text:
    A97A0761.
    THE STATE v. JOHNSON.
    (487 SE2d 677)
   Smith, Judge.

This appeal presents the issue of whether venue may be laid in Fulton County for charges of violating OCGA § 16-10-20 (false statement in a matter within the jurisdiction of a department of the State) by using false documents executed in Lanier County by the accused and mailed to State offices in Fulton County. The trial court found that venue is proper only in Lanier County and granted Carolene Johnson’s plea to the jurisdiction and motion to dismiss the indictment against her. We agree with the trial court and affirm.

Johnson was charged in Fulton County on a 66-count indictment involving the crimes of false statements and false swearing. The charges stemmed from Johnson’s operation of a driver improvement clinic in Lakeland in Lanier County for persons convicted of DUI. Regulated by the Georgia Department of Human Resources, the school issued certificates of completion for students who completed certain courses. The students submitted the certificates to the Department of Public Safety to apply for driver’s license reinstatement.

The indictment alleged that Johnson issued certificates of completion to some students who paid her but did not attend or complete the mandated course and that she sent the documentation to the State as though the student had properly met the requirements. For each of twenty-two students, the indictment charged Johnson with three different crimes: using a false statement in a matter within the jurisdiction of a department of the State (OCGA § 16-10-20) by knowingly causing a false certificate of completion to be sent to DPS; using a false statement in a matter within the jurisdiction of a department of the State by knowingly causing a false class roster to be sent to DHR that indicated that the student had attended the class when the student had not; and false swearing (OCGA § 16-10-71) by knowingly and wilfully executing the false class roster. Each count in the indictment recited that Johnson had committed the crime in Fulton County, although it is undisputed that Johnson executed the documents at issue in Lanier County.

The State concedes that the trial court was correct in placing venue in Lanier County with regard to the charges of false swearing. It challenges only the trial court’s ruling with regard to the 44 counts of false statements. As to those charges, the State contends the trial court erred in ruling that venue was improper in Fulton County. The State argues that even though the false statements were made in Lanier County, it charged Johnson only with using the false statements, and the use occurred in Fulton County. We do not agree.

First, the statute lists three ways in which the crime may be committed: if one “knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact; makes a false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement or entry, in any matter within the jurisdiction of any department or agency of state government.” OCGA § 16-10-20. The term “using” in the statute’s list of prohibited conduct appears clearly to address a situation in which the accused uses false documents that were prepared by another. After all, if one has made the false statement, one’s conduct has already violated the statute; an allegation of “using” it is unnecessary.

Second, the State is attempting to “manufacture” venue in Fulton County. We condemned such artificially created venue in McCarty v. State, 152 Ga. App. 726 (1) (263 SE2d 700) (1979). In McCarty, Muscogee County law enforcement officers negotiated a drug “deal” with McCarty in Sumter County, where McCarty was in possession of the drugs. At the direction of the officers, he then loaded the contraband in the trunk of the officers’ car and accompanied them to Muscogee County, where he was arrested and charged. This Court reversed on the ground that the officers had maneuvered McCarty into Muscogee County simply for the purpose of obtaining venue. “[B]y their own acts, law enforcement officials created the events conferring venue in Muscogee County. . . . This they cannot do.” Id. at 727 (1).

Although the facts in this case are less extreme, they are nonetheless analogous. Johnson did not “use” the statements within the meaning of the statute. The State required her to send the documents to Fulton County; sending them to Fulton County was of no “use” to Johnson. Permitting the State to lay venue in Fulton County would lead to an “appearance of abuses, if not to abuses, in the selection of what may be deemed a tribunal favorable to the prosecution.” United States v. Johnson, 323 U. S. 273, 275 (65 SC 249, 89 LE 236) (1944).

Decided June 16, 1997

Before Judge Langham.

Michael J. Bowers, Attorney General, Michael E. Hobbs, Deputy Attorney General, Stacey K. Hydrick, Assistant Attorney General, for appellant.

J. Converse Bright, for appellee.

Finally, and perhaps most importantly, “ £[t]he constitutional and statutory law of this State require that all criminal cases be tried in the county where the crime was committed unless otherwise provided by law. Art. VI, Sec. II, Par. VI, Ga. Const. of 1983; OCGA § 17-2-2.’ [Cit.]” State v. Barber, 193 Ga. App. 397, 398 (388 SE2d 350) (1989). Here, as in Spray v. State, 223 Ga. App. 154 (476 SE2d 878) (1996) and Barber, supra, common sense and case law lead us to the same conclusion: if Johnson committed crimes at all, their essence was not in mailing documents to the State’s address in Fulton County. The gist of the charged crimes was in the falsification of documents. That was done in Lanier County. The trial court was therefore correct in ruling that venue lies in Lanier County.

Judgment affirmed.

McMurray, P. J, and Beasley, J., concur.

       We note that the appellant in Spray v. State was represented by the same counsel who represents appellee here.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A97A0842.
    KEITH et al. v. ALEXANDER UNDERWRITERS GENERAL AGENCY, INC. et al.
    (487 SE2d 673)
   Smith, Judge.

The owner of Greenville Insurance Agency, L. L. Keith, and its managing agent, J. D. Latzak, (collectively “Greenville”) brought suit against International Indemnity Company, an insurance carrier licensed in Georgia; Alexander Underwriters General Agency, Inc., the general agent performing underwriting, claims handling, and premium collection for International Indemnity (“Alexander”); and Alexander Underwriters, Inc., a premium financing company. Green-ville alleged numerous theories for recovery of damages based upon its relationship with the defendants, including breach of contract, breach of trust, tortious interference with contractual relations, and tortious interference with business relationships. Defendants moved for summary judgment on all counts, which was granted by the trial court, and Greenville appeals. Because we agree with the trial court that no genuine issues of material fact remain for jury resolution and that defendants were entitled to judgment as a matter of law, we affirm.

The record shows that Alexander solicited Greenville’s business, that Greenville agreed to write its clients’ automobile policies through Alexander and International Indemnity, and that it did so. In turn, Alexander promised to handle the business of Greenville’s clients in a prompt, professional manner and pay commissions to Greenville. According to Greenville, however, Alexander thereafter mishandled its clients’ accounts and Greenville informed Alexander that it would no longer write any new business with Alexander.

Alexander then demanded more than $8,000 from Greenville on a commercial account for premiums due. When Greenville refused to pay the balance claimed by Alexander, Alexander filed suit against Keith in Meriwether County to collect this amount. A default judgment was entered in that case, which was reversed on appeal. Keith v. Alexander Underwriters &c., 219 Ga. App. 36 (463 SE2d 732) (1995). Alexander also canceled policies issued to Greenville clients and applied unearned premiums paid on those policies to the balance allegedly owed by Greenville. Greenville then filed this action in DeKalb County. The Meriwether County action was dismissed without prejudice, and Alexander’s claim was consolidated with this case.

1. Greenville contends the trial court erred in granting summary judgment to Alexander on Greenville’s claim for breach of contract because the trial court completely misconstrued its contention and incorrectly focused upon the individual insurance policies in ruling that this claim was without merit. Greenville claims the contract breached was not any of the individual policies issued to its customers but the “broker questionnaire” contract entered into by Green-ville and Alexander, whereby Greenville agreed to solicit the business and Alexander agreed to issue and service the policies.

The trial court may have misunderstood Greenville’s argument, but its ruling is correct for a different reason. Even assuming an actionable contract once existed, that contract was canceled by Greenville’s own actions in informing Alexander that it would no longer place insurance with Alexander. Although Greenville may believe that Alexander did not properly perform its obligations under that contract, “[a] suit on contract for damages on account of a breach thereof can not be maintained except by affirmance of its continuing validity. If the claimant’s actions are inconsistent with his rights under the contract, he is debarred from any right to sue on the contract.” (Citations and punctuation omitted.) Brooks v. Boykin, 194 Ga. App. 854, 855 (3) (392 SE2d 46) (1990). A trial court’s ruling right for any reason will be affirmed. Goss v. Total Chipping, 220 Ga. App. 643, 647 (5) (a) (469 SE2d 855) (1996). The trial court was therefore correct in granting summary judgment to Alexander on this issue.

2. The trial court correctly ruled that Greenville’s claim for negligence must fail, because the insurer had a right to cancel contracts of insurance. OCGA § 33-24-45. If a policy was inappropriately canceled or mishandled, a claim against the insurer could be asserted only by the policyholders. See OCGA § 33-24-45 (o) (remedy for insured who believes policy wrongfully canceled). On this issue, the trial court found no Georgia case authority but was persuaded by the reasoning of the U. S. Court of Appeals for the Tenth Circuit in Sterling Colorado Agency v. Sterling Ins. Co., 266 F2d 472 (10th Cir. 1959). In Sterling the court held that an insurance agent is not a third-party beneficiary of the contract of insurance between the insurer and the policyholder and that an insurer is answerable only to its policyholders even for bad faith in handling policy matters. Id. at 473-474. Our research also reveals no Georgia authority, and we agree with the trial court’s reasoning and reliance upon Sterling.

Moreover, any claim that could be asserted by Greenville would sound in contract, not tort, because it would arise from Alexander’s duties to Greenville, which were defined by the alleged contract between them. The trial court did not err in granting summary judgment to Alexander on Greenville’s negligence claim.

3. The trial court ruled against Greenville on its claims for tortious interference with contractual relations and tortious interference with business relations. It is well established that one cannot “interfere” with contracts or business relations to which one is a party. Cohen v. William Goldberg & Co., 202 Ga. App. 172, 178 (413 SE2d 759) (1991), aff’d in part, 262 Ga. 606 (423 SE2d 231) (1992) (contractual relations); Renden, Inc. v. Liberty Real Estate, L.P. III, 213 Ga. App. 333, 335-336 (2) (b) (444 SE2d 814) (1994) (business relations). The contracts between Alexander and the insureds solicited by Greenville therefore could not serve as a basis for Greenville’s claims because it was a party to those contracts.

Greenville alleges on appeal that the contracts addressed by this contention were those between Greenville and its customers. In asserting that the trial court erred in granting summary judgment against it on this contention, Greenville relies upon this Court’s holding in Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269 (329 SE2d 900) (1985), a case involving similar parties and contentions. Green-ville maintains that the fact that its longstanding relationships with its customers were damaged by Alexander’s actions entitles it to recover under this theory and the holding in Boykin.

To recover under a theory of tortious interference with business relations, the plaintiff must demonstrate financial injury and must show that the defendant: acted improperly and without privilege; acted purposely and with malice with the intent to injure; and induced a third party or parties not to enter into or continue a business relationship with the plaintiff. Rodgers v. First Union Nat. Bank &c., 220 Ga. App. 821, 823 (1) (c) (470 SE2d 246) (1996). “The essential thing is the intent to cause the result. If the actor does not have this intent, his conduct does not subject him to liability under this rule even if it has the unintended effect of deterring the third person from dealing with the other.” (Citations and punctuation omitted.) Jones v. Padgett, 186 Ga. App. 362, 364 (3) (367 SE2d 88) (1988).

In Preferred Risk Ins. Co. v. Boykin, supra, we found a longstanding relationship between Boykin, an independent insurance agent, and his customers, insured policyholders of Preferred Risk, and we found that this relationship was damaged by the insurer’s actions, causing financial damage to Boykin. But in Boykin, those actions were entirely different. The evidence in that case showed that the agency agreement between the insurer and the agent provided that in the event of termination, the insurer would give first consideration to a successor agent nominated by Boykin, who would then have the right to negotiate with the nominated successor agent to receive compensation for the value of the nomination and the good will of the agency. Id. at 271 (2). Preferred Risk notified Boykin that it was terminating their agency agreement but that instead of offering Boykin the opportunity to nominate a successor, it was electing to compete independently for the policyholders’ business. Id. Evidence was presented that before terminating its agreement with Boykin, an employee of the insurer informed another person that Boykin’s agency would be terminated and that his block of business would be transferred to the other person. Id. at 272. After terminating Boykin, Preferred Risk contacted the policyholders and informed them there had been a change of agent and gave them the new agent’s name and address. This Court held that this evidence supported the trial court’s allowing Boykin’s claim for tortious interference with contractual and business relations to go to the jury, which found in favor of Boykin. Id. at 272-273 (2).

In this case, the essential element of intent to cause the resulting financial damage is absent. The insurer neither terminated the agency contract nor solicited Greenville’s customers. Greenville terminated its relationship with Alexander. Alexander’s handling of Greenville’s customers’ accounts may well have had the effect of inducing Greenville’s customers to look elsewhere for their insurance needs. But the record contains no evidence showing that this was Alexander’s intent.

Because Greenville failed to show all the required elements of its claim, summary judgment was proper. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Decided June 16, 1997.

Before Judge Wheeler.

Klein & Wright, Edward W. Klein III, for appellants.

Karl J. Howe & Associates, Richard M. Howe, Michael L. Wetzel, for appellees.

Judgment affirmed.

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


author: McMURRAY, Presiding Judge.

text:
    A97A0149.
    ZACH, INC. v. FULTON COUNTY et al.
    (487 SE2d 602)
   McMURRAY, Presiding Judge.

Following the recent decision of Zach, Inc. v. Fulton County, 217 Ga. App. 315 (457 SE2d 574), where this Court affirmed the trial court’s denial of Zach, Inc.’s motion for summary judgment, this case was returned to the superior court and defendants Fulton County and the City of Atlanta moved for summary judgment. Plaintiff Zach, Inc. filed an opposing motion for summary judgment supported by additional evidence in the form of the affidavit of Dr. Gerald Wayne Clough, President of Georgia Institute of Technology. Plaintiff appeals the grant of summary judgment in favor of defendants and the denial of its motion for summary judgment. Held:

Plaintiff argues that following our earlier decision it was left to prove only one fact, “that it [Zach, Inc.] is an ‘arm or extension’ of Georgia Tech.” Dr. Clough’s affidavit provides much detailed information concerning the structure and control of the Greek letter organizations at Georgia Tech. It is clearly established that the organization operating on plaintiff’s property is an integral member of the university community and functions in a manner indistinguishable from those similar organizations which occupy university owned property which is not taxed. Nonetheless, it is apparent upon the face of our earlier decision that not only has plaintiff not shown that it is an “arm or extension” of the university, but that the record shows affirmatively and without conflict that plaintiff is not an “arm or extension” of Georgia Tech. This is true because “the phrase describes an organization which, like the property owner in Johnson [u Southern Greek Housing Corp., 251 Ga. 544 (307 SE2d 491)], was created by the college and is run by members of the college community. Zach, [Inc.,] on the other hand, was created by the national fraternity and is run by a board comprised of individuals from outside the college community.” Zach, Inc. v. Fulton County, 217 Ga. App. 315, 316, supra. The factual basis for this conclusion is not contradicted by Dr. Clough’s affidavit and the limited scope of the issues on the earlier appeal from the denial of plaintiff’s motion for summary judgment is all that precluded the conclusion reached here.

Decided April 10, 1997

Reconsideration denied June 17, 1997.

Before Judge Wyatt Cummings Moore.

Bodker, Ramsey & Andrews, Stephen C. Andrews, David J. Maslia, for appellant.

Holland & Knight, Harold T. Daniel, Jr., James R. McCain, Jr., Clifford E. Hardwick TV, Bernard R. Thomas, Sr., Joiava Thomas, for appellees.

Judgment affirmed.

Beasley and Smith, JJ, concur.

On Motion for Reconsideration.

Appellant complains that we failed to address issues presented in this appeal in that the original opinion does not address a constitutional challenge, that taxation of Zach, Inc. violates the equal protection clauses of the Georgia and United States Constitutions. However, this appeal was initially filed in the Supreme Court which, in transferring the appeal to this Court, determined that the superior court did not rule on a constitutional question. The transfer apparently reflects the fact that although the equal protection argument was raised below, the superior court did not distinctly pass or rule on it. Accordingly, the equal protection enumeration presents nothing for review by any appellate court. Raskin v. Wallace, 215 Ga. App. 603, 604 (1) (451 SE2d 485). See also Braden v. Bell, 222 Ga. App. 144, 146 (1) (473 SE2d 523); Ashton v. State, 217 Ga. App. 337, 338 (457 SE2d 226); and Turner v. State of Ga., 213 Ga. App. 309 (1) (444 SE2d 372).

Motion for reconsideration denied.


author: Smith, Judge. Beasley, Judge,

text:
    A97A0558.
    POSTELL v. THE STATE.
    (487 SE2d 422)
   Smith, Judge.

Mark Postell was arrested with two companions and charged with trafficking in cocaine and two related firearms charges. He was tried jointly with his co-defendants before a jury, which found him guilty of the trafficking charge and not guilty of possession of a firearm during the commission of a crime. Based upon the jury’s verdict with regard to that firearms charge, the remaining firearms charge, possession of a firearm by a convicted felon, was nol prossed. Postell’s motion for new trial was denied.

The evidence presented at trial showed that based upon a tip from a confidential informant, Deputy Vernon Jessie of the Terrell County Sheriff’s Department placed a lookout for a white Toyota Camry with three black male occupants that was in the city of Dawson. Officer David McLemore, then of the Dawson Police Department, stopped such a car, along with Jessie and another law enforcement officer. Postell exited from the back door on the driver’s side of the car. Jessie testified that one of the three occupants threw something under the car that was later identified as three plastic-wrapped crack cocaine “cookies” weighing a total of 75.3 grams and having a purity of 53 percent. A holstered handgun was found under the driver’s seat.

McLemore testified that the driver, Postell’s co-defendant Terrance Wood, stooped down and threw the cocaine under the car. Wood’s testimony differed. According to Wood, Postell had the drugs in a drink cup; when they were stopped, Postell tossed the drugs to their companion, Chester Neal. Neal threw them back and Postell tossed the cup to Wood, who also threw them back. According to Wood, since Postell was the last one to have possession of the cocaine, Postell must have thrown them under the car. Although Neal did not testify at trial, his previous testimony from a preliminary hearing was read to the jury. Neal’s testimony corroborated Wood’s version of the drug toss. Both Wood and Neal claimed that Postell had attempted to bribe and threaten them into claiming ownership of the drugs.

Dawson Police Investigator Loren Smith testified that he conducted several custodial investigations of the three defendants. He testified that when he interviewed Postell, Postell insisted that he wanted to “help himself” with respect to the charges pending against him. He told Smith he wanted to help the officers arrest others, saying that he “could do up to a kilo of cocaine if he was allowed to help.” He maintained that he “knew people who were involved in large amounts of drug running.” Postell objected to this testimony on the ground that it was introduced simply to impugn his character, which had not been placed in issue, by allowing the jury to infer that he was involved in drug distribution. The trial court overruled Postell’s objection.

On appeal, Postell’s sole enumeration of error is that the trial court erred in overruling his objection to this testimony. We do not agree. Postell argues that this issue is governed by Santamaria v. State, 165 Ga. App. 288, 289-290 (1) (299 SE2d 758) (1983). In Santamaría we held that the State impermissibly put the defendant’s character in issue when a witness testified that several days after the defendant had been put in custody on a charge of possessing marijuana, he asked the witness if he knew anyone who might be interested in buying drugs. Id. at 289 (1). We held that this evidence, introduced as a “similar transaction,” was actually introduced solely to place the defendant’s character in issue by showing general bad character as well as a specific interest in drugs. Id.

But unlike Santamaría, the statement in issue in this case was not made in casual conversation with a third party. It was made by the accused and introduced as an inculpatory custodial statement made to a law enforcement officer after being given Miranda warnings; it is similar to a confession. Posted did not deny possessing the drugs but at least impliedly admitted his knowledge or possession and sought to “make a deal.” As such, its possible impact on Postell’s character did not preclude its admission into evidence. Berryhill v. State, 235 Ga. 549, 551-552 (6) (221 SE2d 185) (1975). “[I]t is no valid ground of objection to the admission into evidence of an incriminating statement . . . made by the accused in a criminal case that the language indicated that the accused had committed another offense. [Cits.]” Cade v. State, 180 Ga. App. 314, 315 (1) (348 SE2d 769) (1986). The trial court did not err in overruling Postell’s objection to this evidence.

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in the judgment but point out that this case is distinguishable from Hargrove v. State, 188 Ga. App. 336, 337 (4) (373 SE2d 44) (1988), relied upon by appellant.

Defendant in that case was also in conversation with a law enforcement officer about potential drug procurement. This Court deemed it to be inadmissible, as violative of OCGA § 24-9-20, because it “concern(ed) prospective drug activity. It was not alleged that an overt act was taken in furtherance of the conversation” and thus it “did not constitute evidence of a similar crime or transaction.” Id. at 338. Although the situation here is close in kind, in that it only concerned possible prospective drug activity and not “a similar crime or transaction” that would be admissible for certain purposes, it was nevertheless admissible because it was connected to the charge on trial as constituting some evidence that defendant considered himself criminally implicated but sought a way out of his dilemma. Such a connection was not present in Hargrove.

Decided June 2, 1997

Reconsideration denied June 17, 1997

Before Judge Moulton.

Donaldson, Bell & Pickett, George P Donaldson III, Mark L. Pickett, for appellant.

Charles M. Ferguson, District Attorney, Ronald S. Smith, Assistant District Attorney, for appellee.


author: Judge Harold R. Banke.

text:
    A97A0946.
    ANTHONY et al. v. GRANGE MUTUAL CASUALTY COMPANY.
    (487 SE2d 389)
   Judge Harold R. Banke.

Alton E. Anthony and Juanita Anthony appeal summary judgment granted to Grange Mutual Casualty Company (“Grange”).

The following facts are undisputed. On August 25, 1987, Joseph E and Cynthia Underwood executed a deed to secure debt to the Central Bank of Swainsboro (“Central Bank”). In May 1991, the Under-woods executed a second deed to secure debt to North American Financial Services (“North American”). Afterwards, Grange issued an insurance policy to the Underwoods, listing Central Bank as the first mortgagee and North American as the second mortgagee. In November 1991, North American transferred and assigned the second mortgage to the Anthonys. Despite this assignment and the recordation of a deed, the Grange insurance policy was never changed to reflect the change in identity of the second mortgagee from North American to the Anthonys. Alton Anthony testified that he did not make any effort to arrange for insurance.

In October 1993, after a fire destroyed part of the Underwoods’ residence, Grange contacted both Central Bank and North American. North American’s president, William Nash, wrote Grange and falsely identified North American as the second mortgage holder for the Underwoods’ property. After Grange paid Central Bank $38,500, Central Bank assigned its security deed and note to Grange. Subsequently, Grange foreclosed against the Underwoods’ property and purchased the property at a public sale.

The Anthonys did not learn about the fire until 1994. Because they were not listed as the second mortgagee and because neither Grange nor North American contacted them, they did not submit a proof of claim form to Grange for the fire within the requisite 60 day period. When the Anthonys discovered the impending foreclosure, they filed the underlying action, a complaint to satisfy a security deed against Grange and Central Bank. The Anthonys sought, inter alia, to prevent the foreclosure sale, a judicial declaration that Central Bank’s assignment to Grange was void, and judicial reformation of the Underwoods’ insurance policy to allow them to assert a claim for the loss.

The trial court found that the Anthonys lacked standing to seek reformation of the insurance contract and concluded a mutual mistake had not occurred. Although the court offered its sympathy to the Anthonys for having been defrauded by North American and Nash, it refused to reform the contract and stated that any action would lie against Nash and North American. Held:

The Anthonys contend that the trial court erred in refusing to reform the insurance policy between Grange and the Underwoods. They claim they were entitled to have the contract reformed based on mutual mistake. We disagree.

Reformation of a contract is an equitable remedy for correcting an instrument to make it express the true intention of the parties, where from some cause, such as fraud, accident, or mistake, it does not express such intention. Cotton States Mut. Ins. Co. v. Woodruff, 215 Ga. App. 511 (1) (451 SE2d 106) (1994). “The remedy is not available for the purpose of making a new and different contract for the parties, but is confined to establishment of the actual agreement.” Id. at 511-512. Where reformation is sought on the ground of mutual mistake, it must, of course, be proved to be the mistake of both parties. Layfield v. Sanford, 247 Ga. 92, 93 (274 SE2d 450) (1981). Here, the record affirmatively demonstrates the absence of a mutual mistake by the contracting parties. It is undisputed that at the request of the Underwoods, the Kilpatrick Insurance Agency added North American to the Underwoods’ homeowner’s policy as a loss payee as of May 3, 1991. The Anthonys failed to offer even a scintilla of evidence that Grange and the Underwoods intended to create the insurance policy at issue for their benefit or that both intended to designate them as the second mortgagee. In fact, the record fails to show that the Underwoods were even aware that their second mortgage had been transferred from North American to the Anthonys.

Finally, the Anthonys lack standing to enforce the subject policy. In order for a third party to have standing to enforce a contract, it must clearly appear from the contract that it was intended for his benefit. Miree v. United States, 242 Ga. 126, 135 (3) (249 SE2d 573) (1978). See Backus v. Chilivis, 236 Ga. 500, 502 (224 SE2d 370) (1976) (third party beneficiaries cannot enforce contract unless it clearly appears from the contract that it was intended for their benefit). “ ‘The mere fact that [a party] would benefit from performance of the agreement is not alone sufficient.’ (Citations omitted.)” Miree, 242 Ga. at 135 (3). The Anthonys’ failure to show the contract was made for their benefit precludes their action against Grange to enforce the contract under OCGA § 9-2-20 (b). See City of Atlanta v. Atlantic Realty Co., 205 Ga. App. 1, 6 (3) (421 SE2d 113) (1992); compare Somers v. Avant, 244 Ga. 460 (261 SE2d 334) (1979).

Decided May 27, 1997

Reconsideration denied June 17, 1997

Before Judge Lukemire.

Robert P. McFarland, for appellants.

Simpson, Gray & Cross, Ralph F. Simpson, Melanie BarbeeCross, for appellee.

Judgment affirmed.

Birdsong, R J., and Eldridge, J., concur.

       Grange informed North American that the amount of loss was $33,802.17 and that the proceeds might not be enough to pay the second mortgagee.

       By a consent order, the parties agreed to the dismissal of Central Bank as a party.


text:
    A97A1076.
    WRIGHT v. THE STATE.
    (487 SE2d 405)
   Judge Harold R. Banke.

Derrick Arthur Wright was convicted of armed robbery and possession of a firearm during the commission of a felony. He enumerates six errors on appeal.

This case arose after Wright and a shorter man approached the victim, a detective working undercover as a drug buyer. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). Moments before, the shorter man flagged down the victim, who had driven slowly through the area as though he was looking for someone. When the shorter man approached the driver’s side and asked the victim what he was looking for, the victim responded, “A twenty,” meaning a $20 piece of crack cocaine. The man then walked over to Wright, who was standing nearby.

The victim became suspicious and pulled out his gun as he watched Wright, who faced away from him, retrieve an object from the front of his pants. Suddenly, the men converged on the victim. The shorter man attempted to enter on the passenger side while Wright simultaneously approached the driver’s side, aimed a snub-nosed chrome .38 caliber pistol at the victim’s head from a distance of less than two feet, and demanded money.

After the victim gave Wright the $20, Wright told him to move on and started to walk away. At that point, using the truck for cover, the victim pointed his gun at.Wright and shouted, “Police, don’t move.” When Wright ran, the victim alerted other nearby drug agents, who retrieved the gun, Wright’s hat, undershirt, plaid shirt, and pager as they retraced his steps. The agents captured Wright, sweating, shirtless and out of breath, at a nearby house where the victim identified him. Held:

1. Wright contends that reversal is required because the trial court directed him to reserve comment on the State’s failure to call all its witnesses. The fact that the court informed Wright that he could argue in closing that the factual allegations raised in opening were not borne out by the evidence undermines this contention. The absence of a transcript of closing argument precludes further review of this issue. Kegler v. State, 267 Ga. 147, 148 (3) (475 SE2d 593) (1996) (the complaining party bears the burden of compiling a complete record); Gregg v. State, 216 Ga. App. 135, 137 (453 SE2d 499) (1995) (for reversal both harm and error must be proved). Nor are we convinced that Wright properly raised this issue in the trial court. McCluskey v. State, 211 Ga. App. 205, 208 (3) (438 SE2d 679) (1993).

2. We reject Wright’s contention that the admission of his booking photograph placed his character in issue. Contrary to Wright’s argument, the sole purpose for admitting the photograph was to identify Wright, whose appearance had changed since the crime. O’Toole v. State, 258 Ga. 614, 615-616 (2) (373 SE2d 12) (1988). The record shows that the jury was told the photograph was taken the night of Wright’s arrest. Farmer v. State, 180 Ga. App. 720, 721 (2) (350 SE2d 583) (1986). Thus, the photograph’s admission did not suggest that Wright was guilty of any previous crime. Bilge v. State, 208 Ga. App. 851, 853 (4) (432 SE2d 574) (1993).

3. We reject Wright’s contention that the evidence of his identity was insufficient to support his conviction. At trial, the victim described Wright’s attire, which included a baseball cap, a dark plaid flannel shirt, and dark sweat pants. Members of the victim’s backup team, armed with this description, apprehended Wright minutes later, after following a trail which included the gun, the plaid shirt, and the baseball cap. At the time of Wright’s arrest, the officers discovered him wearing the sweat pants, winded and sweating. The victim identified him at that time and at trial. Viewed in the light most favorable to the verdict, the evidence was sufficient for the jury to find that Wright was the perpetrator, notwithstanding his denial of that fact. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979).

4. The trial court did not err by admitting a number of photographs into evidence despite the State’s failure to provide them to Wright ten days before trial as required by OCGA § 17-16-4 (a) (3). The photographs depicted the crime scene and the path on which Wright fled.

Decided May 28, 1997

Reconsideration denied June 17, 1997

Before Judge Karpf.

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Jon Hope, Assistant District Attorney, for appellee.

OCGA § 17-16-2 (a) requires defendants to “[provide] written notice to the prosecuting attorney that such defendant elects to have this article apply to the defendant’s case.” This Wright did not do. Absent such notice, OCGA § 17-16-4 (a) (3) had no application to this case.

5. The admission of testimony connecting Wright to a beeper found on the path near his other belongings was not error. Shortly after its discovery, the beeper went off and an officer called the number indicated on it. A woman answered, asking, “Who’s this, Derrick?” Wright claims this statement, which was admitted into evidence, is hearsay.

Testimony is considered hearsay only if the witness is repeating another’s statement in order to demonstrate its truth. Trotter v. State, 216 Ga. App. 612, 613 (1) (455 SE2d 121) (1995). “ ‘Otherwise it is a verbal act and thus original evidence rather than hearsay.’. . . [Cit.]” Id. Because the statement at issue was not offered for its truth, its admission was not error.

6. The trial court’s denial of Wright’s motion for mistrial does not require reversal. Wright premised the motion on the State’s reference to the failure of his alibi in its closing argument. Because a transcript of the closing argument was not provided, there is nothing for us to review. Kegler v. State, 267 Ga. at 148 (3).

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

       As a practical matter, we note that the State had an open file and did not prevent pretrial access to the photographs.


author: Beasley, Judge.

text:
    A96A0575.
    FORT HOWARD PAPER COMPANY et al. v. HALLISEY.
    (488 SE2d 87)
   Beasley, Judge.

In Ft. Howard Paper Co. v. Hallisey, 221 Ga. App. 325 (471 SE2d 231) (1996), we reversed the trial court’s affirmance of the award of workers’ compensation disability benefits to Hallisey. The Supreme Court granted certiorari and in Hallisey v. Ft. Howard Paper Co., 268 Ga. 57 (484 SE2d 653) (1997), reversed this Court’s judgment. Accordingly, our judgment in this case is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Decided June 17, 1997.

Before Judge Martin.

Brennan & Wasden, Marvin W. McGahee, for appellants.

Donaldson, Herndon, Bell & Metis, Thomas R. Herndon, for appellee.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: Andrews, Chief Judge.

text:
    A97A0745.
    NESMITH v. PIERCE.
    (487 SE2d 687)
   Andrews, Chief Judge.

Carnie Nesmith appeals the probate court’s order removing her as co-executor of her daughter Azilee Henry’s estate, and also the probate court’s order denying her petition for attorney fees and granting the co-executor John Pierce’s petition for extra compensation. For the reasons which follow, we affirm the judgment of the probate court.

1. First, Nesmith claims the probate court erred in removing her as co-executor. Pierce filed the petition to have Nesmith removed after a dispute over the value to be placed on some real property owned by the decedent. Pierce, an attorney who also had experience in the real estate business, offered to sell the property himself without charging a commission. He had two appraisals submitted, one for $130,000 and the other for $142,500. Nesmith disregarded these valuations and wanted Pierce to list the house at $170,000 and include rugs appraised at something over $3,400. Pierce agreed to list it for $170,000.

He testified that he showed the house to eighteen prospective purchasers and received two offers, one for $126,850 and another for $155,000 cash. Pierce wanted to accept the $155,000 offer, but Nesmith was unwilling. She wanted to make a counteroffer of $160,000 and exclude the rugs. Pierce was concerned the buyer would change her mind if a counteroffer was made and accepted the $155,000 in spite of Nesmith’s objection.

Pierce also called a real estate agent to testify at the hearing. The agent stated that units in the development were not selling well and that $155,000 was an excellent offer.

Pierce testified that problems between the co-executors were greater than a simple disagreement over the value of the real estate. He stated that Nesmith wanted to distribute the estate immediately after qualifying as executor, had little understanding of tax requirements, wanted to keep estate funds in low-yielding accounts, wanted to leave the decedent’s jewelry in her apartment in a safe instead of a safety deposit box, and tried to purchase personal property from the estate at substantially below the appraised value. Nesmith did not testify herself, but her niece and granddaughter both testified that Nesmith was rational, alert, and capable of handling money and making financial decisions.

The probate court granted the petition to remove Nesmith, finding that it was “in the best interest of the Estate that Carnie F. Nesmith be . . . removed as Co-Executrix. . . .” This appeal followed.

“The probate court has broad discretionary powers under OCGA § 53-7-148, including the authority to remove an executor upon a showing of waste, mismanagement, or that for any reason he is unfit for the trust reposed in him.” Gray v. McKenna, 202 Ga. App. 685, 686 (415 SE2d 295) (1992). “Where the personal interests of the representative of an estate conflict with the interest of the estate, such fact, in the discretion of the probate judge, or in the discretion of the jury on appeal may be sufficient ground for removal of such representative.” Fountain v. Cabe, 242 Ga. 787, 789 (251 SE2d 529) (1979).

Here, the evidence as discussed above, showed that Nesmith, the decedent’s 89-year-old mother, did not fully comprehend the duties and responsibilities of an executor and may have been acting in a manner detrimental to the estate. Accordingly, we hold the probate court acted within its discretion in removing Nesmith as co-executor.

2. Next, Nesmith claims the probate court erred in awarding Pierce extra compensation for extraordinary services. Nesmith argues that Pierce stated he would not charge the estate to handle the sale of the property and, therefore, he cannot now ask the court for extra compensation. Nesmith also contends the sale of the house was part of the ordinary duties of the executor and does not rise to the level of extraordinary services.

While Pierce agrees that he said initially he would not charge a commission on the sale of the property, he states he was entitled to change his mind and request extraordinary compensation because of the problems with Nesmith over the sale. As discussed above, Pierce testified he got two appraisals on the property, but since Nesmith insisted on disregarding the appraisals and listing the property at $170,000, he talked to numerous prospective buyers and showed the house eighteen times with only two offers. He said it took more time than he anticipated to dispose of the property because Nesmith insisted on an asking price that was too high. Pierce stated he could have employed a real estate agent to handle this matter, but felt that, had he done so, the estate would not have received as much for the property.

The court awarded Pierce $8,835 as extra compensation. The court arrived at this figure by deducting the five percent executor’s commission which Pierce was entitled to receive on the property from the $155,000 sale price and awarding him six percent of that amount.

The probate court has jurisdiction to award extra compensation to an executor for extraordinary services. OCGA § 53-6-150. “The claim for extra compensation is peculiarly within the jurisdiction of the court of ordinary [now probate court].” Maxwell v. Hollis, 216 Ga. 224, 227 (3) (c) (115 SE2d 360) (1960).

Under OCGA § 53-6-149, Pierce had the power to hire an agent to sell the property. Had he done so, the agent would have been entitled to a commission on the sale. Further, Pierce’s testimony as to the amount, of time and effort the sale required was unrebutted. Therefore, the court did not abuse its discretion in allowing Pierce the extra compensation. See Greenwood v. Greenwood, 178 Ga. 605, 612 (173 SE 858) (1934).

3. Lastly, Nesmith claims the probate court erred in denying her petition for attorney fees under OCGA § 53-7-10. This Code section states that an executor is authorized to provide competent legal counsel for the estate according to the needs of the estate he represents. But, an executor or administrator may not bind the estate for attorney fees for the costs of litigation brought on by his own fault or misconduct. Hudson v. Abercrombie, 258 Ga. 729, 731 (374 SE2d 83) (1988).

In Armstrong v. Boyd, 140 Ga. 710 (79 SE 780) (1913), a suit to remove an administrator, the court said that whether or not the estate could be charged with the administrator’s legal fees depended on the outcome of the litigation. Id. at 712. In other words, if the issue is decided in favor of the administrator, he should be reimbursed the money expended in hiring counsel to defend the suit. Id.

That is not the case here. Although Nesmith argues the cases cited by Pierce and the trial court are inapplicable because the trial court found no evidence of misconduct by Nesmith, this is not accurate. The court ordered Nesmith removed as executor because it was in the best interest of the estate. Implicit in this holding is a finding that the charges in Pierce’s petition to remove Nesmith were just.

The trial court found the attorney fees which Nesmith sought to have paid by the estate were for services unrelated to the administration of the estate and were, therefore, not chargeable to the estate. The record shows that Nesmith requested $4,472.25 in attorney fees incurred from September 30, 1994 to February 7, 1995. Nesmith was removed as executor on December 20, 1994. The original invoices are not in the record, and we have no way to determine whether the fees were for defending the petition to set aside Nesmith as executor or whether they were charges unrelated to defending the suit. While Nesmith argues in her brief that there is evidence which shows some of the legal counseling was directed to administration of the estate, she does not point out, nor do we find, this evidence in the record. Further, the last bill for $3,653 is dated February 7, 1995, over a month after Nesmith was removed as executor. Therefore, the trial court did not abuse its discretion in denying Nesmith’s petition for attorney fees.

Decided June 17, 1997.

Before Judge Lewis.

Ellis, Painter, Ratterree & Bart, J. Wiley Ellis, Tracy A. O’Connell, for appellant.

Robert E. Falligant, Jr., for appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    A97A0927.
    PARRIS v. THE STATE.
    (487 SE2d 690)
   Judge Harold R. Banke.

Arthur Parris was convicted of possession of marijuana with intent to distribute, carrying a concealed weapon, and driving without a license and without proof of insurance. Parris, who was sentenced as a recidivist, challenges only the sufficiency of the evidence relating to the drug conviction.

At approximately midnight, Cpl. M. K. Nichols initiated a routine traffic stop, after he observed a Camaro with a cardboard tag which appeared to conceal a license plate. Although Parris, the driver, claimed that he had just bought the vehicle, he was unable to produce a bill of sale. After Parris admitted he had no driver’s license or insurance, Nichols placed him under arrest. During a pat-down search of Parris, Nichols discovered a butterfly knife with a four-inch blade. Nichols testified that when Parris exited his vehicle, he detected the odor of burnt marijuana on Parris’ person. Nichols claimed that when he first approached Parris, he noticed a plastic grocery bag lying on the driver’s side floorboard. Nichols testified that he considered the location of the bag to be highly unusual because it was directly at Parris’ feet, near the accelerator. According to Nichols, while Parris was seated in the patrol car, as Nichols was checking the bag on the floorboard, the male front passenger inquired, “what’s that?” After Parris’ two passengers had been permitted to walk away, police confirmed that the grocery bag contained two bags of marijuana. Investigators were never able to ascertain the identities of the two passengers, and Parris denied knowing who they were or where they lived. A forensic chemist verified that both bags contained leafy marijuana with one bag weighing 7.9 ounces and the other weighing 3.6 ounces.

Parris’ prior conviction for possession of marijuana with intent to distribute and possession of cocaine was admitted as similar transaction evidence. In the prior case, during the execution of a warrant for Parris’ residence, investigators discovered on Parris’ person a bag of marijuana and $510 in cash. Parris directed police to a locked suitcase in his bedroom closet. The suitcase contained six quart-size ziplock bags full of marijuana, weighing three and one-half pounds, a triple beam scale, and a 250-milliliter glass beaker. In this case, Parris did not testify or call any witnesses. His primary defense was that the drugs belonged to someone else. In instructing the jury, the trial court used the pattern charge on “equal access” and charged the jury on circumstantial evidence and actual and constructive possession. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, p. 136. No charge was given on the lesser included offense of possession. Held:

In his sole enumeration of error, Parris contends that the trial court erred in denying his motion for a directed verdict due to the insufficiency of the evidence within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). He claims that the only evidence linking him to the contraband was mere proximity to the marijuana found on the driver’s side floorboard.

In the absence of circumstances to the contrary, a presumption arises from proof of ownership and control of an automobile that the owner is in control and possession of the contraband found therein. Fears v. State, 169 Ga. App. 172, 173 (1) (312 SE2d 174) (1983). At the time of the arrest, Parris claimed to own and obviously was in possession of the vehicle. However, the mere presence of the contraband without more than Parris’ spatial proximity to it would not establish Parris’ constructive possession. See id.

In this case, the arresting officer detected the distinctive odor of marijuana on Parris’ person. The officer testified that when he initially approached the car the drugs were located directly at Parris’ feet and that the Camaro had bucket seats with a console separating the driver’s side from the passenger compartment. Based on this evidence, a rational trier of fact could have found Parris guilty beyond a reasonable doubt of the crime of possession of marijuana. Jackson v. Virginia, 443 U. S. at 319.

Decided June 17, 1997.

Before Judge Karpf.

Darden & Moyers, Richard M. Darden, Andrea S. Moyers, for appellant.

To support a conviction for possession of marijuana with intent to distribute, the State must prove more than mere possession. Williams v. State, 199 Ga. App. 544 (1) (405 SE2d 539) (1991). Where, as here, a conviction hinges on circumstantial evidence, the evidence must exclude every reasonable hypothesis except guilt. OCGA § 24-4-6. Where no additional evidence of intent to distribute is offered, such as scales, drug paraphernalia, large amounts of cash, division of drugs into individual packages, or a prior conviction of possession with intent to distribute, the expert testimony is critical, and the conviction cannot be sustained without it. See James v. State, 214 Ga. App. 763, 764 (1) (449 SE2d 126) (1994); see also Bacon v. State, 225 Ga. App. 326, 327 (483 SE2d 894) (1997).

In this case, the State did not present any evidence of drug paraphernalia or large amounts of cash. The State failed to offer any expert testimony that the amount of marijuana or its packaging was indicative of distribution. See James, 214 Ga. App. at 764; compare Holbrook v. State, 177 Ga. App. 318, 321 (2) (339 SE2d 346) (1985). Nor was the State’s circumstantial evidence sufficient to exclude every reasonable hypothesis except Parris’ guilt, such as the credible theory that the marijuana was for Parris’ personal use, especially in light of testimony that when arrested Parris exuded the odor of burnt marijuana. See Brown v. State, 260 Ga. 153, 155 (1) (391 SE2d 108) (1990). Clearly, the jury was not authorized to infer an intent to distribute marijuana in this case from the similar transaction evidence alone. See Anderson v. State, 215 Ga. App. 426, 428 (1) (451 SE2d 103) (1994) (physical precedent only). Moreover, notwithstanding the dearth of evidence as to the essential element of intent to distribute, the jury was not afforded the option of convicting Parris on the lesser included offense of possession of marijuana.

In the absence of any direct evidence of Parris’ intent to distribute, we are constrained to reverse. OCGA § 16-13-30. Dyer v. State, 218 Ga. App. 879, 880 (1) (463 SE2d 718) (1995). Because the evidence was sufficient to support Parris’ conviction for possession of marijuana, we remand with direction that a conviction and sentence be entered for that offense. Hogan v. State, 193 Ga. App. 543 (1) (388 SE2d 532) (1989).

Judgment vacated and case remanded with direction.

Johnson and Blackburn, JJ., concur.

Spencer Lawton, Jr., District Attorney, Jon Hope, Assistant District Attorney, for appellee.


author: Birdsong, Presiding Judge.

text:
    A97A1276.
    FLOURNOY v. BROWN.
    (487 SE2d 683)
   Birdsong, Presiding Judge.

This personal injury suit arises from injuries sustained in an automobile collision. The case was tried by jury, and a verdict was rendered in favor of appellant/plaintiff Celestine Flournoy in the amount of $14,892. Appellant appeals from the judgment entered on that verdict. Appellant’s suit was predicated upon her claim that appellee Sarah Brown had failed to yield at an intersection or had run the intersection stop sign on Rigdon Road hitting primarily the left side of appellant’s vehicle.

The evidence is in conflict as to the cause and circumstances of the collision. Appellee in essence testified that she stopped both at the stop line and beyond at a better vantage point, looked, observed no approaching traffic, entered the intersection, and was suddenly struck by appellant’s automobile. She also testified, as hereinafter discussed, regarding the existence of a depression or hillside slope in the road 170 to 175 feet away which she contends blocked appellant’s speeding vehicle from her view. Appellee introduced certain photographs to corroborate the existence of the depression. Appellant testified she was not speeding as she traveled down Baldwin Street and that her vehicle was struck by appellee who failed to yield the right of way at the intersection. She introduced the testimony of a neighborhood youth and the investigating police officer and certain photographs to corroborate her testimony. Appellant also testified that she slowed down as she approached the Rigdon Road intersection, as she almost had been hit there two days before. As she proceeded through the intersection, she saw something out of the corner of her eye and within half a second thereafter her car was hit on the front left side. Appellant enumerates five errors. Held:

1. Appellant enumerates that the trial court erred in giving the following charge: ‘When a driver of a vehicle at a stop sign has yielded the right of way to other vehicles approaching the intersection on a through street, which are so close as to constitute an immediate hazard, and then enters the intersection when it is safe to do so, he assumes the right of way at such intersection, and all other approaching vehicles on the through street are required to yield to the vehicle already in the intersection.” (Emphasis supplied.) Appellant took exception to this charge on the grounds that it is not the law and that there exists no evidence to support the charge.

The above charge substantially mirrors the language of a predecessor statute pertaining to vehicles entering a through highway. See generally Code of Ga. (Unannotated) § 68-1652 (a), which pertinently stated, “but said driver having so yielded may proceed and the drivers of all other vehicles approaching the intersection on said through highway shall yield the right of way to the vehicle so proceeding into or across the through highway.” Compare Bowens v. State, 116 Ga. App. 577 (158 SE2d 420). Section 68-1652 (b) (Ga. L. 1953, Nov. Sess., pp. 556, 590) also provided: “The driver of a vehicle shall likewise stop in obedience to a stop sign as required herein at an intersection where a stop sign is erected at one or more entrances thereto although not a part of a through highway and shall proceed cautiously, yielding to vehicles not so obliged to stop which are within the intersection or approaching so closely as to constitute an immediate hazard, but may then proceed.” (Emphasis supplied.)

The Uniform Rules of the Road subsequently were enacted, and were intended, inter alia, to regulate stopping and to repeal conflicting laws. Ga. L. 1974, pp. 633, 657. The current statutory provision pertaining to stop signs and yield signs, OCGA § 40-6-72, pertinently provides: “(a) Preferential right of way may be indicated by stop signs or yield signs. . . . (b) Except when directed to proceed by a police officer, every driver of a vehicle approaching a stop sign shall stop at a clearly marked stop line or, if there is no stop line, before entering the crosswalk on the near side of the intersection, or, if there is no crosswalk, at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering it. After stopping, the driver shall yield the right of way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time when such driver is moving across or within the intersection or junction of roadways.” (Emphasis supplied.) We do not believe, however, that OCGA § 40-6-72 (b) had the effect of negating the prior law, as accurately reflected in the instruction here at issue. The plain and unambiguous language of this statute reveals that the legislature intended that preference of right of way would remain in the driver of a vehicle, being operated on a through street or highway, when such vehicle is in the intersection or is approaching the intersection under conditions which would constitute an immediate hazard to any vehicle attempting to enter the same intersection from a roadway controlled by a stop sign. Implicit within this language, however, is the legislature’s continued intent that the driver of a vehicle, being operated on a roadway controlled by a stop sign, may momentarily gain preference of right of way when, after having come to a complete stop at the stop sign and having diligently looked for oncoming traffic enters safely into the intersection. Any other statutory interpretation would lead to the absurd result that a driver legitimately stopped at a stop sign could never, under any circumstance, momentarily gain the right of way to cross the intersection. Statutory construction must square with common sense and reasoning. Tuten v. City of Brunswick, 262 Ga. 399, 404 (7) (a) (i) (418 SE2d 367). The instruction at issue was a correct statement of law.

We must now consider whether there existed any evidence, direct or circumstantial, to support the giving of this charge. See Jenkins v. Burns, 202 Ga. App. 579 (415 SE2d 30). Appellee testified that this was the first time she had been driving on Rigdon Road. She stopped at the stop sign, but because a bush and pole blocked her view, she moved ahead of the white stopping line to a point where she could see clearly and stopped again. From this vantage point she could see as far down the road as could be seen; she could see far enough so she felt “reasonably sure of entering with safety into the intersection.” She looked both ways, saw no approaching vehicles, gradually accelerated into the intersection by “probably” two car lengths, and then, although there was no squealing of brakes or other noise to alert her, she saw appellant’s vehicle coming toward her and knew she was going to be hit. She was traveling only five to ten mph at the point of impact; she does not believe she was going fifteen mph. Appellee further testified there is a hill or depression on Baldwin Street approximately 170 to 175 feet west of the intersection. (A depression in the road also appears in the photograph admitted as Defense Exhibit 3.) Appellant’s vehicle hit hers; the point of impact was in the middle of the intersection or over the centerline. Appellee opined without objection that she did not see appellant’s vehicle because appellant was going faster than the speed limit, as indicated by the effect of the impact which totaled two cars and flipped appellee’s car onto a wall. Appellee likewise opined that appellant’s car was beyond the flat point of the road and in the depression or hill slope when appellee started into the intersection. In response to a question from appellant’s counsel, appellee testified that (although she had not seen appellant’s vehicle before entering the intersection) appellant was going “every bit” of 40 or 50 mph. Appellee was “already there” in the intersection when, out of the corner of her eye, she saw appellant’s vehicle approaching. Regarding the lay opinions expressed by appellee, all evidence is admitted as a matter of course unless a valid ground of objection is timely interposed. Scott v. State, 206 Ga. App. 23, 26 (1) (c) (424 SE2d 328). Appellee’s testimony and photographic evidence sufficiently support the giving of the charge at issue. Compare Bowens, supra at 577 (1). “ ‘ “To justify a charge on a given subject, it is not necessary there should be direct evidence going to that point; it is enough if there be something from which a legitimate process of reasoning can be carried on in respect to it.” ’ ” Carter v. Central of Ga. R. Co., 149 Ga. App. 867 (256 SE2d 149). Wilson v. City of Riverdale, 203 Ga. App. 250 (416 SE2d 825), overruled on other grounds, Brown v. City of Marietta, 214 Ga. App. 840, 842 (449 SE2d 540), where no evidence of a depression or hill capable of masking the approach of a vehicle was considered and addressed, is distinguishable and not controlling. The issue whether appellee knew or should have known that appellant’s vehicle was so close as to pose an immediate hazard was, under the attendant circumstances, a question of fact for jury determination. See Bowens, supra at 577 (1) (testimony authorized a finding that the appellant’s vehicle was not so close as to constitute an immediate hazard). Appellant’s first enumeration of error is without merit.

2. Appellant’s second and third enumerations of error are without merit. Plaintiff contends there exists no evidence to support the giving of charges on the following theories: plaintiff’s failure to exercise ordinary care to avoid the consequences of the defendant’s negligence, last clear chance, failure to exercise care for one’s own safety, comparative negligence, and negligence per se. In giving the latter charge the trial court stated that “both parties contend that the other violated certain laws or ordinances, stop sign violation and speeding. Such violation is called negligence per se, negligence as a matter of law. It is your duty to decide whether such violation took place or not.” “ ‘ “[A]n instruction is not abstract or inapplicable where there is any evidence, however slight, on which to predicate it.” ’ ” (Citations omitted.) Jenkins, supra at 579. As above discussed, direct evidence is not required; it suffices if there exists any indirect (circumstantial) evidence from which a legitimate process of reasoning can be carried on in respect to the issue at hand. Id. There exists some evidence of record to support the giving of each of these charges. “Under the circumstances of this case, we must conclude that the issue of whether or not the appellant exercised due care upon approaching the intersection was for the jury, not the court, to determine; and we accordingly hold that the court did not err in charging on comparative negligence [and the other legal theories which appellant has enumerated as constituting charging errors].” Stroud v. Woodruff, 183 Ga. App. 628, 629 (1) (359 SE2d 680). See id. at 629 (2) . Appellant asserts that the opinion testimony of appellee regarding her speeding and that the vehicle initially was shielded during a critical time of decision in a depression in the road should not be considered by this Court. As stated, this evidence was admitted without objection and therefore can be considered on appellate review. See Scott, supra. If appellant believed this evidence to be without probative value or otherwise inadmissible, a timely objection thereto should have been posed at trial. A party cannot during trial ignore what he thinks to be an injustice, hoping for an acceptable result, and then after trial state his objections for the first time to the procedure followed or evidence admitted. See Bruce v. State, 259 Ga. 798 (2) (b) (387 SE2d 886). Likewise, “defense counsel may not take chances propounding questions which may elicit damaging answers[, i.e., questions such as, You think she was going, what, forty or fifty?’] and then demand reversal on appeal.” Hutson v. State, 216 Ga. App. 100, 102 (5) (453 SE2d 130).

Decided June 17, 1997

Before Judge Prather.

L. B. Kent, for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, William B. Hardegree, for appellee.

3. Appellant’s fourth enumeration of error that the verdict was inadequate and contrary to the uncontradicted evidence is without merit. “ ‘When[, as in this case,] the rule concerning comparative negligence is involved in a case, the verdict, of the jury cannot be set aside on the ground that the amount of the damages awarded is inadequate.’ ” (Citations omitted.) Beal v. Braunecker, 185 Ga. App. 429, 432 (3) (364 SE2d 308).

4. Appellant’s fifth enumeration of error that the trial court erred in failing to grant a directed verdict on liability is without merit. The standard for the grant of a directed verdict is the same as that for judgment n.o.v., that is, “Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” Pendley v. Pendley, 251 Ga. 30 (1) (302 SE2d 554). In applying this test, this Court cannot weigh the evidence or determine witness credibility. See generally Homey v. Lawrence, 189 Ga. App. 376, 377 (3) (375 SE2d 629). The evidence was in conflict regarding the circumstances and cause of the collision; conflict in the evidence existed as to every material issue. Thus, the posture of the evidence did not demand a particular verdict. The trial court did not err in denying appellant’s motion for directed verdict.

Judgment affirmed.

Ruffin and Eldridge, JJ., concur.


author: Johnson, Judge.

text:
    A97A0086.
    POWELL v. THE STATE.
    (487 SE2d 424)
   Johnson, Judge.

Delores Powell operated a child daycare facility in her home. When an 11-month-old child entrusted to her care sustained a head injury and had difficulty breathing, Powell telephoned for an ambulance, telling emergency medical personnel that the child had fallen head first out of an infant swing onto the floor. The child was taken to the emergency room of a children’s hospital, where she was diagnosed as having a skull fracture, blood on the brain, blood under the scalp, and retinal hemorrhaging and folds. Physicians who examined the child opined that her injuries were consistent with or caused by “shaken infant syndrome” followed by blunt force trauma to the head. The injuries resulted in permanent brain damage and total blindness. Powell was charged with cruelty to children, aggravated battery and aggravated assault upon the child. After a jury trial, Powell was found guilty of the offenses of aggravated assault and simple battery. Powell appeals from the judgment of conviction entered on the verdict and the denial of her motion for new trial.

1. Powell claims the trial court erred by allowing two physicians who treated the child to shake a doll in front of the jury as a means of demonstrating the type of shaking they believed caused the child’s injuries. We find no error.

Courtroom experiments sometimes make a practical demonstration of the question in issue, and are often the best evidence in elucidating the truth. Boyce v. State, 198 Ga. App. 371, 373 (3) (401 SE2d 578) (1991). Generally, whether courtroom demonstrations will be permitted rests within the sound discretion of the trial court. See Ruger v. State, 263 Ga. 548, 550 (2) (b) (436 SE2d 485) (1993). The weight of such evidence is for the jury, and varies according to the circumstances of similarity which they may find to exist between the experiments and the actual occurrence under investigation. Id.

In a conference held outside the presence of the jury, the state informed the trial judge it intended to have the physician who was then testifying, Dr. Goo, use the doll to demonstrate the type of force required to cause the injuries suffered by the child. Defense counsel objected to such a demonstration, arguing the state failed to provide advance notice of the intended demonstration; the doll probably weighed more than a baby; and counsel wanted to find out if such a demonstration would be reliable. The trial court ruled that the demonstration would be permitted. Despite the ruling, Dr. Goo was excused without being asked to do the demonstration.

The state asked Dr. Drack, an opthamologist who examined the child in the hospital, to use the doll to demonstrate the type of shaking and impact that would be required in order to cause the child’s retinal hemorrhaging and folds. Defense counsel objected on the ground that the prosecutor did not state any intention in the conference to have this particular physician conduct the demonstration. The trial judge noted counsel’s objection, incorporated his prior objection, and overruled it. Drack responded that “typically” such eye injuries are caused by “shaking the baby back and forth like this (indicating).” When asked if the demonstration showed the level of shaking she would expect to cause retinal hemorrhaging and folds, Drack replied that it could, but added the extent of possible damage depends on the individual child.

Dr. Petronio, a pediatric neurosurgeon who treated the child and was qualified as an expert in his field, was asked to demonstrate the type of violent shaking and impact he would expect the child to have suffered for this type of injury to occur. After stating that the doll and the child were approximately the same size, Petronio testified about a baby’s head size, brain softness and water content and the brain’s tendency to shift in the skull. He added that the child was “either grabbed by the shoulders or by the arms and shaken back and forth like this (indicating), and then thrown against an object.” Petronio testified that he believed the child’s injury was not the type caused by a fall from a low height, as the type of injury sustained in this case “requires a violent rocking back and forth of the head.”

(a) Powell complains that the state failed to lay any foundation showing the similarity between the doll and the child until after the second demonstration was conducted, and that the foundation laid at that time included no showing of similarity in head and neck strength, control and movement. Powell did not object to the lack of foundation until after the state began the second demonstration. Because he was required to object when the evidence was introduced at trial, any error asserted as to the first demonstration is waived. See generally West v. State, 224 Ga. App. 190, 191 (2) (480 SE2d 238) (1997). Moreover, the fact that the foundation was established after the evidence was admitted is not grounds for reversal, as the trial court may allow the foundation to be laid subsequent to the admission of the evidence. See Gregg v. State, 201 Ga. App. 238, 240 (3) (a) (411 SE2d 65) (1991).

As for the second demonstration, after defense counsel objected to the lack of foundation, Petronio testified that the doll was approximately the same size and weight as the child and acknowledged that using the doll would aid his testimony. We do not agree that the state was required to show similarity in head and neck strength, control and movement as part of the foundation. While there should be substantial and reasonable similarity between the facts proved in the case and the facts upon which the demonstration is based, the facts need not be identical; if the facts are sufficiently similar to accomplish the purpose of assisting the jury to intelligently consider the issue of fact presented, the evidence is admissible. See generally Stephens v. State, 214 Ga. App. 183, 185 (4) (447 SE2d 26) (1994). Obviously, a demonstration of how shaken infant syndrome occurs would have to be done with a mannequin or doll rather than a real infant. Such an object will differ in many respects from a real child. However, any dissimilarity between the conditions of the demonstration and the actual occurrence affects the weight rather than the admissibility of the evidence. See West v. State, 200 Ga. 566, 571 (37 SE2d 799) (1946); Stephens, supra. The doll and child were sufficiently similar to assist the jury in considering the issue of how injuries of the type suffered in this case can result from violent shaking. The foundation was sufficient.

(b) Powell claims the prejudicial effect of the demonstrations outweighed any probative value, noting that the doll’s legs came off during the second demonstration. Immediately after the legs became detached, however, the witness testified that a real child’s legs would not have been affected by the shaking movement. We note that Powell did not request a mistrial or curative instructions after the incident. The trial court, not this Court, is in the best position to assess whether such evidence has a prejudicial effect on the jury and to weigh the relevancy factor against its prejudicial effect. We find no abuse of discretion. See generally Burns v. State, 166 Ga. App. 766, 770 (6) (305 SE2d 398) (1983).

(c) Powell contends the demonstrations effectively allowed the state to introduce matters not in evidence inasmuch as there had been no evidence before the demonstrations as to the level of shaking or number of oscillations which produced the child’s injuries. Since counsel failed to make this specific objection at trial, this argument is waived. See Fulbright v. State, 194 Ga. App. 827, 828 (3) (392 SE2d 298) (1990). Moreover, Powell’s reliance on Wade v. State, 197 Ga. App. 464, 466 (2) (398 SE2d 728) (1990), as prohibiting the introduction of evidence during a demonstration by a witness, is misplaced. Wade involved a demonstration by the prosecutor during closing arguments. It is well-settled that a prosecutor cannot inject matters not in evidence into final argument. See Williams v. State, 254 Ga. 508, 510 (3) (330 SE2d 353) (1985). The demonstrations here were not conducted as part of closing argument, but conducted by witnesses in conjunction with their testimony as a means of illustrating the type of shaking involved in shaken infant syndrome. Defense counsel had ample opportunity after the demonstrations to point out the physical differences between the doll and the real child, which he did. Defense counsel also had the opportunity to inquire into the number of oscillations and the level of shaking involved in the actual occurrence versus the demonstrations, which he failed to do. We note that we have considered the holding in United States v. Gaskell, 985 F2d 1056 (11th Cir. 1993), in which a demonstration of shaken baby syndrome was found to be unfairly prejudicial, but are not convinced that it requires a different result here. In Gaskell, unlike this case, defense counsel specifically objected to the degree of force used in the demonstration; the witness said he based his presentation on a demonstration by a police officer whose knowledge was derived from a father in another case; the witness admitted he displayed a greater degree of force than that required to produce shaken baby syndrome; Gaskell had admitted shaking the child, though for resuscitation purposes, making the issue of the amount of force actually used critical; and, the conviction was not reversed solely on the demonstration, but also on two other errors in the trial of the case. We find the holding in State v. Candela, 929 SW2d 852 (Mo. App. 1996), more persuasive. In Candela, the court recognized the trial court’s broad discretion in admitting demonstrative evidence and stated that the trial court did not abuse that discretion in allowing a physician to shake a rag doll to illustrate the type of shaking generally involved in shaken impact syndrome, where the defendant was given ample opportunity to show the dissimilarity between the doll and the child. Id. at 867 (V).

2. Powell argues the evidence was insufficient to support her convictions because Dr. Goo did not testify that shaken infant syndrome was the only possible cause of the injuries; Dr. Drack did not “think” the fall from a swing could have caused the injuries; Dr. Drack did not ever state that shaken infant syndrome was the cause of the child’s injuries; and Dr. Petronio never excluded the possibility that the back and forth movement involved in shaking could have been caused by the swing, and stated that a skull fracture can result from a low-distance fall.

Despite these alleged shortcomings, there was sufficient evidence to support the guilty verdicts. Dr. Goo testified that the child’s injuries resulted from being shaken and beaten, and that the injuries were “absolutely not” consistent with a fall from a swing. Dr. Drack testified that hemorrhaging of the eye can be caused by severe head trauma, shaking and sudden impact injuries. She added that retinal folds mainly occur where the child has been shaken, and that she did not think that a fall alone could have caused the hemorrhaging or the folds. Finally, Dr. Petronio testified that “the only mechanism” whereby children suffer the pattern of injury seen in this case is from violent shaking followed by an impact. Petronio added that he would not expect the injuries to result from a fall from a swing and that he had no doubt that the child was shaken violently. “On appeal of criminal convictions, we do not weigh the evidence or determine the credibility of witnesses; these are jury functions. When the jury has considered the evidence and made its finding, then on appeal the evidence is construed in favor of the jury’s verdict. On review of a verdict of guilty, we merely determine whether the evidence is sufficient from which a rational trier of fact could conclude beyond a reasonable doubt that appellant committed the offense[s] as charged.” (Citations and punctuation omitted.) Cornell v. State, 222 Ga. App. 476 (474 SE2d 634) (1996). A rational trier of fact could have found Powell guilty of aggravated assault and simple battery. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided June 2, 1997

Reconsideration denied June 18, 1997

Before Judge Flake.

Bruce S. Harvey, David S. West, for appellant.

J. Tom Morgan, District Attorney, Thomas S. Clegg, Robert M. Coker, Sheila A. Connors, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, P. J., and Senior Appellate Judge Harold R. Banke concur.


author: Judge Harold R. Banke. Beasley, Judge,

text:
    A97A0147.
    MOBLEY et al. v. SEWELL et al.
    (487 SE2d 398)
   Judge Harold R. Banke.

Susan R. Lawrence and Charles Lawrence filed this action on behalf of their ward, Rubye M. Mobley, nee Ruff ("Ruff”) who was adjudicated incapacitated. They sued Ruff’s now deceased husband, Herbert M. Mobley, his daughter, Evelyn Sewell, and her husband, Don F. Sewell, seeking to vacate and set aside a deed on the grounds of fraud, conspiracy, and breach of contract. On appeal, the Lawrences challenge the superior court’s dismissal of their case.

This case arose after Rubye Ruff conveyed a share in property located at 121 Lakeshore Boulevard to her future husband, Herbert Mobley, in 1981. This conveyance to both Ruff and Mobley created a joint tenancy with a right of survivorship. Ruff and Mobley married shortly after this transaction.

In February 1991, Herbert Mobley conveyed his interest in the property to his daughter, Evelyn Sewell. See Tower Financial Svcs. v. Mapp, 198 Ga. App. 563, 564-565 (1) (402 SE2d 286) (1991) (grantor can convey no greater interest than he owns). Days later, Mobley and Sewell petitioned to have Ruff declared incapacitated due to dementia or possible Alzheimer’s disease, seeking to become guardians of her property. Ruff underwent a medical evaluation which resulted in a finding that she was incapable of managing her business affairs. After a hearing in which Ruff contested the proceedings, stated she felt threatened by her husband, and requested that if a guardian was appointed, it not be her husband, the probate court adjudicated Ruff incapacitated. It declined, however, to appoint Mobley or Sewell as guardian of Ruff’s property, opting eventually for the Lawrences. The probate court ordered Mobley to return $9,000 he withdrew from a joint account and pay half of the ongoing household expenses.

In August 1992, over a year later, Evelyn Sewell filed a petition in superior court to partition the Lakeshore Boulevard property. The petition alleged that because the property had a residence thereon, a metes and bounds partition of Sewell’s undivided half interest was impossible and the property would have to be sold. Ruff, who was confined to a nursing home, opposed the action and moved to dismiss. In addition, the Lawrences filed cross-complaints and an amendment to the answer in which they alleged fraud in the conveyance of the property and breach of contract. The superior court, agreeing that the property was not capable of a metes and bounds division, appointed two appraisers.

In June 1993, at Ruff’s request, the probate court found Mobley in wilful contempt for violating its order requiring him to pay half the household bills and expenses. Six months later, the probate court issued an order stating that it would be inappropriate to hold Mobley in contempt. Notwithstanding the facts that the issue was not before it and the conveyance between Mobley and Sewell occurred before the probate proceedings commenced, this order also stated that because Ruff was incompetent at the time of the conveyance, the deed was voidable and illegal.

Three months later, in March 1994, the superior court granted the Sewells’ motion to strike the Lawrences’ amendment to the answer alleging fraud in the conveyance of the property. It then ordered that the property be sold at public auction pursuant to OCGA § 44-6-167. These decisions were not appealed.

In May 1994, Don Sewell purchased the property when it was offered for sale on the courthouse steps by the court-appointed appraisers. Sewell subsequently sold the property to a non-party.

In September 1995, the Lawrences commenced this action seeking, inter alia, declarations that the warranty deed between Mobley and his daughter and the conveyance on the courthouse steps between Evelyn Sewell and her husband were void. The superior court dismissed this action, holding it was barred by res judicata, estoppel by judgment, and OCGA § 9-11-13. Held-.

The trial court correctly held that this action was barred by the doctrine of res judicata. This doctrine, codified at OCGA § 9-12-40, provides: “[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” Miller v. Charles, 211 Ga. App. 386, 387 (439 SE2d 88) (1993). Res judicata prevents plaintiffs from asserting claims arising from the same transaction piecemeal or presenting only a portion of the grounds on which relief is sought and leaving the rest for a second suit if the first fails. Cooper v. Public Fin. Corp., 146 Ga. App. 250, 252 (1) (246 SE2d 684) (1978); Sorrells Constr. Co. v. Chandler &a, 214 Ga. App. 193, 194 (447 SE2d 101) (1994). “A dismissal with prejudice is res judicata of all questions which might have been litigated in the action and is a final disposition, barring the right to bring another action on the same claim. [Cit.]” Hutcheson Med. Center v. Scealf, 205 Ga. App. 204, 206 (1) (422 SE2d 20) (1992).

This case turns on the fact that the Lawrences failed to appeal the superior court’s orders striking the amendment to their answer in which they alleged fraud in the conveyance of the property and directing that the property at issue be sold at public auction. Nor did they contest the sale itself. Instead, over a year after the orders were issued, they commenced this action, seeking to vacate and set aside the deeds between Mobley and his daughter and between the Sewells on the grounds of fraud, conspiracy, and breach of contract. The failure to appeal the superior court’s orders implicitly and explicitly resolving the issues raised in the instant case allowed the disposition to become final. See Lanier v. Gay, 195 Ga. 859, 860 (25 SE2d 642) (1943); Reid v. Reid, 201 Ga. App. 530, 532-533 (411 SE2d 754) (1991); OCGA § 5-6-48 (b) (1). This triggered the doctrine of res judicata, which now prohibits the Lawrences from reasserting their allegations of fraudulent transfer of the property in this action. The Lawrences’ erroneous assertion that the superior court lacked jurisdiction over the partition action does not alter this conclusion. See Ga. Const. of 1983, Art. VI, Sec. IV, Par. I (1).

The underlying controversy is, of course, troubling. The probate court’s findings raise the issue of whether Mobley and the Sewells took unfair advantage of Ruff’s incapacity. However, the conveyance granting Mobley a joint tenancy with right of survivorship was executed in 1981, before any question of Ruff’s incompetence arose. At least some authorities postulate that neither the co-owner’s permission nor knowledge are necessary to sever the survivorship provision. Cogburn & Warren, “Joint Ownership of Georgia Real Property with Right of Survivorship” 16 Ga. St. Bar J. 54 (1979); see OCGA § 44-6-190 (a); see Wallace v. Wallace, 260 Ga. 400, 401, n. 4 (396 SE2d 208) (1990) (“The effect of such a sale [as between Mobley and his daughter] on the right of survivorship is unclear.”); compare Williams v. Studstill, 251 Ga. 466, 467-468 (306 SE2d 633) (1983); see Pindar, Ga. Real Estate Law & Procedure, §§ 7-81, 19-13, 19-13.1 (observing that OCGA § 44-6-190 (a) created confusion on the severance issue). Thus, the transfer between Mobley and his daughter may have effected a severance notwithstanding Ruff’s incapacity.

In their reply brief, the Lawrences have reframed their enumerations of error, raising a substantial number of new issues. Statements in the briefs cannot enlarge or alter the scope of review to include issues not reasonably contained in the enumeration of error. Jabaley v. Jabaley, 208 Ga. App. 179, 180 (2) (430 SE2d 119) (1993).

Judgment affirmed.

Birdsong, P. J, Smith, Ruffin and Eldridge, JJ., concur. McMurray, P. J., and Beasley, J., dissent.

Beasley, Judge,

dissenting.

The superior court should be reversed in this case, in which a widow has been deprived of her right, as a joint tenant with right of survivorship, to fee simple title in her home upon the death of her second husband. She had originally gained fee simple title upon the death of her first husband, because when he was alive she was a joint tenant with him, with right of survivorship. It appears from the record that her second husband, now deceased, and his daughter and son-in-law, have worked a fraud on her by a deed purportedly transforming her right into one of tenancy in common by a deed of which she did not know and which ignored her right of survivorship. They subsequently carried that apparent fraud to court and convinced the superior court in an action for partitioning that they were entitled to such.

Although the guardians of the incompetent widow’s property should have brought an interlocutory appeal from the August 11, 1993 order of the superior court for an appraisal or an appeal from the order of March 9, 1994 (or May 7, 1994) approving the sale of the property to the son-in-law on the courthouse steps, the opportunity for attack is not completely lost.

When viewed in light of context, content, and purpose, the complaint of the plaintiff ward by her property guardians is in effect a motion to set aside a judgment based on lack of jurisdiction over the subject matter. OCGA § 9-11-60 (d) (1). Access to adjudication of the issue through this mechanism is proper, although a collateral attack by way of an original action on a void judgment under OCGA § 9-11-60 (a) would not be. The latter is so because in Murphy v. Murphy, 263 Ga. 280, 282 (430 SE2d 749) (1993), the Supreme Court restricted usage of that subsection to “judgments which lack either personal or subject matter jurisdiction” and further confined “subject matter jurisdiction” in the context of this subsection to mean “jurisdiction of the class of cases to which the particular case belongs.” Plaintiff does not dispute that the superior court had jurisdiction of her person or of partitioning actions, which it does. OCGA § 44-6-160.

Her argument is that the superior court did not have jurisdiction of the particular case of partitioning because the probate court had already taken jurisdiction of her property and had gone further and ordered that the deed purporting to create a tenancy in common was void. The earlier deed, creating the right of survivorship, was the foundation for the probate court order finding the husband in contempt. This would be a proper ground for a motion to set aside brought directly in the court in which the judgment was entered, pursuant to OCGA § 9-11-60 (d) (1), and should have been numbered in the clerk’s records with the same number as the case in which the attacked judgment was entered. What was in effect a motion to set aside was timely, because she had three years to bring it. OCGA § 9-11-60 (f).

Res judicata is totally irrelevant. The effort to cure should be considered as occurring in the same and not a subsequent case. The question raised by what was in effect a motion to set aside was whether the superior court had jurisdiction to permit a partitioning of property on the basis of a deed which the probate court had earlier determined was null and void. That probate court determination had not been appealed by the grantor husband (her second one) or by his daughter and son-in-law. Although there is some reference to an appeal having been taken to the superior court, it apparently was abandoned, the probate court order ignored, and the partitioning action pursued instead. There is no indication in the record, or even suggestion by any party, that the order was reversed, vacated, set aside, or declared void for lack of jurisdiction or any other reason. See Ga. Const. 1983, Art. VI, Sec. IV, Par. I; In re Estate of Adamson, 215 Ga. App. 613 (451 SE2d 501) (1994). The petitioners in the partitioning action simply disregarded it.

They were obligated first to move to set aside that probate court order, either in the probate court or in an original action in superior court under OCGA § 9-11-60 (d) (1), or to obtain its reversal by way of appeal. Only after that existing probate court order was no longer to be reckoned with, could those who a court had determined had no interest in the. property then petition to partition it. Had they done so, the widow would at the same time have had an opportunity to transfer the deed issue to the superior court, which had jurisdiction of the subject matter of title, or to originate in the superior court an action for declaratory judgment that the deed was void because it purported to devise what the grantor did not own. But none of this transpired. OCGA § 9-12-16 was not invoked.

Thus, the judgment of the superior court in the partitioning case should have been set aside by the court upon plaintiff’s prompting, as it was plain on the face of the record that the superior court had no jurisdiction of the subject matter of that partitioning, i.e., the property of the incompetent widow which was never properly transformed into a tenancy in common. It simply was not subject to a partitioning because there was an extant order of the probate court. The only interest which Rubye Mobley’s second husband could convey was his joint tenancy during his life. That is not what he tried to convey, and in fact that was not what his daughter and son-in-law were interested in, since he would be living in that property during his lifetime. Even if the probate court order declaring the attempted conveyance of a tenancy in common void was beyond its jurisdiction, the superior court should not have permitted the partitioning because the ward showed that the subject matter of the partitioning was invalid.

Plaintiff unartfully styled her action as one to set aside the deed instead of one to set aside the judgment which confirmed the deed, but she did contend that the superior court had no jurisdiction to order a partition and sale, and she prayed that the deed made by the commissioners appointed by the superior court on May 3, 1994, be declared null and void and set aside. It is clear that she seeks to have the court’s order set aside. She also prayed for “such other relief as may be equitable and just,” which embraces what should have been provided.

Appellees bank on the record showing that the face of the probate court order ruled on an issue over which it had no subject matter jurisdiction, but the record also shows on its face, without dispute, that the partitioning proceeded on a deed purporting to convey Herbert Mobley’s interest free and clear of Rubye Mobley’s existing right of survivorship. Appellees cannot insist that the partitioning matter is closed and, at the same time, challenge in this appeal the earlier and unappealed probate court order.

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

Decided May 27, 1997

Reconsideration denied June 18, 1997

Before Judge Smith.

John L. Watson, Jr., for appellants.

Smith, Welch, Studdard & Brittain, Benjamin W. Studdard III, for appellees.

       The Lawrences originally filed this appeal in the Supreme Court, which transferred the case to this Court, finding that the issues involving title to land were merely ancillary to the application of the principle of res judicata. Our review of this case is impeded by the fact that the only records from the probate court proceedings are selected exhibits attached to the Lawrences’ complaint. The probate court proceedings address matters of relevance to this appeal (particularly the resolution of issues raised by Mobley’s notice of appeal challenging the probate court’s December 28, 1993 order finding the transfer between Mobley and Sewell “voidable and illegal”). But neither that case nor its full record are before us. See Malin Trucking v. Progressive Cas. Ins. Co., 212 Ga. App. 273, 274 (2) (441 SE2d 684) (1994) (appellant bears burden of providing appellate record).

       Because the probate court clearly lacked subject matter jurisdiction to determine the validity of the deed, this order is subject to collateral attack at any time under OCGA § 9-11-60 (d) (1). See In re Estate of Adamson, 215 Ga. App. 613 (1) (451 SE2d 501) (1994) (probate court’s orders determining matters of title to property are void for lack of jurisdiction); see Ga. Const. of 1983, Art. VI, Sec. TV, Par. I (giving superior courts exclusive jurisdiction over cases respecting title to land). This fact undermines any argument that the probate court’s order respecting the conveyance deprived the superior court of jurisdiction.