author: Judge John W. Sognier.

text:
    A93A0336.
    HAMILTON et al. v. ADVANCE LEASING & RENT-A-CAR, INC. et al.
    (432 SE2d 559)
   Judge John W. Sognier.

Appellant-plaintiff Gary Hamilton leased an automobile from appellee-defendant Advance Leasing & Rent-A-Car, Inc. (ALR), a corporation now owned by appellee-defendant Rivergate Corporation, Inc. (RCI). Hamilton’s wife, Christine, was injured when she totaled the car in a one-vehicle accident. Pursuant to a business automobile policy issued to ALR’s principal by Liberty Mutual Insurance Company, basic personal injury protection (PIP) and liability coverage were afforded to permissive users of the leased vehicle. Liberty Mutual paid Christine Hamilton $3,700 as amounts recoverable as basic PIP. The Hamiltons initiated the instant action against ALR and RCI alleging fraud and breach of contract for appellees’ failure to obtain liability insurance coverage for the Hamiltons which included optional PIP benefits. After discovery, ALR and RCI moved for summary judgment. This motion was granted by the trial court and the Hamiltons appeal.

1. Pursuant to the lease, Mr. Hamilton agreed to bear all risk of damage, loss, theft, or destruction of the leased vehicle, and to maintain insurance for comprehensive fire and theft; collision and upset; and automobile liability insurance. The lease also contained a provision whereby, in consideration for an additional monthly fee, appellee-lessor would “attempt to obtain [liability] insurance coverage, as follows ... (a) $15,000 B[odily] I[njury] per person/ $30,000 B[odily] I[njury] per accident or . . . (b) $10,000 [property damage] single limit.” A provision in subsequently executed monthly rental agreements stated that any coverage for public liability or property damage obtained by ALR for Hamilton was excess coverage over any other insurance and that it did not cover injuries to the lessee or his passenger. Mr. Hamilton paid an additional $30 a month to ALR and did not obtain any other automobile liability insurance policy on his own. Contrary to appellant’s assertions, by agreeing to “attempt to obtain” liability insurance on Mr. Hamilton’s behalf and by accepting his additional payments, appellee ALR did not thereby become an “insurer” within the meaning of former OCGA § 33-34-5 (a) (1), such that it would have had the statutory obligation to offer optional PIP coverage up to $50,000. Rather, ALR merely agreed to become the lessee’s agent to obtain for him the specified insurance coverages. Appellants’ contention that appellees breached a statutory duty to offer optional PIP is without merit.

Appellants nevertheless argue that this agreement to “attempt to obtain” insurance coverage is ambiguous and must be strictly construed against the drafter so as to include a promise to obtain optional PIP coverage of $50,000. OCGA § 13-2-2 (5). Neither basic PIP nor optional PIP was expressly requested by Hamilton in the lease. However, the specified amounts and coverages that ALR agreed to “attempt to obtain” for appellant were those which had been statutorily mandated as the minimum permissible automobile liability coverages under the former financial responsibility laws. See OCGA §§ 33-34-4 (a) (1); 40-9-37 (a). It is true that “liability insurance” is broader than “liability coverage.” “[M]otor vehicle liability insurance required by the [former] Motor Vehicle Safety Responsibility Act . . . must [have provided] certain minimum benefits ‘without regard to fault’ . . . [Cits.] . . . ‘[Liability policies’ in this state are not limited to liability coverage.” (Emphasis omitted.) Auto-Owners Ins. Co. v. Safeco Ins. Co. of America, 245 Ga. 558, 561 (1) (266 SE2d 175) (1980). However, even construing appellee’s promise to “attempt to obtain” liability insurance to include the promise to “attempt to obtain” some level of benefits payable “without regard to fault,” i.e., basic PIP coverage, still that tacit promise cannot be read so broadly so as to include a promise to obtain optional PIP benefits. Rather, the promise to obtain the statutorily mandated minimum liability coverage can only be read to include the promise to obtain the statutorily mandated minimum PIP coverage as well. “The cardinal rule of construction is to ascertain the intention of the parties. If that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction.” OCGA § 13-2-3. Pursuant to the business automobile policy issued by Liberty Mutual, appellants were permissive users of the leased vehicle. They were afforded the basic no-fault coverage provided for in that policy, and Christine Hamilton was paid the no-fault benefits to the extent she was entitled thereunder. Accordingly, ALR did not breach any agreement to obtain liability insurance, even to the extent that its promise could be read to include basic PIP protection. The trial court correctly granted appellees summary judgment with respect to any claim for breach of contract to obtain specified insurance coverage. Compare England v. Ga.-Fla. Co., 198 Ga. App. 704 (1) (402 SE2d 783) (1991).

Decided May 7, 1993 —

Reconsideration denied June 8, 1993

Goldstein & Redic, James A. Goldstein, for appellants.

2. “ ‘The general rule is that actionable fraud cannot be predicated upon promises to perform some act in the future. (Cits.) Nor does actionable fraud result from a mere failure to perform promises made. (Cit.) “Otherwise any breach of a contract would amount to fraud.” (Cit.)’ [Cit.] An exception to the general rule [exists where] a promise as to future events [is] made with a present intent not to perform or where the promisor knows that the future event will not take place. [Cit.]” Sofate of America v. Brown, 171 Ga. App. 39, 41 (3) (318 SE2d 771) (1984). We have already determined in Division 1 that the written agreement to “attempt to obtain” liability insurance does not include the promise to obtain optional PIP. Accordingly, the agreement itself provides no basis for an action in fraud for the failure to provide or offer optional PIP.

Moreover, the lease contains a merger clause, reciting that the writing represents the entire agreement between the parties. “[R]egardless of whether alleged oral misrepresentations are relied upon offensively or defensively, ‘ “(t)he presence of a merger clause in the underlying contract is determinative if the defrauded party has not rescinded but has elected to affirm the contract. . . . (Cits.)” (Cit.)’ [Cit.]” Flair Fashions v. SW CR Eisenhower Drive, 207 Ga. App. 78 (427 SE2d 56) (1993). By accepting and retaining the basic PIP benefits provided for in the insurance covering the vehicle, appellants have ratified the contract of agency as made and have waived any claim for fraud in the inducement. OCGA § 13-4-60. See generally Flair Fashions v. SW CR Eisenhower Drive, supra at 79. “Ordinarily [one] who knowingly accepts and retains any benefit under a contract which he has been induced to make by fraud, after he has knowledge of such fraud, affirms the validity of the contract and will not be heard thereafter to repudiate it. [Cits.]” Legg v. Hood, 154 Ga. 28, 29 (2) (113 SE 642) (1922). The trial court correctly granted summary judgment as to any allegation of fraud.

3. Remaining enumerations have been considered and are found to be moot.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

Alembik, Fine & Callner, Mark E. Bergeson, for appellees.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A93A0408.
    BLIGE v. THE STATE.
    (432 SE2d 574)
   Johnson, Judge.

Nathaniel Blige was charged with robbery, aggravated assault and burglary. At trial, the 80-year-old victim testified that on the date of the incident she heard noises on her porch and went to investigate. She saw a hole in the porch screen and a man going through her cabinet drawer. The man hit her under the chin with his fist, knocking her to the ground. The man dragged her into the living room, where he grabbed a clock off the wall and broke it over her head. When the man asked for her jewelry, the victim took him to the bedroom. The man stole jewelry and money from the room and left the house. Three days after the incident, the victim was unable to identify Blige as the perpetrator when she looked at a photographic lineup which included a ten-year-old photograph of him. Eleven days after the incident, the victim identified Blige as the perpetrator when she picked a recent photograph of him out of another photographic lineup. The victim also made an in-court identification of Blige as the perpetrator. Two expert witnesses testified that Blige’s fingerprint was found on the clock in the victim’s home. The State also presented evidence of two similar transactions. The jury found Blige guilty of robbery, aggravated assault and burglary. Blige appeals from his convictions and the denial of his motion for a new trial. We reverse Blige’s conviction for aggravated assault and affirm his convictions for robbery and burglary.

1. Having reviewed the evidence in the light most favorable to the jury’s verdict, we find that a rational trier of fact could have found Blige guilty beyond a reasonable doubt of the crimes charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Blige correctly contends that the court’s charges to the jury on the definition of aggravated assault erroneously authorized the jury to convict him for having committed an aggravated assault in a manner other than that alleged in the indictment. Blige was specifically indicted for aggravated assault by assaulting the victim with a wall clock as an object which when used offensively against a person is likely to result in serious bodily injury. He was not indicted for aggravated assault with intent to rob. The court, however, charged the jury that aggravated assault is committed by a person who “assaults another person with intent to rob, or with a deadly weapon, or with any object, device, or instrument which when used offensively against a person is likely to or actually does result in serious bodily injury.” The court further instructed the jury that “intent to rob is a material element of aggravated assault, as charged in this case.” After some deliberations, the jury asked to be recharged on the definition of aggravated assault. The court again charged them that aggravated assault can be committed by alternative methods, including when a person assaults another person with intent to rob.

“It is generally not error to give an entire Code section in a charge, even though part of the section may be inapplicable to the allegations and the evidence. [Cit.]” Cottingham v. State, 206 Ga. App. 197, 198 (2) (424 SE2d 794) (1992). However, “[i]t is error to charge the jury that a crime may be committed by alternative methods, when the indictment charges it was committed by one specific method. If there is a reasonable possibility that the jury convicted the defendant of the commission of a crime in a manner not charged in the indictment, then the conviction is defective because of a fatal variance between the proof at trial and the indictment returned by the grand jury.” (Citations and punctuation omitted.) Pettway v. State, 204 Ga. App. 804 (420 SE2d 619) (1992). In the instant case, the trial court erred in charging the jury that aggravated assault may be committed by alternative methods since the indictment charged Blige with committing the crime by a specific method. The court’s error was harmful because the court did not merely read to the jury the entire Code section defining aggravated assault, but actually emphasized a method of committing the crime not specified in the indictment.

The State argues that the court’s error was corrected by the recharge on the definition of aggravated assault because the recharge omitted the erroneous statement that intent to rob is a material element of aggravated assault as charged in this case. While it is true that the court did omit this erroneous instruction from its recharge, such an omission does not amount to a correction of the original improper charge. The court never told the jury that its original instruction was erroneous, the court never told the jury that intent to rob is not an element of the crime charged. The jury had no reason to disregard the original erroneous charge or to believe that intent to rob is not an element of the aggravated assault charged. The fact that the court did not repeat the improper statement simply means that the court made the error only once instead of twice.

In its recharge the court again instructed the jury that “[a] person commits the offense of aggravated assault when that person assaults another person within [sic] intent to rob, or with a deadly weapon, or with any object, device, or instrument which when used offensively against a person is likely to or actually does result in serious bodily harm.” (Emphasis supplied.) Nowhere in its recharge did the court limit the jury’s consideration of the aggravated assault charge to the manner alleged in the indictment. If anything, the recharge confirmed in the jurors’ minds that they could consider aggravated assault with intent to rob as one of the alternative methods of committing aggravated assault. Because of the court’s charge and recharge, there is a reasonable possibility that the jury convicted Blige of aggravated assault with intent to rob, rather than in the manner alleged in the indictment. The aggravated assault conviction is therefore defective and must be reversed.

Decided May 26, 1993 —

Reconsideration denied June 8, 1993

Mark J. Nathan, for appellant.

Spencer Lawton, Jr., District Attorney, David T. Lock, Assistant District Attorney, for appellee.

3. In his second enumeration, Blige argues that the court erred in requiring him to reveal the name of his fingerprint expert to the State and in requiring the expert to provide a written report to the State. In his third enumeration, Blige argues that the court erred in allowing the State to comment to the jury that the expert, called as a State witness, was originally hired by the defense. In his fifth enumeration, Blige claims that the court erred in admitting the similar transaction evidence. We have already decided these issues adversely to Blige in a prior similar case involving him. Blige v. State, 205 Ga. App. 133 (2), (6) (421 SE2d 547) (1992).

4. We find no merit to Blige’s contention that the court erred in admitting into evidence a ten-year-old “mug shot” photograph of him. Contrary to Blige’s argument that the sole purpose of offering the photograph was to place his character in issue, the photograph was relevant to show that the victim did not pick it out of a photographic lineup because Blige’s appearance had changed since the time the photograph was taken. See O’Toole v. State, 258 Ga. 614, 615-616 (2) (373 SE2d 12) (1988). The admission of the photograph did not indicate that Blige was guilty of any previous crime and was not in error. Milsap v. State, 196 Ga. App. 820, 822 (2) (397 SE2d 168) (1990).

Judgment affirmed in part, reversed in part.

Blackburn and Smith, JJ., concur.

         The Georgia Supreme Court granted certiorari in that case to determine whether the State should be allowed to argue to a jury that a defendant would have called his expert witness if the results of the expert’s testing had been favorable to the defense.


author: Pope, Chief Judge.

text:
    A93A0123.
    ALLEN v. THE STATE.
    (432 SE2d 600)
   Pope, Chief Judge.

Defendant Susan Elaine Allen was convicted of possession of methamphetamine with intent to distribute and she appeals.

1. Defendant first asserts that the trial court erred in denying her motion for directed verdict of acquittal because the evidence was insufficient to sustain a conviction. The evidence viewed in the light most favorable to the verdict shows that in the four months preceding her arrest defendant stayed between ten and twenty times in a small dwelling house in the back yard of a larger house in Duluth. The police obtained a search warrant for the larger house and its curtilage. Once they arrived to commence the search, they made observations that led them to believe that the smaller house was also occupied. A separate search warrant was obtained for the smaller house. When the officers entered the smaller house to search it they found defendant attempting to flee. Inside the smaller house was a small closet-like room which contained laboratory equipment, including gas burners, hand-held torches, a hot plate and glass beakers. A bag of methamphetamine was found in the vanity in the bathroom. Inside another bag found in the house was an identification card belonging to defendant along with records and recipes relating to a drug operation. A bottle of ether was found in the kitchen of the small house and an oxygen tank was found in the bedroom. The officers described the strong unpleasant odor which permeated the house and one officer testified he later learned the smell was consistent with that produced by the manufacture of methamphetamine. When the defendant was informed she was charged with manufacturing drugs she stated to one of her co-defendants: “They can’t charge us with that, they didn’t find nothing except maybe that hot plate maybe we had in the back.” She also said, “We weren’t cooking anything.”

“Merely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.” Gee v. State, 121 Ga. App. 41, 42-43 (172 SE2d 480) (1970). In this case however, evidence in addition to defendant’s mere presence at the premises was presented, including the fact that defendant’s identification card was found in the same bag as that containing notes relating to a drug operation and defendant’s incriminating spontaneous statement. Thus, the evidence did more than merely cast a grave suspicion of guilt upon defendant and was sufficient to enable a rational trier of fact to find her guilty beyond a reasonable doubt. See Powell v. State, 166 Ga. App. 393 (304 SE2d 515) (1983).

2. Defendant next argues the trial court abused its discretion by allowing one of the officers who conducted the search of the premises to remain in the courtroom during the testimony of other witnesses and to testify after hearing the testimony of other witnesses despite defendant’s request to invoke the rule of sequestration. “[T]he proper procedure in situations where the rule has been invoked and the district attorney needs the assistance of a witness during the prosecution of a case, is for him to specifically request that the trial judge make an exception to the rule at the commencement of the evidence. The trial judge should exercise his discretion so that ‘the fair rights of the opposite party are secured or the impairment of the efficiency of the court avoided . . .’ [Cits.] If the request is granted, the district attorney should present the excepted witness first or explain to the satisfaction of the trial court why the witness cannot be called first. [Cits.]” Parham v. State, 135 Ga. App. 315, 320-321 (217 SE2d 493) (1975). The transcript shows the trial court in this case granted the exception to the rule in response to a representation by the prosecutor that the officer’s presence was needed to assist the prosecutor with the trial and rejected the defendant’s request that the officer be required to testify as the first witness, stating there are many reasons for not requiring the officer to testify first, such as the necessity of presenting the testimony of crime lab witnesses. It is obvious that the trial court was referring to the necessity of presenting crime lab witnesses at the time they are present in court. In fact, one of the three witnesses who testified before the officer who was allowed to remain in the courtroom was a crime lab witness. While it is preferable to present the testimony of the witness who is allowed to remain in the courtroom before the testimony of other witnesses, the defendant demonstrated no harm in the procedure followed in this case and we cannot say that the trial court abused its discretion in permitting the officer to testify after other officers who also participated in the search had testified. See James v. State, 143 Ga. App. 696 (2) (240 SE2d 149) (1977).

Decided June 8, 1993.

Ronnie K. Batchelor, for appellant.

Daniel J. Porter, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Blackburn, Judge.

text:
    A93A0143.
    CONDON et al. v. KUNSE et al.
    (432 SE2d 266)
   Blackburn, Judge.

On March 14, 1991, George and Eileen Condon purchased a farm in Harris County that was used primarily for raising cattle. In September 1991, after discovering that the fescue grass on the farm was infested with an endophyte fungus, the Condons commenced this action against Ralph and Narice Kunse as the sellers of the property, and Christine Hargett and Hargett Realty, Inc., as the real estate agent and realty company who represented the sellers, alleging fraud and violations of the Fair Business Practices Act. The trial court granted summary judgment for all the defendants, and this appeal followed.

The record shows that from 1979 until 1985, the Kunses operated their own cattle farm on the property, and from 1986 to 1991 leased the farm to others to raise their cattle. The farm’s pastures were composed mostly of tall fescue grass, which is the predominant grazing grass in the United States. Over 90 percent of the fescue fields in the country are infected with an endophyte fungus which can cause various adverse effects upon cattle production, such as decreases in weight gain, losses in calf production, reduced milk production, fat necrosis, tails falling off, and hooves falling off. From 1931 until 1983, virtually all commercially available fescue seed was infected with the fungus. Fungus-free fescue became available in 1983, but most of the country’s fescue fields remain heavily infected with the endophyte fungus.

The Kunses first began marketing the farm for sale in 1989, and entered an oral listing agreement with Christine Hargett and Hargett Realty, Inc. In March 1989, the Kunses entered into a contract to sell the farm to another couple who planned to use the property to raise championship horses. Prior to the closing of the sale, the couple had three samples of the fescue grass on the farm tested by the Fescue Diagnostic Laboratory at Auburn University, which revealed fungus infestation rates of 88 percent, 90 percent, and 100 percent. Despite the Kunses’ assurances that they had never experienced any problems associated with the infected fescue, the buyers were concerned about the possible adverse effects on pregnant mares and demanded that the infected fescue be replaced. The Kunses refused to do so, and the contract ultimately was rescinded. None of the appellees revealed this report regarding the fescue infestation to the appellants prior to the sale.

Before the closing of the sale, the appellants did not have the farm’s fescue grass tested, and did not inquire with any of the individuals who had leased the farm since 1986 to raise cattle or who had harvested the hay crops. Soon after the appellants took possession of the farm and placed a herd of cattle on it, several cows became ill. The appellants never had the cattle checked by a veterinarian, but two local cattle farmers advised them that the symptoms of the sick cattle were consistent with the side effects of infected fescue. Subsequently, the appellants commenced this action, alleging that the appellees had misrepresented the farm as suitable for cattle and hay production, and had concealed the known fungus infestation, which would have been a material fact in the appellants’ decision to purchase the farm.

The appellants and the appellees both submitted affidavits from experts in conjunction with the motion for summary judgment filed by the appellees. The appellees’ expert visited the property in the fall of 1991 and found the pastures to contain approximately 80 percent tall fescue, and 20 percent various other plant species. This expert was of the opinion that even if the fescue was 100 percent infected with the endophyte fungus, the farm was entirely suitable for raising cattle because of the other forage species present, and that the hay produced from the pastures would be suitable for commercial cattle feed.

On behalf of the appellants, one expert opined that the 88 to 100 percent infestation of the fescue on the property rendered the farm unsuitable for a profitable commercial cattle farm operation or horse production. The expert further stated that the only solution would be to re-establish all or a substantial part of the farm with fungus-free grasses. Another expert indicated that his inspection of the farm revealed that fescue composed approximately 90 percent of the two front pastures and approximately 70 percent of the rear pasture. This expert also considered the pastures to be unsuitable for commercial cattle and horse production without costly modifications.

1. OCGA § 51-6-2 (a) provides that “[w]illful misrepresentation of a material fact, made to induce another to act, upon which such person acts to his injury, will give him a right of action.” The appellees acknowledge that they presented the farm as suitable for cattle farming and growing hay, but deny any falsity to that representation. Pretermitting the question of whether a factual issue existed over the actual suitability of the farm for that purpose, we find that the representations were not actionable, and that the appellants were not justified in relying upon them in this case.

“ ‘ “Misrepresentations are not actionable unless the complaining party was justified in relying thereon in the exercise of common prudence and diligence. And where the representation consists of general commendations or mere expressions of opinion, hope, expectation and the like . . . the party to whom it is made is not justified in relying upon it and assuming it to be true; he is bound to make inquiry and examination for himself so as to ascertain the truth.” (Cit.)’ [Cits.]” Miller v. Clabby, 178 Ga. App. 821, 822 (344 SE2d 751) (1986).

In Miller, we found that a property owner’s assertions that a fenced pasture was “suitable” for raising horses constituted nothing more than mere expressions of opinion and were not actionable. The appellees’ representations as to the suitability of the property for raising cattle in the instant case likewise must be regarded as expressions of opinion. The appellants had no tests performed on the pasture grasses, and made no effort to contact any of the individuals who had leased the farm in previous years for raising cattle or who had harvested the hay, despite having the opportunity to do so. The appellants thus may not recover for their unjustified reliance upon the appellees’ expressed opinion regarding the property. Miller v. Clabby, supra.

2. The appellants also contend that the appellees committed fraud by not revealing the fact that the farm grass was infected fescue, based upon the “passive concealment” doctrine. However, “[t]he cases creating and interpreting this doctrine have been clear to limit it to controversies between residential homeowners and residential builder/sellers as an exception to the doctrine of caveat emptor. [Cit.]” Toys ‘R’ Us v. Atlanta Economic Dev. Corp., 195 Ga. App. 195, 198 (1) (393 SE2d 44) (1990). Accordingly, that doctrine of passive concealment does not apply in this case involving a sale of farm land.

3. When the Kunses sold the farm to the appellants, they executed an owner’s affidavit which stated that no environmental hazard existed on the property. The appellants assert that a factual issue exists over whether the Kunses committed fraud in denying the presence of an environmental hazard, but the record is devoid of any evidence that the fungus infestation of the fescue grass in any way constitutes an environmental hazard. In fact, the only evidence in the record concerning the matter is the expert witness opinion that infected fescue is not an environmental hazard.

4. The appellants also contend that issues of fact exist over the representations by appellees Hargett and Hargett Realty, Inc., concerning the past profits of the farm generated by the cattle farm operation and the sale of hay. However, it is uncontroverted that Hargett disclaimed any knowledge about cattle farming or growing hay, and that she merely conveyed information from the Kunses to the appellants in response to the appellants’ inquiries concerning those matters. Moreover, the appellants have shown no actionable misrepresentation. Specifically, with regard to profits from cattle farming, the appellants suspect that the representation of $35,000 profits in the past was false, but concede in their depositions that they had no factual basis for such an allegation. Accordingly, the trial court did not err in granting summary judgment for the appellees on this issue as well.

Decided June 8, 1993.

J. D. Rasnick, for appellants.

Freeman & Hawkins, T. Ryan Mock, Jr., Baldwin & Mallory, A. Quillian Baldwin, Jr., Wood, Odom & Edge, Gus L. Wood III, for appellees.

5. The trial court also properly concluded that the appellees, Christine Hargett and Hargett Realty, Inc., were entitled to summary judgment on the appellants’ claim for a violation of the Georgia Fair Business Practices Act (FBPA). The basis for that claim was the alleged oral misrepresentation that the property was suitable for raising cattle and for the production of hay.

“[T]he stated intent of the FBPA is to protect the public from acts and practices which are injurious to consumers, not to provide an additional remedy for private wrongs which do not and could not affect the consuming public generally.” Zeeman v. Black, 156 Ga. App. 82, 83 (273 SE2d 910) (1980). “A single oral misrepresentation made in the context of an isolated nondevelopmental sale of real property relating to unique facts concerning that property appears to be an essentially ‘private’ controversy with no impact whatsoever on the consumer marketplace.” Id. at 86.

In the instant case, the sale of the farm to the appellants, and any representations preceding it, involved a private transaction which would not affect the consuming public generally. Further, as noted above, the appellants did nothing to ascertain the truth of any representations as to the suitability of the farm for raising cattle or growing marketable hay, by testing the grasses or inquiring with other individuals who had engaged in those activities on the land in recent years. Under these circumstances, even if a misrepresentation had occurred, the appellants could not recover because of their unjustifiable reliance upon such. See Nims v. Otter, 188 Ga. App. 516 (373 SE2d 396) (1988).

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A93A0312.
    BASS v. THE STATE.
    (432 SE2d 602)
   Johnson, Judge.

A jury found Christopher Bass guilty of theft by taking an automobile and not guilty of theft by receiving a stolen automobile. Bass appeals from his conviction and the denial of his motion for a new trial.

1. Bass contends that the trial court erred in allowing the State to present evidence of his prior criminal record at the sentencing hearing because the State failed to provide him with adequate notice prior to trial as required by OCGA § 17-10-2 (c). That Code section provides that “upon the return of a guilty verdict by a jury in a felony case, a pre-sentence hearing shall be conducted to determine the punishment to be imposed. At this hearing additional evidence in extenuation, mitigation, and aggravation of punishment, including the defendant’s prior record, may be heard. . . . (E)vidence on aggravation shall be admissible only if the defendant has been given this evidence prior to trial.” Herring v. State, 238 Ga. 288, 289-290 (232 SE2d 826) (1977). “All the statute requires is ‘clear notice’ to an accused of all previous convictions that the state intends to introduce at trial [cit.], so as to ‘allow a defendant to examine his record to determine if the convictions are in fact his, if he was represented by counsel, and any other defect which would render such documents inadmissible during the pre-sentencing phase of the trial.’ [Cit.]” Potts v. State, 241 Ga. 67, 83 (14) (243 SE2d 510) (1978); see also Fox v. State, 163 Ga. App. 601, 602 (2) (295 SE2d 563) (1982).

The trial transcript shows that the State told Bass’ attorney that bis client had a criminal record and gave him the opportunity to review that record. One week later, at the sentencing hearing Bass’ attorney objected to the admission of Bass’ prior criminal record claiming that he had not been served with proper notice prior to the trial. The court overruled the objection, but offered to continue the sentencing hearing so that Bass’ attorney could review the record. Bass’ attorney informed the court that he did not need a continuance. The court then proceeded with the sentencing hearing. Although Bass’ at-torn'éy did not receive written notice of the prior convictions, we find that he did receive clear notice of the convictions and the opportunity to examine the record. See Fox, supra. This enumeration of error is therefore without merit.

2. Bass attempted to show that a third party who was not called as a witness at trial committed the thefts by introducing certified copies of the third party’s prior auto theft convictions. The trial court excluded the evidence as irrelevant. Bass contends that the trial court erred in excluding the evidence. We disagree. “Evidence which does not in any reasonable degree tend to establish the probability of the issues of fact in controversy is irrelevant and inadmissible.” (Citation omitted.) Hicks v. State of Ga., 204 Ga. App. 232, 233 (1) (418 SE2d 794) (1992). The third party’s prior convictions, standing alone as here, have no probative value on the issue for which they were offered by the defendant in this case. This evidence was therefore irrelevant and was properly excluded by the trial judge.

Decided June 8, 1993.

Shandor S. Badaruddin, for appellant.

Bass also argues that the court erred in denying his motion for a continuance so that he could subpoena the third party to testify. Bass did not subpoena the third party as a witness before the trial. “One cannot complain of a . . . ruling that his own procedure or conduct aided in causing.” (Citation and punctuation omitted.) Cook v. State, 204 Ga. App. 198, 200 (419 SE2d 84) (1992).

Moreover, it is axiomatic that it is within the discretion of the trial court to grant or deny a motion for a continuance. Everman v. State, 203 Ga. App. 350, 352 (2) (416 SE2d 861) (1992). Because Bass failed to show whether or how the court’s ruling harmed his defense, we cannot find any abuse of the court’s discretion in denying his motion. See Dortch v. State, 204 Ga. App. 822 (1) (420 SE2d 778) (1992).

3. Bass complains that the court erred in denying his motion for a directed verdict on the charge of theft by receiving. “A directed verdict of acquittal is authorized only where there is no evidence to support a verdict to the contrary.” (Emphasis omitted.) Lane v. State, 177 Ga. App. 553, 554 (1) (340 SE2d 228) (1986). Having reviewed the entire record, we cannot say that a verdict of acquittal on that charge was demanded by the evidence. See OCGA § 17-9-1 (a). Moreover, no harm resulted from the court’s ruling denying the motion for directed verdict on the charge of theft by receiving because the jury found Bass not guilty on that charge. Harm as well as error must be shown to warrant a reversal. See Greer v. State, 201 Ga. App. 775, 776 (2) (412 SE2d 843) (1991).

4. In several instances, during its charge to the jury, the trial court used the phrase, “guilt or innocence.” Bass contends that the use of the phrase shifted the burden of proof to the defense by suggesting that Bass had to prove his innocence. “It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. A complete review of the court’s charge in this case reveals that neither this isolated charge nor the charge as a whole, shifted the burden of proof on any issue to the defendant.” (Citation and punctuation omitted.) Roker v. State, 262 Ga. 220, 222 (4) (416 SE2d 281) (1992). The court specifically charged the jury that “there is no burden of proof on the defendant whatsoever, and the burden never shifts to the defendant to prove his innocence,” and further instructed the jury that nothing he said during the trial was meant to express any opinion about the guilt or innocence of the accused. The burden of proof was not shifted to the accused. We find no error. See Roker, supra.

Judgment affirmed.

Blackburn and Smith, JJ., concur.

Lewis R. Slaton, District Attorney, Kenneth D. Feldman, Vivian D. Hoard, Assistant District Attorneys, for appellee.


text:
    A93A0348.
    COLLINS v. COLLINS.
    (432 SE2d 605)
   Blackburn, Judge.

The appellant, Louella Collins, and the appellee, Willie Collins, were divorced on August 2, 1991. The divorce decree entered on that date provided that a previous order entered on May 28, 1991, remained in full force and effect, and also ordered the appellee to pay the appellant $7,500 as a property settlement. The May 1991 order had required the appellee to pay, as temporary alimony, one-half of the appellant’s medical expenses, $500 per month for rehabilitation expenses for five months, and $1,000 for attorney fees.

On August 14, 1991, the appellee filed a Chapter 7 bankruptcy petition, in which he listed the debt owed the appellant pursuant to the divorce decree. The appellant filed an objection to the discharge of that debt, but the bankruptcy judge dismissed the objection because the appellant failed to pay the requisite filing fee. On March 5, 1992, the bankruptcy court released the appellee “from all discharge-able debts.”

On May 29, 1992, the appellant commenced this action seeking to hold the appellee in contempt of court because of his failure to make any of the payments provided in the divorce decree or the previous order entered on May 28, 1991. The appellee defended on the basis that the debt was discharged by the final order of the bankruptcy court. The trial court dismissed the appellant’s complaint, presumably because of the appellee’s discharge in bankruptcy, and this discretionary appeal followed.

Under 11 USC § 523 (a), debts to a spouse or former spouse for alimony, maintenance, or support are not dischargeable in bankruptcy. State courts have concurrent jurisdiction with federal bankruptcy courts to determine whether claims under that section of the Bankruptcy Act are dischargeable. “If ... an application for a determination of dischargeability is filed and adjudicated in the bankruptcy court, that judgment is res judicata in other courts.” Manuel v. Manuel, 239 Ga. 685, 686 (238 SE2d 328) (1977).

In the instant case, although the appellant filed an objection to the discharge of the debt in the bankruptcy court, that objection was dismissed for procedural reasons because the appellant failed to pay the requisite filing fee. The dischargeability of the debt in question in this case thus was not adjudicated by the bankruptcy court, and the appellee’s discharge in bankruptcy is not res judicata in this state court proceeding.

Decided June 8, 1993.

William F. Lozier, for appellant.

Linda Y. Bratton-Haynes, for appellee.

The appellee emphasizes that the debt created in the divorce decree constituted a property settlement, rather than alimony, maintenance, or support, and thus was properly discharged in bankruptcy. However, although the divorce decree awarded the appellant $7,500 as a property settlement, the May 1991 order provided for certain payments as temporary alimony. Further, “a classification under state law of these claims against the appellee as either alimony or a property settlement is not dispositive of the question of whether the claims are dischargeable in bankruptcy. As we have previously stated, debts for alimony or maintenance or support of wife or child are not dischargeable in bankruptcy. It is entirely conceivable that the purpose of a property settlement might be to provide the former wife with maintenance or support. If so, the obligation of the former husband to effectuate the property settlement agreement, or comply with the decree in which it is embodied, would not be dischargeable in bankruptcy.” Manuel v. Manuel, supra at 687-688.

In the instant case, the trial court erred in dismissing the appellant’s complaint because of the appellee’s discharge in bankruptcy. That determination in the bankruptcy court was not binding on the trial court, and the trial court “has ample authority to look behind the judgment to the record to ascertain from the facts and circumstances of the marital situation whether the obligation imposed on the husband ... is dischargeable in bankruptcy.” Id. at 689. See also McClure v. McClure, 163 Ga. App. 469 (294 SE2d 693) (1982). Accordingly, this case must be reversed and remanded to the trial court for such a determination.

Judgment reversed and remanded with direction.

Johnson and Smith, JJ., concur.


text:
    A93A0474.
    GRIFFITH v. FIRST FEDERAL SAVINGS BANK OF GEORGIA.
    (432 SE2d 606)
   Pope, Chief Judge.

Plaintiff/appellee First Federal Savings Bank of Georgia made two loans and several renewals of loans to defendant/appellant Troy Lee Griffith from 1982 until 1985. In 1985 the notes on those loans were consolidated into one note with a principal amount of $97,450. In 1986 certain terms of the 1985 note were changed in a manner favorable to defendant. After those changes were made the principal amount of the loan was $97,014 and defendant was required to make payments to plaintiff in the amount of $1,303.82 monthly.

In 1986 the value of the original collateral securing the note had declined and the plaintiff requested additional collateral to secure the loan. The defendant assigned to the bank as additional collateral a deed to secure debt executed by James Robert Arnold, Sr. in defendant’s favor on July 6, 1982 in the original principal amount of $55,000. Pursuant to the assignment, Arnold began making his payments of $684 due under the deed to secure debt to the plaintiff, and defendant was to pay the remainder of his $1,303.82 payment per month. In December 1990, Arnold paid off the balance owing under the deed to secure debt which had been assigned to plaintiff. The plaintiff credited the payoff amount of $48,800 to defendant’s note.

Defendant’s payment history on the note was irregular resulting in a default under the terms of the note. In March 1991, plaintiff sought and obtained a writ of possession for the property constituting the collateral for defendant’s note to plaintiff. Plaintiff did not seize, sell or otherwise levy on that property, however. In September 1991, plaintiff filed this suit on the note. A jury trial was conducted in this case and the jury found in favor of plaintiff in the amount of $65,000. Defendant appeals from that judgment.

1. Defendant contends the trial court committed reversible error by refusing to direct a verdict in his favor because the plaintiff had previously obtained a writ of possession for the property constituting collateral for the subject note but had failed to dispose of that property in a commercially reasonable manner. This enumeration of error is controlled by OCGA § 9-2-4 which provides: “A plaintiff may pursue any number of consistent or inconsistent remedies against the same person or different persons until he shall obtain a satisfaction from some of them.” The evidence was undisputed that although plaintiff obtained a writ of possession entitling it to sell certain collateral it did not execute that writ. Because plaintiff did not satisfy defendant’s debt by selling the property listed on the writ of possession, plaintiff was not barred from pursuing this suit on the note until it obtained satisfaction of that debt.

2. Defendant also contends the trial court committed reversible error by refusing to grant a directed verdict in defendant’s favor because plaintiff allegedly violated OCGA § 11-9-504 by disposing of the deed to secure debt given as collateral for the subject loan without notice to defendant. The evidence is undisputed that plaintiff did not give defendant notice that Arnold had paid off the debt evidenced by the deed to secure debt given by plaintiff as collateral. The question presented in this appeal is whether the acceptance by plaintiff of Arnold’s payoff of the note posted as collateral constitutes a disposition of collateral within the meaning of OCGA § 11-9-504.

Decided June 8, 1993.

Walter B. Harvey, for appellant.

Russell, Adamson & Stell, John E. Stell, Jr., Michael C. Pruett, for appellee.

We hold that under the facts of this case OCGA § 11-9-504 is inapplicable. OCGA § 11-9-504 governs a secured party’s action in disposing of collateral after a default has occurred. Although the evidence presented at trial shows that defendant had defaulted under the terms of his note with plaintiff at the time Arnold sought to pay off his debt, there was no evidence presented that plaintiff requested or required that Arnold pay off the debt evidenced by the deed to secure debt. Furthermore, a deed to secure debt by its nature will diminish in value over time and eventually be of no value when the principal amount of the debt has been repaid. The terms of the deed to secure debt allowed for early payment of the debt. By accepting Arnold’s payoff, the plaintiff simply allowed the debt evidenced by the deed to secure debt to be extinguished in a manner contemplated by that instrument, and that act does not constitute a disposition or sale of the collateral within the meaning of OCGA § 11-9-504.

3. Defendant further argues that the trial court committed reversible error by refusing to charge the jury on the defendant’s 14 requested jury charges. Defendant’s requests to charge numbers 1 through 6 concern accord and satisfaction. Although the defendant contended that the assignment of the deed to secure debt constituted an accord and satisfaction for his loan from plaintiff, there was no evidence presented that the parties intended for it to constitute an accord and satisfaction. Defendant’s requests to charge numbers 7, 8, 13 and 14 concern OCGA § 11-9-504 which, as we discussed in Division 2, is inapplicable to this case. Requests to charge numbers 9, 10 and 12 are not adjusted to the evidence. Defendant’s request to charge number 11 concerns the burden of proof and the trial court accurately instructed the jury concerning the burden of proof. Accordingly, the trial court’s failure to give plaintiff’s requests to charge does not constitute reversible error.

Judgment affirmed.

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


text:
    A93A0479.
    BROWN v. WATERS.
    (432 SE2d 817)
   Blackburn, Judge.

On July 2, 1991, Shari Waters gave birth to a boy. The appellant, Aubrey Brown, signed the birth certificate as the child’s father, and the child was given his last name. On August 25, 1991, Brown was arrested for a felony offense, and he was eventually convicted and sentenced to a term of imprisonment.

On August 12, 1992, Waters filed a petition to change the child’s last name from Brown to Waters, alleging that Brown’s consent to the petition was not required because he had abandoned the child. Brown was never served personally in the state correctional facility, but he happened to see the notice by publication that appeared in a newspaper. Brown immediately wrote a letter that was filed with the Clerk of Court on August 31, 1992, disputing the allegation that he had abandoned the child and objecting to the petition for several reasons. He subsequently mailed a formal objection to the petition, which was not received and filed until after the trial court granted Waters’ petition on October 6, 1992. This discretionary appeal followed.

“Georgia law provides that a minor child’s name may be changed by presenting a petition to the superior court of the county of the child’s residence. Written consent of the parent or parents if they are living and have not abandoned the child must be filed with the petition, and before the child’s name can be changed ‘the parent or parents of such child shall be served with a copy of the petition.’ [OCGA § 19-12-1 (d)]. If written objections are filed, objecting to the change of the name of the minor child, by any interested or affected party within the time specified, the court shall thereupon proceed to hear and determine the matter. [OCGA § 19-12-2].” Doe v. Roe, 235 Ga. 318, 319 (219 SE2d 700) (1975).

In the instant case, it is uncontroverted that there was no attempt to serve Brown personally with the petition or to obtain his written consent to the name change. Waters did publish a notice of the petition in the legal organ of the county, which would have sufficed as notice to Brown if his location or address had been unknown. See OCGA § 19-12-1 (d). However, in Brown’s letter objecting to the petition, he stated some basis for finding that Waters was aware of his incarceration and could have served him personally. In addition to that lack of personal service, the judgment in this case is infirm because of the trial court’s failure to consider Brown’s written objections to the petition, contrary to the requirement of OCGA § 19-12-2. Accordingly, it appearing that issues of fact existed over whether Brown was properly served with the petition and whether Brown had abandoned the child, the trial court erred in granting the petition to change the child’s name without holding a hearing to consider Brown’s stated objections.

Decided June 8, 1993.

Aubrey A. Brown, pro se.

Jon G. Branan, for appellee.

Judgment reversed.

Johnson and Smith, JJ., concur.


text:
    A93A0490.
    TRUST COMPANY BANK et al. v. ATLANTA SPEEDSHOP DRAGWAY, INC.
    (432 SE2d 608)
   Blackburn, Judge.

The appellee/plaintiff, Atlanta Speedshop Dragway, Inc., commenced the instant action seeking injunctive relief, damages for wrongful eviction and for the conversion of leasehold improvements, against the appellants/defendants, Trust Company Bank (the bank), Roy Kuhn, Roddy Oglesby, Harold Johnson, and Joe B. Rowan. All of the named defendants responded, asserting several defenses and a counterclaim for attorney fees and the expenses of litigation. Thereafter, the bank moved to dismiss the claim for failure to state a claim upon which relief may be granted, which motion the trial court denied, finding that Atlanta Speedshop had demonstrated two bases on which it could assert a wrongful eviction claim. This court granted Trust Company Bank’s application for interlocutory review. The trial court also denied Atlanta Speedshop’s motion for a temporary restraining order based upon the language of the lease which made the lease subject to any security deed.

The record construed in the light most favorable to Atlanta Speedshop shows that Atlanta Speedshop leased approximately 40 acres of land in 1964 from W. T. Greer, Sr., then the owner of the property in question, for the purpose of operating a commercial drag-strip. The terms of the lease agreement provided that Atlanta Speed-shop had the right to renew the lease every five years for nine successive five-year terms thereafter. Paragraph 18 of the lease specifically provided that the “[l]essee’s rights shall be subject to any bona fide mortgage or deed to secure debt which is now or may hereafter be placed upon the premises by Lessor.” Since this time period, Atlanta Speedshop has made improvements on the property and has exercised its option to renew the lease on five occasions. Jeff Grant, the subsequent owner of the property, executed a security deed in favor of the bank conveying a security interest in approximately 545 acres of land, including the leased property. Pursuant to paragraph 2.10 of the security deed, the grantee, “at its option, [wa]s authorized to foreclose th[e] Deed subject to the rights of any tenants of the Premises. . . .” Based upon the owner’s default, the bank foreclosed on the property on January 7, 1992 and purchased the property at a subsequent foreclosure sale. Ten days later, the bank gave Atlanta Speedshop notice of its termination of the lease. The property was later conveyed to Kuhn, who thereafter quitclaimed the majority of his interest in the property to Oglesby, Johnson and Rowan. After Atlanta Speedshop was denied entry to the property, this action ensued.

In their sole enumeration of error, Kuhn, Oglesby, Johnson, Rowan, and the bank contend that the trial court erred in denying their motion to dismiss for the failure of Atlanta Speedshop to state a claim upon which relief can be granted. We agree.

“Under the general principle contained in OCGA § 44-14-323 that the first in time is the first in rank, the rights of a lessee are superior to those of a subsequent lienholder. [Cit.] Consequently, foreclosure of the security deed and sale of the property pursuant to a power of sale do not divest the lessee of his or her leasehold estate where the lease antedates the security deed; otherwise, the lessee becomes a tenant at sufferance. Wright v. Home Beneficial Life Ins. Co., 155 Ga. App. 241, 242 (1) (270 SE2d 400) (1980) and cits. However, where there is a clause in the lease making the rights of the lessee ‘subject to’ a subsequent security deed, the foreclosed security deed has priority. Id. at 242.” Raiford v. Dept. of Transp., 206 Ga. App. 114, 117 (1) (424 SE2d 789) (1992). Accordingly, the lease in the case sub judice was terminable by the bank’s exercise of the power of sale contained in the deed to secure debt. In fact, “[wjhen the [bank] exercised the power of sale in the security deed [Atlanta Speedshop] became a tenant at sufferance of the [bank] who was entitled to maintain a statutory eviction proceeding against [Atlanta Speedshop].” First Fed. &c. Assn. v. Shepherd, 131 Ga. App. 692, 693 (1) (206 SE2d 571) (1974).

We reject Atlanta Speedshop’s argument that the bank’s authority to foreclose was limited by the language contained in § 2.10 of the Deed to Secure Debt. Although § 2.10 provided that the “[g]rantee, at its option, [wa]s authorized to foreclose th[e] deed subject to the rights of any tenants on the Premises,” as the only “rights” the lessee had were those contained in the lease, which provided that the lease was subject to the rights of future holders of a security interest. The clause gave the bank, as grantee, the option of affirming the leasehold estate after the foreclosure, which the bank declined to do. Moreover, Atlanta Speedshop’s reliance upon State of Ga. v. Ga. R. &c. Co., 141 Ga. 153 (80 SE 657) (1913) is misplaced. In Ga. R. &c. Co., the Supreme Court noted that a reference to a plat within a deed incorporated the boundary limits within the plat as if the limits were specifically discussed within the deed. However, the mere mention of the existence of leased property on a plat does not indicate that the deed is subordinate to the leasehold estate. Consequently, the trial court erred in denying the motion to dismiss, as Atlanta Speedshop does not have a recognizable claim against Kuhn, Oglesby, Johnson, Rowan, and the bank based upon the terms of the lease.

Decided June 8, 1993.

Smith, Welch & Studdard, Ben W. Studdard III, A. J. Welch, Jr., for appellants.

Johnson & Montgomery, Harmon W. Caldwell, Jr., R. Scott Berryman, for appellee.

Judgment reversed.

Johnson and Smith, JJ., concur.


author: Andrews, Judge.

text:
    A93A0502.
    BROOKS v. THE STATE.
    (432 SE2d 612)
   Andrews, Judge.

Kraftin Brooks and co-defendant Douglas Smith were each charged with one count of murder and one count of possession of a firearm during the commission of a felony and the case was tried to a jury. Smith was found guilty on both counts. Brooks was found not guilty on the murder count, but was convicted of possession of a firearm during the commission of a felony, and he appeals.

The evidence at trial was that on April 27, 1991, the 17-year-old victim, Charles Davidson, was outside the Apollo Lounge with his brother and some friends. An altercation occurred and Davidson was shot and killed.

Various witnesses testified at trial. Although most of the witnesses recalled that Smith had actually fired the fatal shot, one witness thought that Brooks shot Davidson. Several witnesses observed Brooks holding the gun; there was testimony that Brooks was holding the gun first and then handed it to Smith. There was testimony that Smith stated in Brooks’ presence on the evening of the incident that “we shot somebody.” Two witnesses testified that the last person they saw holding the gun was Brooks. One witness testified that when the fatal shot was fired, Brooks and Smith were standing about an inch apart.

In his sole enumeration of error, Brooks claims that the trial court erred in denying his motion for a directed verdict of acquittal. Brooks argues that a prerequisite to conviction under OCGA § 16-11-106 (b) is conviction of the underlying felony and that since he was found not guilty of murder, his conviction for possession of the firearm was improper.

Decided June 8, 1993.

Richard W. Mobley, for appellant.

Douglas C. Pullen, District Attorney, J. Mark Shelnutt, Assistant District Attorney, for appellee.

OCGA § 16-11-106 (b) provides: “[a]ny person who shall have on or within arm’s reach of his person a firearm . . . during the commission of, or the attempt to commit: (1) Any crime against or involving the person of another . . . and which crime is a felony, commits a felony. . . .” The jury was instructed regarding this offense and was also charged twice regarding the principle of being a party to a crime.

Pretermitting the question of whether OCGA § 16-11-106 requires that a person be convicted of the underlying felony before a conviction for an offense under this statute is authorized, we find this enumeration without merit. Brooks’ conviction for possession of a firearm during the commission of a felony was valid under the theory that he was a party to the crime.

“Any person concerned in the commission of a crime is a party to it and may be convicted as a principal. OCGA § 16-2-20 (a). An aider or abettor is such a person, as is one who encourages another to commit the crime. OCGA § 16-2-20 (b) (3) and (4). The evidence was sufficient to establish that appellant was concerned in either or both of these ways in the commission of the crime of his co-defendant’s actual possession of the firearm during commission of the [murder]. Thus the jury was authorized to find appellant guilty as a principal.” (Citation omitted.) Wilcox v. State, 177 Ga. App. 596 (340 SE2d 243) (1986); see also Perkins v. State, 194 Ga. App. 189 (1) (390 SE2d 273) (1990).

Judgment affirmed.

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

       Although the jury was instructed according to the pre-1987 version of the statute which did not include the “within arm’s reach” language of the present statute, no argument regarding the charge is raised here.


text:
    A93A0522.
    SAWYER v. ROBERTS.
    (432 SE2d 610)
   Blackburn, Judge.

The appellant, Vera Sawyer, commenced this action against Dr. Marc Roberts, asserting breach of a contract of employment. This appeal follows from the trial court’s grant of summary judgment in favor of Dr. Roberts.

Decided June 8, 1993.

Goldstein & Redic, Dennis M. Redic, for appellant.

The record shows that on September 16, 1989, Dr. Roberts, a dentist, hired Sawyer as a dental hygienist for his dental practice. Sawyer prepared a written contract of employment for a three-year term, running from September 18, 1989, to September 18,1992, which both parties executed. This contract provided the terms of Sawyer’s remuneration, and that her work hours consisted of a “40 hours work week Monday thru Friday”; however, it was completely silent as to the nature of the services to be rendered, or the place of employment.

Dr. Roberts eventually terminated Sawyer’s employment on January 4, 1990. When Sawyer commenced this action seeking to hold him liable for wrongful discharge, Dr. Roberts moved for summary judgment on the grounds that the purported written contract of employment was void for uncertainty and indefiniteness. On appeal from the trial court’s grant of summary judgment for Dr. Roberts on that basis, Sawyer contends that parol evidence was admissible to supply any missing terms of the employment contract.

“The nature and character of the services to be performed, the place of employment and the amount of compensation to be paid therefor are all essential elements of an employment contract and must be stated with sufficient definiteness. ...” Farr v. Barnes Freight Lines, 97 Ga. App. 36, 37 (101 SE2d 906) (1958). If an employment contract contains no description of the nature and character of the services to be performed, or where the performance is to occur, “ [i]t is so indefinite and vague that it is unenforceable.” McTerry v. Free for All Missionary Baptist Church No. 1, 129 Ga. App. 724 (200 SE2d 915) (1973). Parol evidence is not admissible to supply any missing essential elements of a contract required to be in writing by our statute of frauds. Gatins v. NCR Corp., 180 Ga. App. 595, 597 (349 SE2d 818) (1986).

As noted above, the employment contract in the instant case was silent as to the nature of the services to be performed dr the place of that performance. Further, the employment contract for a three-year term, being incapable of performance within one year of its making, was required to be in writing by the statute of frauds. OCGA § 13-5-30 (5). Accordingly, in view of the above authorities, the contract was unenforceable, and the trial court properly granted summary judgment for Dr. Roberts.

Judgment affirmed.

Johnson and Smith, JJ., concur.

Gill, Peterson & Harris, Allen Harris, Kenneth W. Brosnahan, for appellee.


text:
    A93A0545.
    DEPARTMENT OF HUMAN RESOURCES v. ESTES.
    (432 SE2d 613)
   Blackburn, Judge.

On April 27, 1989, the Department of Human Resources (DHR) commenced this action against Albert Estes, seeking recovery of child support and current support for a minor child on whose behalf DHR paid public assistance benefits in late 1988. Originally, service was attempted at Estes’ last known address in Georgia, but the current resident informed the process server that Estes had moved out of state.

DHR then moved for service on Estes outside of the state, pursuant to OCGA § 19-7-41. Although conceding that the factual showing contained in DHR’s motion was sufficient to authorize such service, the trial court denied the motion on the grounds that compelling Estes to incur the expense of defending the matter in Georgia, based upon the mere allegation of his liability for a support obligation, did not appear to be consistent “with the ends of justice.” This court then granted DHR’s application for an interlocutory appeal.

OCGA § 19-7-41 provides that “[i]n a proceeding under this article, the court . . . may order service úpon a person outside the state upon a finding that there is a constitutionally permissible basis for jurisdiction over the person arising out of the fact that the child was conceived as a result of an act of sexual intercourse within this state while either parent was a resident of this state and the person on whom service is required is the alleged father of the child.” In Bell v. Arnold, 248 Ga. 9 (279 SE2d 449) (1981), the Supreme Court held that out-of-state service based upon the minimum contacts required under this statute does not offend traditional notions of fair play and substantial justice.

In the instant case, it was shown that the minor child was conceived as a result of sexual intercourse between the child’s mother and Estes in Georgia in February 1985, and that the child’s mother continued to reside in Georgia. The trial court did not dispute this showing of the necessary factual predicate for service under OCGA § 19-7-41, and erred in finding that out-of-state service upon Estes pursuant to that statute would be inconsistent “with the ends of justice.” Bell v. Arnold, supra.

Judgment reversed.

Johnson and Smith, JJ., concur.

Decided June 8, 1993.

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

Albert J. Estes, pro se.


author: Beasley, Presiding Judge.

text:
    A93A0720.
    STATE FARM FIRE & CASUALTY COMPANY v. CARTER et al.
    (432 SE2d 614)
   Beasley, Presiding Judge.

Lowery sued Carter, alleging that Carter had wilfully caused him personal injury. Carter filed a third-party complaint against State Farm, asserting that State Farm was obligated to defend him and pay any judgment under a homeowner’s insurance policy on his Alabama residence.

State Farm moved for summary judgment on the ground that the policy excludes coverage for “bodily injury or property damage: (1) which is either expected or intended by an insured; or (2) to any person or property which is the result of willful and malicious acts of an insured.” Interlocutory appeal from the trial court’s denial of the motion was permitted. OCGA § 5-6-34 (b).

Carter and Lowery were patrons in a bar. In a transcribed statement, Carter stated that he and his friend Nancy had gone to the bar in the company of Judy, a younger woman; and as a joke, they told Lowery, whom Judy had met, that they were Judy’s parents. When Carter was ready to leave, he asked Lowery if he was going to take care of Carter’s daughter. Lowery stated that this was not his damn daughter and asked whether “you get yourself off on taking care of young girls.” Carter took umbrage at this remark and “swung at the man. Not intending to injure him but just to more or less save face. ...” The next thing Carter knew he was on the ground and had Lowery in a headlock. Carter’s punch landed on Lowery’s jaw, breaking it. Carter stated that evidently as he swung at Lowery there was a “deter” of his hit, that he did not intend to injure Lowery in any way whatsoever, and that he did not intend to hit him in the jaw.

In an affidavit, Carter later stated that Lowery had become verbally and physically aggressive and that he had swung at him, without any intent or desire to injure or cause bodily injury to him in any way, but as a response to his aggressive behavior out of fear that Lowery would attack him. Carter stated that in swinging at Lowery he was hoping to frighten him into backing down and thereby prevent Lowery from attacking him.

The trial court held that Alabama law is applicable under the rule of lex loci contractus. The court stated that although it is undisputed that Carter intended to swing at Lowery, he denies intending to injure him. Citing Ala. Farm Bureau Mut. Cas. Ins. Co. v. Dyer, 454 S2d 921 (Ala. 1984), the court held that a purely subjective standard governs the determination of whether the insured expected or intended to inflict bodily injury, and for this reason it cannot be said that there is no genuine issue of material fact. Citing Ga. Farm Bureau Mut. Ins. Co. v. Hurley, 190 Ga. App. 546 (379 SE2d 420) (1989), the court held that the same result would obtain under Georgia law.

Dyer and Hurley are factually distinguishable. In Dyer, a person fired a gun but there was evidence that he did not think it was loaded. In Hurley, the insured kicked the plaintiff in the groin while involved in an altercation but testified that he was acting in self-defense and only intended to push him away. On the other hand, Carter’s assertion of what amounts to self-defense in his affidavit may be regarded by a jury as inconsistent with his earlier transcribed statement that he was insulted by Lowery’s remark and swung at him to save face. Or these two expressions may be seen as dual motives for the act, motives which are indications of intent. Moreover, as recoge nized in Hurley, a claim of self-defense will not always suffice to take an insured’s conduct outside the intentional injury exclusion of a liability insurance policy. Nonetheless, in Hurley, we held that the type and degree of force employed by the insured could reasonably have been viewed as consistent with the absence of any intention on his part to cause injury. In Continental Western Ins. Co. v. Toal, 244 NW2d 121, 125 (4) (Minn. 1976), cited approvingly in Dyer, supra at 925, the Court held that the character of the acts in that case was such that an intention to inflict injury was inferred as a matter of law.

An intention on Carter’s part to hit Lowery, coupled with a blow of sufficient force to break his jaw, would conclusively show an expectation of injury or an intention to cause injury. However, a jury could interpret Carter’s statements as being that he only intended to swing at Lowery and that he did not intend to strike him. His motive, or motives, are given as evidence of his intention. “Motive is the reasons and beliefs that lead a person to act or refrain from acting” while “ ‘[i]ntent’ refers to the actor’s state of mind or volition.” State v. Wyant, 597 NE2d 450, 453-454 (Ohio 1992). They are related; motive answers “why” whereas intent answers “what.” If under the circumstances a jury could not reasonably believe that Carter intended to swing at Lowery but did not intend to hit him, it was State Farm’s burden on motion for summary judgment to show so conclusively. State Farm has not done this.

Because Carter’s intent is ambiguous as a matter of fact,, the trial court did not err in denying State Farm’s motion for summary judgment. Compare Kennedy v. State Farm Fire &c. Co., 738 FSupp. 511 (S.D. Ga. 1990) (where the insured repeatedly struck the plaintiff). It will be up to the jury to determine whether Carter’s actions speak louder than his words in revealing his intent.

Decided June 8, 1993.

Jones, Cork & Miller, Thomas C. Alexander, for appellant.

Talbot, Ladson, Rowe & Edwards, Deborah A. Edwards, Arthur H. Clarke, Jr., Martin, Snow, Grant & Napier, Robert R. Gunn II, Miller & Towson, Daniel Bullard IV, for appellees.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


text:
    A93A0726.
    DIGGS v. THE STATE.
    (432 SE2d 616)
   Blackburn, Judge.

The appellant, Darrell Diggs, was convicted of robbery by sudden snatching. On appeal, he contends that the state was allowed to use its peremptory strikes in a racially discriminatory manner, and that the evidence was insufficient to support his conviction.

1. Following selection of the jury, defense counsel challenged the state’s use of its peremptory strikes to exclude young black males from the jury, pursuant to Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). In response, the state pointed out that whereas only one-fourth of the jury venire was black, seven of the twelve jurors selected were black; further, the state had only used four peremptory strikes, although three of those were used to exclude blacks. The defendant based his challenge solely on the state’s rejection of those three black jurors, two of whom were male. The trial court found that the defendant had not shown a prima facie case, and did not require the state to explain its peremptory strikes.

In order to establish a prima facie case of purposeful discrimination in jury selection under Batson, a defendant must show (1) that he is a member of a cognizable racial group; (2) that the prosecutor exercised peremptory strikes to remove from the venire members of the defendant’s race; and (3) that these facts and any other relevant circumstances raise an inference that the prosecutor used the peremptory strikes to exclude jurors on account of their race. Burgess v. State, 189 Ga. App. 790 (377 SE2d 543) (1989). In the instant case, however, “[s]ince the percentage of blacks on the jury was, as a result of the use of peremptory strikes, higher than that of the panel from which they were chosen, [the defendant] did not show a prima facie case of discrimination.” (Citations and punctuation omitted.) Collins v. State, 201 Ga. App. 433, 434-435 (411 SE2d 341) (1991). Accord Brown v. State, 261 Ga. 184 (3) (402 SE2d 725) (1991) (where there was a greater percentage of blacks on the jury than the venire, and the defendant failed to present any other relevant circumstances raising an inference of discriminatory purpose).

Decided June 8, 1993.

James A. Yancey, Jr., for appellant.

W. Glenn Thomas, Jr., District Attorney, Carol L. Stokes, Assistant District Attorney, for appellee.

2. At trial, the clerk of a Family Dollar Store testified that on September 13, 1991, Diggs came into the store and approached the counter to buy a pack of gum. When the clerk rang up the purchase, Diggs snatched some money from the open cash register drawer, and ran out of the store. A surveillance video camera taped the entire incident, and another store employee recognized Diggs, who had been one of her high school classmates. Audit of the cash register immediately following the incident revealed that a little over $40 was missing. Diggs was arrested at his residence, where clothing matching that worn by the robber was found. Diggs subsequently gave an inculpatory statement admitting that he committed the robbery.

Viewing the evidence in the light most favorable to the jury verdict, we find the evidence sufficient to authorize a rational trier of fact to find Diggs guilty beyond a reasonable doubt of robbery by snatching. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Brown v. State, supra.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A93A0803.
    REWIS v. SHAW.
    (432 SE2d 617)
   Beasley, Presiding Judge.

This is a continuation of Shaw v. Hughes, 199 Ga. App. 212 (404 SE2d 309) (1991), and Hughes v. Hughes, 193 Ga. App. 72 (387 SE2d 29) (1989).

Pennie Shaw, formerly Hughes, sued her former husband, who filed a counterclaim. Hughes v. Hughes held that the trial court erred in dismissing the counterclaim. On the trial of the counterclaim, the former husband, Hughes, was awarded the judgment.

Shaw filed a notice of appeal, requesting that nothing be omitted from the record which, excluding the transcript, totaled 600 pages. The clerk made one copy of the record to be sent to this court, as well as a duplicate copy to be retained by the clerk as required by OCGA § 5-6-41 (e). Based on her interpretation of OCGA § 15-6-77 (g) (12), the clerk billed Shaw an $1,800 charge for making two copies of the 600-page record at a cost of $1.50 per page. Shaw paid these court costs under protest.

Shaw v. Hughes affirmed the judgment. Following entry of the remittitur, Shaw filed a motion for reimbursement of court costs paid under protest, arguing that under OCGA § 15-6-77 (g) (12) the clerk should have only charged $900 for preparing the record to be sent to this court and was not authorized to charge the additional $900 for preparing the copy of the record to be retained by the clerk. The superior court agreed and granted her motion. The clerk, who is not a party, seeks to appeal through the former husband, who is a party. The clerk is the real party in interest; she is substituted as such, and Shaw’s current name is substituted for the former name.

OCGA § 5-6-43 (a) provides, “it shall be the duty of the clerk of the trial court to prepare a complete copy of the entire record of the case, omitting only those things designated for omission by the appellant and which were not designated for inclusion by the appellee, . . . and transmit the same, together with the transcript of evidence and proceedings, to the appellate court. . . . The clerk need not recopy the transcript of evidence and proceedings to be sent up on appeal but shall send up the reporter’s original and retain the copy, as referred to in Code Section 5-6-41; and it shall not be necessary that the transcript be renumbered as a part of the record on appeal. The clerk shall retain an exact duplicate copy of all records and the transcript sent up, with the same pagination, in his office as a permanent record.”

“One of the purposes of this requirement is to afford local counsel in the county where the case was tried convenient access to the exact duplicate copy of the record [sent on appeal] so as to enable [counsel] to easily ascertain the proper references to be included in his brief and written argument to this court.” Law v. Smith, 226 Ga. 298, 300 (174 SE2d 893) (1970). The same applies to this court. Although this could be achieved more efficiently and less costly by simply retaining the original in the clerk’s office until the time for briefs (plus any extensions) has expired and then sending the original to the appellate court, to be returned after the conclusion of proceedings there, the law in OCGA § 5-6-43 prescribes otherwise.

OCGA § 15-6-77 (g) (12) authorizes the clerk to charge $1.50 per page for “[p] reparation of record and transcript to the Supreme Court and Court of Appeals.” See CRA Transp. v. Rolls Royce Motors, 204 Ga. App. 825 (1) (420 SE2d 757) (1992). It does not say per page of the copies; it refers to page of the record (and transcript, if that must be copied). It also provides, “[W]here a transcript of the evidence and proceedings is filed with the clerk and does not require recopying, the clerk shall not receive the fee herein prescribed with respect to such transcript but shall receive, for filing ... of such transcript, a fee of . . . $5.00.” The clerk is not ordinarily required to make a copy of the transcript, since OCGA § 5-6-41 (e) obligates the court reporter to file an original and a copy.

Decided June 8, 1993.

Dubberly & McGovern, Joseph D. McGovern, for appellant.

Stephen H. Harris, for appellee.

Under OCGA § 5-6-43 (a), it is the clerk’s duty to make two copies of those portions of the record (not including the transcript) designated for inclusion on appeal, these being the. copy to be sent to the appellate court and the copy to be retained as a permanent record. Since the record in this case comprised 600 pages, the clerk was entitled to a fee of $900 under OCGA § 15-6-77 (g) (12). See OCGA §§ 15-6-60 (2); 15-6-87 (b), (d).

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


text:
    A93A0857.
    A93A0858.
    GEARIN v. THE STATE. QUINN v. THE STATE.
    (432 SE2d 818)
   Beasley, Presiding Judge.

Earnest Gearin and Roger Quinn were convicted of one count of burglary. OCGA § 16-7-1 (a). Their motions for new trial were denied.

Gearin, Quinn, and his brother, Oliver Quinn, were indicted with two others on eight counts of burglary. Their pretrial motions for severance of the eight counts of burglary were denied. Their motions for complete severance of parties were denied as well, but severance of Gearin and the Quinns from the remaining co-indictees was granted, and Gearin and the Quinns were tried jointly in a separate trial. At the close of the State’s evidence, the motions of Gearin and the Quinns for directed verdicts of acquittal were granted as to seven of the eight counts. The jury returned a verdict of guilty as to the remaining count. Oliver Quinn has withdrawn his appeal, and we have consolidated the appeals of Gearin and Roger Quinn for disposition in this opinion.

1. Both appellants enumerate the general grounds.

The evidence showed that on September 19, 1990, a home in Cherokee County was burglarized during daylight hours. The back door was kicked in and numerous items were taken, including a pillowcase. A neighbor saw a blue and cream custom van parked in the driveway of the burglarized house at about 2:00 p.m. She testified that the van remained in the driveway for approximately 15 minutes with the motor running.

The next day, a Rockdale County sheriff’s, deputy observed a van meeting that description in a driveway near his home. Having been alerted to be on the lookout for such a van, the deputy parked nearby to observe it. He saw the driver, whom he identified at trial as Gearin, exit the van and start toward the house, and testified they made eye contact. He then observed the driver rap on the back door of the house twice and return to the van before sufficient time had elapsed for anyone to answer the knock. The deputy’s suspicions were further heightened by this conduct, and he followed the van and called for assistance. A high-speed chase ensued involving police from several jurisdictions and a helicopter, and the van was finally stopped about 30 minutes later. Gearin was the driver and the Quinns were passengers. Also in the van were a gun inside a picnic cooler plus several items identified by the victim as being from the previous day’s burglary in Cherokee County.

Certified copies of appellants’ guilty pleas to a previous burglary in Rockdale County were introduced into evidence as a similar transaction. The victim of that burglary testified that she had come home a little after 2:00 p.m. to find three men in her garage holding pillowcases stuffed with items from her home. The back door had been kicked in. She identified from a photograph the blue and cream van in which Gearin and the Quinns had been arrested as the van that had been in her driveway with the doors opened. She had been so shocked that she kept staring at the men until one of them, whom she identified as Roger Quinn, pulled a gun and told her to leave.

“Unexplained recent possession of stolen goods permits a jury to infer that the accused committed the theft.” (Citation and punctuation qmitted.) Faust v. State, 189 Ga. App. 426, 427 (1) (375 SE2d 889) (1988). Moreover, evidence of flight “points to the question of guilt in a circumstantial manner,” Renner v. State, 260 Ga. 515, 517 (3) (b) (397 SE2d 683) (1990) (although a court no longer may charge the jury on flight. Id. at 518 (3) (b)). The evidence, although circumstantial, was sufficient to enable a rational trier of fact to find appellants guilty beyond a reasonable doubt of the offense of burglary. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The State called as a witness an original co-indictee whose trial had been severed. The prosecutor informed the court that extensive discussions had been held with the witness with regard to his entering a plea, and that the State had been under the impression that the witness would testify voluntarily. The discussions, however, had been fruitless. The witness refused to testify, even after the court granted him use and derivative-use immunity, and he was held in contempt. See OCGA § 24-9-28; Corson v. Hames, 239 Ga. 534 (1) (238 SE2d 75) (1977). Because the prosecution had expected this witness to connect appellants with all eight burglaries, his refusal to testify left the prosecution without evidence satisfactorily linking appellants to most of the burglaries, about which evidence had previously been admitted. Following the witness’ refusal to testify, appellants’ motions for a directed verdict of acquittal were granted as to seven of the eight counts.

Appellants then moved for mistrial on the ground that the prosecution’s evidence of their guilt on the one remaining burglary count was weak; that throughout the prosecution’s case-in-chief the jury had heard extensive testimony regarding seven burglaries of which appellants had now been acquitted, thereby so inalterably prejudicing the jury’s consideration of the remaining count that any attempt at curative instruction would be ineffective. The court gave careful consideration to the arguments for mistrial, even reserving ruling for some time on the chance that the witness would reconsider his refusal to testify. Ultimately, however, the witness did not change his mind, and the court denied the motion for mistrial. Although conceding it was a close question, the court elected to give the jury curative instructions and proceed with the trial on the remaining count, finding that because there was admissible evidence that appellants had pled guilty to one similar transaction, the inadmissible evidence heard by the jury on the seven burglary counts on which the directed verdict had been granted had been “somewhat redundant.”

The curative instruction given cautioned the jurors to disregard all evidence except that relating to the one count remaining. The instruction was repeated in the court’s closing charge, and the motions for mistrial properly renewed. After the jury had returned its guilty verdict, the court polled the jury sua sponte, inquiring of each juror whether they recalled and understood the curative instruction given and whether each had been able to follow that instruction and disregard the extraneous evidence. The jurors all responded that they had understood the instruction and had been able to follow it.

Both appellants contend the court erred by denying their motions for mistrial because the evidence heard by the jury regarding seven other burglaries, which was legally irrelevant, was so extensive compared with the weak circumstantial evidence regarding the one remaining count that, despite the court’s curative instruction, it pervaded the jury’s consideration of the only count before them and resulted in the denial of a fair and impartial trial.

“The question of whether or not to grant a mistrial lies within the sound discretion of the trial court. That decision will not be reversed on appeal absent an abuse of discretion. [Cit.]” Roberts v. State, 242 Ga. 634, 636 (4) (250 SE2d 482) (1978). It is clear from reading the transcript that the court used care in fashioning a curative instruction, in making sure it was understood, and in attempting to assure that it had been observed. Nevertheless, the instruction was not that defendants had not committed those crimes but only that the evidence had not been “adequately connected up to these defendants.” Moreover, the court itself noted several times that the ruling on the mistrial was a close one, and that the motion was “appropriate” and “valid.”

The reason is apparent. “[W]e have . . . long adhered to the rule that where an accused is on trial for the commission of a crime: ‘proof of a distinct, independent, and separate offense is never admissible, unless there is some logical connection between the two, from which it can be said that proof of the one tends to establish the other. . . . [Cit.]’ The rationale for [this] rule is that evidence of an independent offense or act committed by the accused is highly and inherently prejudicial, raising, as it does, an inference that an accused who acted in a certain manner on one occasion is likely to have acted in the same or in a similar manner on another occasion and thereby putting the accused’s character in issue. An accused is: ‘entitled to be tried for the offense charged in the indictment, independently of any other offense not connected with the transaction upon which the indictment was based. [Cit.]’ ” Williams v. State, 261 Ga. 640, 641-642 (2) (a) (409 SE2d 649) (1991).

Because of this principle, before evidence of independent crimes may be introduced into evidence, a hearing must be held pursuant to USCR 31.3 (B) and the State must make three affirmative showings, the second of which is that “there is sufficient evidence to establish that the accused committed the independent offense or act.” Williams, supra at 642 (2) (b). The evidence heard by the jury regarding the seven other burglaries failed to meet even the threshold criteria for similar crimes, as there was no evidence to establish that appellants committed those burglaries.

In Hess v. State, 132 Ga. App. 26, 29-31 (3) (207 SE2d 580) (1974), the victim of a burglary testified concerning a long list of items taken from her home, only one of which could be connected to the defendants. This court held that allowing the victim to testify about stolen goods which could not be connected to the defendants was unfairly prejudicial, and a new trial was required. In this case, the irrelevant evidence heard by the jury about crimes that remained unconnected to appellants was far more prejudicial.

The general rule that a curative instruction will cure the error caused by having admitted evidence later ruled inadmissible is subject to exceptions when “the illegal evidence [has] worked such harm or injury to the accused as to render it probable that the subsequent withdrawal did not heal the injury inflicted by its improper admission.” Campbell v. State, 155 Ga. 127, 128 (1) (116 SE 807) (1922) (Hines, J., dissenting); see McDonald v. State of Ga., 72 Ga. 55 (1) (1884). “Jurors, like other human beings, are unconsciously too much affected by strong mental impressions for these impressions to be nicely segregated from the mass of evidence by a mere direction that these impressions are to be obliterated, though they be told, even by the judge, that the object which created those impressions has been removed and is now out of their sight.” Campbell, supra at 132 (Russell, C. J., concurring specially). As we find the improperly admitted evidence so abundant and strong so as to render it virtually impossible for the jurors to eliminate it from their minds completely while deliberating appellants’ guilt of the one burglary, we are constrained to conclude that the trial court erred in denying appellants’ motion for mistrial.

3. Both appellants contend that evidence of their previous burglary conviction should not have been admitted as a similar transaction, because it was insufficiently similar to the crime charged in that a gun was held on the victim. However, “[t]here is no requirement that . . . the ‘other transaction’ must be identical in every aspect.” (Emphasis deleted.) Faison v. State, 199 Ga. App. 447, 448 (405 SE2d 277) (1991). The prior burglary involved a residence, was committed during daylight hours, was accomplished by entering the home by kicking in a door, included a pillowcase among the stolen items, and involved a blue and cream van and a gun. The prior offense was sufficiently similar to the Cherokee burglary of which appellants were accused so that proof of the Rockdale burglary tended to prove the Cherokee burglary. Crews v. State, 185 Ga. App. 494, 495 (364 SE2d 625) (1988). It was not error to admit this evidence as a similar transaction.

4. The Supreme Court has noted that the better practice in charging the jury on reasonable doubt is to omit the phrase “moral and reasonable certainty” found in OCGA § 24-4-3, since “[w]hat is perceived as ‘moral’ may differ from group to group, from class to class, and from individual to individual,” and the equivocal nature of the term “reasonable” might conceivably lead a juror to apply to the evidence a lesser standard of proof than beyond a reasonable doubt. Vance v. State, 262 Ga. 236, 237-238, n. 5 (416 SE2d 516) (1992). Accordingly, at retrial, this phrase should not be used.

5. Appellants’ remaining enumerations of error are rendered moot by our holding in Division 2, as they are unlikely to recur at retrial.

Judgments reversed and remanded.

McMurray, P. J., and Cooper, J., concur.

Decided June 8, 1993.

Bishop & McElyea, Barry W. Bishop, for appellant (case no. A93A0857).

Howard & Delaney, Stephen A. Delaney, McVay & Stubbs, Robert M. Dyer, for appellant (case no. A93A0858).

Garry T. Moss, District Attorney, Paul F. Carden, Assistant District Attorney, for appellee.


text:
    A93A0176.
    OSWELL v. THE STATE.
    (432 SE2d 586)
   Johnson, Judge.

George Merrill Oswell appeals from his conviction of two counts of sale of marijuana.

1. Oswell contends that the trial court erred in refusing to charge the jury on his sole defense of entrapment. “In Georgia, the entrapment defense consists of three distinct elements: (1) the idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime. [Cits.] Under the majority view (which is followed in Georgia), the predisposition of the defendant toward crime is the key element of the defense. [Cits.]” Keaton v. State, 253 Ga. 70, 71-72 (316 SE2d 452) (1984). In the instant case, there is no evidence of the second and third elements of entrapment.

The evidence shows that a police informant arranged a meeting between Oswell and two undercover police officers in the parking lot of a convenience store. At the meeting, one of the officers told Oswell that he wanted to purchase a quarter ounce of marijuana. Oswell told the officer that the price of a quarter ounce of marijuana was $40. Oswell then gave the officer a plastic bag containing marijuana and the officer gave Oswell $40. Eight days later, the officers were playing horseshoes with the informant outside his mobile home. Oswell stopped in front of the mobile home in his car. The officers did not arrange this meeting and there is no evidence that the informant arranged it. The officers and the informant approached Oswell’s car. Os-well told them that he had two quarter bags of marijuana that he would sell for $35 apiece. Oswell then gave the officers the marijuana in exchange for $70. There is no evidence that either sale of marijuana was induced by the police officers’ undue persuasion, incitement or deceit; nor is there any evidence that Oswell was not predisposed to sell the marijuana. See Wyatt v. State, 194 Ga. App. 159 (390 SE2d 85) (1990); Hush v. State, 193 Ga. App. 421, 422 (2) (387 SE2d 651) (1989).

Decided May 27, 1993 —

Reconsideration denied June 9, 1993

R. Glen Galbaugh, for appellant.

C. Andrew Fuller, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

On both occasions Oswell was a willing seller to the undercover agents. The authorities merely provided him with the opportunity to carry out the sales he was predisposed to make. “There is no entrapment where the officer merely furnishes an opportunity to a defendant who is ready to commit the offense.” (Citations and punctuation omitted.) Mason v. State, 194 Ga. App. 152, 153 (390 SE2d 246) (1990). “[E]vidence that Government agents merely afforded an opportunity or facilities for the commission of the crime would be insufficient to warrant an instruction on the defense of entrapment.” (Citations and punctuation omitted.) Edmondson v. State, 201 Ga. App. 566, 567 (411 SE2d 879) (1991). Because there is no evidence that Oswell was entrapped, the trial court did not err in refusing to charge the jury on such a defense. “Nor does the fact that entrapment was the only defense raised by appellant require a different result. Where there is no evidence to support a theory of entrapment, it is no more ‘raised’ than any other defense not supported by evidence.” (Citations and punctuation omitted.) Hush v. State, supra at 422 (2).

2. Oswell argues that the court erred in refusing to reopen the evidence so he could testify. “It is well settled that the reopening of the evidence is within the sound discretion of the trial court. That decision will not be disturbed absent an abuse of discretion. [Cits.]” Killens v. State, 184 Ga. App. 717, 721 (5) (362 SE2d 425) (1987). No record of what Oswell would have testified to was made and therefore we are unable to ascertain whether he was harmed by the court’s ruling. Mooneyham v. State, 251 Ga. 404, 407-408 (2) (306 SE2d 272) (1983). The trial court did not abuse its discretion.

Judgment affirmed.

Smith, J., concurs. Blackburn, J., concurs in judgment only.


text:
    A93A0649.
    DAVIS v. RESOLUTION TRUST CORPORATION.
    (433 SE2d 143)
   Johnson, Judge.

This is a direct appeal from the trial court’s grant of the Resolu tion Trust Corporation’s motion to compel Yvette Davis a/k/a Yvette Hall to vacate property. We have reviewed Davis’ three enumerations of error and find them to be totally without merit. The only genuine issue before this court is a motion for sanctions for frivolous appeal filed by the RTC. Because Davis’ appeal has no arguable merit, we grant the motion and direct the trial court to impose upon Davis a penalty of $500 upon receipt of the remittitur in accordance with Court of Appeals Rule 26 (b). See Horton v. Middle Ga. Bank, 203 Ga. App. 127 (417 SE2d 220) (1992).

Decided May 26, 1993 —

Reconsideration denied June 9, 1993

Yvette Davis, pro se.

McCalla, Raymer, Padrick, Cobb & Nichols, Linda S. Finley, Carol V. Clark, for appellee.

Judgment affirmed with direction.

Blackburn and Smith, JJ., concur.

       Davis was directed to permanently vacate the property in an order dated April 11, 1989, granting summary judgment in a quiet title action she initiated after the property had been foreclosed. Davis appealed that decision to the Georgia Supreme Court which affirmed the trial court without opinion (Case No. S90A0502). Davis v. Perpetual Sav. & Loan, 391 SE2d 121 (1990), aff'd without opinion. On October 8, 1990, eighteen months after the entry of the original order, Davis remained on the property. Perpetual’s successor, Statesman Federal Savings Bank filed an application for contempt, which resulted in another order requiring Davis to vacate. Since that time, two Intruder’s Warrants have been filed, and finally, on September 4, 1992, the Resolution Trust Corporation, as receiver for Statesman, filed an application for Emergency Contempt, the grant of which forms the basis of this appeal.