text:
    A92A0190.
    MOUNTAIN v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY.
    (421 SE2d 284)
   Cooper, Judge.

John Chandler (“Chandler”), an employee of appellee for 25 years, was sent to appellant’s residence to reestablish her telephone service. Appellant alleges that after completing his work, Chandler raped her. Appellant brought an action against appellee under the theories of respondeat superior and negligent hiring and retention of Chandler as an employee. The trial court granted appellee’s motion for summary judgment, concluding that appellee was not liable under either theory, and this appeal followed.

1. In her first, second and fourth enumerations of error, appellant contends the trial court erred in concluding that Chandler’s actions were outside the scope of his employment as a matter of law and in misapplying Curtis, Inc. v. Kelley, 167 Ga. App. 118 (305 SE2d 828) (1983). Appellant argues that a genuine issue of fact remains as to whether or not Chandler was acting within the scope of his employment at the time he committed the rape. “ ‘OCGA § 51-2-2 provides: “Every person shall be liable for torts committed by . . . his servant by his command or in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily.” “As construed in Frazier v. Southern Ry. Co., 200 Ga. 590, 593 (37 SE2d 774), ‘The word “voluntarily” in § 105-108 (OCGA § 51-2-2) will cover any or all motives or purposes of the wrongdoer, acting in the scope of his employment, which are not covered by “acts of negligence.” The true test is not whether the tort was committed by reason of anger, malice or ill will, but whether or not it was committed in the prosecution and within the scope of the master’s business. If the tort be committed, not by reason of the employment, but because of matters disconnected therewith, the master would not be' liable.’ (Cit.)” ’ [Cit.]” Coley v. Evans Mem. Hosp., 192 Ga. App. 423, 424 (385 SE2d 100) (1989). The alleged rape was not related to Chandler’s employment and did not further appellee’s business. It was a purely personal act for which appellee cannot be deemed vicariously liable. Coley v. Evans Mem. Hosp., supra; Southern Bell Tel. &c. Co. v. Sharara, 167 Ga. App. 665, 667 (2) (307 SE2d 129) (1983). Despite appellant’s insistence that Chandler was within the scope of his employment because he gained entry into appellant’s home in the prosecution of appellee’s work, there is no evidence which shows that Chandler was serving appellee at the time of the injury, i.e., during the commission of the rape. Curtis, Inc. v. Kelley, supra at 119. “The mere fact that the assault occurred during a time of ostensible employment in the [appellant’s] home is not dispositive on the question of scope of employment. [Cit.]” Southern Bell Tel. &c. Co. v. Sharara, supra at 667-668. Appellant argues further that Southern Bell Tel. &c. Co. v. Sharara, supra, is distinguishable because in that case, the employee submitted an affidavit in which he admitted “that his acts were unrelated to the task of installing the phone and were completely personal in nature.” Id. at 667. Appellant emphasizes that no such affidavit exists in the instant case. The evidence shows that the work performed on appellant’s phone lines did not require Chandler’s presence inside appellant’s home and that when the rape allegedly occurred, Chandler had already completed the job. In her brief to this court, appellant even recognized that the rape was a deviation from Chandler’s work-related activity. Thus, the trial court did not err in granting summary judgment based on the theory of respondeat superior.

2. Appellant next contends that the trial court erred in granting summary judgment on the issue of negligent retention because appellee knew or should have known of Chandler’s dangerous propensities. Appellant argues that Chandler had a pattern of absenteeism during the last ten years of his employment which was not properly documented by appellee and therefore not addressed according to appellee’s disciplinary rules. Appellant further contends that Chandler was involved in several accidents, on and off the job, and that his problematic employment history should have resulted in a referral to appellee’s Employee Assistance Program (EAP). Appellant submitted the affidavit of a physician who opined that Chandler’s excessive absences, totalling seven during the last ten years of his employment, the high frequency of accidents in which Chandler was involved, and the fact that Chandler regularly called in sick on Monday were suggestive of alcoholism and/or drug addiction which should have, at a minimum, necessitated a screening by an EAP counselor to determine the cause of the repeated pattern of conduct. The physician concluded further that appellee was negligent in failing to refer Chandler for counselling or to determine the cause for the conduct. Appellant contends that appellee had at least constructive knowledge of Chandler’s alleged alcoholism and the resulting impairment of his judgment and ability to perform his job satisfactorily.

The record reveals that appellee was aware of Chandler’s absences and work-related injuries. However, there is no evidence that appellee was aware of Chandler’s suggested alcoholism or any dangerous or violent propensities. Chandler’s immediate supervisor and a coworker testified that Chandler was a capable and productive employee with no difficulties completing his work; that he never exhibited unusual behavior or used alcohol at work; and that prior to the alleged rape of appellant, neither was aware of any complaints by customers about Chandler. The supervisor also testified that he had the opportunity to observe Chandler drink socially and that Chandler never drank to excess. Moreover, there is no allegation that alcohol was involved in the alleged rape. The-trial court concluded that appellee had no knowledge of Chandler’s suggested alcoholism and that even if appellee had such knowledge, there is no evidence that appellee knew of a propensity for aggression and violence on Chandler’s part or that it was foreseeable that his alleged alcoholism could result in the actions alleged by appellant.

Decided May 19, 1992

Reconsideration denied July 23, 1992

Edwards & Middleton, Lonzy F. Edwards, for appellant.

Jones, Cork & Miller, H. Jerome Strickland, H. Jerome Strickland, Jr., for appellee.

“ ‘For [appellee] to be negligent in hiring and retaining any employee with violent and criminal propensities, it would be necessary that [appellee] knew or should have known of those dangerous propensities alleged to have resulted in [appellant’s] [injury]. (Cits.) . . .’ ‘To hold, as [appellant] argues, that a master may be found liable for the negligent employment of a servant who subsequently commits tortious and criminal acts solely because the employer knew or should have known that the servant was having [a problem with alcohol] would be tantamount to holding that there is no longer any proximate causation requirement in negligent employment actions in this state.’ [Cit.]” Southern Bell Tel. &c. Co. v. Sharara, supra at 666. Furthermore, “[w]e have found no statute or court decision which would authorize the establishment of a blanket requirement that an employer submit all of its employees to a series of periodic psychological tests or interviews to determine whether any employee has developed or is developing negative or antisocial propensities.” Id. Accordingly, the trial court did not err in granting summary judgment on the issue of negligent hiring and retention.

Judgment affirmed.

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


source: Caselaw Access Project

author: Sognier, Chief Judge.

license: Public Domain

text:
    A92A0237.
    ST. MARY’S HOSPITAL OF ATHENS, INC. v. RADIOLOGY PROFESSIONAL CORPORATION et al.
    (421 SE2d 731)
   Sognier, Chief Judge.

St. Mary’s Hospital of Athens, Inc. (“St. Mary’s”) brought a declaratory judgment action against Radiology Professional Corporation (“RPC”) and its principal, Dr. Larry Cohen, to establish St. Mary’s’ rights under its contract with RPC to terminate the contract and withdraw Cohen’s hospital staff privileges. RPC and Cohen filed counterclaims asserting causes of action for tortious interference with existing and prospective contractual relationships, intentional infliction of emotional distress, deprivation of due process rights, and abusive litigation. St. Mary’s’ motion for summary judgment on all counterclaims except the abusive litigation count was denied, and we granted its application for interlocutory appeal.

St. Mary’s is a private, nonprofit hospital organized pursuant to regulations promulgated by the Department of Human Resources (DHR). St. Mary’s granted hospital staff privileges to Cohen in the late 1960s. In 1971, he incorporated RPC, which then entered into a contract with St. Mary’s as the exclusive provider of radiological services for the hospital. The contract obligated RPC to provide radiological services through its employee physicians and required St. Mary’s to furnish equipment and non-professional personnel. The contract also stated that either party could terminate the contract without cause upon giving the requisite notice to the other party. Cohen’s relationship with St. Mary’s also was governed by the hospital staff bylaws promulgated pursuant to DHR Reg. § 290-5-6.-01 (7), which provided, inter alia, for notice and a hearing before termination of staff privileges and for appellate review thereafter. The one-year term of the contract between St. Mary’s and RPC was extended each year pursuant to the contract’s automatic renewal clause. Beginning in 1981, the letter sent to Cohen each year concerning renewal of his staff privileges stated that his privileges would be revoked should RPC’s contract be terminated (although Cohen denies that he agreed to this limitation).

The voluminous record in this case reveals that in the mid-1980s, St. Mary’s and RPC, through Cohen, became enmeshed in a series of disputes concerning Cohen’s management practices, the range and quality of equipment provided by St. Mary’s, and the scope of duties to be performed exclusively by RPC. As a result of these ongoing conflicts, St. Mary’s sought to renegotiate its contract with RPC. These efforts proved unsuccessful, and in January 1989 St. Mary’s filed this action to determine its rights under the contract to terminate RPC and withdraw Cohen’s privileges so that it could enter into an exclusive relationship with another radiology group. RPC continued its role as the provider of radiological services, but in the summer of 1990 it lost several physician employees and ultimately informed St. Mary’s that it could not provide the level of service required. St. Mary’s then notified RPC that its contract would be terminated and Cohen’s privileges would be revoked.

1. We agree with St. Mary’s that summary judgment improperly was denied on Cohen’s claim for intentional infliction of emotional distress. This tort arises only when “the defendant’s actions were so terrifying or insulting as naturally to humiliate, embarrass, or frighten the plaintiff. [Such cjlaims . . . have been upheld by this court when the threats on which those claims were based were outrageous and egregious.” (Citations and punctuation omitted.) Gordon v. Frost, 193 Ga. App. 517, 521 (388 SE2d 362) (1989). See Georgia Farm &c. Ins. Co. v. Mathis, 197 Ga. App. 324, 325 (398 SE2d 387) (1990). “[I]t is not enough that [the defendant’s] conduct in a given situation is intentional or that it is willful and wanton. In order to warrant recovery . . . the conduct also must be of such serious import as to naturally give rise to such intense feelings of humiliation, embarrassment, fright or extreme outrage as to cause severe emotional distress. Otherwise, the conduct will not rise to the requisite level of outrageousness and egregiousness. [Cits.]” Moses v. Prudential Ins. Co., 187 Ga. App. 222, 225 (369 SE2d 541) (1988).

Cohen bases his claim on four occurrences: (1) the imposition of allegedly unreasonable conditions on RPC’s employees; (2) an attempt by St. Mary’s to solicit a large contribution from him during a hospital fund-raising campaign that occurred while contract negotiations were occurring between RPC and St. Mary’s, which Cohen considered as a “shakedown” of him; (3) the alleged statement of a hospital administrator that St. Mary’s did not have to treat Cohen fairly and would forcé him out; and (4) derogatory references allegedly made by representatives of St. Mary’s during contract negotiations. Construing this evidence in favor of Cohen as respondent on motion for summary judgment, we nonetheless agree with St. Mary’s that this conduct failed utterly to rise to the requisite level of outrageousness and egregiousness. Hospital administrators have broad authority to make decisions and implement policies concerning the administration, operation, maintenance, and control of the hospital and the management and treatment of patients. Cobb County-Kennestone Hosp. Auth. v. Prince, 242 Ga. 139, 144-147 (249 SE2d 581) (1978). Disputes between the hospital and its physicians over the exercise of this authority inevitably will arise. Such conflicts, however, do not give rise to a cause of action for intentional infliction of emotional distress, but instead constitute power, control, and management issues to be resolved between the parties rather than in a court of law. Accord Kornegay v. Mundy, 190 Ga. App. 433, 435 (1) (379 SE2d 14) (1989). In addition, the alleged insulting and derogatory references cited by Cohen also are not actionable, for “liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. . . . [P]laintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where someone’s feelings are hurt.” (Emphasis omitted.) Moses, supra at 225. See Kornegay, supra at 434-435. Accordingly, we hold that the trial court erred by denying St. Mary’s’ motion for summary judgment on this claim.

2. To establish a cause of action for tortious interference with existing and prospective contractual relations, a claimant must show “that the defendant (1) acted improperly and without privilege, (2) purposely and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff, and (4) for which the plaintiff suffered some financial injury. . . . [T]he liability results not only from disruption of the relationship but also from elimination of the injured party’s ability to perform. . . . [T]he term ‘malicious’ or ‘maliciously’ means any unauthorized interference or any interference without justification or excuse.” (Citations and punctuation omitted.) Perry & Co. v. New South Ins. Brokers, 182 Ga. App. 84, 89-90 (354 SE2d 852) (1987). This court has authorized the grant of summary judgment to a defendant on a tortious interference claim if the defendant pierces the pleadings with respect to any single element of the cause of action. See Jenkins v. Gen. Hosp. of Humana, 196 Ga. App. 150-151 (395 SE2d 396) (1990).

Appellees base their claim upon acts of St. Mary’s that they assert caused radiologists in RPC’s employ to leave their positions and substantially impaired RPC’s ability to recruit new physicians. Appellees have detailed numerous incidents arising out of disagreements between St. Mary’s and RPC, through Cohen, concerning the purchase and management of equipment, the imposition of allegedly unjustifiable administrative and procedural requirements on RPC’s physicians, and the allocation of professional responsibilities among the various medical specialists staffing the hospital. The record also includes testimony from Cohen and a professional staff recruiter engaged by RPC concerning the difficulties they encountered in recruiting radiologists to join RPC as a result of the allegedly unreasonable and disruptive conduct of St. Mary’s.

We conclude that these allegations, even if proven at trial, would not establish a claim for tortious interference as a matter of law because they do not establish the essential element of inducement of adverse actions by third parties. Each alleged wrongful incident arose out of performance of the contractual relationship between St. Mary’s and RPC, not as a result of any inducement directed toward RPC’s employee physicians or recruits. Appellees do not allege that St. Mary’s induced radiologists not to enter into or continue their contracts with RPC. Instead, appellees claim that the unreasonable performance by St. Mary’s of its contracts with appellees caused such a result. While such acts might provide a basis for a breach of contract claim (and we offer no opinion on the merits of such a claim), they cannot provide the basis for a claim of intentional interference with RPC’s contractual relationship with others. Appellees correctly assert that a claim for tortious interference is not limited to conduct that causes a breach of a claimant’s contract with a third party, but also may be asserted for conduct that makes the performance of that contract more difficult. See Artrac Corp. v. Austin Kelley Advertising, 197 Ga. App. 772, 774-775 (2) (399 SE2d 529) (1990). However, in such a circumstance the claimant still must prove that the defendant directly induced adverse behavior by the third party with respect to the third party’s contract with the claimant, not merely that the defendant breached its contract with the claimant and that an element of damage resulting from that breach was the impairment of the claimant’s performance of its contract with the third party. See id.; see also Perry & Co., supra. Accordingly, St. Mary’s was entitled to summary judgment on this claim.

3. The final count on which St. Mary’s sought summary judgment was Cohen’s claim for “tortious denial of due process rights contractually guaranteed to [Cohen].” St. Mary’s contends that this allegation must be construed as a claim for tortious deprivation of due process rights, a cause of action St. Mary’s maintains is not recognized in Georgia. Applying the well-established principle that the pleadings must be construed in favor of Cohen as respondent on motion for summary judgment, City of Rome v. Turk, 235 Ga. 223, 225 (219 SE2d 97) (1975), we find that the allegation at issue can be read to assert three possible causes of action: (a) deprivation of liberty or property rights without due process of law; (b) breach of a contractual obligation to comply with the bylaws; or (c) violation of a legal duty, arising independently of the contract, to comply with the bylaws.

(a) The due process clauses of the United States and Georgia Constitutions control the actions of governments, not those of private individuals. Reinertsen v. Porter, 242 Ga. 624, 627 (250 SE2d 475) (1978). Since St. Mary’s is a private hospital, a due process claim may be maintained against it only if there existed such a nexus between the State and the termination by St. Mary’s of Cohen’s staff privileges that this action of St. Mary’s may be considered an act of the State itself. Jackson v. Metro. Edison Co., 419 U. S. 345, 351 (95 SC 449, 42 LE2d 477) (1974); Reinertsen, supra. State regulation of the hospital industry, even if “extensive and detailed,” does not give rise to the requisite connection. Jackson, supra at 350-351; see Ray v. Bank of Covington, 247 Ga. 758 (1) (279 SE2d 425) (1981). Nor is the fact that the administration of hospitals may be characterized as a business affected with a public interest sufficient to create the necessary nexus. Jackson, supra at 353-354. Although state law required the implementation of medical staff bylaws, no state entity or official participated in the challenged action, see id. at 357-358, and the DHR regulations at issue did not compel St. Mary’s to terminate Cohen’s staff privileges. See Evans v. Harley Hotels, 253 Ga. 53 (315 SE2d 896) (1984). Therefore, to the extent that this count of the counterclaim asserted a due process claim, no state action exists as a foundation for such a claim, and thus St. Mary’s was entitled to summary judgment on that claim. See Todd v. Physicians &c. Hosp., 165 Ga. App. 656, 662-663 (302 SE2d 378) (1983).

(b) To the extent that Cohen’s counterclaim asserts a claim for breach of contract for noncompliance with the bylaws, we agree with St. Mary’s that it is entitled to summary judgment on that claim. Our courts have held that because hospitals have the authority to establish and revise rules and regulations governing the appointment of physicians to the hospital staff, medical staff bylaws alone do not create any contractual right to continuation of staff privileges. Stein v. Tri-City Hosp., 192 Ga. App. 289, 292-293 (384 SE2d 430) (1989); Todd, supra. Indeed, hospitals are entitled to change the staff bylaws or the terms of appointment even if that act results in the termination of a physician’s staff privileges. Stein, supra; see Alonso v. Hosp. Auth. of Henry County, 175 Ga. App. 198, 202-203 (6) (332 SE2d 884) (1985). Given that the bylaws themselves confer no contractual rights, we conclude that no cause of action lies against a hospital ex contractu based solely on an alleged breach of bylaw provisions.

Further, there is no evidence that Cohen and St. Mary’s had a written contract that expressly incorporated the staff bylaws or otherwise contractually provided that Cohen’s privileges could be terminated only in accordance with the procedures set forth in the bylaws. See Alonso, supra; compare Northeast Ga. Radiological Assoc. v. Tidwell, 670 F2d 507, 510-511 (5th Cir. 1982). Accordingly, Cohen cannot assert a claim for breach of contract by failure to comply with the bylaws.

(c) OCGA § 51-1-6 provides that “[w]hen the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.” Pursuant to this statute, a cause of action will lie for breach of a duty arising under a statute or common law. See Sutter v. Hutchings, 254 Ga. 194, 197 (327 SE2d 716) (1985); Diedrich v. Miller & Meier & Assoc., 254 Ga. 734, 736-737 (2) (334 SE2d 308) (1985). Thus, if the termination of Cohen’s staff privileges without complying with the provisions of the staff bylaws concerning notice and a hearing constituted a violation of a legal duty owed by St. Mary’s to Cohen, a cause of action will lie for the breach of that duty.

With regard to public hospitals, the Supreme Court has recognized that although a physician has no absolute right to practice in a given public hospital, only a privilege, the physician is entitled to practice in the public hospitals as long as he complies with applicable laws, rules, and regulations, and such privileges may not be deprived by rules or acts that are unreasonable, arbitrary, capricious, or discriminatory. Dunbar v. Gwinnett Hosp. Auth., 227 Ga. 534, 540-541 (1) (182 SE2d 89) (1971). Given that hospitals cannot arbitrarily or capriciously deprive physicians of their privileges, the logical inference from this principle is that notwithstanding the broad power of a hospital authority to control the administrative, operational, and managerial functions of the facility and its staff, see Cobb CountyKennestone, supra, a public hospital authority cannot abridge or refuse to follow its existing bylaws concerning staff privileges. While the hospital has broad authority to change the bylaws, Stein, supra, it cannot refuse to follow existing bylaws. Consequently, given that a legal duty exists as to public hospitals, the violation of that duty is actionable under OCGA § 51-1-6.

Does the same duty devolve upon private hospitals? We hold that it does. Otherwise, the regulatory mandate that all hospital authorities enact staff bylaws would be meaningless. Since the issue is existence of a legal duty to follow procedures established pursuant to state law, not the presence of state action, we see no reason to distinguish between public and private hospitals in this context. Both are required to establish staff bylaws; therefore, both should be required to follow those bylaws. Just as a physician who receives privileges at a hospital “[does] so with the understanding that his appointment [is] subject to its bylaws,” Stein, supra at 292, a hospital, whether public or private, also should be subject to the bylaws it enacts. Accordingly, we hold that Cohen may assert a cause of action in tort against St. Mary’s for failure to follow existing bylaws with regard to termination of his staff privileges.

We do not find, however, that St. Mary’s is entitled to summary judgment on this tort claim. We agree with St. Mary’s that it has the authority to establish exclusive relationships with physicians in a given specialty or area of practice and that such authority may include the concomitant right to terminate staff privileges as necessary to maintain this exclusivity. Nonetheless, this termination right may not be exercised in a manner inconsistent with the staff bylaws. Consequently, to ensure its right to terminate staff privileges to maintain exclusive relationships, hospitals must so provide either in the bylaws or in a contract with the individual physician (and not just in the contracts with the physician’s professional corporation). In this case neither of these steps was followed. However, there is a fact question whether Cohen acquiesced in the limitations St. Mary’s placed upon the renewal of his privileges so as to waive his right to insist on compliance with the procedural requirements in the bylaws. Thus, the trial court did not err by denying summary judgment to St. Mary’s.

Decided July 8, 1992

Reconsideration denied July 23, 1992

Blasingame, Burch, Garrard & Bryant, J. Ralph Beaird, Lesley A. Troope, Milton F. Eisenberg II, McLeod, Benton, Begnaud & Marshall, Larry McLeod, Andrew Marshall, Lyndon & Gilley, John F. Lyndon, for appellant.

Henry & Pearson, J. Hue Henry, for appellees.

Alston & Bird, Kevin E. Grady, Jack Spalding Schroeder, Jr., Henner & Block, Barry Sullivan, amici curiae.

Judgment affirmed in part and reversed in part.

Cooper, J., concurs. McMurray, P. J., concurs in Divisions 1 and 3 and concurs in the judgment only in Division 2.


author: Cooper, Judge.

text:
    A92A0338.
    RAMEY v. LEISURE, LTD.
    (421 SE2d 555)
   Cooper, Judge.

Appellee, a limited partnership, asserted claims for negligent construction and fraud against appellant arising from the construction of a house it owned in which one of its general partners, Barney Bran-non (“Brannon”), lived. A jury returned a verdict for appellee, and appellant appeals, raising four enumerations of error.

The evidence adduced at trial reveals that appellant obtained a building permit for the construction of a house in Sky Valley, Georgia. Appellant’s sons actually owned the real estate, and appellant supervised the building. Inspection records indicate that the foundation footing trenches were poured with concrete before an inspection was made by the building inspector as required by the City of Sky Valley building code. The footing work was performed by a subcontractor, but appellant testified that he was “practically sure” that he saw the footing trenches before the concrete was poured. At its completion on October 17, 1980, the house was sold to the Sky Valley Corporation, which then sold it to the Summerford family. In 1983, appellee purchased the house from the Summerfords. Prior to the purchase, Bran-non inspected the house and observed no problem with the footing. On or about August 28, 1988, however, Brannon attempted to replace a storm door and discovered that the door frame was deformed. He had installed a storm door in the same location in 1983 or 1984 and at that time had not found the door frame defective. Brannon contacted a contractor who determined that the house was not level, having settled four inches toward the rear. The contractor dug out sections of the footing and discovered that the footing was resting on uncompacted fill dirt, was improperly wedge-shaped and contained inadequate steel reinforcement. He concluded that these structural problems caused the footing to sink which resulted in the uneven settling of the house. As a consequence, the old footing was removed and replaced. Costs attributed to correcting the footing totalled $29,561.91.

In its complaint, filed on August 8, 1990, appellee stated a cause of action for negligent construction. Appellant answered the complaint, raising the statute of limitation as a defense. Appellee amended the complaint on May 31, 1991, to allege fraud, asserting that appellant was aware that the footing was negligently constructed; that he sought to avoid discovery of such by failing to have the inspection before proceeding with completion of construction; and that his actions were calculated to delay and deter discovery of the negligent construction. At the close of appellee’s case, the trial court denied appellant’s motion for directed verdict, raising the statute of limitation and the lack of evidence in support of the fraud claim. The motion was renewed after both parties rested their cases and was again denied. The jury returned a verdict for $29,561.91 in compensatory damages.

1. In its first and third enumerations of error, appellant contends the trial court erred in denying his motion for directed verdict based on the statute of limitation and the sufficiency of the evidence on the fraud claim. Both parties agree that a claim based on negligence is barred by the four year statute of limitation governing damage to realty. OCGA § 9-3-30. However, appellee maintains that its cause of action is based on appellant’s fraudulent concealment of gross negligence in the construction of the footing which tolled the statute of limitation.

“Fraud claims are governed by a four-year statute of limitation, [OCGA § 9-3-31] ([cit.]), but this limitation period may be tolled if [appellant] committed an act of actual fraud that had the effect of concealing from the plaintiff the existence of the cause of action despite [its] exercise of reasonable diligence. [Cits.] Actual fraud involves moral turpitude, [cit.], and requires an intentional deception by false representation or by concealment of a fact. [Cit.] When actual fraud is the gravamen of the underlying action, no independent fraud is required for tolling of the statute of limitation, and the limitation period is tolled until the plaintiff discovers or in the exercise of reasonable diligence should have discovered the fraud. [Cit.]” Hahne v. Wylly, 199 Ga. App. 811 (1) (406 SE2d 94) (1991). “[W]hen the defects in the property [are] of such a nature that the buyer could not discover them through the exercise of due diligence, the burden [is] on the seller to disclose the seriousness of the problems of which he [is] aware, provided that the seller [knows] that the buyer [is] acting under a misapprehension as to facts which would be important to the buyer in making his decision.” Holman v. Ruesken, 246 Ga. 557 (2) (272 SE2d 292) (1980); Cohen v. Stuhler, 180 Ga. App. 543, 544 (349 SE2d 541) (1986). Appellant argues there was no evidence of fraud and no evidence that appellee or Brannon were deterred from discovering the settling of the house within the statute of limitation.

“[Concealment of a cause of action must be by positive affirmative act and not by mere silence. [Cit.]” Comerford v. Hurley, 154 Ga. App. 387, 388 (268 SE2d 358) (1980). The evidence presented at trial authorized a finding of passive concealment of the defective footing. In addition to the evidence discussed above, the record also reveals that at trial appellant conceded that it would be improper and unprofessional to construct a wedge shaped footing on fill dirt; that such defects would likely cause uneven settlement of the house requiring expensive repair work; that it was his responsibility to notify the building inspector prior to pouring the concrete in the footing trenches, so that the inspection could be performed; and that concrete was poured before the inspection was performed. One of appellant’s sons testified that appellant was in and out of the construction site and would have been aware of the configuration of the footing. The jury could have inferred that appellant concealed the defective footing by not notifying the building inspector and pouring concrete before an inspection was performed. Holman, supra. Compare Wilson v. Brighton Homes, 204 Ga. App. 677 (3) (420 SE2d 360) (1992).

The evidence also supported a finding of Brannon’s due diligence in discovering the resulting settling of the house. Cohen, supra at 544. The footing was buried in the ground. Brannon’s contractor had to dig trenches into the ground to expose the footing. Brannon inspected the house with a realtor prior to the purchase and testified that he detected no structural defects; that he had no reason to suspect that the footing was defective; and that he had no need to consult the inspection documents until after the footing was exposed and contemplating some action against the responsible party, he began to research the construction of the house. Thus, the burden was on appellant to reveal hidden defects (Holman, supra), and the statute of limitation was tolled until the discovery of the defect in 1988. Fleming v. Lee Eng. &c. Co., 184 Ga. App. 275, 276 (361 SE2d 258) (1987). Furthermore, appellant’s contention that the claim must fail due to a lack of privity, between himself and appellee is without merit because the cause of action is in tort which requires no privity. Georgia-Caro lina Brick &c. Co. v. Brown, 153 Ga. App. 747 (1) (266 SE2d 531) (1980).

Based on the foregoing, the trial court did not err in failing to grant appellant’s motions for directed verdict.

2. Appellant also contends the trial court erred in allowing the admission of certain testimony which appellant argues was based on hearsay.

The record reflects that in a pre-trial conference appellee’s counsel informed the court and appellant’s counsel that he planned to present evidence of a prior lawsuit against appellant involving a house with foundation problems and to call an expert witness who would testify that appellant had a practice of constructing foundations and footings in an unworkmanlike fashion. The trial court indicated that he would allow the admission of such evidence provided the proper foundation were laid and cautioned appellant’s counsel not to broach the area in his opening statement. Appellant’s counsel voiced no objection to the court’s ruling on this proposed evidence. Despite the court’s advice, appellant’s counsel, in his opening statement, remarked that when Brannon discovered a problem with the footing, he did not allow appellant the opportunity to come to the house and look at the alleged defective footing. Later in his cross-examination of Brannon, counsel asked Brannon if he ever contacted appellant to come and look at the footing after it had been exposed. Brannon answered that he had not contacted appellant, and as Brannon attempted to explain why he had not contacted appellant, appellee’s counsel asked for a bench conference. During the conference, appellee’s counsel alerted the court to the fact that appellant’s counsel had already opened the door for this inquiry in his opening statement. The court agreed and indicated that if Brannon desired to explain why he did not contact appellant, he would be allowed to so testify. On re-direct examination, Brannon was asked why he did not contact appellant. Brannon responded that he did not know appellant, and as he began to discuss appellant’s reputation in the area, appellant’s counsel objected to the evidence of appellant’s reputation on the basis of relevancy, not hearsay as urged on appeal. The trial court overruled the objection on the ground that counsel opened the door to the introduction of this evidence in his opening statement and cross-examination of Brannon and permitted Brannon to testify that it was general knowledge in the area that three or four houses built by appellant had foundation problems. “ ‘ “Where evidence is admitted over objection and, on appeal new grounds for objection are raised for the first time, those new grounds for inadmissibility are not reviewable. (Cit.)” [Cit.]’ [Cit.]” Myers v. Myers, 195 Ga. App. 529 (3) (394 SE2d 374) (1990). The trial court also allowed appellee’s contractor to testify regarding three other houses which were allegedly constructed by appellant with footing or foundation problems. Appellant argues that appellee never established that the residences were built by appellant, except by hearsay testimony, and that appellee did not demonstrate that the problems in the houses were related to the subject house. At trial, appellant initially objected on the basis of relevancy and hearsay, contending that the contractor had come to know that the houses were built by appellant by hearsay. These objections were made and overruled prior to any specific testimony regarding the houses. With regard to the first house, appellee’s attorney referred the court to appellant’s response to its interrogatories wherein appellant admitted building the house. After the contractor testified that the house had also settled unevenly but that he did not know the cause, appellant objected on the basis of relevance. Appellee’s response was that the testimony illustrated a settlement problem. As to the second house, appellant asserted a hearsay objection to the contractor’s testimony that the homeowner told the contractor appellant built his home. Appellant offered no objection to the testimony regarding the third house. “In this state it is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which the party might have had.” (Citations and punctuation omitted.) Guthrie v. Bank South, Douglas, 195 Ga. App. 123, 126 (4) (393 SE2d 60) (1990). Thus, we will not consider the testimony as to the third house.

“ ‘[Admissibility of evidence is a matter which rests largely within the sound discretion of the trial court. . . . [Cit.]’ . . . [Cit.]” American Aluminum Prods. Co. v. Binswanger Glass Co., 194 Ga. App. 703, 709 (9) (391 SE2d 688) (1990). “ ‘ “Evidence of other transactions or occurrences is admissible if it is relevant to the particular instance and does not place too great a danger of undue consumption of time, confusion of issues, undue prejudice or unfair surprise.” ’ [Cit.]” West v. Nodvin, 196 Ga. App. 825, 828 (3d) (397 SE2d 567) (1990). With respect to the first house, we find no abuse of discretion in the admission of the contractor’s testimony. As to the second house, the contractor’s testimony, that he was told by the homeowner that appellant built his house, did constitute hearsay; however, in view of the evidence in support of appellee’s claim, as discussed in Division 1, it is doubtful such evidence contributed to the jury’s verdict.

3. Appellant enumerates as error the trial court’s failure to state in its charge on fraud that the alleged misrepresentation must be made by the defendant to the plaintiff. However, as we determined in Division 1 of this opinion, privity is not required in this cause of action in tort. Appellant also contends the charge failed to set forth the burden on appellee to prove each element of fraud by a preponderance of the evidence. Although the court did not give such a charge in the exact language requested by appellant, a review of the entire charge given by the court reveals that the principle was covered by the court’s general charge. Brand Banking Co. v. Roosman, 199 Ga. App. 58 (3) (404 SE2d 286) (1991). Appellant argues further that the court’s charges on constructive fraud and latent defects were erroneous, but appellant did not object to the charges in the trial court. “ ‘[0]n appeal only issues properly raised before the trial court will be considered. [Cits.]’ [Cit.]” Venture Design v. Original Appalachian Artworks, 197 Ga. App. 432, 434 (3) (398 SE2d 781) (1990).

Decided July 9, 1992

Reconsideration denied July 23, 1992

John M. Brown, for appellant.

Forrester & Brim, James E. Brim III, for appellee.

Judgment affirmed.

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


text:
    A92A0371.
    BLIGE v. THE STATE.
    (421 SE2d 547)
   Cooper, Judge.

Appellant was convicted by a jury of armed robbery, aggravated battery and burglary. He appeals from the judgment of conviction entered on the verdict and the denial of his motion for new trial.

The evidence adduced at trial shows that the victim awoke one night and went to the kitchen. She opened the kitchen door which led to the porch and a man grabbed her, threw her onto a sofa and told her to take off her wedding ring. The victim was unable to get the ring off, and the man ordered her to use soap to remove the ring. The victim attempted to get the ring off using soap and water but was unsuccessful. The man then took a butcher knife and cut off the victim’s ring finger. The victim was able to escape when the man knelt on the sofa to unplug a portable vacuum cleaner. At trial, the victim identified appellant as the man who entered her house and cut off her finger. A fingerprint matching appellant’s was found on a small tin box in the vicinity of the victim’s sofa. Appellant testified and denied committing the crimes.

1. In his first enumeration of error, appellant contends that the trial court erred in giving an Allen charge to the jury. After deliberating for approximately 2-1/2 hours, the jury informed the court that they were hopelessly deadlocked. The trial judge then charged the jury, in relevant part, as follows: “You have been deliberating upon this case for a considerable period of time and the Court deems it proper to advise you further in regard to the desirability of agreement if it’s possible. The case has been exhaustively and carefully tried by both sides, and with considerable expense to the parties and to the State. It has been submitted to you for decision and verdict, if possible, rather than for a disagreement.” The remainder of the court’s charge was substantially the same as the charge approved in Spaulding v. State, 232 Ga. 411 (207 SE2d 43) (1974). Appellant objects to the language in the court’s charge relating to the expense of the parties and to the State. Upon a full reading of the charge given to the jury, we conclude that the charge neither suggested a particular verdict nor had a coercive effect on the jurors. See Brantley v. State, 190 Ga. App. 642 (3) (379 SE2d 627) (1989). The trial court’s remark was only made as an explanation for its desire to have the jury deliberate further, and we find no error with the giving of the charge. See Driver v. State, 155 Ga. App. 726 (3) (272 SE2d 580) (1980).

2. Appellant contends in his second enumeration of error that the trial court erred in admitting similar transaction evidence. Prior to trial, the State gave notice pursuant to Uniform Rule 31.3 (B) of its intent to introduce two incidents which occurred within nine days of the offenses for which appellant was being tried. The first incident involved a burglary which occurred when appellant entered the residence of a 65-year-old victim through a screened porch, took a ring from the victim and hit her over the head with a clock. Appellant’s fingerprint was found inside the victim’s residence. The second incident involved a burglary of a residence from which a ring, jewelry and other items were taken. Appellant’s fingerprint was found inside the residence, and appellant confessed to committing the crime. The trial court entered a pre-trial order allowing the State to introduce the similar transaction evidence, specifically finding that the prior transactions were sufficiently similar such that “ ‘proof of the former tends to prove the latter.’ ” Chastain v. State, 260 Ga. 789, (3) (400 SE2d 329) (1991). At trial, the victim in the first similar transaction testified and identified appellant as the perpetrator of the crime, and a fingerprint expert testified that appellant’s fingerprint was found on the clock used to hit the victim. As to the second similar transaction, the State introduced appellant’s confession. The trial court gave the appropriate limiting instruction to the jury on the purpose for which the similar transaction evidence could be considered. Appellant’s argument that the evidence was not sufficiently similar to be admissible is without merit. The evidence demonstrates that the two similar transactions and the offense charged all occurred within a relatively short period of time. Moreover, appellant made similar entry through a porch or outside enclosed area and forcibly took rings from the victims in two instances. “ ‘ “[T]here is no requirement that a previous offense be absolutely identical to the one being prosecuted so as to make it admissible.” (Cit.)’ [Cit.]” Hall v. State, 198 Ga. App. 434 (1) (401 SE2d 623) (1991). Furthermore, sufficient evidence was adduced at trial, including the victim’s identification, to establish that appellant was the perpetrator of the similar offenses.

3. As part of its presentation of the first similar transaction, the State introduced a photographic spread from which the victim selected appellant’s picture as looking similar to the man who attacked her. Appellant objected on the ground that the photograph of appellant had a different background than that of the other photographs. We have examined the photographic spread and find that several of the photographs had different backgrounds. The photographic display was not impermissibly suggestive and the trial court did not err in overruling appellant’s objection. See Cheeves v. State, 157 Ga. App. 566 (1) (278 SE2d 148) (1981).

4. Appellant next contends that the trial court erred in denying his motion to suppress the in-court identification of the victim. The transcript reflects that following the incident, the victim gave only a vague description of her attacker, that the victim did not make a pretrial identification and that the victim had seen appellant’s picture in the newspaper. However, the victim testified that she saw her attacker “clearly and distinctly” because the light was on over her stove as well as in the pantry. The victim further stated that although she saw appellant’s picture in the newspaper, she was able to identify appellant based on her ability to see him the night he was in her kitchen. The victim’s failure to give a complete physical description of her attacker does not render her in-court identification unreliable. Price v. State, 194 Ga. App. 453 (1) (390 SE2d 663) (1990). Nor does the fact that the victim did not participate in a pre-trial identification render her in-court identification inadmissible. Price v. State, 159 Ga. App. 662 (1) (284 SE2d 676) (1981). The victim’s in-court identification was based on her observation of appellant the night of the attack, and we find no error in the trial court’s denial of appellant’s motion to suppress the identification.

5. Appellant argues that the trial court erred in allowing the jurors to have a magnifying glass during their deliberation without giving appellant an opportunity to object. Appellant has not shown how he was harmed by either the jurors’ use of the magnifying glass or his lack of opportunity to object. Even if an error was committed by the trial court, no reversal is required because appellant has not shown harm. Butts v. State, 198 Ga. App. 368 (4) (401 SE2d 763) (1991).

6. In his sixth and seventh enumerations of error, appellant contends that the trial court erred in requiring appellant to reveal the name and written report of his expert witness and in allowing the State to comment during closing argument on the absence of appellant’s expert witness. The trial court granted appellant’s pre-trial request for funds to hire a fingerprint expert and further ordered that appellant provide the State with the expert’s name as well as a written report of the expert. We find no error with the trial court’s requiring appellant to provide the State with the name and report of his expert witness. Sabel v. State, 248 Ga. 10 (6) (282 SE2d 61) (1981). Although we have no transcript of the State’s closing argument, Sabel seems to allow the State to argue to the jury that appellant would have called the expert if the results of the expert’s testing had been favorable.

Decided June 26, 1992

Reconsideration denied July 23, 1992

Mark J. Nathan, for appellant.

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

7. Contrary to appellant’s arguments, the evidence was sufficient to enable the jury to find appellant guilty of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


author: Birdsong, Presiding Judge.

text:
    A92A0381.
    ERWIN v. GIBSON et al.
    (421 SE2d 752)
   Birdsong, Presiding Judge.

We granted discretionary appeal to defendant Frankie Lane Erwin in this personal injury case, as to the trial court’s refusal to set aside a default judgment in the amount of $257,000. Appellant timely forwarded to his insurer the complaint which had been served on him. The insurer undertook, but failed, to file a timely answer; the reason offered is that the adjustor engaged in settlement negotiations with plaintiffs’ attorney and was awaiting a return call from plaintiffs’ attorney on an offer of $15,000, but instead plaintiffs took a default judgment. It is not contended there was any fraud by plaintiffs’ attorney in the matter.

Defendant was not given notice of a hearing on the amount of damages, although defendant’s location was known to plaintiffs, and although OCGA § 9-11-55 (a) as to default judgments mandates that if the action “is one ex delicto or involves unliquidated damages,” plaintiffs shall be required to introduce evidence as to the amount of damages “with the right of the defendant to introduce evidence as to damages and the right of either to move for a new trial in respect of such damages.” Held:

OCGA § 9-11-55 (a) appears to give a guarantee to a defaulting defendant of a hearing as to amount of damages in ex delicto actions and cases involving unliquidated damages, but then fails to provide that notice of such a hearing must be given to the defaulting defendant.

In Chrysler Credit Corp. v. Brown, 198 Ga. App. 653 (402 SE2d 753) and Newell Road Bldrs. v. Ramirez, 126 Ga. App. 850 (192 SE2d 184) we applied the general waiver provisions of § 9-11-5 (a) to the provisions of § 9-11-55 (a) entitling a defaulting defendant in certain cases to introduce evidence on amount of damages. We concluded that, because he failed to answer the suit, a defaulting defendant has waived his right to notice of the hearing to which the default statute entitles him when he fails to answer the suit.

OCGA § 9-11-55 (a) mandates that a defendant who fails to file an answer is entitled to introduce evidence as to ex delicto or unliquidated damages, and OCGA § 9-11-40 (b) authorizes the judges of courts of record, “on reasonable notice to the parties,” to hear any matter or issue where a jury trial is not required; we find no rule which provides that a plaintiff is not required to give notice to a defaulting defendant that he intends to take a default judgment for unliquidated or ex delicto damages. As to the requirement to consider the whole law on a subject and its purpose and to harmonize all its parts, see State Revenue Comm. v. Alexander, 54 Ga. App. 295, 296 (187 SE 707); and see Freeman v. Woodmen of the World &c. Ins., 200 Ga. 1, 4 (36 SE2d 81). There can be no general waiver of what a party has no notice (see City of Albany v. Mitchell, 81 Ga. App. 408 (59 SE2d 37)); a defendant who fails to answer a suit is given certain rights by the default statute, so if he has not had notice of a hearing on the amount of damages in an ex delicto or unliquidated damages case, he cannot waive the right thereto. Moreover, since OCGA § 9-11-55 (a) provides that a plaintiff is entitled to default judgment “unless” the action is one ex delicto or involves unliquidated damages, it would appear that a plaintiff has a prima facie right to default judgment for damages only in cases ex contractu or involving a liquidated amount (see Hubert v. Lawson, 146 Ga. App. 698, 700 (247 SE2d 223)), and it would appear that plaintiff does not have a right to ex delicto or unliquidated default damages unless he introduces evidence as to damages, “with the right of the defendant to introduce evidence.” According to Newell Road Bldrs., however, the rights which the default judgment statute expressly gives to a defendant who fails to answer a lawsuit are deemed waived because he failed to answer the suit; and according to Chrysler Credit Corp., supra, it does not appear that this court is inclined to re-examine the matter. Accordingly, the default judgment for $257,000 is affirmed.

Decided July 10, 1992

Reonsideration denied July 23, 1992

Davis & White, Jefferson L. Davis, Jr., Brinson, Askew & Berry, Hendrick L. Cromartie III, Joseph B. Atkins, Jenkins & Eells, Frank E. Jenkins III, Steven J. Misner, for appellant.

Jones & Ledbetter, Joseph D. Little, for appellees.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A92A0425.
    CONCEPCION v. THE STATE.
    (421 SE2d 554)
   Cooper, Judge.

In Concepcion v. State, 200 Ga. App. 358 (408 SE2d 130) (1991), we affirmed appellant’s conviction of aggravated assault with intent to rape and false imprisonment. We also remanded appellant’s case to the trial court for a hearing on appellant’s claim of ineffective assistance of counsel. The trial court conducted a hearing on that claim and denied appellant’s motion for new trial. Appellant contends on appeal that the trial court erred in denying his motion for new trial on the grounds of ineffective assistance of counsel.

Appellant argues that his trial counsel was ineffective in failing to reserve objections to the trial judge’s charge to the jury, thus not preserving those errors for appellate review, and in failing to request a charge on impeachment. “Pursuant to the two-prong test enunciated in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), defendant must meet two tests in order to prevail on his ineffective assistance of counsel claim: T) he must show that trial counsel’s performance was deficient in that he made errors so serious that he was not functioning as the “counsel” guaranteed defendant by the Sixth Amendment; 2) defendant must show that the defense was prejudiced by the deficient performance so that defendant was deprived of a fair trial, one whose results were reliable. (Cit.)’ [Cit.] As to the first prong, the Supreme Court has approved the ‘reasonably effective assistance’ standard adopted in Pitts v. Glass, 231 Ga. App. 638 (203 SE2d 515) (1974). ‘Thus “(t)he reasonableness of counsel’s performance is then considered in light of the totality of the circumstances, viewed from counsel’s performance at the time of trial, thereby eliminating the possible distortions of hindsight analysis. (Cit.) The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.” [Cit.] As to deficient performance, errors in judgment and tactical errors do not constitute denial of effective assistance of counsel. [Cit.]’ [Cit.] ‘ “Regarding the second prong of the test, the defendant must show that the deficient performance actually prejudiced the defense. In other words he must show there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s unprofessional errors. [Cits.]” ’ [Cit.]” White v. State, 193 Ga. App. 428 (2) (387 SE2d 921) (1989). We have reviewed the trial transcript and the transcript from the hearing on appellant’s motion for new trial. Although trial counsel offered no explanation for his failure to reserve objections to the jury charges or his failure to request a charge on impeachment, we are required to look at the totality of trial counsel’s representation in evaluating appellant’s claim of ineffective assistance of counsel. See Pitts v. Glass, supra. Upon doing so, it appears that appellant’s trial counsel rendered reasonably effective services to appellant throughout the trial, and appellant’s assertion to the contrary is without merit. Furthermore, our review of the trial court’s charge to the jury reveals that the instructions were adequate and complete. “Therefore, [appellant] has failed to show that he is entitled to a new trial on the ground his trial counsel failed to file written requests to charge or to reserve objections to the charge.” Argo v. State, 192 Ga. App. 794 (3) (386 SE2d 545) (1989).

Decided July 2, 1992

Reconsideration denied July 23, 1992

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A92A0448.
    LEE v. THE STATE.
    (421 SE2d 301)
   Cooper, Judge.

Appellant was indicted for felony theft by taking and was convicted by a jury of misdemeanor theft by taking. On the first appearance of this case, before this court, we remanded the case to the trial court for an evidentiary hearing on the issue of whether appellant’s trial counsel was ineffective due to his failure to present character witnesses on her behalf. Lee v. State, 199 Ga. App. 246 (3) (404 SE2d 598) (1991). At the hearing on remand, appellant testified that she retained her trial counsel to represent her; that counsel did not discuss the case or potential defenses with her; that she met with counsel a few times accompanied by her sister, Michelle Wilder (“Wilder”); that she could have produced good character witnesses to testify on her behalf; and that trial counsel never asked her about character witnesses. Wilder, appellant’s sister, testified at the hearing on remand that she accompanied her sister to several meetings with trial counsel; that he never inquired of her about appellant’s character or potential character witnesses; that she questioned counsel about appellant’s defense and he did not answer but instead asked about his fee; that in her opinion, appellant’s character is good; that she knew of people who could testify as to appellant’s good character; and that neither she nor the others were subpoenaed to trial. A second sister of appellant testified at the hearing and stated that appellant had a good reputation in the community; that she would have testified on appellant’s behalf; and that she was not asked to testify at trial. Appellant’s trial counsel also testified at the hearing, stating that he has been an attorney since 1950; that he had tried thousands of jury trials; that he met with appellant several times and he did discuss possible defenses with her; that not only did he discuss character witnesses with her but he “repeatedly entreated her to get [him] some character witnesses”; that although the case lasted more than one day, when the character witnesses were needed there was only one man present in the courtroom available to testify; that the man had liquor on his breath, was of low intelligence and could barely articulate; that the man would have been a bad witness and therefore he decided not to call the man and retain closing argument; that neither sister approached him to testify as a character witness; that if the two sisters had been present when he needed them, he would have surely called them to the stand; that when appellant met with him she was accompanied by her boyfriend, not her sister; and that he does not consider it a good practice to subpoena character witnesses because a character witness should not be forced to testify. The trial court noted that the trial lasted two days and still no other character witnesses, including appellant’s two sisters, appeared to testify. Further, the court also assessed the credibility of the witnesses and concluded that appellant had failed to demonstrate the ineffectiveness of counsel. A notice of appeal was then filed from that ruling.

We agree with the trial court’s ruling. The judge heard all the witnesses testify and evaluated the testimony, including trial counsel’s statements that he discussed defenses with appellant, that he asked appellant to provide character witnesses and that the only witness who appeared was not, in his opinion, appropriate to testify. “ ‘Determination of the witnesses’ credibility is, of course, within the discretion of the trier of fact. (Cits.)’ [Cit.]” Smarr v. State, 199 Ga. App. 572 (1) (405 SE2d 561) (1991). Further, trial counsel’s decisions not to call the man who appeared at trial to the stand and not to subpoena character witnesses does not establish ineffectiveness. “To prove he has received ineffective assistance of counsel, the defendant must show both that counsel’s performance was deficient and that this deficiency prejudiced the defense. Thus counsel’s performance will not be found to be deficient if it falls within the range of reasonably effective assistance. The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. As to deficient performance, errors in judgment and tactical errors do not constitute denial of effective assistance of counsel. [Cit.]” (Punctuation and citations omitted.) Powell v. State, 198 Ga. App. 509 (1) (402 SE2d 108) (1991). In his testimony, trial counsel offered an explanation for the absence of character witnesses, and we conclude that counsel’s judgment and tactics were reasonable under the circumstances. See Baines v. State, 201 Ga. App. 354 (1) (c) (411 SE2d 95) (1991). Counsel was an experienced trial lawyer and in general, conducted an active defense of appellant; in fact, we note that the defense undoubtedly had some part in appellant being convicted of a misdemeanor rather than a felony. See Mason v. State, 199 Ga. App. 691 (2) (405 SE2d 747) (1991). “ ‘A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. (Cit.)’ [Cit.]” Timberlake v. State, 200 Ga. App. 64 (5) (406 SE2d 537) (1991). The trial court’s decision was not clearly erroneous.

Decided June 24, 1992

Reconsideration denied July 23, 1992

Michael E. Bergin, for appellant.

Robert E. Keller, District Attorney, Tracy G. Gladden, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A92A0453.
    ENGLISH et al. v. LIBERTY MORTGAGE CORPORATION.
    (421 SE2d 286)
   Cooper, Judge.

This pro se action was brought by appellants against appellee after appellee foreclosed on a house purchased by appellants. In 1985, appellants purchased a house and executed a promissory note and deed to secure debt in favor of appellee. Appellants defaulted on the note, and appellee declared the entire indebtedness due and payable and subsequently commenced foreclosure proceedings. Between December 1986 and August 1990, appellants filed five bankruptcy petitions in an effort to stop the foreclosure. However, in September 1990, the foreclosure sale took place, and in November 1990, the sale was confirmed. In January 1991, appellants filed a document captioned “Jurisdiction,” which purports to be a complaint in an action to quiet title. In said document, appellants alleged that appellee committed fraud and violated the Georgia Racketeer Influenced & Corrupt Organizations Act and the Federal Extortions Credit Transactions Act. After filing responsive pleadings, appellee filed a motion to dismiss on the ground that appellants failed to state a claim upon which relief can be granted. The trial court granted appellee’s motion, and this appeal followed. Appellants set forth four enumerations of error. We note at the outset that “[a] motion to dismiss for failure to state a claim should be granted only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of the claim. [Cits.]” Lincoln Nat. Life Ins. Co. v. Davenport, 201 Ga. App. 175, 176 (410 SE2d 370) (1991). We also recognize that a pro se complaint is not to be held to a more stringent standard in determining whether a claim for relief has been stated. See Johnson v. Jones, 178 Ga. App. 346, 349 (343 SE2d 403) (1986).

1. In their first enumeration of error, appellants contend that the trial court erred in granting the motion to dismiss as to their claim of fraud. The fraudulent act alleged by appellants was that appellee never actually loaned money to appellants because there was never an actual tender of money to appellants by appellee. Appellants contend that as a result of never receiving value from appellee, they are entitled to a rescission of the note and subsequent sale of the property. Appellants’ complaint is insufficient in its allegation of fraud and it does not appear that appellants can prevail under any set of facts alleged in their complaint as to fraud. The record shows that appellants borrowed a sum of money from appellee for the purchase of a house and at the closing executed a promissory note and deed to secure debt in favor of appellee. Appellants defaulted on the promissory note and have failed to make any payments on the house since 1988 although appellants have elected to remain in the house. Appellants do not allege, nor does the record show, that any false representation was made by appellee which induced them to enter into the contract for the purchase of the house in which they continue to live. Even if we construe the pleadings in the light most favorable to appellants, the allegations in the complaint as to fraud do not disclose with certainty that appellants would be entitled to any relief under any set of provable facts in the complaint. See Lincoln Nat. Life Ins. Co. v. Davenport, supra. In their brief, appellants attempt to argue allegations of fraud which were not raised in the trial court. “ ‘[I]t is well established law that enumerations of error which raise questions for the first time on appeal present nothing for decision.’ (Citations and punctuation omitted.) [Cit.]” Mitchell v. Southern Gen. Ins. Co., 194 Ga. App. 218 (1) (390 SE2d 79) (1990).

Decided June 8, 1992

Reconsideration denied July 23, 1992

Harold English, pro se.

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

2. In their second enumeration of error, appellants contend that the trial court erred in dismissing their claim of usury. Appellants alleged in their “action” that appellee violated the Federal Extortions Credit Transactions Act by demanding amounts in principal and interest in excess of that allowed by law. The principal amount of appellants’ mortgage was $61,850 which accrued interest at the rate of 13 percent per year. Such interest was not in violation of OCGA § 7-4-2, and we find no error in the trial court’s dismissal of the action as to the usury claim.

3. In their last two enumerations of error, appellants contend that the trial court erred in dismissing the action as to appellants’ claim for breach of contract and request for punitive damages. The “action” filed by appellants does not include a claim of breach of contract or a request for punitive damages. Nor does it appear that appellants would be entitled to relief under any set of facts proved in support of a claim for breach of contract or punitive damages. Accordingly, we find no error with the trial court’s dismissal.

4. Appellee has moved for sanctions against appellants for filing a frivolous appeal. “ ‘Being unable to discern any reasonable ground upon which the appellants] might have anticipated the reversal of the trial court’s judgment, we assess a $500 penalty against the appellant^] pursuant to Rule 26 (b) of this court for pursuing a frivolous appeal.’ [Cit.]” Abrahamsen v. McDonald’s Corp., 193 Ga. App. 868 (6) (389 SE2d 386) (1989). Therefore, upon return of the remittitur, the trial court is directed to enter judgment against appellants in such amount.

Judgment affirmed with damages.

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


author: Carley, Presiding Judge.

text:
    A92A0501, A92A0712, A92A0713.
    ELDER v. CARDOSO et al.; and vice versa (three cases).
    (421 SE2d 753)
   Carley, Presiding Judge.

Appellant-plaintiff Dr. Ronald Elder is a pediatrician. Appelleedefendants Dr. David Cardoso, Dr. Samuel Goodrich, Dr. Suzanne Palmer and Dr. Curtis Veal are obstetricians and appellee-defendant Milledgeville OB-GYN Associates, P.C. (P.C.) is their professional corporation. Alleging that his professional reputation and medical practice had. been damaged, appellant brought suit against appellees for slander and tortious interference with his contractual and business relations. Appellees answered and, after discovery, cross-motions for summary judgment were filed. As to the slander claim, the trial court granted partial summary judgment in favor of appellees, concluding that appellant’s recovery based upon some, but not all, of the alleged defamatory statements attributed to appellees would be barred by the one-year statute of limitations. As to appellant’s remaining claims, the trial court denied appellees’ motions. In Case No. A92A0501, appellant appeals from the grant of partial summary judgment in favor of appellees on his slander claim. In Case Nos. A92A0712 and A92A0713, appellees cross-appeal from the denial of their motions for summary judgment.

Case Nos. A92A0712 and A92A0713

We will address appellees’ cross-appeals first.

1. Appellees urge that the trial court erred in granting only partial summary judgment as to appellant’s slander claim. According to appellees, the evidence of record demonstrates that they made no actionable defamatory statements and that, regardless of the statute of limitations, they were entitled to summary judgment on the merits of appellant’s slander claim.

Appellees had no legal obligation to recommend that appellant be selected as the pediatrician for their patients’ newborn children. Appellees were free to express to their patients their own opinions concerning appellant’s professional abilities and the quality of pediatric care that appellant might afford. Accordingly, no viable claim for slander can be predicated upon the fact that appellees had merely attempted to “dissuade” or “discourage” their patients from selecting appellant and that, in doing so, they expressed general negative opinions regarding appellant’s professional abilities. “The expression of opinion on ‘matters with respect to which reasonable men might entertain differing opinions’ ([cit.]) is not [slanderous]. The relative abilities of different [pediatricians] is patently such a matter, wholly subjective and not capable of proof or disproof. Appellee[s] here [are] entitled ... to express such opinions. ‘An assertion that cannot be proved false cannot be held [slanderous]. A [speaker] cannot be sued for simply expressing his opinion of another person, however unreasonable the opinion or vituperous the expressing of it may be. (Cits.)’ [Cit.]” Bergen v. Martindale-Hubbell, 176 Ga. App. 745, 747 (3) (337 SE2d 770) (1985).

Likewise, no viable claim for slander can be predicated upon the fact that appellees may have told their patients that they had “had trouble” with appellant’s availability for deliveries and that they had “had difficulty getting him to come to C-sections.” It is undisputed that, from appellees’ perspective, this was literally true. Appellant’s availability for deliveries had been a source of conflict between himself and appellees and appellees were entitled to express their opinions characterizing that conflict as “trouble” and “difficulty.” Such general statements would not be rendered slanderous merely because appellees failed to provide their patients with appellant’s explanation for the “trouble” and “difficulty.” Yandle v. Mitchell Motors, 199 Ga. App. 211 (404 SE2d 313) (1991).

However, appellant also relies upon alleged statements which were to the effect that he “did not attend deliveries and was not available when babies were sick.!’ Such specific statements are not merely expressions of a general negative opinion, but are capable of being proved to be true or false. Compare Bergen v. Martindale-Hubbell, supra. Appellant either did or did not attend deliveries and he either was or was not available when babies were sick. While there can be no liability for failing to explicate the admitted “trouble” and “difficulty” that had been experienced by appellees, where such an explanation was offered, it must have been truthful to avoid potential liability for slander. Compare Yandle v. Mitchell Motors, supra.

Construing the evidence most favorably for appellant, he never failed to attend any delivery. At most, appellant may have occasionally arrived later than was ideally advisable and did so only because of the lateness of the notice that had been given to him. Obviously, there is a significant difference between falsely advising an expectant mother that appellant “did not attend deliveries” and truthfully telling her that appellant had, on occasion, been somewhat late in arriving for a delivery. Insofar as appellant’s unavailability for “sick babies” is concerned, there is no evidence that this was true. Obviously, falsely advising an expectant mother that appellant “was not available when babies were sick” would be potentially actionable as a slander.

A review of the record shows that these false statements were allegedly made only by appellee Dr. Palmer and that they were made to only four of her patients: Angela Boone; Robin Harper; Sandra McCook; and Janet Peeler. Insofar as the other individual appellees are concerned, there is some evidence that they mutually agreed to cease recommending appellant to their patients, but there is no evidence that they themselves made any slanderous statements to their own patients or that they conspired with appellee Dr. Palmer to slander appellant to her patients. Compare Safety-Kleen Corp. v. Smith, 203 Ga. App. 514, 515 (3) (417 SE2d 171) (1992). It follows that, as to appellant’s slander claim, the trial court erred in granting only partial summary judgment in favor of all individual appellees except appellee Dr. Palmer. Construing the record most favorably for appellant, it was only appellee Dr. Palmer who made any slanderous statements and- no genuine issue of material fact remains as to the other individual appellees’ liability for her alleged slander of appellant.

2. It is urged that appellee Dr. Palmer is nevertheless entitled to summary judgment on appellant’s slander claim because the statements attributed to her were not published.

“Generally publication is accomplished by communication of the slander to anyone other than the person slandered. [Cit.] Over the years, however, an exception to the broad definition of publication has evolved: when the communication is intracorporate, or between members of unincorporated groups or associations, and is heard by one who, because of his/her duty or authority has reason to receive the information, there is no publication of the allegedly slanderous material, and without publication, there is no cause of action for slander. [Cits.] The legal fiction that no publication has occurred when the above criteria are met is based on the sentiment that ‘(s)tatements by either in the hearing of the other concerning such matters are the legal equivalent of speaking only to one’s self. . . .’ [Cit.]” (Emphasis supplied.) Kurtz v. Williams, 188 Ga. App. 14, 15 (3) (371 SE2d 878) (1988).

As expectant mothers, the patients of appellee Dr. Palmer may have had reason to receive information concerning the professional conduct of appellant and the other locally available pediatricians. However, in order to come within the Kurtz exception, it is not sufficient merely that the alleged slander was communicated to one having an interest in the subject matter. The communication must also have been made by one member of an organized group or association to another member of that organized group or association. The alleged slanderous statements in the instant case were made by appellee Dr. Palmer to four individuals with whom she shared no relevant common membership in any organized group or association. They were merely her patients and she was merely their obstetrician. When occurring in the context of the obstetrician-patient relationship, communications concerning referrals to pediatricians may be conditionally privileged under OCGA § 51-5-7. However, the existence of a conditional privilege is not the legal equivalent of the non-existence of actionable publication. See Kurtz v. Williams, supra at 16. In communicating with her patients, appellee Dr. Palmer was not, in effect, speaking only to herself, but was imparting information concerning appellant to third persons. Accordingly, the trial court did not err in failing to grant summary judgment in favor of appellee Dr. Palmer on the ground that she had not published the alleged slanderous statements attributed to her.

3. Assuming that the statements attributed to appellee Dr. Palmer were conditionally privileged pursuant to OCGA § 51-5-7, “it does not follow that [summary judgment] was in order. ... It was a jury question whether ‘the privilege was used merely as a cloak for venting private malice, and not bona fide. . . .’ [Cits.]” King v. Masson, 148 Ga. App. 229, 231 (1B) (251 SE2d 107) (1978). “[G]ood faith and good intentions are necessary and essential ingredients of a conditionally privileged communication. [Cit.]” Cohen v. Hartlage, 179 Ga. App. 847, 849 (348 SE2d 331) (1986).

4. In moving for summary judgment, appellee P.C. did not submit evidence which would authorize a finding that it had not expressly directed or authorized appellees to make any alleged slanderous statements. Compare Safety-Kleen Corp. v. Smith, supra at (1). Instead, appellee P.C. urged only that it was entitled to summary judgment on the ground that none of the individual appellees had made slanderous statements. Since a genuine issue of material fact does remain as to appellee Dr. Palmer’s liability for slander, it follows that the denial of summary judgment in favor of appellee P.C. as to appellant’s slander claim must be affirmed. A genuine issue of material fact remains as to whether appellee P.C. expressly directed or authorized appellee Dr. Palmer to slander appellant.

5. Appellees urge that the trial court erred in denying their motion for summary judgment as to appellant’s claims for tortious interference with his contractual and business relations.

In seeking a recovery under these theories, appellant relies entirely upon the words that appellees used in communicating with their patients. As noted in Division 1, the statements attributed to all but appellee Dr. Palmer are mere opinions whereby appellees’ patients were “dissuaded” or “discouraged” from selecting appellant because of the admitted “trouble” or “difficulty” experienced in connection with his past availability for deliveries. Accordingly, the trial court erred in failing to grant summary judgment in favor of all but appellees Dr. Palmer and P.C. as to appellant’s claim for tortious interference with his contractual and business relations. S & W Seafoods Co. v. Jacor Broadcasting of Atlanta, 194 Ga. App. 233, 237 (5) (390 SE2d 228) (1990).

6. The trial court’s denial of summary judgment as to all claims asserted by appellant is reversed except as to appellees Dr. Palmer and P.C.

Case No. A92A0501

7. Appellant enumerates as error the trial court’s partial grant of appellees’ motion for summary judgment on his slander claim. The contention is that the trial court erred in concluding that the one-year statute of limitations had run on any of the alleged defamatory statements attributed to appellees.

We note at the outset that the trial court’s ruling on the statute of limitations defense would have bearing only insofar as the liability of appellees Dr. Palmer and P.C. is concerned. Since we have held that all other appellees were entitled to summary judgment on the merits of appellant’s slander claim, any erroneous ruling on the statute of limitations defense would be harmful to appellant only insofar as it may have precluded him from a recovery based upon the four alleged statements attributed to appellee Dr. Palmer and discussed in Division 1. Of those four statements, three were found by the trial court to be barred by the statute of limitations. Accordingly, it is only those three statements attributed to appellee Dr. Palmer that are within the ambit of our instant discussion.

Previous to the filing of the instant action, appellant had apparently brought a similar action against appellees in federal court. It was alleged that this previous federal action was “void,” having been dismissed for lack of subject matter jurisdiction, and that appellant could not, therefore, rely upon the renewal provisions of OCGA § 9-2-61 (a) to toll the statute of limitations as to any alleged slanderous statement which had been made more than one year before the instant action had been filed against appellees. See Collins v. West Amer. Ins. Co., 186 Ga. App. 851, 852 (2) (368 SE2d 772) (1988). Urging that it was OCGA § 9-2-61 (c), not Collins, which was controlling, appellant contended that he was entitled to rely upon the renewal provisions of OCGA § 9-2-61 (a) and that the statute of limitations had not run. OCGA § 9-2-61 (c), which became effective only shortly before appellant filed the instant action, provides that the renewal provisions of OCGA § 9-2-61 (a) “shall apply if an action is discontinued or dismissed without prejudice for lack of subject matter jurisdiction in either a court of this state or a federal court in this state.”

Although there is a dispute between the parties as to whether Collins or OCGA § 9-2-61 (c) is controlling in the instant case, a dismissal of the federal action for lack of subject matter jurisdiction would clearly be a threshold requirement for the asserted applicability of either. Unless the federal action was dismissed for lack of subject matter jurisdiction, then reliance by appellees Dr. Palmer and P.C. upon Collins v. West Amer. Ins. Co., supra, would be misplaced. If the federal suit was not dismissed for lack of subject matter jurisdiction, it could not possibly be deemed “void” within the holding of Collins, supra. Likewise, unless the federal action was dismissed for lack of subject matter jurisdiction, then reliance by appellant upon OCGA § 9-2-61 (c) would also be misplaced. If the federal suit was not dismissed for lack of subject matter jurisdiction, it could not possibly be within the ambit of OCGA § 9-2-61 (c).

Decided July 10, 1992

Reconsideration denied July 23, 1992.

Federal, Goetz & Cronkright, R. Keegan Federal, Jr., Julie A. Goodwin, for appellant.

Drew, Eckl & Farnham, Hall F. McKinley III, Elizabeth C. Helm, Martin, Snow, Grant & Napier, Robert R. Gunn II, Buzzell & Pinkston, R. William Buzzell II, for appellees.

A review of the record has failed to disclose a copy of any final order showing that the federal suit was dismissed for lack of subject matter jurisdiction. It follows that we can neither affirm the trial court’s grant of summary judgment pursuant to Collins nor reverse that order pursuant to OCGA § 9-2-61 (c). Instead, the grant of summary judgment can be reversed only on the ground that there is no uncontroverted evidence that appellant’s instant action is not a valid renewal action pursuant to OCGA § 9-2-61 (a). On the record before us, the basis for the purported dismissal of the federal action remains unproven and a genuine issue of material fact thus remains as to whether or not appellant’s instant state action is a valid renewal action.

8. The trial court’s partial grant of summary judgment on the statute of limitations defense to appellant’s slander claim is reversed as to appellees Dr. Palmer and P.C.

Judgment in Case No. A92A0501 reversed. Judgments in Case Nos. A92A0712 and A92A0713 reversed in part and affirmed in part.

Pope and Johnson, JJ., concur.


text:
    A92A0519.
    WRIGHT v. THE STATE.
    (421 SE2d 331)
   Cooper, Judge.

In a six-count indictment appellant was charged with two counts of first degree homicide by vehicle, driving under the influence of alcohol, reckless driving, racing on a public street and running a red light. The first count of homicide by vehicle charged that appellant caused the death of another person by driving recklessly. The second count charged him with causing the death of another person by driving his vehicle while under the influence of alcohol. The jury convicted appellant on the first count of first degree homicide by vehicle, reckless driving and running a red light. He appeals from the judgment and sentence entered on the conviction and from the denial of his motion for new trial.

The evidence adduced at trial reflects that appellant and his friend, Wesley Parker, were taking turns driving Parker’s car around Brunswick, Georgia. Sometime after lunch, appellant and Parker stopped at a liquor store where they purchased a bottle of vodka. Appellant was driving the car when he and Parker left the liquor store, and both appellant and Parker had a drink of vodka and orange juice which Parker prepared. Approximately one hour later, a white car driven by Eric Spar pulled up beside the car driven by appellant. Spar and appellant revved their engines, accelerated and then drove off down the road. Appellant drove through a red light at an intersection and collided with another car, killing the driver of that car.

1. Appellant first contends that a new trial should have been granted because the State violated the mandates of Brady, by not disclosing that immunity had been granted to Spar. Because Spar was also charged with reckless driving and homicide by vehicle, as a result of the incident with appellant, the State petitioned the court prior to trial to grant Spar use and derivative use immunity with respect to any testimony he might give at trial. At the time of trial, the State had not received the order granting the immunity but assumed that the immunity had been granted. Use and derivative use immunity “protects the witness from the use of either the incriminating testimony or the fruits of such testimony.” State v. Hanson, 249 Ga. 739, 741 (295 SE2d 297) (1982). Spar was not granted immunity from prosecution in exchange for his testimony, thus there was no “deal” between the State and Spar which should have been disclosed pursuant to Brady. Furthermore, the State did not call Spar as a witness at trial. Accordingly, we find no merit to this enumeration. See Griggs v. State, 181 Ga. App. 618 (6) (353 SE2d 97) (1987).

2. Appellant also alleges that the trial court erred in allowing lay witnesses to testify as to the speed of appellant’s vehicle. A witness to the collision testified that immediately after she heard the roar of car engines, she saw appellant’s car and another car accelerate at a high rate of speed. She also testified that the car driven by appellant passed her at such a high rate of speed that it “rocked” her car. Parker testified that based on his familiarity with his car and his observations as a passenger in the car, including the sound of the engine, appellant was driving the car in excess of the speed limit at the time of the collision. “Where the question under examination, and to be decided by the jury, shall be one of opinion, any witness may swear to his opinion and belief, giving his reasons therefore.” OCGA § 24-9-65. “A layman’s opinion of speed is admissible when he has testified to the facts upon which the opinion is based. [Cit.]” Ewing v. Johnston, 175 Ga. App. 760 (3) (334 SE2d 703) (1985). We find no error in the trial court’s admission of the testimony.

Decided July 6, 1992

Reconsideration denied July 23, 1992

James A. Yancey, Jr., for appellant.

W. Glenn Thomas, Jr., District Attorney, Charles K. Higgins, Assistant District Attorney, for appellee.

3. Appellant argues that the trial court erred in its recharge to the jury. The record reflects that the jury asked the court to define the difference between first and second degree homicide by vehicle as to Count 2 of the indictment. The trial judge first explained to the jury that appellant was charged under Count 2 with homicide by vehicle in the first degree by unlawfully causing the death of another person by driving a motor vehicle while under the influence of alcohol. The trial judge then instructed the jury in accordance with OCGA §§ 40-6-393 (a) and (b); 40-6-391; and 40-6-392 (b) (2), and we find that the charge was an accurate statement of the law. Accordingly, we find no merit to appellant’s argument.

4. In two enumerations of error, appellant contends that the trial court erred in denying his motion for directed verdict of acquittal and that the evidence was insufficient to support the conviction. Appellant’s argument is based on his assertion that the State failed to prove the speed of appellant’s car at the time of the collision. “A defendant is entitled to a directed verdict ‘(w)here there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. . . .’ OCGA § 17-9-1 (a).” Scavonne v. State, 193 Ga. App. 603 (1) (388 SE2d 735) (1989). As noted in Division 2, the witnesses were properly allowed to give their opinion as to the speed of appellant’s car. Our review of the trial transcript reveals ample evidence from which the jury could have found that appellant was guilty of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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