251)
   McMURRAY, Presiding Judge.

Defendants Anthony Dewayne Butler and Dean Ray Ridley were jointly tried before a jury and found guilty of three counts of theft by shoplifting. Their separate appeals challenge only the sufficiency of the evidence, and so are consolidated for disposition in a single opinion. Viewed in the light most favorable to the jury’s verdicts, the evidence adduced at trial showed the following:

The Belk’s department store security video clearly shows that defendant Butler knelt next to his wife, Vivian Butler, and helped conceal her from view as she surreptitiously placed two pair of blue jeans in a large shoulder bag. Defendant then acted as lookout as Vivian Butler went into the dressing room. When she came out, they returned some but not all of the merchandise they had examined. As the pair left together, they were stopped by store security. Defendant Butler gave consent to search his vehicle, where police found additional items of clothing and boots taken from Spiegel’s and Belk’s, with the price tags still attached. Also found were two Izod sweaters with the price tags removed. On the front seat of the vehicle was a blue notebook with numerous pawn receipts for items that are commonly stolen, such as scanners and camcorders. The notebook also contained several pages of what appeared to be a shoplifter’s list, with specific items requested placed by initials. The receipts showed that each defendant had pawned items. In a custodial statement, defendant Butler admitted accompanying his wife to the Spiegel outlet store, standing next to her while she knelt down after taking items off the women’s clothing rack, and that, when they got back to their car, Vivian Butler had all the items from Spiegel’s. The Spiegel’s outlet store in Dalton is the only Spiegel’s in Georgia. Because the bar codes had been removed from the Izod sweaters, they could not be conclusively identified as the inventory of the Izod outlet in Dalton, but Kenneth Wade testified that the particular sweaters found in the Butler vehicle were not typically sold in department stores but “mainly in the outlet stores.” The next closest Izod outlet store is 23 miles away, in Calhoun.

Defendant Ridley was not present with Butler and his wife but was located by mall security and brought to the car. He gave a custodial statement, admitting he went into the Izod store where he put on several Izod sweaters and walked out of the store without paying for them. Then he went into Belk’s and put on two denim jackets, ultimately recovered from the Butlers’ car, and walked out without paying for those items. Defendant Ridley further admitted that he and Vivian Butler “had been working together . . . taking orders from other people . . . who would request a specific item.” “They would then go out and shoplift or fill this order . . . receiving] fifty percent (50%) of whatever the [price] tag on the item was.” Held:

“A person who intentionally aids and abets in the commission of shoplifting is a party thereto and may be convicted of shoplifting. OCGA § 16-2-20.” Brown v. State, 228 Ga. App. 281, 282 (1) (491 SE2d 488). As to defendant Butler, evidence that he concealed the shoplifting activities of his wife Vivian Butler (who organized shoplifting to order) and acted as her lookout is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s verdicts that he is guilty, beyond a reasonable doubt, as a party to the crimes of shoplifting alleged in Counts 1, 2, and 3 of the accusation. Adamson v. State, 238 Ga. App. 105, 106 (2) (516 SE2d 310). Accord Tanner v. State, 230 Ga. App. 77 (1) (495 SE2d 315). Defendant Ridley’s incriminating statement that he took the Izod sweaters and denim jackets without paying for them is corroborated by the physical evidence in the car, the notebook he described detailing the shoplifting-to-order conspiracy, and by his presence with the Butlers at the outlet mall. This evidence of an active, ongoing conspiracy to commit shoplifting is sufficient under the standard of Jackson v. Virginia, supra, to authorize the jury’s verdicts that Ridley is guilty, beyond a reasonable doubt, as a party to the shoplifting alleged in Counts 1, 2, and 3 of the accusation. Cantrell v. State, 150 Ga. App. 259, 260 (257 SE2d 351).

Judgments affirmed.

Johnson, C. J., and Phipps, J., concur.

Decided October 28, 1999.

Michael A. Corbin, for appellants.

Kermit N. McManus, District Attorney, Herbert M. Poston, Jr., Assistant District Attorney, for appellee.


text:
    A99A2484.
    In the Interest of D. A., a child.
    (524 SE2d 248)
   McMurray, Presiding Judge.

This appeal is by the teenage mother of an infant child from a juvenile court order finding the child deprived and transferring legal custody (temporary) of the child to the teenage mother’s aunt. The juvenile court entered this order to protect the five-month-old child and to provide the underage mother a chance to learn parenting skills and reach her goal of family reunification. Because there is proof that the child’s tender age and medical disorder requires that the child receive constant care and that the mother is not able to provide this care or supply the child with a stable home, the juvenile court did not err in temporarily placing the child with the mother’s nearest responsible relative — the mother’s aunt.

The evidence adduced at the deprivation hearing reveals that the mother lost custody when the child was admitted to a hospital’s emergency room (three months after the child’s birth) and treated for a life-threatening breathing disorder. The emergency room physician testified that he became concerned for the child’s safety because the mother did not appear to be attentive when he provided her with instructions for treating and responding to the child’s life-threatening breathing disorder. A hospital social worker testified that she became concerned for the child’s safety when she discovered during the emergency room visit that the mother was emotionally depressed; that the mother was unable to provide for herself or the child and that the mother had considered hurting herself. The teenage mother testified that she was fourteen years of age; that she was attending school and that she was in the ninth grade. She also testified that her mother, to whom she is a dependent, was not able to support her financially; that she (the mother) was residing with her aunt (to whom temporary custody of the child was awarded) and that this aunt is her sole source of food and shelter. She admitted that she had resided with relatives, in crowded living conditions, in three different locations since the child’s birth; that she is unemployed; that she has an “attitude problem” which caused her to be placed in an alternative school and that she had missed two out of five visits with her baby since the child was placed in protective custody. An aide assigned by the Department of Family & Children Services (“DFACS”) to help the mother become self-sufficient testified that the mother had missed three of five parenting classes; that the mother had dropped out of school when the child was removed from her custody and that the mother did not make any reasonable effort to accomplish goals that were designed to help her support and care for the child. The mother’s aunt (to whom temporary custody of the child was awarded) testified that the mother was residing in her home; that the mother and the child were welcome to stay in her home; that she had been trained and was certified to be a foster parent and that she could help the mother with her “attitude problem.” The mother’s aunt expressed maternal empathy for her niece when she opined, “I just think she’s [(the mother)] just a normal teenager that want to grow up a little too fast.” Held:

The mother challenges the sufficiency of the evidence in two enumerations of error, arguing that there is no clear and convincing evidence that the child is deprived.

The mother is correct in arguing that there must be clear and convincing evidence to support a finding of deprivation. OCGA § 15-11-33 (b) (1); In re Suggs, 249 Ga. 365 (291 SE2d 233). But she is incorrect in inferring that her circumstances are the primary factor in determining whether the child is deprived. The definition of a deprived child, under OCGA § 15-11-2 (8) (A), focuses upon the child’s needs — not parental fault. See In the Interest of J. P., 267 Ga. 492 (480 SE2d 8). The controlling factor is whether the child is provided with proper parental care or control or other care or control necessary for the child’s physical, mental, or emotional health or morals. Resolution of this issue is for the juvenile court. It is this Court’s duty to review the evidence in the light most favorable to the juvenile court’s judgment and determine whether any rational trier of fact could have found by clear and convincing evidence that the child was deprived and whether, under the circumstances, the court properly awarded temporary custody of the child. In the Interest of S. S, 232 Ga. App. 287, 289 (501 SE2d 618). See OCGA § 15-11-41 (b). This Court neither weighs the evidence nor determines the credibility of witnesses. We instead defer to the trial court’s factfinding and affirm unless the appellate standard is not met. In the Interest of S. S., 232 Ga. App. at 289, supra.

It appears undisputed in the case sub judice that the maternal grandmother is unemployed and unable to assist the mother or provide the mother and the child a place to live. It is also undisputed that the child’s father is unable to provide for the child. These circumstances, evidence that the child requires constant monitoring and care due to a life-threatening medical condition and proof that the mother is unable to provide such care (due to a variety of reasons related to her youth, emotional weakness and immaturity — including but not limited to OCGA § 20-2-690.1 (a)’s requirement that the mother attend school) clearly and convincingly authorize the juvenile court’s judgment that the child is deprived due to a lack of parental care and control and that temporary placement of the child with the mother’s aunt is in the child’s best interest. Indeed, we applaud the juvenile court’s disposition of this difficult and troubling case because its order not only ensures the infant child’s well-being and safety, but the order also keeps the mother and the child together while the mother, a child herself, has an opportunity to accomplish goals necessary for her reunification as the child’s custodial parent. See In the Interest of C. N., 231 Ga. App. 639, 640 (1) (500 SE2d 400). Compare Chancey v. Dept. of Human Resources, 156 Ga. App. 338, 339 (1) (274 SE2d 728), where similar circumstances did not satisfy a greater standard for permanent termination of a teenage mother’s parental rights.

Decided October 28, 1999.

Deborah L. Gowen, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Laura W. Hyman, Assistant Attorneys General, Garcia & Powell, Tony D. Coy, for appellee.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.


text:
    A00A0006.
    ROSS v. THE STATE.
    (524 SE2d 255)
   McMURRAY, Presiding Judge.

Carey L. Ross was tried before a jury and found guilty of possession of cocaine and permitting an unlicensed person to operate a motor vehicle. His sole enumeration of error challenges the overruling of his motion for new trial on the general grounds, OCGA §§ 5-5-20 and 5-5-21. Specifically, defendant challenges the sufficiency of the evidence to support his conviction for possession of cocaine, arguing the State’s circumstantial evidence fails to exclude every reasonable hypothesis save the guilt of the accused. Held:

Viewed in the light most favorable to the jury’s verdict, the evidence revealed the following:

Defendant Ross was a passenger in an automobile operated by his unlicensed nephew. This vehicle was stopped by Deputy Joseph Bryon Mobley of the Newton County Sheriff’s Department because it was raining and Deputy Mobley observed the car “going northbound on Lee Street without any lights on.” Deputy Mobley arrested the nephew “for driving without a license and no headlights.” Deputy Mobley did a pat-down check of the nephew “for weapons and things of that nature.” Deputy Sheriff trainee Micky Kitchens performed a weapons pat-down of defendant Ross, “then handcuffed him and placed him in the rear [seat on the] driver’s side of Lieutenant Smith’s patrol unit.” The nephew was then handcuffed and placed in the back seat on the passenger’s side of Lieutenant Smith’s vehicle. Lieutenant Smith could see both individuals in the rearview mirror. Lieutenant Smith observed “some movement by Mr. Ross on the way in.” Lieutenant Smith did not recall any movement on the other side of the seat, where the nephew sat handcuffed; the movement Lieutenant Smith noticed “brought [his] attention to Mr. Ross.” It is the standard procedure of the Newton County Sheriff’s Department to “check the rear seat of [the] patrol units at the beginning of each shift to make sure that it is clean, that there is no . . . contraband back there.” After every transport, the deputies perform the same procedure. On the night in question, defendant Ross was the first person placed in the back of that particular unit after Deputy Kitchens came on duty. While Lieutenant Smith took defendant Ross into the jail for booking, Deputy Kitchens searched the rear of the patrol unit. Underneath the center of the back seat on the driver’s side of Lieutenant Smith’s car, where defendant Ross had been sitting, Deputy Kitchens discovered “two corners of a plastic bag containing a white or off-white, chunky substance inside of a larger freezer-type bag.” This off-white substance tested positive for cocaine.

“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. Questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and saw the witnesses, so where the jury is authorized to find that the evidence, although circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed on appeal unless the verdict of guilty is insupportable as a matter of law. Robbins v. State, 269 Ga. 500, 501 (1) (499 SE2d 323).

In this case, the jury was instructed in the language of OCGA § 24-4-6 and on equal access. By rendering its guilty verdict, the jury necessarily found the State had excluded all reasonable hypotheses except that of defendant’s guilt. Zant v. Nelson, 250 Ga. 152, 154 (296 SE2d 590). The physical presence of cocaine under the back seat found after the first arrest of the evening authorizes a finding that one passenger or the other removed the packet from his back pocket while being transported to the jail. Lieutenant Smith’s evidence implicates defendant Ross and excludes the other passenger. This is corroborated by the location of the contraband beneath the center of the seat defendant Ross occupied, physically removed from the space occupied by the nephew. The evidence, although circumstantial, was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), and under OCGA § 24-4-6 to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of possessing the cocaine discovered under the seat of the police vehicle. Norman v. State, 208 Ga. App. 830 (1) (432 SE2d 216).

Decided October 28, 1999.

Anthony S. Carter, for appellant.

Alan A. Cook, District Attorney, Brian M. Deutsch, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.


text:
    A99A0993.
    JORGENSEN v. ALSOP.
    (524 SE2d 272)
   Phipps, Judge.

This case is about whether an oral settlement agreement should have been enforced.

Robert Jorgensen and Victoria Alsop moved from Nevada to Augusta, Georgia. Jorgensen purchased and furnished a residence there and granted Alsop one-half interest in the home. When the relationship soured, Alsop returned to Nevada and Jorgensen sued her for partition in equity, demanding title to the Augusta residence and furnishings. Jorgensen also sought a restraining order against Alsop and her 17-year-old son, Tariq, who had been staying at the Augusta residence. Negotiations resulted in an oral agreement resolving all issues except the question of a restraining order against Tariq Alsop. Jorgensen and Alsop agreed that issue would be submitted to the court for resolution.

Jorgensen appeals the trial court’s order enforcing the oral settlement agreement. He claims that the settlement agreement was not enforceable because it was ambiguous and did not resolve all the issues between the parties. He also claims that the court improperly retained jurisdiction. Because we hold that the parties reached an enforceable settlement agreement and that the trial court did not retain jurisdiction, we affirm.

At the conclusion of the settlement negotiations, Alsop executed a quitclaim deed conveying her interest in the Augusta residence to Jorgensen. The deed was to be delivered when a final order was signed by the court. Also, consistent with the terms of the oral settlement agreement, Alsop mailed Jorgensen an airline ticket he had purchased for her. Jorgensen delivered to his attorney a check for $1,000 payable to Alsop, as required by the settlement agreement.

Subsequently, Jorgensen noticed Alsop for a deposition. She moved to quash the notice and filed a motion to enforce the oral settlement agreement. The trial court held an evidentiary hearing and issued a final order granting Alsop’s motion and incorporating the terms of the oral settlement agreement.

1. The trial court found that the evidence was clear and convincing that an oral settlement agreement had been reached by the parties and therefore was enforceable. At the evidentiary hearing, Jorgensen admitted that he and Alsop had reached agreement on all issues during their settlement conference, except the issue of the restraining order against Tariq Alsop.

Thus Jorgensen contends that the oral agreement was rendered unenforceable because it did not resolve all the issues between the parties. He cites DeGarmo v. DeGarmo for the proposition that a purported settlement agreement is unenforceable if it provides for issues to be resolved in the future. Similarly, Jorgensen relies on Reichard v. Reichard for the principle that no agreement exists until all essential terms have been agreed to.

The record of the settlement negotiations contains no indication that Jorgensen’s consent was conditioned on a particular resolution of the restraining order issue as it pertained to Tariq Alsop. Tariq Alsop was a minor at the time the initial complaint for a restraining order was filed; he was an adult when the settlement negotiations were held between Jorgensen and Alsop. He was never a party to the litigation nor the settlement negotiations. These parties had no legal power to reach an agreement regarding the disposition of a restraining order against Tariq Alsop, and they knew that. Apparently for that reason, they noted in their discussions that the restraining order was a matter for the court to decide, and that the attorneys would “conference” with the court concerning it.

The transcript of the settlement agreement shows, however, that it was intended by both parties to be a final disposition of all other matters:

Decided October 29, 1999.

J. Wade Padgett, for appellant.

[Jorgensen’s attorney]: And [you] understand the agreement that’s been reached between the parties to settle all of these issues — all the stuff we discussed earlier and the court reporter has taken down?
Alsop: And there won’t be any coming back later and about these rings or any — all of this is taken care of?
[Jorgensen’s attorney]: No this settles all matters.
Alsop: Ok.

The trial court noted that Jorgensen and Alsop had taken actions in reliance on the settlement agreement, such as Alsop’s execution of the quitclaim deed and delivery of the airline tickets to Jorgensen, and Jorgensen’s delivery of the $1,000 check payable to Alsop. The trial court did not address whether these actions may have estopped the parties from challenging the oral agreement, but they are evidence that both Alsop and Jorgensen considered the oral agreement to be final.

The trial court did not err by enforcing the oral settlement agreement.

2. We have reviewed the transcript of the oral agreement and the court’s order enforcing it, and we find no merit in Jorgensen’s claim that the oral settlement agreement was too ambiguous to be enforced.

3. Jorgensen claims that the trial court impermissibly retained jurisdiction over this matter, citing Heard v. Vegas. Heard, which involved the right of a mother to remove her minor child from this state, is not on point. The trial court’s order here provides only “that the parties shall have the right to conduct a conference with the Court on the Restraining Order issue involving Defendant’s son.” There is nothing in the order that would authorize a finding that the trial court “retained] ongoing jurisdiction over the matter for an indefinite period of time,” as Jorgensen claims. Therefore, we find no error.

Judgment affirmed.

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

Fleming, Blanchard, Jackson & Durham, Mildred K. Jackson, for appellee.

        LeCroy v. Massey, 185 Ga. App. 828 (366 SE2d 215) (1988).

       269 Ga. 480 (1) (499 SE2d 317) (1998).

       262 Ga. 561, 564 (2) (423 SE2d 241) (1992).

       Id.

       233 Ga. 911 (1) (213 SE2d 873) (1975).