author: Andrews, Judge.

text:
    A93A1119.
    GAZAWAY v. THE STATE.
    (436 SE2d 738)
   Andrews, Judge.

David Michael Gazaway was tried and convicted of one count of armed robbery, four counts of burglary and one count of possession of a firearm during the commission of a crime. He filed a motion for new trial, claiming among other things, that his trial counsel was ineffective. The trial court denied the motion and he appeals.

1. In his first enumeration of error, Gazaway contends that the trial court erred in denying his motion for a new trial on the basis that his trial counsel was ineffective. “To establish ineffective assistance of counsel, [Gazaway] must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense.” Gross v. State, 262 Ga. 232, 233 (1) (416 SE2d 284) (1992).

(a) Gazaway first argues that his trial counsel was ineffective in failing to object to an in-court identification of Gazaway when the procedures used for the pretrial identification were impermissibly suggestive. The testimony to which Gazaway refers was that of Franklin Feagin, one of the victims, who testified that he arrived home on June 11, 1991, and there was a white male with a handgun in his house. The man ordered Feagin to the master bedroom where he tied him up while he went through Feagin’s belongings.

Feagin testified that he assisted the Rockdale County Sheriff’s office in preparing a composite of the man who robbed him, and that the composite bore a striking resemblance to Gazaway. Feagin testified that he again identified Gazaway in the photo lineup. He stated that the police officers gave no indication as to which photograph he should select from the lineup and that he was certain that Gazaway was the perpetrator when he chose his photograph.

Gazaway argues that his attorney should have objected because Feagin “stated that the reason he recognized Gazaway was that the police officer told him that particular person in the picture was the suspect who came into his house.” That sentence was inconsistent with the remainder of Feagin’s testimony in which he stated that the police officers gave no indication of which photograph to select. Although Feagin made the above statement, he later clarified the sentence and stated that the officer told him this after the photo lineup.

We find no error in the trial court’s denial of the motion for new trial on the basis of this claim of ineffective assistance of counsel. Gazaway’s attorney did not act deficiently in failing to object to this testimony. Furthermore, there is no proof that this alleged deficiency prejudiced his defense.

(b) Next, Gazaway argues that his trial counsel was ineffective in failing to object to the admissibility of several pawn tickets which were introduced into evidence in that they were irrelevant and inadmissible. Several pawn brokers testified at trial regarding receipts for various items which were signed by “David Gazaway.” One of the pawn brokers testified in detail regarding Gazaway’s appearance. Another of the pawn brokers took a picture of Gazaway with the stolen items.

There was no error in the trial court’s denial of Gazaway’s motion for new trial on this basis. The trial attorney’s performance in not objecting to the admission of the pawn shop receipts was not deficient. Moreover, there is no proof that this alleged deficiency prejudiced his defense.

(c) Finally, Gazaway contends that his trial counsel was ineffective in failing to move for a mistrial following the police officer’s interjection of his character into issue and failing to renew the motion after the judge’s curative instructions. No motion in limine regarding Gazaway’s prison record had been filed by defense counsel. The complained of incident occurred during the testimony of a Rockdale County investigator. He testified regarding speaking with a girl friend of Gazaway, who “stated that she had went with David approximately, I believe, a week after he had been released from prison.” Gazaway’s attorney objected to this testimony, the objection was sustained, and a conference was held outside the presence of the jury. At the conclusion of the conference, the judge instructed the jury to disregard the testimony.

Here, Gazaway argues that defense counsel’s failure to move for a mistrial constituted ineffective assistance of counsel. We do not agree. At the hearing on Gazaway’s motion for new trial, his trial counsel explained that her failure to renew the motion for mistrial was a strategic decision. She stated that she and Gazaway conferred as to whether or not to renew the motion for mistrial and reached a mutual decision that it would be to Gazaway’s advantage to proceed with the trial. She explained that they reached this decision because of the fact that harmful fingerprint evidence linking Gazaway to the crimes had been excluded from evidence in that trial, but would be admissible in any subsequent trial.

Pretermitting the substantive issues involved in a motion for mistrial on this basis, see, e.g., King v. State, 261 Ga. 534 (2) (407 SE2d 733) (1991); Chavous v. State, 205 Ga. App. 455 (2) (422 SE2d 327) (1992) (in which testifying officers failed to comply with court orders barring certain testimony), we find no error. “Trial strategy and tactics do not equate with ineffective assistance of counsel. The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. . . . [Djefendant made no affirmative showing that purported deficiencies in his trial counsel’s representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy. . . . The burden is on the party alleging error to show it affirmatively by the record, and when he does not do so, the judgment is assumed to be correct and must be affirmed. A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. The trial court’s finding in the instant case is not clearly erroneous.” (Citations and punctuation omitted.) Nolan v. State, 204 Ga. App. 170, 172 (419 SE2d 72) (1992).

Decided October 14, 1993.

Terry N. Massey, for appellant.

Cheryl F. Custer, District Attorney, for appellee.

2. In Gazaway’s second enumeration of error, he contends that the trial court erred in failing to grant a new trial when Gazaway’s character was put into issue by Officer Tucker’s testimony. As stated above, defense counsel objected to the testimony and requested a hearing outside the presence of the jury. It is unclear whether any motion for mistrial was made during the unreported bench conference. In any case, after the argument, the trial court instructed the jury to disregard the testimony. At this point, defense counsel made no further objection and did not move for a mistrial.

As implicitly conceded by Gazaway’s third argument in Division 1 above, this issue was waived by defense counsel’s failure to move for a mistrial. “We do not reach the merits of the unsolicited interjection by the witness as to defendant’s history of criminal behavior. The issue was not preserved for appellate review because following the curative instruction by the trial court, defendant failed to renew the motion for mistrial.” Tarver v. State, 186 Ga. App. 905, 906 (2) (368 SE2d 828) (1988).

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A93A1131.
    BUFFINGTON v. HALDI.
    (436 SE2d 740)
   Andrews, Judge.

Buffington, a former client of Haldi and his professional corporation, appeals from the judgment entered on the jury’s verdict in this dispute over attorney fees.

Viewed in favor of the verdict, the evidence was that Buffington retained Haldi in 1982 to represent him in a fee dispute with attorney Jessee’s firm, which was splitting up. The litigation in which Jessee was representing Buffington was a contract dispute arising from Buffington’s construction company’s involvement in several hospital projects.

Out of this dispute grew two more, a suit by Sasser, former partner of Buffington, for reimbursement of attorney fees paid by him in the construction dispute based on an indemnification agreement and a suit against attorney Fussell for failing to place money held in the dispute in an interest-bearing account. Haldi’s representation continued through 1988 when Buffington fired him. Throughout this representation, letters were exchanged between Haldi and Buffington relating to the fee arrangements on the three matters. Haldi’s position was that, when it became apparent that Buffington was going to release him before the three matters were resolved, he and Buffington agreed, if such discharge occurred, all hours in all three matters would be recomputed at a fee of $150. Further, they agreed that, if Haldi’s discharge occurred just before the Jessee matter settled, based on his negotiations, then Haldi’s contingency fee would be due, in addition to the hourly rate. Buffington disputed this and contended a portion of the hours were to be billed at $75, a portion at $100, and the Jessee matter only at $150, with no portion of the contingency due.

Haldi computed the total due him, after deducting payments made by Buffington, at $123,945.92. The jury awarded $105,877.25 in principal and $25,939.94 in interest.

1. The first, second, and fourth enumerations are that the verdict was not supported by evidence, making denial of the motion for j.n.o.v. and new trial error, and that the court “erred in allowing the jury to return a verdict in a sum dependent upon both hourly rate and contingency computations.”

As to sufficiency of the evidence, the record contains five volumes of exhibits, including the entire billing and correspondence files of Haldi. The weight of the evidence, the interpretation placed upon the letters, and the recollections of conversations were matters particularly within the jury’s function and will not be disturbed here. OCGA § 24-9-80; Brygider v. Atkinson, 192 Ga. App. 424 (385 SE2d 95) (1989). There was legally sufficient evidence to support the verdict, the only matter addressed by this court. Hawkins v. Grady County &c. Tax Assessors, 192 Ga. App. 416, 417 (2) (385 SE2d 305) (1989).

No objection was voiced below to the method of computation put forward by Haldi and none will be considered here for the first time. Womack Indus, v. Loadstar, Inc., 204 Ga. App. 802, 803 (4) (420 SE2d 659) (1992).

2. To the extent that the second enumeration attempts to address the denial of the motion for j.n.o.v., it is also without merit. While Buffington did make a motion for directed verdict addressed solely to the issue of interest after resting his portion of the case, this motion was not renewed after the close of all the evidence as required by OCGA § 9-11-50 (b). Battle v. Yancey Bros., 157 Ga. App. 277 (1a) (277 SE2d 280) (1981). Therefore, there is nothing to review.

Decided October 14, 1993.

McGee & Oxford, Andrew J. Hinton, Jr., for appellant.

Glenville Haldi, pro se.

3. The third enumeration is that the court erred in allowing Haldi to introduce his time and billing records “in mass without identifying separate documents thus causing confusion to the jury. . . .”

Initially, when the two files were identified, counsel for Buffing-ton agreed to their being introduced “in bulk” as long as he could see them before they were given to the jury, which he did. Later, in the trial, the only statement which can be read as an objection was counsel’s “suggestion] they ought to be submitted by different legal matters as opposed to a mass admission because these cases were handled by different fee arrangements.”

The enumeration does not relate to any objection made below and, in any event, the only suggestion of an objection made at trial was without merit.

4. The motion for imposition of ten percent damages for frivolous appeal is denied.

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.

       The brief filed by appellant is in direct violation of Rule 11 (e) of this court, containing 50 pages, 37 of which are spent rearguing the evidence presented to the jury.


author: Beasley, Presiding Judge.

text:
    A93A1181.
    STALVEY et al. v. STATE OF GEORGIA.
    (436 SE2d 579)
   Beasley, Presiding Judge.

Pursuant to a lawful traffic stop and search of the Chevrolet truck appellant Larry Stalvey was driving, a quantity of marijuana was found and he was arrested and charged with violating the Georgia Controlled Substances Act. Appellant Christine Stalvey, Larry’s mother, is the title owner of the vehicle. It was seized on March 27, 1991, by the Walton County Sheriff, along with certain personal property belonging to Larry Stalvey found in close proximity to the vehicle. The State initiated a condemnation action under OCGA § 16-13-49, resulting in forfeiture of the seized property. The Stalveys appeal.

The State filed its action for condemnation on March 29, 1991. The 1988 version of OCGA § 16-13-49 (e), in effect at the time of filing, provided: “At the expiration of 30 days after such filing, if no claimant has appeared to defend the action, the court shall order the disposition of the seized merchandise as provided for in this Code section.” Larry and Christine Stalvey were personally served with the complaint on April 5 and April 12, respectively. Larry had 24 days (to Monday, April 29) from the date of service and Christine had 17 days. Both filed answers on May 2, thirty-four days after the complaint had been filed.

On March 25, 1992, the State filed a motion for judgment of forfeiture and disposition of the property on the basis that the answers were filed more than 30 days after the complaint. An order of disposition vesting title of the property in the State was entered on the same day. The Stalveys responded with an amended motion to set aside the order of disposition, asserting a nonamendable defect on the face of the record pursuant to OCGA § 9-11-60 (d) (3), and accident or mistake under OCGA § 9-11-60 (d) (2). Following a hearing, the motion to set aside was denied, but the original order of disposition was vacated and re-entered so as to allow a timely notice of appeal.

1. Appellants contend the trial court erred in entering the order of disposition without affording them reasonable notice and a hearing at which to present their claims. This claim was arguably asserted in appellants’ motion to set aside the order of disposition and will thus be considered.

The plain language of the statute in effect at the time of filing this áction required only that a copy of the summons and complaint be served upon the known owner of the property. If 30 days expires from the filing of the complaint and no claimant has appeared to defend the action, the court is directed to order disposition of the seized merchandise. Appellants argue that the statute contemplates reasonable notice and an opportunity to be heard. We agree that notice is required by the statutory scheme and due process. But the notice requirements were satisfied by personal service of process upon both appellants.

Tant v. State, 247 Ga. 264 (275 SE2d 312) (1981), cited by appellants, interpreted an earlier version of OCGA § 16-13-49 (former Code Ann. § 79A-828), but which contained an identical provision relating to the 30-day answer requirement. The Court concluded that “[t]he post-seizure process provided by [the counterpart to OCGA § 16-13-49 (e)] gives the owner 30 days . . . within which to interpose his claim opposing forfeiture to the state.” Id. at 266. The conclusion was reached that “ ‘this statute affords adequate notice and an adequate hearing so as to comport with due process of law as required by the Federal Constitution and the Georgia Constitution.’ ” Id. See also Farley v. State of Ga., 180 Ga. App. 694 (1) (350 SE2d 263) (1986), and State of Ga. v. Britt Caribe, Ltd., 154 Ga. App. 476 (268 SE2d 702) (1980). As in Tant, appellants herein had adequate notice and the opportunity to be heard. By failing to timely interpose their claims opposing forfeiture, they lost the opportunity to be heard concerning the disposition of the property.

Decided October 14, 1993.

E. Jerrell Ramsey, for appellants.

Alan A. Cook, District Attorney, W. Kendall Wynne, Jr., Assistant District Attorney, for appellee.

2. Alternatively, appellants argue that a 1991 amendment to OCGA § 16-13-49, Ga. L. 1991, p. 886, § 1, effective July 1,1991, several months after the present condemnation and defensive claims were filed, should be applied retrospectively to this case so as to allow an answer within 30 days after service of the summons and complaint. See OCGA § 16-13-49 (o) (3).

We find nothing in the record before this court to indicate that this argument was either asserted or passed on in the trial court. We are unable to discern that this ground was raised at the hearing on appellants’ motion to set aside the original order of disposition, because no transcript has been requested or included in the record on appeal. “ ‘When an appellant seeks to prove error in the trial proceedings, the burden is on him to produce a transcript of the allegedly erroneous matter.’ [Cit.]” City of Atlanta v. Atlantic Realty, 205 Ga. App. 1, 4 (3) (421 SE2d 113) (1992). Only grounds which were properly raised before the trial court may be considered on appeal. Long v. Marion, 257 Ga. 431, 432 (1) (360 SE2d 255) (1987). This ground.is not properly before the court.

Judgment affirmed.

Cooper and Smith, JJ., concur.

       As in Farley, the clerk’s summons required an answer within 30 days of service, whereas the court order required the filing of defenses within 30 days of the filing of the petition.

       OCGA § 16-13-49 was again amended, effective July 1, 1993; subsection (o) relating to in rem proceedings remains identical to the 1991 version.


author: McMurray, Presiding Judge.

text:
    A93A1249.
    DEPARTMENT OF HUMAN RESOURCES v. BROWNING.
    (436 SE2d 742)
   McMurray, Presiding Judge.

The Georgia Department of Human Resources (“DHR”) filed a petition against Wallace C. Browning to collect past and future child support pursuant to OCGA §§ 19-11-5 and 19-11-6, alleging that Browning is the father of a minor child who is now dependent upon public assistance. On February 4, 1988, a “Consent Agreement and Order” was entered wherein Browning admitted paternity and agreed to support the minor child. On August 6, 1992, Browning filed a “Petition for Blood Test” to determine paternity, alleging that, “[subsequent to the execution of [the Consent Agreement and Order, he] learned that he is not the biological father of said minor child.” At a hearing on the petition, the trial court ordered the parties to submit to a blood test for the purpose of resolving the issue of paternity. After the results of a Human Leukocyte Antigen (HLA) blood-typing test revealed that he is not the biological father of the child, Browning amended his “Petition for Blood Test” and requested a bench trial to resolve the “mutual mistake” in naming him father of the child.

After a hearing, the trial court entered an order setting aside the consent judgment, finding that Browning is not the father of the child and relieving him of further obligation for support of the minor child. This appeal followed an order granting DHR’s application for discretionary appeal. Held:

1. In its first enumeration, DHR contends the trial court erred in granting Browning’s “Petition for Blood Test.”

(a) DHR argues that any attempt to relitigate the issue of paternity is precluded by the doctrine of res judicata.

In Roddenberry v. Roddenberry, 255 Ga. 715 (342 SE2d 464), the Supreme Court recognized an extraordinary motion for new trial (based on newly discovered evidence) as a proper procedural vehicle for challenging a consent judgment which resolved issues of paternity and child support and held that the doctrines of res judicata and estoppel by judgment are inapposite when such a consent judgment is under attack via extraordinary motion for new trial. Id. at 717. In the case sub judice, Browning’s challenge to the consent judgment is based on an allegation of newly discovered evidence which developed after entry of the consent judgment. Consequently, since substance rather than form controls the nature of a motion, Vaughan v. Car Tapes, Inc., 135 Ga. App. 178 (1) (217 SE2d 436), Browning’s “Petition for Blood Test” is, in substance, an extraordinary motion for new trial based on newly discovered evidence and is therefore not precluded by the doctrine of res judicata. See Gearing v. Gearing, 261 Ga. 250 (403 SE2d 809). Compare East v. Pike, 163 Ga. App. 375 (294 SE2d 597); Macuch v. Pettey, 170 Ga. App. 467 (1) (317 SE2d 262); Dept. of Human Resources v. Brown, 196 Ga. App. 875 (397 SE2d 73), and Dept. of Human Resources v. Hurst, 208 Ga. App. 792 (432 SE2d 236), where prior judgments resolving paternity barred relitigation of the same paternity issues in actions separate from the original unchallenged judgments.

(b) Next, DHR argues that there is no basis for setting aside the “Consent Agreement and Order” because Browning’s “own lack of diligence accounts for the original paternity order.”

“Once there has been a final determination of paternity, a party may not relitigate that issue without first showing, inter alia, that his failure to contest paternity earlier was not the result of a lack of due diligence. Roddenberry v. Roddenberry, 255 Ga. 715, 717, [supra]. [In the case sub judice, the] trial court made no findings in this regard and, accordingly, this case is remanded to the trial court for a consideration of [Browning’s] due diligence in accordance with [the Supreme Court’s] holding in Roddenberry v. Roddenberry, supra.Gearing v. Gearing, 261 Ga. 250, supra.

(c) DHR invokes OCGA § 9-12-23 and argues that Browning’s voluntary execution of the “Consent Agreement and Order” removes the possibility of relitigating paternity.

OCGA § 9-12-23 does not remove the possibility of testing the validity of a consent judgment via extraordinary motion for new trial. See Roddenberry v. Roddenberry, 255 Ga. 715, 717, supra. This Code section recognizes that an unchallenged consent judgment “has the effect of removing any issuable defenses previously filed.” OCGA § 9-12-23. In the case sub judice, Browning is not raising lack of paternity as a defense in a collateral action, nor is he attempting to relitigate the issue of paternity. Browning is attempting to set aside the “Consent Agreement and Order” based on the alleged post-judgment development of evidence that he is not the child’s father. See Gearing v. Gearing, 261 Ga. 250, supra. Consequently, OCGA § 9-12-23 provides no barrier to Browning’s attack upon the “Consent Agreement and Order.”

2. In its second enumeration, DHR contends the trial court erred in setting aside the “Consent Agreement and Order,” arguing that Browning failed to prove the consent judgment was entered as a result of fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant as required by OCGA § 9-11-60 (d) (2).

The relief sought in the “Petition for Blood Test” is not characteristic of a motion to set aside filed pursuant to OCGA § 9-11-60 (d) (2), but is in the nature of an extraordinary motion for new trial based on newly discovered evidence. See Vaughan v. Car Tapes, Inc., 135 Ga. App. 178 (1), supra. Consequently, Browning’s “Petition for Blood Test” is not subject to consideration pursuant to OCGA § 9-11-60 (d) (2), but is subject to consideration pursuant to the standards set out in Roddenberry v. Roddenberry, 255 Ga. 715, supra, for review of an extraordinary motion for new trial based on newly discovered evidence, i.e., that want of due diligence was not the reason the newly discovered evidence was not acquired sooner. Id. at 717.

DHR also contends in its second enumeration that the trial court erred in failing to dismiss Browning’s “Petition for Blood Test,” arguing that the petition was filed beyond the three-year limitation period of OCGA § 9-11-60 (f).

Browning’s “Petition for Blood Test” is not subject to the three-year limitation period prescribed in OCGA § 9-11-60 (f) as it is not a motion to set aside filed pursuant to OCGA § 9-11-60 (d). As stated in Division 2 of this opinion, the “Petition for Blood Test” is in the nature of an extraordinary motion for new trial based on newly discovered evidence. OCGA § 5-5-41 (a) makes provision for such motions filed more than 30 days after the entry of judgment, but does not prescribe or limit the time for bringing an extraordinary motion for new trial. This Code subsection only requires that “[w]hen a motion for a new trial is made after the expiration of a 30 day period from the entry of judgment, some good reason must be shown why the motion was not made during such period, which reason shall be judged by the court.” Id.

Browning alleges that “[subsequent to the execution of [the Consent Agreement and Order, he] learned that he is not the biological father of said minor child.” Further, Browning’s attorney contended during a hearing on the “Petition for Blood Test” that the child’s mother changed her story and informed Browning after entry of the “Consent Agreement and Order” that he is not the child’s biological father. Moreover, DHR does not allege nor is there proof that Browning acted unreasonably in accepting the mother’s earlier claim that he is the father of the child. In fact, there are indications in the record that Browning executed the “Consent Agreement and Order” without full understanding that he could challenge DHR’s accusation of paternity via a petition for paternity blood test or other judicial proceeding. These circumstances authorize a threshold determination of whether good reason exists for considering Browning’s belated “Petition for Blood Test” as required by OCGA § 5-5-41 (a). See Gearing v. Gearing, 261 Ga. 250, supra, where the Supreme Court remanded for consideration of a motion to determine paternity filed eight years after entry of a final decree resolving the issue of paternity. Compare Murphy v. Murphy, 263 Ga. 280 (430 SE2d 749), a case not involving an extraordinary motion for new trial filed pursuant to OCGA § 5-5-41.

Decided October 14, 1993.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Staff Attorney, Charles R. Reddick, for appellant.

Moore & Studstill, Daniel L. Studstill, for appellee.

3. In its third enumeration, DHR contends the trial court erred in failing to transfer Browning’s “Petition for Blood Test” from the Superior Court of Lanier County to the county where the child’s mother currently resides. See Davis v. Davis, 259 Ga. 151 (377 SE2d 850). This contention is without merit.

A party who institutes an action in a county other than his residence submits to the jurisdiction of the court of the county where the suit is initiated for all purposes of defense of that suit. Moore, Marsh & Co. v. Medlock, 101 Ga. 94 (28 SE 836). In the case sub judice, DHR filed the petition for child support against Browning in the Superior Court of Lanier County, resulting in a consent judgment which resolved issues of paternity and child support. The consent judgment is now being challenged in the Superior Court of Lanier County via a procedural vehicle approved in Roddenberry v. Roddenberry, 255 Ga. 715, supra. Consequently, venue is proper in the Superior Court of Lanier County for the purpose of considering Browning’s petition to set aside the “Consent Agreement and Order.”

4. In its final enumeration, DHR contends “[r]elitigation of previously adjudged paternity matters would preclude [DHR] from recovering reimbursement of expended public assistance.” This contention provides no basis for judicial review. Further, it ignores the practical and historical basis for extending relief via extraordinary motion for new trial where the same is authorized by the evidence, i.e., “the higher and supreme object of the law which is to do full justice in all cases.” Matthews v. Grace, 199 Ga. 400, 404 (2), 405 (34 SE2d 454).

Judgment vacated and case remanded.

Johnson and Blackburn, JJ., concur.

       The “Consent Agreement and Order” is a form document with blanks for identifying parties and non-standard terms. Browning executed this form about a week before DHR initiated the petition for child support and the trial court executed the form on February 2, 1988, two days before DHR filed the petition against Browning. Browning also executed a form document entitled, “ACKNOWLEDGEMENT OF SERVICE WAIVER OF JURISDICTION AND NOTICE” on the day he executed the “Consent Agreement and Order.” The body of this form goes further than its caption (i.e., waiver of service, jurisdiction and notice), providing as follows: “I have been informed that I have the right to a hearing in the matter of the Child Support Petition and to be represented by counsel at my own expense if I choose. I am fully aware of this right and do hereby freely and voluntarily waive it.” Although the record shows that a Special Assistant Attorney General executed the “Consent Agreement and Order” on behalf of DHR, there is no proof that Browning was advised that DHR’s attorney acted solely on behalf of DHR; that DHR’s interests were adverse to Browning’s interests or even that it would be in his best interest to retain independent counsel before executing the “Consent Agreement and Order.”


author: Johnson, Judge.

text:
    A93A1484.
    ABE ENGINEERING, INC. v. TRAVELERS INDEMNITY COMPANY.
    (436 SE2d 754)
   Johnson, Judge.

Travelers Indemnity Company issued payment and performance bonds on a school construction project on behalf of Williams Construction Company, the general contractor. Williams subcontracted with the appellant, Abe Engineering, Inc., to perform certain work on the project. A dispute arose between Abe and Williams, which was submitted to arbitration in accordance with the subcontract. Travelers was aware of, but did not participate in the arbitration proceedings. After the arbitrators issued an award in Abe’s favor, Abe filed a pro se application in the superior court to modify the award to include Travelers as surety and to “enter judgment” against both Travelers and Williams. Abe attempted service on Travelers by mailing a copy of the motion by certified mail to Continental Guaranty & Credit Corporation, an adjusting company which handles various claims for Travelers.

Travelers moved to dismiss, alleging insufficient service of process, and also filed a motion for summary judgment alleging, inter alia, that Abe’s claim was barred by the statute of limitation. After a hearing, the trial court dismissed the suit for “insufficiency of process and service of process” as to both defendants. On the same date, it also granted Travelers’ motion for summary judgment. Abe filed this appeal from both orders.

1. Abe contends the trial court erred in simultaneously dismissing the suit for insufficient service of process and granting Travelers’ motion for summary judgment. The Georgia Arbitration Code (OCGA § 9-9-1 et seq.) provides that all applications thereunder “shall be made by motion and . . . shall be filed in the same manner as a complaint in a civil action.” OCGA § 9-9-4 (a) (2). OCGA § 9-9-4 (c) (2) provides that “[t]he initial application to the court shall be served on the other parties in the same manner as a complaint under Chapter 11 of this title.” Abe was thus required to serve its motion to modify the arbitration award in accordance with the procedures mandated by OCGA § 9-11-4. While OCGA § 9-11-4 (d) (1) provides that in certain circumstances service on a non-resident corporation may be made by certified mail through the office of the Secretary of State, “[t]here is no provision [under Chapter 11] which authorizes a party to serve a defendant corporation directly by certified or registered mail.” (Emphasis in original.) KMM Indus. v. Professional Placement Assn., 164 Ga. App. 475, 476 (297 SE2d 512) (1982). Forwarding a copy of the motion by certified mail therefore did not constitute sufficient service on Travelers.

“Where there has been no legal service on the defendant and no waiver of service, the court has no jurisdiction to enter any judgment in the case unless it be one dismissing the case for lack of jurisdiction.” (Citation omitted.) DeJarnette Supply Co. v. F. P. Plaza, 229 Ga. 625 (2) (193 SE2d 852) (1972). The trial court therefore lacked jurisdiction to enter summary judgment, even in Travelers’ favor. See Masters v. Air Lines Pilots Assn., Intl., 144 Ga. App. 350 (241 SE2d 38) (1977). Accordingly, we affirm the trial court’s order dismissing Travelers for insufficient service of process and reverse its order granting summary judgment in favor of Travelers.

Decided October 14, 1993.

Dhiru Parekh, pro se.

Bovis, Kyle & Burch, John V. Burch, Wade H. Purcell, for appellee.

2. In light of our holding in Division 1 above, we need not reach Abe’s remaining enumerations of error.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Blackburn, J., concur.


text:
    A93A1509.
    MOORE v. BARGE et al.
    (436 SE2d 746)
   Andrews, Judge.

In July 1984, Moore was hired by Charter Properties, Inc. (Charter) pursuant to an oral employment agreement of indefinite duration, under which Moore was to be compensated for real estate development work by receiving a salary and an equity interest in certain properties developed by Charter. Charter was wholly owned by Barge, Wagener and Lesley. Pursuant to the employment agreement, Moore obtained an interest as a limited partner in four limited partnership agreements with Barge, Wagener and Lesley on properties which had been developed by Charter. In December 1989, acting as president of Charter, Lesley terminated Moore’s employment.

Moore brought this action against Barge, Wagener and Lesley alleging that the defendants: (1) breached the limited partnership agreements by engaging in various misappropriations of funds, which deprived him of his proportionate equity interests in the properties; (2) tortiously interfered with his employment agreement with Charter, including a claim that he was wrongfully terminated; (3) converted his rights and interests in the limited partnerships, and in other Charter development projects; and (4) engaged in activities prohibited by the Georgia RICO Act (OCGA § 16-14-1 et seq.) giving rise to the civil remedies available under OCGA § 16-14-6. Moore appeals from the order of the trial court granting partial summary judgment in favor of the defendants, and dismissing Moore’s claims for tortious interference with the employment agreement, wrongful termination, conversion and RICO violations.

1. Moore claims the trial court erred by granting summary judgment against him on his claim that the defendants tortiously interfered with his rights in the employment agreement.

Moore contends that Barge and Wagener wrongfully induced Lesley to terminate his employment. It is undisputed that Moore’s employment with Charter was terminable at will. Generally, claims for tortious termination of an employment contract are in two categories: “(1) where there is a definite term of employment and the corporation or employer would be liable for the breach of the employment contract ... (2) where, even though the contract is terminable at will, a party with no authority to discharge the employee, being activated by an unlawful scheme or purpose to injure and damage him, maliciously and unlawfully persuades the employer to breach the contract with the employee.” (Citations omitted.) Campbell v. Carroll, 121 Ga. App. 497, 499 (174 SE2d 375) (1970). Accordingly, a person whose employment contract is at will has no cause of action for wrongful termination or tortious interference with the contract against one who has an absolute right to terminate that employee. Ga. Power Co. v. Busbin, 242 Ga. 612, 613 (250 SE2d 442) (1978). However, even though the employment contract is at will, it is a valuable contract right, which may not be unlawfully interfered with by a third person without such authority. Id.; Troy v. Interfinancial, 171 Ga. App. 763, 766-767 (320 SE2d 872) (1984). Since the record shows that Lesley, as president of Charter, had absolute authority to terminate Moore, he cannot be held liable. Moore claims that, despite their ownership interests in Charter, Barge and Wagener were not officers in the corporation, nor did they otherwise have authority to terminate him, therefore they are properly considered as third persons who unlawfully interfered with his employment agreement. Pretermitting this claim, we find no evidence in the record to support Moore’s claim that Barge or Wagener improperly induced Lesley to terminate him. Moore’s speculation that they probably did so because of their ownership interest in Charter is not sufficient to create a factual issue. Rhodes v. Levitz Furniture Co., 136 Ga. App. 514, 517-518 (221 SE2d 687) (1975).

Moore also claims that under his employment agreement with Charter he had the right to receive certain equity interests in Charter-developed properties as part of his compensation. He contends the defendants tortiously interfered with this right in two ways: (1) the defendants failed to give him the interests to which he was. entitled in certain properties developed by Charter, and (2) on properties in which he obtained a partnership interest, the defendants violated the partnership agreements by allocating partnership funds in a manner which deprived him of his proportionate equity interests in the properties.

Apart from the wrongful termination claim addressed above, these latter claims are under the terminable-at-will employment agreement for enforcement of the original terms of compensation for work performed under the agreement. See E. D. Lacey Mills v. Keith, 183 Ga. App. 357, 361 (359 SE2d 148) (1987). Moore brings these tortious interference claims against the individual defendants, one of whom was president of the corporation, and who together are the sole shareholders of the corporation which employed him. A claim for tortious interference with a contract may be brought only when the interference is done by one who is a stranger to the contract. Jefferson-Pilot Communications Co. v. Phoenix City Broadcasting &c., 205 Ga. App. 57, 60 (421 SE2d 295) (1992); Lake Tightsqueeze v. Chrysler First Financial &c. Corp., 210 Ga. App. 178 (435 SE2d 486) (1993). Accordingly, any action taken by the defendants on behalf of the corporation, Charter, which was obviously not a stranger to the employment contract with Moore, would be shielded by the corporate veil, in the absence of fraud or abuse of the corporate form authorizing Moore to pierce the veil in this case. Catón, supra at 205. Although shareholders or officers in a corporation enjoy a limited liability, they may be held liable individually for their own tortious or wrongful acts. Zagoria v. DuBose Enterprises, 163 Ga. App. 880, 886 (296 SE2d 353) (1982), rev’d on other grounds, 250 Ga. 844 (302 SE2d 674) (1983); Wrigley v. Nottingham, 111 Ga. App. 404, 406 (141 SE2d 859), rev’d in part on other grounds, Nottingham v. Wrigley, 221 Ga. 386 (144 SE2d 749) (1965). “One who is sued in his personal capacity, whether the alter ego, an officer or agent of a corporation, may not escape personal liability for his tortious misconduct damaging employees or third persons by hiding behind the corporate veil even in those situations where the corporation might also be a proper party to the action.” Wrigley, 111 Ga. App. at 406.

As part of his compensation under the employment agreement, Moore testified he received an equity interest in four Charter projects, which upon development became owned and managed by limited partnerships, in which he was one of the partners along with the defendants. He claims he was entitled to receive an equity interest in other projects, and that the defendants tortiously interfered with this right. In support of this claim, Moore alleges that the defendants were aware of his right to an interest in properties developed by Charter, and that they had no excuse or justification for interfering with this right. He alleges no specific facts to show how the defendants interfered. The only properties cited by Moore in which he contends he was improperly deprived an interest was a property in Birmingham and the Heritage Walk-Milledgeville property. The record shows that the Birmingham property was acquired by Charter, and, without being developed into a finished project, sold for a profit. Similarly, although preliminary negotiations had occurred on Heritage Walk, the property had not been acquired or developed prior to Moore’s termination by Lesley. A dispute later arose over whether under Moore’s employment agreement he was entitled to an interest in these types of properties, or whether his interest was limited to properties which were fully developed. These facts may support a claim for breach of the employment agreement, but they are not sufficient to show any tortious misconduct by the defendants. The only other support offered by Moore for this claim was his affidavit opposing summary judgment, which provided nothing more than the same general allegations, the affidavit of Moore’s expert accountant, which produced evidence relating to misappropriation of funds in the limited partnerships in which Moore already had an equity interest, and a reference to the depositions of all three defendants, with the only specific reference being to the Birmingham property. There was insufficient evidence to create a question of fact on this claim. Rhine v. Sanders, 100 Ga. App. 68 (110 SE2d 128) (1959); Johnson v. Auto/ Mend, 183 Ga. App. 311 (359 SE2d 10) (1987); Lawton v. Temple-Warren Ford, 203 Ga. App. 222, 223-224 (416 SE2d 527) (1992).

Moore also sought to establish that the defendants tortiously interfered with his employment agreement with Charter by breaching the limited partnership agreements to which he and the defendants were parties. The evidence shows that after Charter had finished developing certain properties, Moore and the defendants formed limited partnerships under which Moore received an equity interest in the developed properties as required by his employment agreement with Charter, and the defendants divided up the remaining equity interest in the properties. The limited partnerships were created by separate agreements entered into by Moore and the defendants pursuant to the provisions of the Georgia Uniform Limited Partnership Act for the express purpose of defining the proportionate equity interests of each partner in the developed properties, owning and maintaining the properties, and allocating the profits or losses generated by the properties according to the equity interests. The limited partnerships were effectively controlled by the defendants, with Moore receiving only about a ten percent equity interest in each of the partnerships. Moore does not contend in this claim that he was deprived of the initial equity interests in the properties to which he was entitled under the employment agreement. Rather, he claims that the defendants’ wrongful actions in breach of the partnership agreements subsequently interfered with the employment agreement by causing the value of the equity interests to which he was entitled under the employment agreement to be impaired.

In support of this claim, Moore produced the affidavit of a certified public accountant, who examined financial records relating to the limited partnerships and averred that the records reflected: transactions showing the defendants received substantially larger cash distributions than they were entitled to under their proportionate interests as partners under one of the partnerships; partnership payment of fees to Barge and Wagener without documentation as to any services performed for the fees; partnership interest free loans to entities owned by the defendants; and partnership payment of Charter fees and administrative and other expenses without any documented agreement that the partnerships were liable for such payments. The affidavit concludes that Moore’s proportionate interests in the properties under the partnership agreements were impaired by these actions.

“In order to recover for a third party’s intentional interference with contractual relations, a plaintiff must show that damage to his rights or obligations under a contract proximately resulted from the third party’s alleged interference.” Carter v. Willowrun Condo. Assn., 179 Ga. App. 257, 259 (345 SE2d 924) (1986). Although Moore alleges that the defendants’ wrongful breach of a separate agreement caused the alleged tortious interference with his employment contract, there is sufficient evidence of a direct causal connection between the defendants’ alleged wrongful actions and the tortious interference claim to establish proximate cause in this case. This case is unlike those in which we have found that the defendant’s alleged action did not directly interfere with the plaintiff’s contract right. See First Mtg. Corp. v. Felker, 158 Ga. App. 14, 15-16 (279 SE2d 451) (1981); Wometco Theatres v. United Artists Corp., 53 Ga. App. 509, 513-515 (186 SE 572) (1936). Here, there is evidence that the alleged wrongful actions of the defendants in violation of the partnership agreements with Moore were a direct tortious interference with the compensation terms of Moore’s employment contract with Charter. The evidence on this claim was sufficient to create a question of fact as to whether the defendants, acting as third parties, interfered with Moore’s right under the employment agreement with Charter to receive the full value of the equity interests in the properties to which he was entitled.

2. We find no error in the trial court’s grant of summary judgment in favor of the defendants on Moore’s claim for conversion. Moore argues on appeal that the defendants converted cash distributions and the equity interests to which he was entitled under the partnership agreements. He also contends the defendants converted his right to an equity interest in other properties developed by Charter. As to the claim for conversion of Moore’s equity interests in other properties developed by Charter, we have already determined that there is no evidence showing any tortious conduct by the defendants in this regard. Moreover, in seeking to recover losses for wrongful distribution of funds, and impairment of his equity interests, Moore does not plead for the recovery of specific money, or certain bills or coins, to which he had title, but instead seeks to recover a given quantity of money generally. Accordingly, he does not state a cause of action for conversion. Cooke v. Bryant, 103 Ga. 727, 730-731 (30 SE 435) (1898); Hodgskin v. Markatron, Inc., 185 Ga. App. 750, 751 (365 SE2d 494) (1988).

3. Moore contends the trial court erroneously granted summary judgment in favor of the defendants on his claim for treble damages under the civil remedy provisions of the Georgia RICO Act. Moore claims that the alleged wrongful actions of the defendants were separate indictable incidences of theft forming a pattern of racketeering activity prohibited by the Georgia RICO Act.

The Georgia RICO Act (OCGA § 16-14-1 et seq.) was enacted by the General Assembly in response to its findings that “a severe problem is posed in this state by the increasing organization among certain criminal elements and the increasing extent to which criminal activities and funds acquired as a result of criminal activity are being directed to and against the legitimate economy of the state.” OCGA § 16-14-2 (a). Accordingly, the General Assembly declared “that the intent of this chapter is to impose sanctions against this subversion of the economy by organized criminal elements and to provide compensation to private persons injured thereby. It is not the intent of the General Assembly that isolated incidents of misdemeanor conduct be prosecuted under this chapter but only an interrelated pattern of criminal activity, the motive or effect of which is to derive pecuniary gain. This chapter shall be construed to further that intent.” OCGA § 16-14-2 (b).

Decided October 14, 1993.

Hart & McIntyre, John C. McIntyre, Jr., for appellant.

Long, Aldridge & Norman, Phillip A. Bradley, Cathy L. Peter son, for appellees.

In describing available civil remedies under the Act, OCGA § 16-14-6 (c) provides that “[a]ny person who is injured by reason of any violation of Code Section 16-14-4 shall have a cause of action for three times the actual damages sustained. . . .” Under § 16-14-4 (a) “[i]t is unlawful for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property, or personal property of any nature, including money. Under § 16-14-4 (b) “[i]t is unlawful for any person employed by or associated with any enterprise to conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity.” Subsection (c) of § 16-14-4 makes it unlawful “to conspire or endeavor” to violate subsections (a) or (b) of the statute. A “pattern of racketeering activity” is defined under OCGA § 16-14-3 (8) as “engaging in at least two incidents of racketeering activity that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents. ...” According to subsection 16-14-3 (9) (A) “ ‘[Racketeering activity’ means to commit, to attempt to commit, or to solicit, coerce, or intimidate another person to commit any crime which is chargeable by indictment under the following laws of this state. ...” The same subsection thereafter includes a list of “racketeering activity” offenses including those involving theft under OCGA § 16-8-1 et seq.

Applying the facts of this case to the civil remedy provisions of the Georgia RICO Act, and considering the purpose for which the Act was intended, we find no evidence to support Moore’s claim that the defendants engaged in criminal activity amounting to separate indictable incidences of theft, which established a pattern of racketeering activity. See Southern Cellular Telecom v. Banks, 208 Ga. App. 286, 290 (431 SE2d 115) (1993); Cobb v. Kennon Realty Svcs., 191 Ga. App. 740, 741-742 (382 SE2d 697) (1989). The trial court did not err in granting summary judgment in favor of the defendants on Moore’s RICO claim.

Judgment affirmed in part and reversed in part.

Pope, C. J., and Birdsong, P. J., concur.

       Although we do not reach the issue, we note that even if there had been evidence that Barge and Wagener induced Lesley to discharge Moore, it is undisputed that Barge, Wagener and Lesley were the sole owners and shareholders of the corporation. Although the record does not establish to what extent Barge and Wagener actively directed or controlled Charter, it would seem apparent that as the sole owners acting together, Barge, Wagener and Lesley would have an absolute right to take action directing the corporation to discharge any at will employee. See Campbell, supra at 499; Caton v. Haynes, 260 Ga. 204, 205 (391 SE2d 107) (1990).

       Although these allegations also form the basis for Moore’s claim for damages for breach of the partnership agreements, a plaintiff may proceed up to point under both theories, but he is obviously not entitled to breach of contract and tort damages to the extent of a double recovery. Maddox v. Brown, 200 Ga. App. 492, 494-495 (408 SE2d 719) (1991).


author: Birdsong, Presiding Judge.

text:
    A93A1990.
    YOUNG CONSTRUCTION, INC. v. OLD HICKORY HOUSE #3, INC.
    (436 SE2d 581)
   Birdsong, Presiding Judge.

Appellant/plaintiff Young Construction, Inc. has filed a notice of appeal to appeal directly the order of the superior court granting defendant’s motion to set aside (default) judgment. However, the notice states: “Since the order was interlocutory in nature it was not appeal-able until a final decision issued in the case. [Cit.] This notice of appeal is filed within thirty (30) days of the entry of the final decision in the case.” Appellant has filed no amended notice of appeal.

Appellant/plaintiff filed suit to foreclose on a mechanics lien, and served appellee with process using substituted service on the secretary at appellee’s principal office. See generally OCGA § 14-2-504. Appellee failed to answer the complaint and appellant obtained a default judgment. Appellee moved to have the default judgment set aside (OCGA § 9-11-60 (d) (2)) and default opened (see generally OCGA § 9-11-55 (b)). The trial court entered an order that, inter alia, set aside and vacated the default judgment, and opened appellee’s default in failing to answer appellant’s complaint. Appellant filed a timely application for interlocutory review that was denied. Subsequently, the trial court issued an order granting appellee’s motion for summary judgment. Held:

1. Unlike Whiddon v. Stargell, 192 Ga. App. 826 (386 SE2d 884), the notice of appeal in this case does not clearly reflect on its face that the appeal is being taken from a non-appealable order, as the notice states it is being timely filed after the entry of the “final decision” in the case. The record reveals that the final decision referred to is a grant of motion for summary judgment and is directly appealable pursuant to OCGA § 9-11-56 (h). Construing the notice of appeal liberally, as we are required to do (OCGA § 5-6-30; see OCGA § 5-6-48 (f)), we find appellant filed a notice of appeal both from the order setting aside default judgment and from the order granting summary judgment to appellee/defendant. Thus, having filed a notice of appeal from the grant of summary judgment, appellant can also appeal the order setting aside the default judgment. OCGA § 5-6-34 (d); cf. Segrest v. Intown True Value Hardware, 190 Ga. App. 588 (1) (379 SE2d 615). Accordingly, we will assume appellate jurisdiction notwithstanding that the only errors enumerated are those pertaining to the setting aside of the default judgment.

2. The first ground for this appeal has been clarified by appellant as follows: “The first ground is that the trial court was not empowered to set aside a default judgment on the grounds of a mutual mistake under OCGA § 9-11-60 (d) (2).”

(a) Although appellant contends the trial court ruled from the bench that the default judgment was based on mutual mistake, the written order subsequently entered was expressly based on other grounds. The order, as entered, stated: “The court finds that the failure of [appellee/defendant] to appear was the result of accident or mistake or other acts on the part of [appellant/plaintiff]. . . . The court further finds excusable neglect on the part of [appellee/defendant] in failing to file an answer to [appellant/plaintiff’s] complaint within the time allowed by law, and, finds from all the facts, that a proper case has been made for the default to be opened.”

The page of the hearing transcript cited by appellant does not support its claim that the trial court set aside the default judgment on the grounds of “mutual mistake.” At most it reflects that the trial court recognized there had been some form of “misunderstanding between [the] lawyers.” A misunderstanding can occur under circumstances other than that of “mutual mistake.” Additionally assuming arguendo that the trial court had orally and unequivocally announced the basis of its ruling as “mutual mistake,” it is well settled that “ ‘[w]hat the judge orally declares is no judgment until it has been put in writing and entered as such.’ ” Williams v. City of LaGrange, 213 Ga. 241, 242 (1) (98 SE2d 617). The trial court entered no order setting aside default judgment on the ground of mutual mistake; appellant’s contention that the trial court so erred is without merit.

(b) Appellant states its second ground for appeal “is that the trial court was completely erroneous in finding that the default judgment was not based on the negligence of the appellee in failing to maintain a registered agent as required under Georgia corporate law and other acts of negligence.”

In support of this contention, appellant argues that the trial court’s order failed to comply with the requirements of OCGA § 9-11-60 (d). Rather than concluding that the default “judgment [was] based upon” accident, mistake or the acts of the adverse party, it was merely concluded that the “failure of [appellee] to appear [at the hearing] was the result of accident or mistake or other acts on the part of [appellant] unmixed with the negligence or fault of [appellee].” Examining the order in its totality, we find that the order of the trial court, at a minimum, was in substantial compliance (OCGA § 1-3-1 (c)) with the requirements of OCGA § 9-11-60 (d). However, for reasons hereinafter discussed, the trial court was empowered to set aside default judgment without complying with the substantive provisions of OCGA § 9-11-60 (d).

“[A] judgment right for any reason must be affirmed.” Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673). In this case, the trial court set aside the default judgment based on a proper motion duly filed within the same term of court. The trial court in its order also found the following facts: appellee paid the requisite costs in this action, set up a meritorious defense, offered to plead instanter, filed a proposed answer with its motion, and announced it was ready to proceed to trial. These findings have not been timely contested, and any issue pertaining thereto has been abandoned. Court of Appeals Rule 15 (c) (2).

Default judgment was entered on March 2, 1992, this date being the first Monday in March 1992, and the first day of the court term for the Fulton County Superior Court (see generally OCGA § 15-6-3 (3)). On March 4, 1992, within the same court term, appellee filed a motion to quash service of process or, in the alternative, a motion to set aside judgment. The order setting aside default judgment was filed June 2, 1992.

Under the Civil Practice Act, a judgment cannot be set aside, based upon OCGA § 9-11-60 (d), unless the grounds relied upon are unmixed with the negligence or fault of the movant. Northeast Atlanta Surety Co. v. State of Ga., 197 Ga. App. 399, 400 (398 SE2d 435); Aycock v. Hughes, 189 Ga. App. 838 (1) (377 SE2d 689). However, a trial court in the exercise of its discretion has inherent power during the same term of court at which a judgment is rendered to reverse, correct, revoke, modify, or vacate the judgment. McCoy Lumber Co. v. Garland Lumber Sales, 182 Ga. App. 75, 76 (354 SE2d 686); accord Bank of Cumming v. Moseley, 243 Ga. 858 (257 SE2d 278). “This inherent power of the trial court was not changed by passage of the Civil Practice Act.” Id. Exercise of discretionary power to set aside by the trial court will not be reversed in the absence of manifest abuse of discretion. McCoy Lumber Co., supra; Barone v. McRae & Holloway, P.C., 179 Ga. App. 812, 814 (2) (348 SE2d 320).

The scope of the trial court’s inherent power to set aside a judgment when the judgment is not entered upon a verdict was clarified in Serwitz v. Gen. Elec. Credit Corp., 174 Ga. App. 747, 748 (1) (331 SE2d 95) and Reynolds v. ARC Svcs., 132 Ga. App. 863 (2) (209 SE2d 653). In both Serwitz and Reynolds, this court concluded that because the judgment was not upon a verdict, and the motion to set aside “was filed within the term in which the judgment was entered,” the trial court had power to set it aside in the exercise of sound discretion. Id.; compare Maslia v. Hamilton, 239 Ga. 52 (235 SE2d 485), wherein the court concluded that “[a] motion to set aside a judgment filed during the same court term the judgment is entered may be acted upon at a subsequent term.” These holdings are consistent with the general principle that “a court cannot set aside or alter its final judgment after the expiration of the term at which it was entered, unless the proceeding for that purpose was begun during the term.” Miraglia v. Bryson, 152 Ga. 828 (2) (111 SE 655); compare Pekor v. Clark, 236 Ga. 457, 458 (1) (224 SE2d 30). Appellant has failed to establish a manifest abuse of discretion by the trial court in setting aside the default judgment and opening the default.

Decided October 14, 1993.

Varner, Stephens, Wingfield & Humphries, Thomas M. Mash-burn, for appellant.

Simmons, Warren & Szczecko, M. T. Simmons, Jr., for appellee.

Additionally, examination of the record in its totality reveals some evidence, albeit slight, tending to support the ruling of the trial court that the “failure of [appellee] to appear was the result of accident or mistake or other acts on the part of [appellant] unmixed with the negligence or fault of [appellee].” (Emphasis supplied.)

Further, appellant has filed no enumeration in which it is asserted that the trial court erred in granting summary judgment in favor of appellee. Thus, no viable appellate issue is before this court regarding the vacation of the grant of summary judgment. See Roberts v. Cotton States Mut. Ins. Co., 186 Ga. App. 371, 373 (2) (367 SE2d 272).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A2015.
    FRICKS v. THE STATE.
    (436 SE2d 752)
   Johnson, Judge.

A jury found Ray E. Fricks, Jr., guilty of felony obstruction of an officer and public drunkenness. He appeals only from his conviction of obstruction of an officer.

1. Fricks contends that the trial court erred in denying his motion for a directed verdict of acquittal on the felony obstruction of an officer charge because the State’s evidence was insufficient to establish that Fricks had done violence or had offered to do violence to Officer Gilstrap, the arresting officer. An eyewitness to the incident testified that he saw Fricks push Gilstrap against a fence and then kick the officer to the ground. Gilstrap testified that as he was leading the handcuffed Fricks to the police car, Fricks knocked him with his right shoulder, pushed him into a wall and then kicked him.

“A directed verdict of acquittal should be granted where ‘there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. . . .’ OCGA § 17-9-1.” Reed v. State, 205 Ga. App. 209, 211-212 (4) (422 SE2d 15) (1992). The evidence in the case demands no such result. Fricks has cited no authority in support of his novel position that the elements of felony obstruction of an officer were not satisfied because no evidence was presented by the State that Gil-strap was injured. This is not an element of the offense. “Whoever knowingly and willfully resists, obstructs, or opposes any law enforcement officer ... in the lawful discharge of his official duties by offering or doing violence to the person of such officer ... is guilty of a felony.” (Emphasis supplied.) OCGA § 16-10-24 (b). See generally Williams v. State, 196 Ga. App. 154, 155-156 (1) (395 SE2d 399) (1990). In light of the testimony of two witnesses that Fricks shoved and kicked Gilstrap, it is clear that the trial court correctly denied Fricks’ motion for a directed verdict on the obstruction count.

Decided October 14, 1993.

James C. Wyatt, for appellant.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

2. The trial court did not err in refusing to charge the jury on the lesser included offense of misdemeanor obstruction of an officer. Fricks concedes that no written request was submitted to the court, but argues that a verbal request was made at the charge conference. “Omitting a charge on a lesser included offense is not error absent a written request. [Cits.]” Henderson v. State, 203 Ga. App. 733, 734 (1) (417 SE2d 413) (1992). Moreover, in Division 1, we held that the elements of felony obstruction of an officer had been presented during the State’s case. Where the evidence shows completion of the greater offense, it is not necessary for the court to charge on a lesser included offense. Widner v. State, 203 Ga. App. 823, 825 (4) (418 SE2d 105) (1992).

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A93A2195.
    WHITE v. THE STATE.
    (436 SE2d 584)
   McMurray, Presiding Judge.

Defendant was accused, tried and convicted of aggravated battery and aggravated assault. The trial court vacated the aggravated assault conviction by merging it with the aggravated battery conviction and sentenced defendant to serve 20 years in confinement. This appeal followed the denial of defendant’s motion for a new trial. Held:

Decided October 14, 1993.

Johnny B. Mostiler, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

It was not incumbent upon the State to prove that defendant intended to maim. The former offense of mayhem was replaced by the offense of aggravated battery. Wells v. State, 125 Ga. App. 579 (188 SE2d 407). In a prosecution for aggravated battery, the State must show that defendant “maliciously cause [d] bodily injury to another by depriving him of a member of his body, by rendering a member of his body useless, or by seriously disfiguring his body or a member thereof.” OCGA § 16-5-24 (a).

The State demonstrated that, following a quarrel between defendant and the victim, defendant aimed a gun at the victim and shot her, leaving her left leg paralyzed. This evidence was sufficient to enable any rational trier of fact to find defendant guilty of each element of the offense of aggravated battery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Drayton v. State, 167 Ga. App. 477 (1) (306 SE2d 731). See also Magsby v. State, 169 Ga. App. 637 (1) (314 SE2d 473).

Whether or not defendant’s conduct was justified was a question for the jury to resolve. See Taylor v. State, 252 Ga. 125, 126 (1) (312 SE2d 311). This Court considers only the sufficiency, not the weight, of the evidence. Steele v. State, 166 Ga. App. 24, 25 (2), 26 (303 SE2d 462).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A2350.
    ALLERA CORPORATION v. DERBY CYCLE CORPORATION.
    (436 SE2d 753)
   McMurray, Presiding Judge.

This is a suit on an account. After a trial before the court without a jury, the trial court entered judgment in favor of plaintiff Derby Cycle Corporation and against defendant Allera Corporation. Defendant appeals and enumerates as error the denial of its motion to dismiss and the entry of judgment in favor of plaintiff based upon insufficient evidence. Held:

1. As matters outside the pleadings were presented and considered by the trial court in relation to defendant’s motion to dismiss, it must be considered as a summary judgment motion. OCGA § 9-11-12 (b). See Barrett v. Wharton, 196 Ga. App. 688, 689 (396 SE2d 603); Winterchase Townhomes v. Koether, 193 Ga. App. 161, 163 (4) (387 SE2d 361). Because of the subsequent entry of a judgment based on evidence introduced during the trial, the denial of the summary judgment is moot and presents nothing for review on appeal. Zappa v. Automotive Precision Machinery, 205 Ga. App. 584 (1) (423 SE2d 286); Canal Ins. Co. v. Wilkes Supply Co., 203 Ga. App. 35 (1) (416 SE2d 105); Seabolt v. Cincinnati Ins. Co., 199 Ga. App. 715 (405 SE2d 757).

2. Defendant’s remaining enumeration of error questions whether there was sufficient evidence to authorize the judgment in favor of plaintiff. Defendant alleged an affirmative defense predicated on OCGA § 48-6-32 which provides that: “Willful failure to return any [intangible] property to the commissioner for taxation as required by this article shall be a bar to any action upon the property in any court and may be pleaded as a complete defense to the action, but the holder of the property may at any time pay all taxes, accrued interest, and penalties. Payment in full shall relieve the holder from the penalty provided in this Code section.” The accounts receivables upon which plaintiff is suing are intangible personal property pursuant to OCGA § 48-6-21 (4).

Defendant presented uncontroverted evidence that plaintiff had not paid any intangible property taxes to the State of Georgia for the relevant period and that plaintiff operated a warehouse in Georgia from which a large portion of the goods associated with the accounts receivables had been shipped to defendant in Georgia. Thus, defendant established a prima facie case showing plaintiff’s obligation to pay intangible personal property taxes to Georgia on at least some portion of the accounts receivables at issue. See OCGA §§ 48-6-25 and 48-6-23 (a) (1)._

Plaintiff asserted that the exemption provided under OCGA § 48-6-22 (4) is applicable so that no intangible taxes are due in Georgia upon any of the accounts receivables being sued upon. However, plaintiff failed to prove this contention since its sole witness had no first-hand knowledge as to whether intangible taxes on the accounts receivables being sued upon had been paid in a state other than Georgia. We note in this connection that as the party relying upon the exemption provided under OCGA § 48-6-22 (4), the burden of proof upon this matter rested upon plaintiff. OCGA § 24-4-1; Clemons v. Allstate Ins. Co., 193 Ga. App. 489 (1) (388 SE2d 357). Plaintiff having failed to show that the claimed exemption from taxation was applicable, defendant was under no obligation to present evidence negating this assertion. Under these circumstances the judgment entered by the trial court was not authorized by the evidence.

Judgment reversed.

Johnson and Blackburn, JJ., concur.

Decided October 14, 1993.

Furlong & Franco, Walter W. Furlong, Leonard L. Franco, for appellant.

Scott F. Randolph, for appellee.


author: Smith, Judge.

text:
    A93A1010.
    CITY OF MARIETTA et al. v. KIRBY et al. CITY OF MARIETTA v. KIRBY et al.
    A93A1125.
    (436 SE2d 762)
   Smith, Judge.

Douglas Kirby, a firefighter/engineer, injured his neck in a fall on the job in April 1982 and was awarded workers’ compensation income benefits and medical payments. At that time, The Home Insurance Company was the carrier for the city, and it paid the benefits. In subsequent years, Kirby was hospitalized several times for treatment of recurrent neck and back pain, and Home covered these benefits, with the last payment having been made in 1987. In 1989, Kirby filed another claim for medical payments and temporary total disability benefits for a period of several weeks in August 1989, for injuries that he alleged resulted from the original injury through a change in. condition. Home defended the 1989 claim on the ground that the injuries resulted not from a change in condition but from alleged new accidents incurred in 1985 and 1986, during which time Aetna Casualty and Surety Company was the carrier for the city. An ALJ found that Kirby’s condition in 1989 was a change in condition relating back to the 1982 injury, and not the result of any new accidents as alleged by Home. He awarded Kirby temporary total benefits and medical payments for the 1989 condition, and found Home responsible for payment of these benefits. The full Board affirmed, and the award was affirmed by operation of law in the superior court. OCGA § 34-9-105 (b). We granted the application for discretionary appeal of the employer and Home Insurance Company, the city’s workers’ compensation carrier at the time of the 1982 incident.

The city’s changes of insurance carrier and its subsequent shift to self-insured status in 1988 result in the city appearing in these appeals in several different capacities. In Case No. A93A1010, the main appeal, the city, as Kirby’s employer in 1982 and Home, its carrier for that year, are the appellants. Case No. A93A1125, the cross-appeal, is taken by the city in its capacity as Kirby’s employer in the years 1985 and 1986, the years during which Home alleges new accidents occurred for which it is not responsible. In its capacity as Kirby’s employer/self-insurer from 1988 to 1989, the city is also an appellee in both cases.

1. In the main appeal, the city and Home contend the trial court erred in finding that Kirby’s 1989 injury resulted from a change in condition. They argue that Kirby’s medical problems in 1989 resulted from new accidents occurring in 1985 and 1986. “In order to better distinguish between old and new injuries, the court in Central State Hosp. v. James, [147 Ga. App. 308, 309 (248 SE2d 678) (1978)] outlined three of the frequently occurring situations in the work place.” Holt’s Bakery v. Hutchinson, 177 Ga. App. 154, 156 (1) (338 SE2d 742) (1985).

Those three situations were described in James in the following terms: “(a) One instance is where the claimant is injured on the job but continues to perform the duties of his employment until such time that he is forced to cease work because of the gradual worsening of his condition which was at least partly attributable to his physical activity in continuing to work subsequent to his injury. Our courts have held that the one-year statute of limitation begins to run from the date the claimant was forced to cease his employment. They base this holding on the theory that the date of the ‘new accident’ is the date that the disability manifests itself. [Cits.]

“If the court had held otherwise it would have penalized a claimant who attempted to continue working even though he was injured to some extent. . . .

“(b) A second example is where the claimant sustains a second accident as the result of a specific job-related incident which aggravates a pre-existing condition which resulted from a prior accident. In these circumstances the second accident which aggravated the preexisting condition is a new injury, if the second accident at least partially precipitated the claimant’s disability. [Cit.] This is true whether the claimant is immediately disabled or if he continues to work after the second accident and his condition gradually worsens until he is forced to cease his employment. [Cit.]

“(c) A third situation is where the claimant sustains an injury and is awarded compensation during his period of disability. Subsequent thereto he returns to his employment performing his normal duties or ordinary work. Then as a result of the wear and tear of ordinary life and the activity connected with performing his normal duties and not because of a specific job-related incident his condition gradually worsens to the point that he can no longer continue to perform his ordinary work. This gradual worsening or deterioration would constitute a change in his condition and not a new accident. [Cits.]” Central State Hosp. v. James, supra at 309-310 (1).

The evidence in this case supports the finding of the ALJ that the claim in issue fits in the category of a change in condition. The record reveals that after having been employed as a firefighter/engineer by the city for over 17 years Kirby sustained a work injury to his cervical spine in 1982, and was awarded compensation for a cervical sprain. He subsequently returned to his normal duties. He testified at the administrative hearing that about a year after his 1982 injury, and related to no specific incident, he began to experience back pain as well as neck pain. Kirby’s testimony was that his problem has more or less continued since the 1982 accident and has not been exacerbated by any particular incident since then. There are times when it has been better, and times when it has been worse.

Although some evidence indicated Kirby may have reported to the treating physician that he aggravated his condition in 1985 when he moved a large dog while fighting a fire, there is also evidence to the contrary. Kirby testified that lifting the dog was immaterial, both because it was less strenuous than lifting heavy fire hoses, which he did routinely in his job, and because he experienced no greater problem with his neck or back after lifting the dog than he had before. Moreover, prior to moving the dog he was experiencing an episode in which the condition had worsened. He was in severe pain, had scheduled an appointment with his treating neurologist, Dr. Re, and had been scheduled for admission to the hospital for treatment. Kirby also denied any specific work incident during 1986 in which he was injured, and since the city and Home have not referred to this incident in their appeal, any argument with regard to it is deemed abandoned. City of Atlanta v. United Elec. Co., 202 Ga. App. 239 (1) (414 SE2d 251) (1991).

Kirby’s medical records, entered into evidence at the hearing, show that since the 1982 injury he has been followed for cervical problems and lumbar problems. His diagnosis evolved over a period of time, from cervical sprain to cervical spine disease with chronic degenerative osteoarthritis, which according to Dr. Re, is a pattern not uncommon with such injuries. He has complained of, and has been treated for, resulting pain. He has been hospitalized for treatment with nerve blocks, traction, and physical therapy.

We do not find that Dr. Re’s deposition testimony, relied on by the city and Home, requires a finding of a new accident. Although Dr. Re deposed that Kirby had reported to him that he aggravated his condition by lifting the dog, Kirby explained this by testifying that he told the doctor about moving the dog only in response to questioning regarding his recent activities and not because lifting the dog aggravated the problem or was responsible for his pain. Moreover, lifting a dog while fighting a fire would have been a normal work duty for Kirby. The doctor also deposed that it would be fair to summarize Kirby’s condition by saying that Kirby had suffered a job injury in 1982, that since then he had experienced a number of exacerbations that had combined to produce Kirby’s condition in 1992, and that the activities that contributed to the progression of his condition would be those activities after which he noticed an increase in pain.

Decided October 15, 1993.

Sligh, Presmanes & Jackson, Gregory T. Presmanes, for appellants.

McLain & Merritt, Thomas C. Holcomb, Paula F. Smith, Free man & Hawkins, Joseph R. Cullens, Chambers, Mabry, McClelland & Brooks, C. Gregory Ragsdale, Lawrence J. Hogan, Judith A. Hodges, Wilson, Strickland & Benson, Earl B. Benson, Jr., Lydia E. Barker, for appellees.

This court has held that in a workers’ compensation case, the factfinder is not absolutely bound by medical opinion evidence, though it be uncontradicted. The factfinder must consider that opinion along with all the other evidence, including the claimant’s testimony. Raley v. Lanco Paint &c., 190 Ga. App. 462, 464-465 (3) (379 SE2d 196) (1989). On appeal, the evidence is construed most favorato the party prevailing before the board, Impress Communications v. Stanley, 202 Ga. App. 226, 229 (1) (414 SE2d 238) (1991), and “[i]n the absence of fraud, the findings of the Board are conclusive and shall not be set aside unless it is found that there is not sufficient competent evidence in the record to warrant the Board’s decision. [Cits.]” Elbert County Bd. of Commrs. v. Burnett, 200 Ga. App. 379, 382 (408 SE2d 168) (1991). See OCGA § 34-9-105 (c) (4).

The ALJ made a finding that Kirby’s 1982 injury “did not resolve, but gradually developed into a degenerative condition of both the cervical and lumbar spine, which hindered his physical activities, caused reoccurring pain, and made ongoing medical treatment necessary.” The claimant’s testimony, as well as other evidence supports this finding, and it is therefore binding on this court. Franks v. Avila, 200 Ga. App. 733, 735 (4) (409 SE2d 564) (1991). The judgment in Case No. A93A1010 must be affirmed.

2. In Case No. A93A1125, the cross-appeal, the city/employer and Aetna, its workers’ compensation carrier in 1985 and 1986, argue that any claims resulting from the alleged new accidents in 1985 and 1986 are barred by the statute of limitation. Our affirmance of the judgment in Case No. A93A1010 that Kirby’s 1989 claim resulted from a change in condition and not from new accidents in 1985 and 1986 renders this issue moot, and the cross-appeal must therefore be dismissed.

Judgment affirmed in Case No. A93A1010. Appeal dismissed in Case No. A93A1125.

Beasley, P. J., and Cooper, J., concur.

       Although Aetna is listed as a cross-appellee in Case No. A93A1125, it is the city’s workers’ compensation carrier for those years and its contentions are identical to those of the employer/cross-appellant.


author: Pope, Chief Judge.

text:
    A93A1634.
    STINSON v. THE STATE.
    (436 SE2d 765)
   Pope, Chief Judge.

Defendant was indicted on four counts of child molestation and retained attorney Michael Classens to represent him. Classens’ wife is a casework supervisor with the Bulloch County Department of Family & Children Services (DFACS), the agency responsible for initially investigating allegations of child molestation. In this capacity she, along with the case investigator and the county director, signed a child abuse and neglect report in which the department stated its conclusion that defendant was guilty of the alleged acts of molestation. When the district attorney realized this, he brought the situation to the trial court’s attention. During a hearing on the matter, the trial court stated it was confident Classens and his wife would not disclose confidences and that there had been no actual impropriety. Nonetheless, it disqualified Classens based on the “substantial potential for a perceived conflict of interest.” We granted defendant’s application for interlocutory appeal to determine whether this disqualification was error.

In Blumenfeld v. Borenstein, 247 Ga. 406 (276 SE2d 607) (1981), the Supreme Court held it was improper to disqualify an attorney based solely on an appearance of impropriety, particularly when the appearance of impropriety resulted not from the attorney’s conduct but from his status as the spouse of an attorney affiliated with the opposing party. “[T]he right to counsel is an important interest which requires that any curtailment of the client’s right to counsel of choice be approached with great caution. The mere fact that the public may perceive some conduct as improper is, without some actual impropriety, insufficient justification for interference with a client’s right to counsel of choice. This becomes even more apparent when the perceived impropriety is not conduct at all but is, instead, status. Absent a showing that special circumstances exist which prevent the adequate representation of the client, disqualification based solely on marital status is not justified.” Id. at 408. Even though Classens’ wife is not an attorney, we think the holding of Blumenfeld controls this case. The State points out that Blumenfeld was a civil case, while this one is criminal; but the client’s interest in representation by his counsel of choice in a criminal action is, if anything, greater rather than less than that of a client in a civil action. Accordingly, the need to avoid any appearance of impropriety resulting from the employment of defense counsel’s spouse by DFACS, or even from her signature on a report, does not outweigh defendant’s right to counsel of his choice and is not alone a sufficient basis for the disqualification of her husband.

Decided October 15, 1993.

Michael J. Classens, for appellant.

Rene J. Martin III, District Attorney, for appellee.

We do have some concerns, however, about the possibility that Classens’ wife could become a witness in the case. It appears from the record that this possibility is remote at best, as she was not involved in the investigation, she signed the report merely as a matter of administrative routine and her name does not appear on any witness list. If this is an accurate portrayal of the facts, the trial should proceed without complication. Nonetheless, we want to emphasize that if defense counsel’s spouse were to be called as a witness, this would be a “special circumstance[ ] . . . which [would] prevent the adequate representation of the client,” see id. at 408, and defense counsel would have to disqualify himself rather than cross-examine (or fail to cross-examine) his wife.

Judgment reversed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A93A1270.
    HORNSBY v. THE STATE.
    (436 SE2d 767)
   McMurray, Presiding Judge.

Defendant was convicted of burglary, rape, two counts of aggravated sodomy and aggravated assault. Following the imposition of sentence, he appealed. Held:

1. The victim was attacked in the middle of the night by an assailant wielding a knife. The assailant stated that he had been drinking. He raped and sodomized the victim and threatened to cut her with the knife and to kill her.

The victim was a neighbor of defendant’s mother. She had known defendant since he was a child because her son and defendant were friends.

Defendant was living with his mother when the victim was attacked. Shortly after the attack on the victim, defendant told his brother-in-law that he had gotten drunk and woke up in the morning with a knife by his side. He speculated that he might have killed or raped somebody. That led defendant’s mother to ask defendant if he had anything to do with the attack on the victim. He said that he did not.

Approximately three weeks after the victim was attacked, defendant started quarreling with his mother. He had been drinking and thought that his mother had interfered with his relationship with a girl friend. Defendant turned over a table, smashed a microwave, and picked up a butcher knife. He ran outside and slashed the tires on his mother’s automobile. Returning inside, he threw his mother down on the living room couch and held the knife to her chest. He threatened to kill her and hollered, “Hell, yes, I raped the bitch.” At that point, defendant’s brother entered the room with a loaded shotgun. The shotgun went oif and the discharge hit the floor. Defendant charged his brother who hit him over the head with the shotgun and took away the knife. Then defendant ran away, hollering: “I’ll kill the old bitch.”

Defendant acknowledges that the statements he made to his mother and brother were admissible in evidence. He asserts, however, that the circumstances surrounding the statements were inadmissible. In that regard, defendant insists that the subsequent events which took place at his mother’s house are not similar to the crimes charged against him. He argues that the trial court erred in admitting the events surrounding the statements into evidence because they are not similar transactions.

Defendant’s argument misses the mark. The events which took place at defendant’s mother’s house were not admitted as similar transaction evidence. On the contrary, the trial court admitted the evidence to show the totality of the circumstances surrounding defendant’s statements.

The trial court did not err in admitting into evidence the events leading up to and surrounding defendant’s statements. The jurors would have been hard pressed to assess the statements if they heard them in a vacuum. They needed to know if the statements were made voluntarily. See Phillips v. State, 206 Ga. 418, 420 (4c) (57 SE2d 555). They also needed to know what led defendant to make the statements and the manner in which they were made so they could give them the weight they deemed appropriate. See generally OCGA § 24-3-53.

The mere fact that defendant may have been prejudiced by the totality of the circumstances surrounding the making of the statements is of no consequence. The circumstances were admissible whether or not they introduced evidence of other crimes. See Ledford v. State, 215 Ga. 799, 805 (113 SE2d 628); Laney v. State, 159 Ga. App. 609, 610 (4) (284 SE2d 114). In passing, we note that defendant himself made use of the circumstances surrounding his statements, testifying that he only made the statements in anger and out of spite.

2. The trial court did not err in permitting the victim to identify defendant — during rebuttal and after defendant took the stand and testified — based on the sound of defendant’s voice. The victim’s in-court voice identification of defendant in rebuttal was admissible. Stith v. State, 201 Ga. App. 621 (1) (411 SE2d 532). That the victim was unable to identify defendant previously was a matter which went to the weight, not the admissibility, of the victim’s testimony.

3. During closing argument, defense counsel objected and moved for a mistrial in response to the following remarks made by the State’s attorney: “They noted we have paid prosecutors. Well, yes, there are paid prosecutors. There are also appointed attorneys to represent defendants, such as [defense counsel here], paid for by the same people that pay us. There are also defense experts that testify for defendants. They are also paid by the State, by the people that provide the appointed attorneys; by you, so that he may have a fair trial.” The trial court offered to give a detailed curative instruction but defense counsel declined the offer, fearing that it would only serve to emphasize the State’s argument. Instead, defendant insisted that he be granted a mistrial. The trial court denied the motion, but sustained defendant’s objection to the argument, instructing the jury “to disregard the last remarks of counsel for the State.”

Defendant asserts the trial court erred in denying his motion for a mistrial. We disagree.

“ ‘(T)his court has repeatedly held that if the trial judge acts immediately, and in the exercise of his discretion takes such action as in his judgment prevents harm to the accused as a result of such improper statements, a new trial will not be granted unless it is clear that such action failed to eliminate from the consideration of the jury such improper statements. Brown v. State, 148 Ga. 264, 266 (96 SE 435); Johnson v. State, 150 Ga. 67 (1) (102 SE 439); Waller v. State, 164 Ga. 128 (4) (138 SE 67); Nelson v. State, 187 Ga. 576, 583 (1 SE2d 641); Spell v. State, 225 Ga. 705, 708 (171 SE2d 285). See also Moore v. State, 228 Ga. 662, 664 (187 SE2d 277).’ Howard v. State, 229 Ga. 839, 840 (195 SE2d 14). As in those cases, no abuse of discretion appears here.” Walker v. State, 132 Ga. App. 274, 275 (3) (208 SE2d 5).

4. The State’s expert on deoxyribonucleic acid (“DNA”) identification testified that there was a five-probe match between DNA in the semen recovered from the victim and defendant’s DNA. He also testified that the chances that the semen recovered from the victim belonged to someone other than defendant were one in seventy million, or conservatively one in 10 million. (Defendant’s DNA expert opined that the odds were one in thirty million.) The State’s expert based his calculation on a crime laboratory DNA data base made up of 500 blacks and 300 whites.

Decided October 18, 1993.

J. Russell Jackson, for appellant.

Garry T. Moss, District Attorney, Charles D. Gafnea, Assistant District Attorney, for appellee.

Defendant asserts the trial court erred in admitting evidence concerning the frequency that defendant’s DNA pattern can be found in the population because the State’s statistical analysis was based on a small, random sample sent to the crime laboratory. In that regard, he points out that larger, national data bases are in the process of being put together. He argues that until there is a larger data base and a consensus on an accepted statistical method, statistical calculations concerning chromosome pattern frequencies should be ruled inadmissible. We disagree.

The State’s expert described in great detail how the data base was compiled and why assumptions based on the data base were valid. Compare Caldwell v. State, 260 Ga. 278, 288 (1) (e) (393 SE2d 436) with Greenway v. State, 207 Ga. App. 511, 514 (4) (428 SE2d 415). He proffered liberal and conservative estimates. (Significantly, the conservative estimate of the State’s expert was more conservative than the estimate of defendant’s expert.) Defendant was permitted to cross-examine the expert with regard to the compilation of the data base and the statistical method used to calculate the statistics. It cannot be said that the trial court erred in permitting the State’s expert to estimate the frequency that defendant’s DNA pattern occurs in the population. See Evans v. State, 256 Ga. 10, 12 (2) (342 SE2d 684).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.