text:
    A95A1271.
    J-MART JEWELRY OUTLETS, INC. et al. v. STANDARD DESIGN et al.
    (462 SE2d 406)
   Blackburn, Judge.

Appellant Diamond Jim Halter, individually and d/b/a Diamond Jim’s Emporium, appeals from the trial court’s partial denial of his motion for directed verdict and the jury’s verdict piercing the corporate veil thereby holding him responsible for the obligations of the corporation in which he was the major shareholder.

In identical complaints against J-Mart Jewelry Outlets, Inc. (J-Mart), the Tifton Diamond House, Inc., and Halter, four J-Mart suppliers, Standard Design, JGL, Inc., Roma Industries, Inc., and Interings, Inc., alleged joint and several liability on open accounts, fraud, and racketeering as evidenced by theft and mail fraud. By agreement of the parties, the complaints were consolidated for the jury trial. Upon the close of evidence, the trial court granted Halter’s motion for directed verdict as to the racketeering count but denied the motion as to Halter’s personal liability to the suppliers for alleged corporate debts determining that the evidence presented a jury question as to whether the corporate veil had been pierced. The jury returned a verdict against both corporate defendants and Halter personally, awarding $107,517 to Standard Design, $184,104.29 to JGL, $64,261.57 to Roma, and $136,819.93 to Interings.

1. Halter argues that the evidence was insufficient to support the jury’s finding that he is individually liable to appellees. We disagree.

“The concept of piercing the corporate veil is applied in Georgia I to remedy injustices which arise where a party has over extended his I privilege in the use of a corporate entity in order to defeat justice, perpetrate fraud or to evade contractual or tort responsibility. Because the cardinal rule of corporate law is that a corporation possesses a legal existence separate and apart from that of its officers and shareholders, the mere operation of corporate business does not render one personally liable for corporate acts. Sole ownership of a corporation by one person or another corporation is not a factor, and neither is the fact that the sole owner uses and controls it to promote his ends. There must be evidence of abuse of the corporate form. Plaintiff must show that the defendant disregarded the separateness of legal entities by commingling on an interchangeable or joint basis or confusing the otherwise separate properties, records or control.” (Punctuation omitted.) Fuda v. Kroen, 204 Ga. App. 836, 837 (1) (420 SE2d 767) (1992).

In deciding this enumeration of error, we are confronted with two maxims that sometimes conflict. On the one hand, we are mindful that “[g]reat caution should be exercised by the court in disregarding the corporate entity. [Cit.] ” (Punctuation omitted.) Williams Plaza v. Sedgefield Sportswear &c., 164 Ga. App. 720, 721 (297 SE2d 342) (1982). On the other, it is axiomatic that “when litigated, the issue of ‘piercing the corporate veil’ is for the jury[,]” id. at 724, unless there is no evidence sufficient to justify disregarding the corporate form. Id. Our examination of the trial transcript convinces us that there is evidence in this case rising to such level.

Halter knew as early as late April but not later than June 1991 that J-Mart would have to cease operations as a result of its financial difficulties. There was direct evidence that the $6,902.87 balance on Halter’s American Express personal account was paid by J-Mart on December 23, 1991, eight days before it ceased doing business. The check was marked “PAYMENT IN FULL: JIM’S PERSONAL!,]” indicating that a material question of fact existed as to whether Halter used corporate funds to pay a personal debt. The evidence also established that J-Mart, with knowledge that it would soon cease doing business, purchased a new Cadillac for Halter’s use. It thereafter made three payments on the vehicle before transferring it to Halter for $1 and allowing him to assume the remaining payments indicating the presence of further questions of material fact relative to a de facto unauthorized payment for Halter’s personal benefit. See Abbott Foods of Ga. v. Elberton Poultry Co., 173 Ga. App. 672, 673-674 (327 SE2d 751) (1985) (evidence that sole stockholder used corporate funds to pay himself salary advances and to make loan and insurance payments on his personal automobile relevant to determine whether corporate entity used as mere instrumentality to conduct personal affairs). In light of the evidence presented, the trial court properly denied the motion for a directed verdict upon the claim of Halter’s personal liability for violation of the corporate form. OCGA § 9-11-50 (a). See Shaw v. Ruiz, 207 Ga. App. 299, 303 (428 SE2d 98) (1993) (“ ‘A directed verdict is not authorized unless there is no conflict in the evidence on any material issue and the evidence introduced, with all reasonable deductions demands a certain verdict. [Cits.]’ ”).

Decided September 6, 1995.

Evidence raising material questions of fact as to Halter’s possible abuse of the corporate form were thus properly before the jury. “On appeal, we construe all the evidence most strongly in support of the verdict, for that is what we must presume the jury did; and if there is evidence to sustain the verdict, we cannot disturb it. McLarty v. Kushner, 173 Ga. App. 432 (326 SE2d 777).” J. C. Penney Cas. Ins. Co. v. Woodard, 190 Ga. App. 727, 730 (380 SE2d 282) (1989). So viewing the evidence, we conclude that the jury’s verdict was proper and must stand.

2. Halter also contends that the trial court erred in denying his motion for directed verdict in that the oral repayment agreements alleged by appellees were barred by the Statute of Frauds. OCGA § 13-5-30 (2). Inasmuch as the jury properly rendered its verdict as to Halter’s individual liability upon evidence sufficient to pierce the corporate veil, we need not address the applicability of the Statute of Frauds.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

William R. Folsom, for appellants.

James G. Tunison, Jr., for appellees.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A95A2024.
    BANK SOUTH, N. A. v. GRIZZLE et al.
    (462 SE2d 170)
   Birdsong, Presiding Judge.

By grant of interlocutory appeal, Bank South appeals the denial of summary judgment in this suit on defendant Dean Grizzle’s guaranty of a promissory note. The limit on Grizzle’s liability under his guaranty was $50,000 principal, plus interest, reasonable attorney fees and costs of collection, and his guaranty was to remain in effect “indefinitely, unless and until [Grizzle] shall deliver written notice of termination to the bank.”

Grizzle says he wrote a letter terminating his guaranty. After the date on which Grizzle says he sent this letter, Bank South renewed the note for $36,310.76. No new sums were advanced. Bank South says it has no record of such a letter from Grizzle and did not receive it, and that even if Grizzle had sent such a letter, his guaranty binds him to a renewal of the existing debt. Held:

1. Under American Express &c. v. Berlye, 202 Ga. App. 358, 360 (414 SE2d 499) (which also involved a guarantor’s termination letter), no presumption arises that a letter has been received in the mail unless it is shown that the letter (1) was written; (2) was properly addressed to the party; (3) contained the correct postage; and (4) was duly mailed in the United States Post Office. No such showing was made in this case. Grizzle attempts to infer from circumstances that Bank South received his letter, but when there is no showing that the letter was mailed, ambiguous circumstances do not create an issue of fact as to whether the letter was received.

2. Even if Grizzle sent a termination letter, it was ineffective to terminate his guaranty of the renewal of the note. The guaranty provides: “This is a continuing guaranty, and shall remain in full force and effect indefinitely. . . . Upon receipt of . . . written notice of termination . . . the undersigned shall remain liable hereunder for all then existing indebtedness, liabilities, and obligations of debtor . . . with any renewals and extensions thereof . . . but. . . shall have no liability hereunder for new credit extended to debtor . . . after receipt of such written notice of termination.” (Emphasis supplied.)

“ ‘A party may consent in advance to the conduct of future transactions and will not be heard to “claim his own discharge” upon the occurrence of that conduct.’ ” Panasonic &c. v. Hall, 197 Ga. App. 860, 861 (399 SE2d 733). Grizzle’s guaranty binds him to the renewal of this note, and he cannot claim that the renewal discharged him.

Decided September 6, 1995.

King & Carragher, Joseph R. Carragher, for appellant.

Sprouse, Tucker & Ford, William L. Tucker, for appellees.

Grizzle contends, however, that in the language of the guaranty the word “renew” clearly referred only to changes in the time or manner of payment and that his guaranty is terminated because Bank South changed the collateral by perfecting a security interest and also changed the interest rate. This allegation by Grizzle creates no bona fide controversy. The guaranty plainly provides: “The Bank is hereby authorized, without any notice to or consent of the [guarantor] to modify, extend, renew, or alter the time or manner of payment; increase, reduce, or otherwise change the interest rate or method of calculating interest; [and] release, impair, exchange or substitute collateral.”

Grizzle’s guaranty therefore extended to this renewal of the note under the plain terms of the guaranty, even if he had sent a letter attempting to terminate his guaranty. The trial court erred in denying summary judgment to Bank South.

Judgment reversed.

Johnson and Smith, JJ., concur.


text:
    A95A2028.
    UNDEN v. THE STATE.
    (462 SE2d 408)
   Birdsong, Presiding Judge.

Jack Edward Unden appeals his conviction of four counts of sexual exploitation of children in violation of OCGA § 16-12-100; he enumerates three errors. Held:

1. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737).

2. Appellant asserts the trial court erred in denying his motion for directed verdict as to Counts 2 and 3, because the photographs introduced in evidence to support these counts do not show any exhibition of the pubic area, as averred in the special presentment. The test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), “is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.” Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436).

The record reveals that Counts 2 and 3 both aver that appellant unlawfully and knowingly exhibited with intent to sell a photographic medium depicting appellant’s minor daughter engaged in sexually explicit conduct, to wit: lewd exhibition of her pubic area. The offenses averred in Counts 2 and 3 occurred on two different days, and the photographs were exhibited to different witnesses. The record reveals that each of two witnesses identified both State Exhibits 2 and 3 as containing reprocessed photographs (of better viewing quality) of the similar photographs originally exhibited to them by appellant.

The evidence establishes that appellant’s minor daughter had shaved her pubic area, and the position of the minor’s body in the photographs raises an issue of fact as to whether the pubic area was actually exhibited in various photographs. A question clearly existed requiring jury determination whether any of the photographs transmitted by appellant to the witnesses for their viewing in fact exhibited the minor’s pubic area, and whether it did so lewdly, as averred in each count. We find as matter of law that no photograph contained within State Exhibit 2 exhibited, lewdly or otherwise, the minor’s pubic area. However, we find that one photograph contained in State Exhibit 3 presented a jury issue as to whether it depicted a lewd exhibition of the minor’s pubic area. This particular photograph could have been exhibited by appellant on different days and, if found by the jury to have been exhibited as averred, would support appellant’s conviction for each separate offense charged in Counts 2 and 3 of the indictment. Accordingly, appellant’s contention that Count 3 is not supported by any photograph displaying the minor’s pubic area, because the only photograph conceivably showing such area was offered as part of the proof of Count 2, is without merit.

Two witnesses testified that appellant had exhibited to them original photographs similar to the reprocessed photographs contained in State Exhibits 2 and 3. If the jury found that the minor had exhibited her pubic area as averred in Counts 2 and 3, whether such exhibition was lewd so as to constitute sexually explicit conduct, as charged, was a question for jury determination. Unless an act is found not to be lewd as a matter of law, whether such act is lewd under the attendant circumstances usually “is best left to a jury for determination.” Collins v. State, 160 Ga. App. 680, 683 (288 SE2d 43).

Pretermitting whether a violation of OCGA § 16-12-100 (b) (5) by the knowing exhibit of any visual medium which depicts a minor engaged in any sexually explicit conduct requires that such exhibition be done with intent to sell or distribute is whether there exists evidence giving rise to a jury issue as to whether appellant did “exhibit with intent to sell,” as averred in Counts 2 and 3 of the indictment. We find that there exists adequate evidence of record so as to present for jury determination the issue whether appellant’s “exhibit” of photographs, as averred in Counts 2 and 3, was accomplished with intent to sell. See Dworkin v. State, 210 Ga. App. 461, 462 (436 SE2d 665) (intent may be inferred from and, usually of necessity, must be proved by circumstantial evidence). We need not here determine whether the averred “intent to sell” was surplusage as the offense charged was to “exhibit” unlawfully in violation of OCGA § 16-12-100 (b) (5).

Appellant’s first enumeration of error is without merit. See Divisions 1 and 6.

3. Appellant’s second enumeration is that the evidence is insufficient to support convictions on Counts 1 and 4 (permitting a minor to be photographed in lewd exhibition of the pubic area) because the uncontradicted evidence is that the only two instances of genital exposure were accidental and were not done at appellant’s direction. Whether these two conceded instances of pubic area exposure in State Exhibit 1 were accidental and whether they were done at appellant’s direction presented a question of fact for jury determination. See Carroll v. State, 208 Ga. App. 316, 317 (1) (430 SE2d 649). Likewise presenting a question of fact for jury determination is whether the numerous instances of the minor’s pubic area exposure occurring in the videotapes (State Exhibits 9 and 10) were done at appellant’s direction. Such issues can be established by either circumstantial or direct evidence or a combination of both. OCGA § 24-1-1; compare Continental Assur. Co. v. Rothell, 227 Ga. 258, 261-262 (181 SE2d 283).

Appellant’s second enumeration of error is without merit. See Divisions 1 and 6.

4. In his third enumeration, appellant contends the trial court erred in summarily overruling his objection to improper and inflammatory closing argument by the prosecutor. The record reveals that appellant’s counsel only interrupted the State’s closing argument on one occasion. Following the State’s contention that the conduct in question was made “even more lewd and obscene” because the minor’s father was “promoting this conduct,” appellant’s counsel stated: “We discussed in chambers the fact that he would not — that you would define ‘lewd’ and he’s bringing in other parts that my client’s not on trial here for. He’s on trial for allowing Rebecca to make a lewd display of her pubic area. It’s not his conduct. The only conduct he’s charged with is allowing her to do something, not whether it’s against community standards of what he keeps going into that. That is not the question for the jury.” Although the trial court thereafter “overrule[d] that objection,” we conclude that appellant failed to pose a specific objection in proper form. See McGee v. State, 205 Ga. App. 722, 727 (9) (423 SE2d 666); Gully v. Glover, 190 Ga. App. 238, 241 (4) (378 SE2d 411). Where appellant fails to pose timely a specific objection in proper form to an alleged improper argument of opposing counsel, an appellate court is precluded from reviewing the remarks at issue on appeal. See Isaac v. State, 263 Ga. 872, 874 (4) (a) (440 SE2d 175); but compare Todd v. State, 261 Ga. 766, 767 (2) (a) (410 SE2d 725).

Assuming arguendo, appellant had managed to pose an adequate objection to the above-described comments of opposing counsel on the grounds (as argued in his appellate brief) that the State “is not permitted to go outside the facts appearing in the case,” the trial court did not err in overruling the objection. Those particular comments constituted permissible deductions from evidence before the factfinder. It is permissible for counsel to draw deductions from the evidence regardless of how illogical or unreasonable. This is a matter for reply by adverse counsel and not the subject of rebuke or mistrial by the court. Adams v. State, 260 Ga. 298, 299 (392 SE2d 866).

Additionally, having examined all comments by the State made in closing argument to which appellant now contends gave rise to prejudicial error, we are satisfied that there exists no reasonable probability that such remarks, either individually or collectively, changed the result of the trial within the meaning of Todd, supra.

5. Appellant, citing Jackson v. State, 205 Ga. App. 513 (3) (422 SE2d 673), asserts that this case should be reversed due to the trial court’s failure to charge the jury as to the six factors of United States v. Dost, 636 FSupp. 828, 831 (S.D. Cal.), aff’d sub nom., United States v. Wiegand, 812 F2d 1239 (9th Cir.), which was therein applied in construction of a criminal statute so as to clarify the term, “ ‘lascivious exhibition of the genitals or pubic area.’ ” Compare United States v. Wolf, 890 F2d 241 (10th Cir.) and United States v. Villard, 885 F2d 117 (3rd Cir.). Pretermitting whether appellant waived this issue by failing to request timely such an instruction at trial is the question whether appellant has preserved this issue for appellate review by asserting it in his enumeration of error. We find that “[t]his assertion is beyond the reasonable scope of appellant’s enumeration of error; an enumeration of error cannot be enlarged by a brief to give appellate viability to an issue not contained in the original enumeration. [Cits.] Thus, this issue is not preserved on appeal.” Krebsbach v. State, 209 Ga. App. 474, 475 (2) (433 SE2d 649). Accordingly, we do not address the merits of appellant’s specific assertion of reversible error based on the trial court’s alleged failure to instruct sua sponte on the so-called Dost factors, nor do we here determine whether a Dost factor charge is either appropriate or indispensable in sexual exploitation cases arising from an averred violation of Georgia law.

6. To support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). Under this rule, the State is not required to remove every possibility of innocence of the crime charged. Ross v. State, 214 Ga. App. 697, 698 (448 SE2d 769). Viewing the evidence of this case in a light most favorable to the verdict, we conclude that the jury rationally could have found that it excluded every reasonable hypothesis except that of the defendant’s guilt as to the offenses of which he was convicted; the jury was authorized by the evidence presented to exclude other possible hypotheses as unreasonable. Id. at 699. Review of the transcript, including the original exhibits admitted for jury consideration, reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which convicted. Jackson v. Virginia, supra.

Decided September 6, 1995

Edward L. Adams, for appellant.

Jack O. Partain III, District Attorney, for appellee.

Judgment affirmed.

Johnson and Smith, JJ., concur.


author: Beasley, Chief Judge.

text:
    A95A0924.
    TWITTY et al. v. AKERS.
    (462 SE2d 418)
   Beasley, Chief Judge.

Akers petitioned for guardianship over her 67-year-old husband in compliance with OCGA § 29-5-6 (a). Her husband’s adult children filed a short “Objection to Guardianship Petition and Request for Guardianship,” agreeing that a guardian was warranted but asking the probate court to appoint as guardian Valerie Peterson, one of the children. The probate court appointed Akers, and the children appealed to the superior court. That court granted Akers’ motion to dismiss the appeal on the ground the children had no right to appeal under OCGA § 29-5-11 as neither they nor Peterson were “petitioners.” The validity of the ruling is the issue on appeal.

Right to appeal from the probate court to the superior court in this case is governed by the specific statute, OCGA § 29-5-11, rather than the more general statute, OCGA § 5-3-2. See Ga. Mental Health Institute v. Brady, 263 Ga. 591, 592-594 (2) (436 SE2d 219) (1993). As relevant here, OCGA § 29-5-11 (a) provides that “the ward, individually or by his attorney, his representatives, or his guardian ad litem, or the petitioner may appeal from any final order of the probate court.” A guardian ad litem was appointed for the ward, but neither he nor the ward sought an appeal.

The children first contend Akers was barred from raising any objection to Peterson’s status as a “petitioner” in the superior court because no such objection was raised in the probate court. Appeal provides a de novo review. See OCGA §§ 29-5-11 (b); 5-3-29. In addition, the issue of whether Peterson was a “petitioner” did not arise in probate court; it concerns only the right to appeal the probate court’s order and does not affect whether Peterson could be appointed guardian. See OCGA § 29-5-2 (a), (b), and (c). Akers did not, and could not, waive an argument that arose upon appeal.

As to whether Peterson can be considered a petitioner for the purposes of OCGA § 29-5-11, it is uncontested she did not prepare a petition that would satisfy the requirements of the probate code. A petition for guardianship must be made under oath, set forth certain information concerning the proposed guardian and ward, and usually must include an affidavit of a physician or psychologist that the proposed ward is incapacitated and the cause of such incapacity. OCGA § 29-5-6 (a). The “Objection to Guardianship Petition and Request for Guardianship” satisfied none of these requirements.

Nor does the fact that a correct petition had been filed convert Peterson’s objection to that petition into an independent petition satisfying the requirements of OCGA § 29-5-6. The statute does require a petitioner to identify adult children of a prospective ward, who will receive notice of the petition if it goes forward. OCGA § 29-5-6 (a) (2) (F) and (b) (2) (C). This process allows them the opportunity to bring additional information to the attention of the court. Doing so, however, does not have the effect of making them parties to the petition, nor does contesting the petition satisfy the requirements for a petition as set forth in OCGA § 29-5-6.

The children also contend the probate court’s order shows the court considered Peterson to be a petitioner by its statement that the court saw no reason “to deviate from the guardianship preference set forth in OCGA § 29-5-2.” This passage does not indicate the probate court considered Peterson as a petitioner, and the order in fact refers to the children as “Respondents.” Moreover, even if the probate court considered Peterson as a possible guardian, that does not convert her into a petitioner; a probate court is not restricted to appointing only those who have filed petitions. See OCGA § 29-5-2 (a). Nor does the fact that the court gave Peterson notice of proceedings render her a petitioner; notice is not given to relatives to confer separate rights upon them but to protect the interests of the ward and the State. See Phillips v. Phillips, 202 Ga. 776 (44 SE2d 767) (1947). Peterson could not be considered a petitioner without filing a petition. Compare Kelley v. Kelley, 129 Ga. App. 257 (199 SE2d 399) (1973).

The children also assert they should be considered representatives or “next friends” of the ward under OCGA § 29-5-11 (a). They admit that none of them was appointed representative, see OCGA § 29-5-6 (a) (2) (G), or guardian ad litem, see OCGA § 29-5-6 (b) (2) (D), but they argue that they should be considered “next friends” because no better person exists to fill such a role.

Decided September 11, 1995

Robert P. McFarland, for appellants.

Boling, Rice, Bettis, Bottoms & Bagley, Jeffrey S. Bagley, for appellee.

There is no provision in OCGA § 29-5-11 (a) for an appeal by a “next friend,” nor does the ward need someone to fill that role to protect his interests. The ward himself has a right to appeal and his guardian ad litem has an independent right to appeal if he believes the ward’s interests have not been protected. The children may be interested persons whose input is relevant in the probate court, but they do not, despite their filial ties, represent interests identical to that of the ward. It is the ward’s rights to review that are preserved by OCGA § 29-5-11 (a), not the rights of any and all objectors. The guardian ad litem’s duty is to protect the ward’s rights; the statute does not provide that objectors, even adult children, may step in for the guardian ad litem if they are dissatisfied with his decisions concerning the ward’s interests.

Because Peterson and the other adult children did not file a petition for guardianship under OCGA § 29-5-6 (a) and do not hold any other status under OCGA § 29-5-11 (a), they had no right to appeal the probate court’s decision. The superior court correctly dismissed the appeal. This circumstance does not eliminate the children’s opportunity to monitor their father’s care; in addition to the rights given them in the probate court’s final order, they may seek modification or termination of the guardianship if circumstances ever warrant it. See OCGA § 29-5-9 (a).

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


text:
    A95A1313.
    BROWN v. THE STATE.
    (462 SE2d 420)
   Beasley, Chief Judge.

A jury convicted Jake Brown of driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (4). He appeals this conviction after having been acquitted of homicide by vehicle in the first degree (OCGA § 40-6-393), driving too fast for conditions (OCGA § 40-6-180), and failure to wear a safety belt (OCGA § 40-8-76.1). The charges arose when Brown and his friend were drinking and driving around visiting friends. Their car rounded a curve, and spun out of control. The friend died in the resulting crash and Brown sustained serious injuries which required immediate hospitalization.

The investigating officer first contacted Brown at the hospital. Upon entering Brown’s room, the officer noticed the odor of alcohol and advised Brown of his implied consent rights. The officer did not remember whether the advice was given before or after the arrest. In any event, the arrest warrant was issued almost two weeks after the accident.

Prior to trial, Brown moved to exclude intoximeter results, arguing that the State failed to provide him proper notice of his implied consent rights. No intoximeter test was administered, but the court found that Brown’s motion sufficiently raised the issue of the admissibility of the blood test. On the day of trial, Brown filed a “motion in limine and renewed motion to suppress evidence,” which asserted that the results of the blood alcohol test at the hospital should be excluded because he was not in custody when it was administered and the test was not performed in compliance with administrative regulations, under the auspices of the State Patrol, or at the behest or expense of the State. The court heard and denied the motion.

1. Brown enumerates as error the denial of these motions. He contends that the implied consent statute did not authorize the extraction of his blood because (1) he was not under arrest when the blood sample was taken and (2) the State failed to present evidence that he was driving.

The results of the blood test were admissible. OCGA § 40-5-55 (a) states that “any person who operates a motor vehicle upon the highways . . . throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391 or if such person is involved in any traffic accident resulting in serious injuries or fatalities.” Because this case involved a fatality, an arrest prior to testing was not required to activate Brown’s implied consent. Lewis v. State, 215 Ga. App. 796 (452 SE2d 228) (1994) (pre-arrest test admissible when serious injury).

Brown argues that the admission was error because OCGA § 40-5-55 applies only to persons operating a vehicle and the officer lacked probable cause to believe he was driving at the time of the accident. OCGA § 17-5-30 requires that motions to suppress “be in writing and state facts showing that the search and seizure were unlawful.” Unless this requirement is satisfied, the State is under no obligation to present evidence in rebuttal. Wilson v. State, 197 Ga. App. 181, 183 (397 SE2d 744) (1990). Brown failed to raise this ground in his written motion, although he did so cursorily at the suppression hearing. Thus, denial of the motion based on the State’s failure to prove that Brown was driving was not error. Id. We decline to follow the non-binding cases Brown relies on for the proposition that the admission of prearrest test results violates the Fourth Amendment.

2. Also enumerated as error is the denial of Brown’s motion to conduct voir dire in panels of 12 as being in violation of OCGA § 15-12-131. It is not argued that this procedure constituted harmful error. See Oliver v. State, 207 Ga. App. 681, 682 (4) (428 SE2d 681) (1993).

Prior to jury selection, the trial court stated “I am going to permit the state and defense to pose general voir dire questions to the panel of thirty-four, as you see fit. After general voir dire, the state and defense will be permitted to pose individual voir dire questions as each sees fit. And as far as panels of twelve: there is a panel of twelve in the jury box; there are panels of twelve in the first two rows; and ten seated on the third row. They can be voir dired any way you see fit.” Both parties conducted general voir dire, and neither desired any individual voir dire. When asked if he had any objection to the 34-member panel from which the jury was to be selected, Brown answered in the negative.

OCGA § 15-12-131 provides for the voir dire examination of jurors in panels. It states, “it shall be the duty of the court, upon the request of either party, to place jurors in the jury box in panels of 12 at a time, so as to facilitate their examination by counsel.” OCGA § 15-12-131. Conducting the examination in panels of 12, each segregated from the others without being seated in the jury box seriatim, is not reversible error. Perez v. State, 258 Ga. 343, 344 (2) (369 SE2d 256) (1988). That is the case here.

3. Brown argues that the trial court denied him the right to a fair and impartial jury by disallowing his exercise of peremptory challenges and reinstating three jurors he struck. He limits his argument to the practice of reinstating the excluded jurors and does not contest the court’s implicit finding that he exercised his peremptory challenges in a discriminatory manner.

For jury selection, the trial court employed a silent strike method of jury selection so no jurors knew which party excused them. Brown used his peremptory challenges to strike eleven white jurors and one black alternate. The State challenged this selection, contending that the white jurors had been excluded on account of their race. The clerk of court testified that Calhoun County was 54 percent black and 46 percent white and the jury as selected was 75 percent black and 25 percent white. The court found that the State made out a prima facie case of discrimination, implicitly rejected the race-neutral reasons Brown offered for striking the jurors, and reinstated three of the white jurors over Brown’s objection. The jury ultimately consisted of a panel of six black and six white jurors.

Decided September 11, 1995.

Dorough & Sizemore, Kermit S. Borough, Jr., for appellant.

J. Brown Moseley, District Attorney, Ronald S. Smith, Assistant District Attorney, for appellee.

The United States Constitution prohibits criminal defendants from exercising their peremptory challenges to purposefully discriminate on the basis of race. Georgia v. McCollum, 505 U. S. 42 (112 SC 2348, 120 LE2d 33) (1992). In Batson v. Kentucky, 476 U. S. 79, 99, n. 24 (106 SC 1712, 90 LE2d 69) (1986), the seminal case, the Supreme Court relegated to the states the methods for eliminating discriminatory peremptory challenges. It “expressed no view” on the propriety of reinstating improperly challenged jurors. Batson, supra, 99, n. 24.

Consistent with Batson’s directive to fashion appropriate methods, we have at least implicitly condoned the practice of reinstating improperly challenged jurors. McKibbons v. State, 216 Ga. App. 389, 390-391 (455 SE2d 293) (1995); Buchanan v. State, 215 Ga. App. 143, 145-146 (449 SE2d 660) (1994). “The ‘prohibition of the discriminatory exercise of peremptory challenges does not violate a defendant’s Sixth Amendment right to a trial by an impartial jury. . . . [Cits.]’ [Cit.]” McKibbons, supra at 391. When a Batson challenge results in a finding that jury selection was not racially neutral and when, as here, the jurors remain unaware of the party who struck them, reinstating improperly challenged jurors does not abridge the defendant’s right to a fair and impartial jury.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


text:
    A95A1568.
    A95A1569.
    HARRIS v. THE STATE. McGILL v. THE STATE.
    (462 SE2d 425)
   Beasley, Chief Judge.

Both Harris (Case No. A95A1568) and McGill (Case No. A95A1569) appeal after being convicted of armed robbery. OCGA § 16-8-41 (a).

1. Harris contends the verdict was against the weight of the evidence and that the verdict was contrary to the evidence and law. Allegations of error concerning the weight of the evidence are addressed to the trial court alone. Stinson v. State, 185 Ga. App. 543, 544 (364 SE2d 910) (1988). This court will address only the legal sufficiency of the evidence under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

The victim testified Harris drove a car with several occupants and stopped near where the victim was standing. Harris then handed a gun to McGill, who was in the back seat; McGill exited the car, placed the gun to the victim’s head, and told him to relinquish his jewelry. McGill snatched the victim’s necklaces off his neck, returned to the car, and Harris drove it away. A friend of the victim was standing next to him at the time of the robbery and testified to the same effect, although he stated he did not see Harris hand the gun to McGill.

When arrested at his home, Harris produced the gun from his car pursuant to a consent to search. A defense witness who had been in the car at the time of the robbery testified that he had seen the gun at Harris’ home earlier on the day of the robbery. This witness also testified he saw no robbery, the gun was not in the car at the time of the incident to his knowledge, and Harris could not have handed McGill a gun without him seeing it happen. Three other occupants of the car also testified Harris had not given McGill the weapon and they had seen no robbery. In all, there were six or seven persons in the car at the time of the robbery.

Harris gave an in-custody statement in which he said “Rico got the gun” and committed the robbery. For the State’s case-in-chief it was redacted to read “someone got the gun.” McGill’s first name is Rico. The statement also said Harris drove off after he saw the robbery. No witness at trial testified that Harris drove off leaving McGill at the scene.

Harris’ in-custody statement and the testimony of witnesses other than the victim simply created a conflict in the evidence, requiring the jury’s resolution. Cantrell v. State, 210 Ga. App. 218, 219-220 (1) (435 SE2d 737) (1993). The evidence was sufficient to support Harris’ conviction. Jackson v. Virginia, supra; see McWhorter v. State, 198 Ga. App. 493 (1) (402 SE2d 60) (1991).

2. Both Harris and McGill contend the court should have severed their trials. McGill filed a motion to sever, and Harris joined in it at the hearing. McGill’s written motion addressed Harris’ in-custody statement, termed it inculpatory of McGill, and stated severance was appropriate to uphold his right of confrontation. Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968); see also Kesler v. State, 215 Ga. App. 553, 554-555 (1) (451 SE2d 496) (1994). As presented by the State, Harris’ redacted statement did not inculpate McGill. “ ‘(E)vidence of the confession of a co-defendant implicating a defendant cannot be admitted against that defendant at a joint trial where the co-defendant does not take the stand and is not available for cross examination.’ [Cit.] The implication of another defendant must be direct. It is not a Bruton violation if the redacted confession identifies the defendant only through the jury’s making connections with other evidence and drawing inferences. [Cit.]” Walker v. State, 213 Ga. App. 407, 413 (7) (444 SE2d 824) (1994). As there were six or seven persons in the car, the statement that “someone” took the gun and committed the robbery did not directly implicate McGill.

McGill contends a Bruton violation did occur when the arresting officer testified that Harris had implicated McGill in his statement. It was McGill’s questioning about Harris’ statement that first produced the information that the statement specifically implicated McGill. The redacted statement did not present a Bruton violation, and McGill cannot complain that one was created by his questioning. Smith v. State, 258 Ga. 181, 182 (1) (366 SE2d 763) (1988).

3. McGill asserts that the court abused the discretion granted in OCGA § 17-8-4 when it denied the motion to sever without considering: “(1) Whether a joint trial will create confusion of evidence and law; (2) whether there is danger that evidence implicating one defendant will be considered against the other, despite cautionary instructions to the contrary; and (3) whether the co-defendants will press antagonistic defenses. [Cit.]” Dennard v. State, 263 Ga. 453, 455 (5) (435 SE2d 26) (1993).

When making a motion to sever, “[t]he burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process. [Cit.]” Id. “ ‘[I]n the absence of this showing the trial court’s denial of the motion to sever will not be disturbed. [Cits.]’ [Cit.]” Adams v. State, 264 Ga. 71, 73 (3) (440 SE2d 639) (1994).

McGill did not make any such showing in his written motion or suggest at the hearing he was prepared to make a showing. It was McGill’s trial strategy that produced the information that Harris had implicated McGill. The motion to sever rested solely upon the problem addressed in Bruton. (See also Owens v. State, 193 Ga. App. 661, 662 (3) (388 SE2d 712) (1989), relied upon in McGill’s motion.) As discussed in Division 2, the statement as redacted did not present a Bruton violation, and McGill could not then be prejudiced by its introduction. Nor does the fact that the statement introduced an element of antagonism between the co-defendants require reversal; “[a]ntagonism between co-defendants ... is not enough in itself to require severance, rather appellant must also demonstrate that he was harmed by the failure to sever. [Cit.]” Dennard, supra at 455 (5). This McGill has failed to do.

4. Similarly, Harris’ argument that antagonism of defenses between himself and McGill required severance does not warrant reversal absent a showing of prejudice. He claims prejudice arose by his being tried with McGill when evidence would show McGill held a gun to the victim’s head. As this act of McGill’s, as well as the companionship of Harris and McGill, would necessarily be presented against Harris in a separate prosecution for armed robbery, the argument fails.

Decided September 11, 1995.

Jones & Gilson, Joseph W. Jones, Jr., for appellant (case no. A95A1568).

Thomas R. Morgan, Jr., for appellant (case no. A95A1569).

Peter J. Skandalakis, District Attorney, David S. McLaughlin, Assistant District Attorney, for appellee.

Judgments affirmed.

Pope, P. J., and Ruffin, J., concur.


text:
    A95A1724.
    POYTHRESS et al. v. WILKINS et al.
    (462 SE2d 423)
   Beasley, Chief Judge.

Plaintiffs, owners of a mobile home park in Effingham County, filed this complaint against the Tax Commissioner and Board of Commissioners (the “Board”) of Effingham County.

The Board established special districts for the provision of fire protection and solid waste management services. To provide partial funding for such services, the Board through resolutions imposed an annual assessment to be levied on all “dwelling units” in the sanitation district, and a tax assessment of $35 to be made and collected on, among other things, all “residential, taxable units” in the fire district. The resolutions do not define these terms.

The Tax Commissioner collected the assessments from property owners, including the owners of mobile home parks. The Board passed a motion instructing the Tax Commissioner to collect the fire assessment from mobile home owners with mobile home decals. For administrative reasons, the Tax Commissioner refused to collect either fire or waste management assessments except from the owners of property on which mobile homes are located. Accordingly, the Tax Commissioner refused to accept plaintiffs’ tender of their real property taxes without payment of these assessments for each rented space on their land occupied by a mobile home.

Plaintiffs instituted this action for a declaratory judgment, asserting that collection of the assessments in this manner: (1) violates the uniformity provision of the 1983 Georgia Constitution (Art. VII, Sec. I, Par. Ill), (2) constitutes an unlawful delegation of legislative authority to plaintiffs, and (3) is inconsistent with the resolutions of the Board.

Decided September 11, 1995.

Adams & Ellis, Dwight T. Feemster, for appellants.

The superior court granted the defendants’ motion for summary judgment and denied the plaintiffs’ similar motion after resolving each of the above three issues against plaintiffs.

Plaintiffs appealed to the Supreme Court, contending that the superior court erred in its resolution of each issue. Citing Northwestern Mut. Life Ins. Co. v. Suttles, 201 Ga. 84, 103 (2) (38 SE2d 786) (1946), and cases exemplified by Potts v. State Hwy. Dept., 225 Ga. 6 (165 SE2d 726) (1969), the Supreme Court transferred the appeal to us, on the ground that the appeal raises no constitutional questions within its jurisdiction but only questions as to the correctness of the taxing authorities’ construction of the resolutions and their authority to enforce those resolutions.

The taxing authorities argue that collection of the assessments against plaintiffs is authorized by the resolutions, because the terms “residential units” and “dwelling units” can be interpreted as meaning spaces in a mobile home park on which mobile homes are located as well as the mobile home itself. To the contrary, the terms “residential units” and “dwelling units” refer to mobile homes by their plain and ordinary meaning. See City of Cordele v. Hill, 250 Ga. 628 (300 SE2d 161) (1983); White v. Legodais, 249 Ga. 849, 850 (2) (295 SE2d 99) (1982); Fayette County v. Seagraves, 245 Ga. 196, 197 (264 SE2d 13) (1980); Kirk v. Lithonia Mobile Homes, 181 Ga. App. 533, 534 (2) (352 SE2d 788) (1987); Allstate Ins. Co. v. Walker, 111 Ga. App. 120, 122 (140 SE2d 910) (1965); OCGA § 43-40-1 (9). By definition, a mobile home is an item of personal property separate and apart from the real property on which it sits. The real property can in no way be considered a residence, dwelling, or residential or dwelling unit. Consequently, the taxing authorities are not authorized to enforce the assessments at issue against plaintiffs under the resolutions as worded. Compare Glendale Estates v. Mayor &c. of Americus, 222 Ga. 610, 611-612 (151 SE2d 142) (1966) (city ordinance provided that where a multiple residential premise was served through a master water meter, the bill for such water charge would be to the owner of the property served by the master meter); Pease v. City of College Park, 155 Ga. App. 120, 121 (270 SE2d 329) (1980) (corporate charter gave city power to assess sanitary taxes as a charge and lien against the real estate in respect of which said taxes were assessed).

Plaintiffs’ remaining contentions are moot.

Judgment reversed.

Pope, P. J., and Ruffin, J., concur.

Zipperer & Lorberbaum, Alex L. Zipperer, Janet S. Foerster, for appellees.


text:
    A95A1769.
    REDMOND v. SHOOK.
    (462 SE2d 172)
   Beasley, Chief Judge.

This is a medical malpractice action instituted by Redmond against Shook one day prior to expiration of the statute of limitation. Shook moved for summary judgment on the ground that Redmond failed to comply with the requirements of OCGA § 9-11-9.1. Shook stated as undisputed material fact that the document purporting to be the expert affidavit filed with Redmond’s complaint was signed by the expert in Pennsylvania and notarized by the notary public in Georgia, and that the oath was administered by the notary to the expert over the telephone. Redmond appeals the trial court’s grant of Shook’s motion for summary judgment.

1. Redmond contends that the court erred in ruling that his expert affidavit was invalid, in that the affiant was sworn upon his oath over the telephone before he signed the affidavit. On this basis, Redmond seeks to distinguish Carnes v. Carnes, 138 Ga. 1 (74 SE 785) (1912), relied upon by the trial court.

In Carnes, the plaintiff and her attorney testified that the plaintiff called the notary over the telephone and told him that she was swearing to an alimony petition and that her attorney brought it to the notary for his signature. Id. at 6 (3). The notary testified that the plaintiff did call and ask him to sign the petition and that he did sign it when it was brought to him by the plaintiff’s attorney; however, the notary did not testify that the plaintiff told him that she was swearing to the petition. The court in Carnes stated that if the testimony of the notary were to be believed, there was not the slightest effort to administer an oath; and if the testimony of the plaintiff and her attorney were to be taken as correct, there was still no legal making of an affidavit.

The court held, “In order to make an affidavit, there must be present the officer, the affiant, and the paper, and there must be something done which amounts to the administration of an oath. There must be some solemnity, not mere telephone talk. Long-distance swearing is not permissible.” Id. Thus, an oath cannot be administered over the telephone in Georgia. This is the rule in most jurisdictions. Hitchcock, Telephone Depositions in Georgia, 31 Georgia State Bar Journal, pp. 88, 90 (1995).

Redmond’s expert’s affidavit lacks a valid jurat. Inasmuch as a writing in the form of an affidavit has no force or validity in the absence of a valid jurat, Harvey v. Kidney Center of Central Ga., 213 Ga. App. 319, 320 (444 SE2d 590) (1994), the trial court did not err in ruling that under Carnes, Redmond’s expert affidavit was invalid. We lack the authority to entertain Redmond’s request that we overrule the Supreme Court’s decision in Carnes. Ga. Const., Art. VI, Sec. VI, Par. VI.

Decided September 11, 1995

Karen D. Barr, for appellant.

Oliver, Maner & Gray, William P. Franklin, Jr., Robert L. Persse, for appellee.

2. Redmond next contends that to conclude his case adversely because the oath was administered to his expert over the telephone rather than in person violates the command of OCGA § 9-11-8 (f) that “[a]ll pleadings shall be so construed as to do substantial justice.” OCGA § 9-11-8 (f).

OCGA § 9-11-9.1 (e) states that a complaint is subject to dismissal for failure to state a claim for relief if the plaintiff fails to file the requisite affidavit contemporaneously with the complaint. We have construed OCGA § 9-11-9.1 as establishing an exception to the general liberality of pleading permitted under the Civil Practice Act. 0-1 Doctors Mem. Holding Co. v. Moore, 190 Ga. App. 286, 288 (1) (378 SE2d 708) (1989). 0-1 Doctors is mandated. The clear mandate of OCGA § 9-11-9.1 does not permit our overruling that decision, as Redmond also requests.

Judgment affirmed.

Pope, P. J., and Ruffn, J., concur.


author: Smith, Judge.

text:
    A95A0960.
    CONSOLIDATED AMERICAN INSURANCE COMPANY v. SPEARS et al.
    (462 SE2d 160)
   Smith, Judge.

This is an appeal from an order on cross-motions for summary judgment in a declaratory judgment action. The Wests, dissatisfied purchasers of a home constructed by E.L. Spears and E.L. Spears, Inc., brought an action against them alleging fraud and breach of contract. Consolidated American Insurance Company defended the suit under a reservation of rights and non-waiver agreement. At trial, the jury returned its verdict on a special verdict form, finding that both defendants “did, by a preponderance of the evidence, defraud Plaintiffs,” and awarded damages to the Wests. The jury declined, however, to award punitive damages.

Consolidated American then brought this action against Spears, E.L. Spears, Inc., and the Wests, seeking a declaration of no coverage under its commercial general liability policy issued to E.L. Spears, Inc. Discovery proceeded, and the parties filed cross-motions for summary judgment. The trial court denied Consolidated American’s motion and granted summary judgment in favor of the defendants. This appeal followed.

1. Consolidated American contends the trial court erred in denying its motion for summary judgment and granting summary judgment to appellees because the policy excludes from coverage “ ‘bodily injury’ or ‘property damage’ expected or intended from the standpoint of the insured.” Southern Mut. Ins. Co. v. Mason, 213 Ga. App. 584, 586-587 (1) (445 SE2d 569) (1994). It asserts that the jury’s finding of fraud in the underlying action falls within this exclusion. We agree and reverse.

It is axiomatic that “ ‘[t]he tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff.’ ” (Citation omitted.) Baldwin v. Roberts, 212 Ga. App. 546, 547 (2) (442 SE2d 272) (1994). Because the tort of fraud is based upon a representation or concealment made with the intention and purpose to deceive, no coverage for such an act is provided under a policy which excludes coverage for “expected or intended” acts. Haley v. Ga. Farm &c. Ins. Co., 166 Ga. App. 596, 597 (305 SE2d 160) (1983).

Appellees maintain that the jury’s verdict in the underlying action does not speak the truth and that Spears and E.L. Spears, Inc. were actually found liable for “constructive fraud,” which they assert does not necessarily imply intent. However, “[constructive fraud is an equitable doctrine and will not support an action for damages. [Cit.]” Nalley Northside Chevrolet v. Herring, 215 Ga. App. 185, 187 (4) (450 SE2d 452) (1994). In order to support an action for damages, a misrepresentation must be made either knowingly or with reckless disregard for the consequences. Irvin v. Lowe’s of Gainesville, 165 Ga. App. 828, 830 (4) (302 SE2d 734) (1983). The trial court recognized this distinction in the charge conference. The Wests’ complaint in the underlying action alleges intentional fraud, and the consolidated pretrial order signed by the parties frames the issue in similar fashion. Finally, the parties agreed to the verdict form presented to the jury and did not object to the form of the verdict after it was returned by the jury. See Perryman v. Rosenbaum, 205 Ga. App. 784, 789 (4) (423 SE2d 673) (1992).

Spears offers the affidavits of several jurors in the underlying case in an attempt to show that the verdict does not reflect the jurors’ actual intentions. OCGA § 9-10-9 provides, however, that “[t]he affidavits of jurors may be taken to sustain but not to impeach their verdict.” This prohibition is strictly applied in civil cases. Perryman v. Rosenbaum, supra, 205 Ga. App. at 787 (3). “ ‘[A]fter a verdict has been received and the jury have dispersed, a juror will never be heard to say that he did not agree to the verdict.’ ” Id. at 786 (2) (a). An affidavit seeking to impeach a verdict will not be considered even if it attempts only to modify the verdict rather than overturn it. Indirect attempts to undermine the legitimacy of a verdict, claiming a misunderstanding of jury instructions or a mistake as to the contents of the verdict, are equally improper, and the trial court abused its discretion in considering jurors’ affidavits that attempted to change and impeach their verdict. Id. at 786 (2) (a), (b).

Moreover, this court has already affirmed the underlying judgment on the jury verdict by unpublished opinion, thereby finding sufficient evidence to support a verdict of intentional fraud. Spears v. West, 212 Ga. App. XXIX, XXX (1994). If jurors are permitted to testify that their intentions were other than the plain meaning of their verdict, particularly after affirmance on appeal on the very basis later attacked, “no verdict will be safe from subsequent attack.” Perryman, supra, 205 Ga. App. at 788.

Appellees also argue there was no evidence of an intentional act because the jury refused to return an award of punitive damages against Spears and E.L. Spears, Inc. The burden of proof for punitive damages, however, is substantially higher than that generally applicable to civil actions, requiring “clear and convincing” evidence rather than simply a preponderance. OCGA § 51-12-5.1 (b). Both standards were clearly set out for the jury in the special verdict form, to which the parties consented. Also, the “expected or intended” exclusion does not require an action that rises to the level of wilful, wanton conduct so as to support punitive damages; the action need only be intentional, and intended to produce the result. The elements of scienter and intention to induce the defrauded party to act or refrain from acting fulfill this requirement.

The jury in the underlying action found that Spears and E.L. Spears, Inc. were liable for fraud. Fraud requires a false representation made with both scienter and the intent to induce reliance. This is an “intentional act” within the meaning of the policy exclusion, and the trial court therefore erred in granting summary judgment to appellees and in denying summary judgment to Consolidated American.

2. Because the “expected or intended” policy provision demands reversal, we need not reach Consolidated American’s remaining enumerations of error.

Judgment reversed.

Birdsong, P. J., and Johnson, J., concur.

Decided August 25, 1995

Reconsideration denied September 12, 1995

Goodman, McGuffey, Aust & Lindsey, William S. Goodman, Leslie S. Sullivan, for appellant.

Kitchens, Kelley & Gaynes, Stephen V. Kern, Quirk & Quirk, Joseph P. Quirk, for appellees.


text:
    A95A1388.
    CROMWELL v. THE STATE.
    (462 SE2d 388)
   Smith, Judge.

Leroy Cromwell, Jr. and three other persons were charged with the offense of arson in the first degree in connection with the burning of Cromwell’s car. Cromwell’s co-defendants pled guilty; a jury found Cromwell guilty as charged. He appeals from his conviction and sentence following the denial of his motion for new trial.

1. Cromwell contends the trial court erred in allowing the prosecutor to question him regarding his silence after arrest. We agree and reverse.

Cromwell testified in his own defense, insisting he knew nothing about the plot to burn his car. To further this defense, his attorney questioned him regarding his cooperation during the initial investigation. Cromwell testified that during an interview with Douglas County investigators at his workplace he “answered every question they wanted to know” and did not refuse to answer any questions. He further testified that on the day after that interview, he gave investigators permission to search a storage area he rented and fully cooperated with them during the search.

Following Cromwell’s direct testimony and outside the presence of the jury, the prosecutor argued that Cromwell’s testimony on direct examination had “opened the door” to questioning Cromwell about the fact that after his arrest he had refused to answer questions and had invoked his right to remain silent. The trial court agreed, ruling that this line of questioning was permissible because Cromwell had testified on direct examination that his cooperation was complete. Pursuant to that ruling, Cromwell was asked during cross-examination whether he considered it “cooperation” when, after he was arrested, he had invoked his right to counsel and refused to answer questions.

The trial court’s ruling was error. First, the court’s characterization of Cromwell’s testimony on direct examination was incorrect. Defense counsel confined his questions to specific incidents of cooperation that took place during the investigation and prior to the arrest. The limited focus of the questioning on direct examination is demonstrated by the following colloquy: “Q: Did — were you cooperative up until the point where you got arrested? A: Yes, sir. Completely. Q: Up — that was up until the arrest. Is that correct? A: Exactly.” (Emphasis supplied.) Consequently, evidence that Cromwell chose to remain silent after he was arrested did not contradict or impeach his testimony on direct examination that he had been completely cooperative before the arrest.

Second, and more importantly, even if the direct examination were not limited in scope, the questioning was improper. Although the United States Supreme Court has found no federal constitutional prohibition against cross-examining defendants for impeachment purposes regarding their silence after arrest absent Miranda warnings, the possibility was left open for state courts to prohibit such questioning. Fletcher v. Weir, 455 U. S. 603, 607 (102 SC 1309, 71 LE2d 490) (1982). In Mallory v. State, 261 Ga. 625, 629-630 (5) (409 SE2d 839) (1991), the Georgia Supreme Court held unequivocally that Georgia law prohibits such questioning: “[I]n criminal cases, a comment upon a defendant’s silence or failure to come forward is far more prejudicial than probative . . . [and] will not be allowed even where the defendant has not received Miranda warnings and where he takes the stand in his own defense.”

The trial court erred in permitting the questioning on this subject. Given the evidence in this case, we cannot say beyond a reasonable doubt that this error did not contribute to the jury’s verdict; it was therefore not harmless error. Vaughn v. State, 248 Ga. 127 (281 SE2d 594) (1981). A new trial is required.

2. Because they involve issues of admissibility of evidence that may recur upon retrial, we address Cromwell’s remaining enumerations of error.

Cromwell argues that the trial court erroneously admitted into evidence the tape recording of a conversation between two of his co-defendants. One co-defendant had been arrested when the tape was made. He admitted his complicity in the crime and agreed, at the instance of the authorities, to call another of the co-defendants from the sheriff’s office and discuss the scheme. Their conversation was recorded. It was admitted into evidence over Cromwell’s objection that it was hearsay and that it improperly bolstered a witness with an out-of-court declaration not under oath.

No improper bolstering took place. The participants in the conversation were present in court and subject to cross-examination. The concerns of the rule against hearsay were satisfied, and the recording was therefore admissible as a prior consistent statement under Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985). See Carroll v. State, 261 Ga. 553, 554 (1) (408 SE2d 412) (1991).

OCGA § 24-3-5 also provides an exception to the rule against hearsay: “After the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.” A prima facie case of the conspiracy to burn Cromwell’s car had been made at the time the tape recording was introduced. Jones v. State, 265 Ga. 84, 85 (2) (453 SE2d 716) (1995). Cromwell argues, citing Crowder v. State, 237 Ga. 141 (227 SE2d 230) (1976), that the conspiracy ended when the first co-conspirator was arrested.

“The rule is that a conspiracy does not necessarily end simply because one or more of the conspirators have been arrested. So long as the conspiracy to conceal the fact that a crime has been committed or the identity of the perpetrators of the offense continues, the parties to such conspiracy are to be considered so much a unit that the declarations of either are admissible against the other.” (Citations and punctuation omitted.) Chews v. State, 187 Ga. App. 600, 603-604 (2) (371 SE2d 124) (1988). See also Jones, supra. In this case, it is evident from the substance of the recorded conversation that at least one of the co-conspirators was intent on concealing the crime, the identity of the co-conspirators, and their involvement; the concealment phase of the conspiracy was ongoing. The recording was properly admitted into evidence.

3. Cromwell also argues that a tape recorded interview with the minor daughter of one of the co-defendants was improperly admitted into evidence and played for the jury. Cromwell maintains that the prejudicial nature of comments by the interviewing investigator outweighed any probative value of the tape.

Defense counsel had not heard the tape until it was played for the jury, and he objected to its introduction. In cross-examining the witness, defense counsel sought to undermine her veracity by eliciting the information that she had given the recorded statement and could be prosecuted for arson if she lied on the witness stand. The tape had not previously been played during the trial; it was admitted into evidence over objection after this cross-examination, under the authority of Cuzzort, supra, to show that the witness’s prior statement was consistent with her trial testimony. One brief portion of the tape contains comments by the investigator to the witness, pointing out the serious nature of the crime of arson and indicating that firefighters risked their lives when the car burned and could have been hurt. In addition, the investigator blamed crimes such as this for the general public’s rising insurance rates. At the close of the redirect examination of the witness, defense counsel moved for a mistrial based on the inflammatory and prejudicial nature of the comments on the tape. The motion was denied. No curative or limiting instruction was requested.

Citing Ailstock v. State, 159 Ga. App. 482, 486-488 (283 SE2d 698) (1981), Cromwell argues that the comments were irrelevant, and because all the jurors were car owners, were so prejudicial as to unduly influence the jury’s consideration of his guilt or innocence. Ail-stock is distinguished factually from this case, however, because it dealt with evidence that impermissibly placed a defendant’s character in issue and not with irrelevant and prejudicial comments.

Decided August 23, 1995

Reconsideration denied September 12, 1995

Ray B. Gary, Jr., J. Michael Treadaway, for appellant.

David McDade, District Attorney, James E. Barker, Assistant District Attorney, for appellee.

The decision whether to admit evidence challenged on the basis that its prejudicial nature outweighs its probative value is within the discretion of the trial court. Carroll, supra at 554 (2). The trial court’s decision in this case was made after the fact, in the context of a motion for mistrial after the tape was previously, and properly, ruled admissible. Given that context, and the fact that the defense cross-examination of the witness mentioned the tape and legitimated its admission into evidence, we find no abuse of discretion in the trial court’s denying the motion for mistrial. It is well established that a party may not complain of matters caused by his own conduct. See State v. Griffin, 204 Ga. App. 459, 460 (1) (419 SE2d 528) (1992).

Judgment reversed.

Birdsong, P. J., and Johnson, J., concur.


text:
    A95A1483.
    COLLINS et al. v. KIAH.
    (462 SE2d 158)
   Smith, Judge.

Dr. Virginia Kiah, the widow of Dr. Calvin L. Kiah, filed a petition in the Probate Court of Chatham County to probate the will of her late husband in solemn form. The widow was named executrix in the will. Although the decedent’s two sisters, Rodelia Collins and Cynthia Coleman, acknowledged service and assented to the probate, they filed a caveat alleging that Dr. Kiah was physically and mentally incapable of performing the duties of executrix. After a hearing, the probate court found that caveators had failed to carry their burden of proof. The court admitted the will to probate and issued letters testamentary to Dr. Kiah. The court then denied the caveators’ motion to set aside the judgment and extraordinary motion for a new trial.

Collins and Coleman brought this appeal in the Supreme Court, which transferred it to this Court, finding that the appeal did not involve the validity or construction of a will within the meaning of Art. VI, Sec. VI, Par. Ill (3) of the Georgia Constitution of 1983. In re Estate of Lott, 251 Ga. 461 (306 SE2d 920) (1983).

1. In several enumerations of error, the caveators contend the probate court erred in refusing to admit the deposition of Dr. Robert Brown. We do not agree.

Collins and Coleman admitted at the hearing that Dr. Brown, who had treated Dr. Virginia Kiah, was a resident of Chatham County and subject to subpoena. They did not subpoena Dr. Brown to testify at the hearing, relying on their announcement when they deposed him that the deposition was being taken “for the purpose of discovery, cross examination, and perpetuation of testimony for [the] hearing.” Contrary to their argument, however, this stipulation was not agreed to by all parties. Rather, the estate, through counsel, vigorously opposed the entire deposition “in any form or fashion.”

OCGA § 9-11-32 (a) (3) (E) provides that “[t]he deposition of a witness . . . may be used by any party for any purpose if the court finds . . . [t]hat because of the nature of the business or occupation of the witness it is not possible to secure his personal attendance without manifest inconvenience to the public or third persons [.]”

For a deposition to be admitted under OCGA § 9-11-32 (a) (3) (E), therefore, the court must make a finding that the nature of the witness’s occupation would cause manifest inconvenience to others if the witness’s attendance were required. In this case, the court refused to so find, stating that “doctors aren’t any more important than anybody else” and “[t]heir work is not sacred.” We cannot say the court erred as a matter of law in refusing to make such a finding. Matthews v. Taylor, 155 Ga. App. 2, 3 (1) (270 SE2d 247) (1980). Although the evidence would have authorized such a finding, it was not required. See generally Palmer v. Taylor, 215 Ga. App. 546, 548 (6) (451 SE2d 486) (1994).

The fact that depositions of physicians have been admitted in evidence under this Code section even when those physicians have been subject to the court’s jurisdiction does not require a different result. See, e.g., Atlanta Coca-Cola Bottling Co. v. Rosser, 250 Ga. 52 (295 SE2d 827) (1982). The court may in its discretion admit depositions even when the witness is available to testify, as was done in Rosser, pursuant to OCGA § 9-11-32 (a) (4). It is not, however, required to do so.

2. In ruling on caveators’ motion for new trial, the probate court also properly refused to consider a “report” from Dr. Thomas Stanley, a neurologist who treated Dr. Virginia Kiah. Collins and Coleman contend this “report,” which consists of a one-paragraph letter sent to their counsel, was newly discovered evidence within the meaning of OCGA § 5-5-23.

To obtain a new trial on this basis, the evidence supporting the motion must be admissible. Leventhal v. Seiter, 208 Ga. App. 158, 161-162 (2) (430 SE2d 378) (1993). The letter in issue, being unsworn and unauthenticated, is not admissible evidence.

Such evidence must also satisfy six criteria: (1) it must have been discovered after the trial or hearing; (2) its late discovery was not due to lack of diligence; (3) it is so material that its introduction in evidence would probably produce a different result; (4) it is not cumulative only; (5) the affidavit of the witness must be attached to the motion (or its absence accounted for); and (6) it does not operate only to impeach a witness. Id.

The letter fails to satisfy these other criteria. It is dated one day prior to the hearing and recites that it is sent to caveators’ counsel in response to their telephone call. Since the letter itself shows that caveators’ counsel contacted Dr. Stanley before the hearing, the letter cannot be “newly discovered” evidence. Although the letter may have been received later, the record demonstrates caveators’ awareness at least two days prior to the hearing that Dr. Stanley treated Dr. Kiah; this fact was elicited during Dr. Brown’s deposition. The probate court did not err in denying the motion for new trial on the ground of newly discovered evidence.

3. Collins and Coleman also complain of the probate court’s refusal to grant their motion for a continuance requested in order to subpoena Dr. Brown and Dr. Stanley after Dr. Brown’s deposition was excluded from evidence.

Requests for continuance are addressed to the court’s sound discretion. OCGA § 9-10-167 (a). That discretion will not be controlled absent a showing of abuse. Payton v. Green, 179 Ga. App. 438, 439 (346 SE2d 884) (1986). Given that the caveators demonstrated a lack of diligence in failing to subpoena the doctors despite knowledge that they had treated Dr. Kiah, we cannot say the probate court abused its discretion in denying the motion for continuance.

4. Caveators contend the probate court erred in refusing to compel Dr. Kiah to produce documents covered by a properly issued subpoena. The subpoena in issue was served on Dr. Kiah at approximately 7:00 p.m. the evening before the hearing and covered numerous documents. Dr. Kiah moved to quash the subpoena on the ground that it was unreasonable and oppressive. The probate court denied the motion to quash “without prejudice to Virginia Kiah” and refused to compel Dr. Kiah to produce the documents.

OCGA § 24-10-25 (a) provides that in considering enforcement of subpoenas, a court shall consider “whether under the circumstances of each case the subpoena was served within a reasonable time, but in any event not less than 24 hours prior to the time that appearance thereunder was required.” The subpoena in this case was served less than 24 hours prior to the hearing. Moreover, several of the documerits either did not exist, were not in the possession of Dr. Kiah, or covered items not relevant to the estate or Dr. Kiah’s capacity to serve as executrix. The probate court did not err in refusing to enforce the subpoena.

Decided August 25, 1995

Reconsideration denied September 12, 1995.

Lester B. Johnson III, for appellants.

David Roberson, for appellee.

5. Caveators’ remaining enumerations of error lack merit.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.


author: McMurray, Presiding Judge.

text:
    A95A1576.
    In the Interest of C. M. S. et al., children.
    (462 SE2d 398)
   McMurray, Presiding Judge.

This is an appeal from an order of the juvenile court terminating the parental rights of appellant Richard Doll in his two sons, C. M. S. and J. L. D. Appellant is presently serving a lengthy prison sentence in Ohio for the murder of the children’s mother to whom he was never married. Held:

1. Appellant maintains that the juvenile court did not have jurisdiction to terminate his parental rights because he was never served with the notice required pursuant to OCGA § 15-11-83. As the biological father who was not the legal father of the children, he should have been served with notice that he loses all rights to the children and would not be entitled to object to the termination of his rights to the children unless he timely files a petition to legitimate the children pursuant to OCGA § 19-7-22 and files notice of the filing of the petition to legitimate with the court in which the action to terminate is pending. OCGA § 15-11-83 (e) and (g). The parental rights of a biological father, who is not the legal father, who receives such notice and does not appropriately respond may be terminated pursuant to OCGA § 15-11-83 (h). Where, as in the case sub judice, there has been no compliance with this requirement for notice to the biological father, the provisions of OCGA § 15-11-83 (d) are inapplicable, and this abbreviated path to termination of the biological father’s parental rights is unavailable. The notice requirements of OCGA § 15-11-83 relate only to the availability of the abbreviated termination procedures contained therein and do not affect the jurisdiction of the court below to consider a termination proceeding, such as in the case sub judice, brought pursuant to OCGA § 15-11-81. In the case sub judice, the absence of an attempt by appellant to legitimate the children did not contribute to the judgment terminating parental rights; therefore, there was no harm resulting from the absence of the notice directed by OCGA § 15-11-83 (e) and (g). This enumeration of error is without merit.

2. Appellant presents additional arguments that the juvenile court lacked jurisdiction over him for purposes of terminating his parental rights and erred in overruling his motion to dismiss. This enumeration of error apparently complains of the denial of appellant’s second motion to dismiss. That motion raised two contentions, the first being that termination of parental rights was improper because the children, being well cared for by others, were not deprived. But this contention lacks merit. The statutory finding of deprivation is based on an absence of proper parental care and control. In the Interest of J. L. M., 204 Ga. App. 46, 48 (1) (418 SE2d 415).

The remaining issue raised in appellant’s motion was that under the Uniform Child Custody Jurisdiction Act, OCGA § 19-9-41 et seq., proper jurisdiction of any termination of parental rights proceeding was in Ohio. The juvenile court rejected this proposition and concluded that under this statute it was the proper forum. The argument now submitted does not so much challenge the juvenile court’s ruling with regard to the statute but rather is an attempt to enlarge the issues submitted below. Appellant’s attempt to present new questions on appeal must be rejected due to the failure to preserve such issues below by eliciting a ruling thereon. Tyler v. Bennett, 215 Ga. App. 87, 88 (2) (449 SE2d 666); Ehlers v. Schwall & Heuett, 177 Ga. App. 548, 550 (340 SE2d 207).

3. The remaining enumeration of error questions the sufficiency of the evidence to authorize the termination of appellant’s parental rights in these two children. In considering the termination of parental rights, the juvenile court was required to first determine whether there is present clear and convincing evidence of parental misconduct or inability. OCGA § 15-11-81 (a). This determination is made by finding that the child is deprived, that the cause of that deprivation is lack of proper care or control by the parent, that the cause of deprivation will likely continue, and that the continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). In determining whether a child is without proper parental care and control, the juvenile court was authorized to consider the conviction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship. OCGA § 15-11-81 (b) (4) (B) (iii). Upon a showing by clear and convincing evidence of such parental misconduct or inability, the juvenile court was authorized to then consider whether termination of parental rights is in the best interest of the children. OCGA § 15-11-81 (a).

Decided August 25, 1995

Reconsideration denied September 12, 1995.

David C. Butler, Jason R. Hasty, for appellant.

A conviction of a crime and incarceration does not always compel a termination of parental rights but will support such a ruling when adequate aggravating circumstances are shown to exist. In the Interest of S. K. L., 199 Ga. App. 731, 733 (405 SE2d 903); In the Interest of R. L. H., 188 Ga. App. 596, 597 (373 SE2d 666). Such aggravating circumstances are shown in abundance in the case sub judice. The juvenile court did not err in concluding that appellant “has engaged in egregious conduct toward the children of a physically and emotionally cruel and abusive nature by killing their mother in their presence. . . .” This finding was based on evidence that the younger child was in his mother’s arms and the older child only 25 feet away when appellant stabbed the mother to death.

There was additional evidence that appellant’s conduct towards the children wavered between abandonment and abuse. While appellant has provided some intermittent financial support for the older child in the past, he has never provided any for the younger child. In the interval since the 1988 murder of their mother until the termination proceeding, neither child has received any financial support from appellant. Nor has appellant, during this period of incarceration, ever telephoned or sent the children a letter, gift, or holiday card. Furthermore, even though both children have special needs because afflicted with autism, appellant has not taken any measures to respond to these needs of the children. The children also have behavioral problems associated with their exposure to the violent relationship between appellant and their mother.

The juvenile court determined that the children were without proper parental care and control and that it was in the best interest of the children that appellant’s parental rights be terminated. As an appellate court, we must defer to the juvenile court in the area of factfinding and should affirm unless the appellate standard of review is not met. As we find that any rational trier of fact could have found by clear and convincing evidence that appellant’s rights to custody were lost, the juvenile court did not err in terminating the parental rights of appellant Richard Doll. In the Interest of L. F., 203 Ga. App. 522 (417 SE2d 344).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.

Carol B. Powell, for appellee.


author: Johnson, Judge.

text:
    A95A0996.
    In the Interest of J. M. R. et al., children.
    (462 SE2d 173)
   Johnson, Judge.

Anna Moultrie, formerly known as Anna Russo, and Charles Russo, Jr., were married and are the biological parents of J. M. R. and A. A. R. In 1988, Charles Russo, Jr., was murdered. Moultrie, who is remarried, pled guilty in 1994 to conspiracy to commit the murder. She is serving a ten-year sentence, with three of the years to be served in custody. Russo’s parents, Charles Russo, Sr., and Mary Anne Russo, petitioned the juvenile court to terminate Moultrie’s parental rights. The court denied the petition. The Russos appeal.

1. The Russos assert that the juvenile court, in analyzing Moultrie’s parental misconduct and its impact on the children’s best interests, improperly distinguished her role as a murder conspirator from the role of the person who actually carried out the murder. We agree with the Russos that the court’s analysis is legally flawed under the facts of this case. The court said in its final order: “There is a difference between the moral unfitness which is inferred from an actual murder, and that which must be inferred from a conspiracy to commit murder. Although the conspirator may be cold-hearted, she must be distinguished from her cohort who looked down at the relaxing figure of Chuck Russo and shot him repeatedly, before casting his body into the lake. The Superior Court in Franklin County must have found such a distinction, because a 10-serve-3 sentence hardly compares with the mandatory life sentence handed down to murderers.”

The juvenile court is correct that there is a significant difference between the mandatory life or death sentences imposed upon conviction for murder and the sentence range of only one to ten years which can be imposed for conviction of conspiracy to murder. See OCGA §§ 16-4-8; 16-5-1. This difference results from the legislative intent “to make conspiracy itself a separate crime only in cases where the crime conspired to be committed had not in fact been committed, that is, where the conspiracy had been, so to speak, ‘nipped in the bud.’ ” (Citation and punctuation omitted.) Roberts v. State, 242 Ga. 634, 635 (2) (250 SE2d 482) (1978). Thus, if Moultrie had merely conspired with others to murder Charles Russo, Jr., and that conspiracy had failed, then her conduct would be deemed significantly different, under the law, from the conduct of a person who actually committed a murder.

But Moultrie did not plead guilty to participating in a failed conspiracy; rather, she pled guilty to participating in a successful conspiracy to murder Russo. The indictment to which Moultrie pled guilty, and the facts presented by the state at the guilty plea hearing, with which Moultrie concurred, show without dispute that she solicited Vicky Lynn Steele to murder Russo in exchange for money from a life insurance policy, that Steele committed the murder by shooting Russo with a gun, and that Moultrie later paid Steele with proceeds from the life insurance policy. Even though Moultrie did not inflict the fatal wound, because the facts she admitted show that the object of her conspiracy to murder was not “nipped in the bud,” but was actually completed, she could have been held criminally responsible for the murder of Russo as a party to the crime. See OCGA § 16-2-20 (a); Thaxton v. State, 184 Ga. App. 779, 780 (1) (362 SE2d 510) (1987). “[W]here the crime is completed, a defendant may be convicted of it based on [her] activities as a conspirator.” (Citation and punctuation omitted.) Hernandez v. State, 182 Ga. App. 797, 800 (1) (357 SE2d 131) (1987). Nevertheless, for reasons not revealed by the record, Moultrie was allowed, as part of a negotiated plea bargain, to plead guilty to the lesser offense of conspiracy to murder.

Even though she was allowed to plead guilty to conspiracy, instead of murder, and even though the law distinguishes between a participant in an unsuccessful murder conspiracy and a person who commits a murder, the juvenile court erred in finding that Moultrie is somehow distinguishable from Steele. “When individuals associate themselves in an unlawful enterprise, any act done in pursuance of the conspiracy by one of the conspirators is in legal contemplation the act of all, subject to the qualification that each is responsible for the acts of the others only so far as such acts are naturally or necessarily done pursuant to or in furtherance of the conspiracy.” (Citation and punctuation omitted.) Crawford v. State, 210 Ga. App. 36, 37 (1) (435 SE2d 64) (1993). Here, Steele’s murder of Russo was done in pursuance of the conspiracy. Under the law, Moultrie was therefore just as responsible as Steele for the murder. See Goins v. State, 164 Ga. App. 37, 38 (1) (296 SE2d 229) (1982); Causey v. State, 154 Ga. App. 76, 79 (2) (267 SE2d 475) (1980). Moreover, like a person who actually commits a murder, “[a] person who conspires to commit murder does so with malice aforethought.” Orkin v. State, 236 Ga. 176, 178 (1) (223 SE2d 61) (1976). Consequently, the juvenile court erred in distinguishing Moultrie from her cohort who actually fired the fatal shots.

The court’s error is not harmless. It is true that the murder of one parent by the other parent does not automatically result in the forfeiture of the surviving parent’s parental rights. In the Interest of H. L. T., 164 Ga. App. 517, 519 (298 SE2d 33) (1982). But this Court has held that the malice necessarily shown by the murder of one’s spouse is sufficient to imply a moral unfitness which authorizes termination of the parental relationship, and which is likely to continue with resultant harm to the innocent child. In the Interest of A. M. S., 208 Ga. App. 328, 330-331 (3) (430 SE2d 626) (1993); Heath v. McGuire, 167 Ga. App. 489, 492 (3) (306 SE2d 741) (1983). In the present case, the juvenile court, in erroneously distinguishing Moultrie from Steele, concluded that Moultrie’s role in the conspiracy did not support a finding that her parental unfitness is sufficient to terminate her parental rights. If the juvenile court had not made that erroneous distinction, but had properly found that Moultrie and Steele are equally responsible for the murder, the court might have reached the different conclusion that the malice necessarily shown by Moultrie’s guilt as a participant in the murder of Russo was sufficient to imply a moral unfitness requiring a termination of her parental rights. See generally In the Interest of J. L. M., 204 Ga. App. 46, 47-48 (1) (418 SE2d 415) (1992).

Decided September 12, 1995.

Thomas M. Strickland, for appellants.

Andrew J. Hill, Jr., James B. Langford, Floyd W. Keeble, Jr., for appellee.

Accordingly, we reverse the juvenile court’s judgment and remand the case for reconsideration of the petition to terminate Moultrie’s parental rights in light of this opinion’s holding that her responsibility for the murder is indistinguishable, as a matter of law, from Steele’s responsibility. On remand, the juvenile court is directed to follow the applicable two-step procedure in considering whether to terminate Moultrie’s parental rights. See generally In the Interest of S. H., 204 Ga. App. 135, 138 (1) (418 SE2d 454) (1992). The court should first determine whether there is clear and convincing evidence of parental misconduct or inability, and if so, the court should next determine whether the termination of parental rights is in the children’s best interests, considering the physical, mental, emotional, and moral conditions and needs of the children, including the need for a secure and stable home. See OCGA § 15-11-81.

2. Because of our decision in Division 1, we need not address the Russos’ second enumeration of error that the court did not fully consider all the applicable factors set forth in OCGA § 15-11-81.

Judgment reversed and case remanded with direction.

Birdsong, P. J., and Smith, J., concur.


text:
    A95A1150.
    WILLIAMS et al. v. GANT.
    (462 SE2d 179)
   Beasley, Chief Judge.

Williams and certain individuals responsible for her medical bills brought this action against Gant and his parents to recover for injuries Williams sustained in a vehicular collision allegedly caused by Gant’s negligence. Plaintiffs seek to impose liability on Gant’s parents under the family purpose doctrine, but the trial court granted these defendants summary judgment on the ground that they did not exercise the requisite degree of authority and control over Gant’s use of the automobile for liability to attach.

Gant’s parents divorced when he was age 15 and gave him the subject automobile when he was 16. The car was titled in his father’s name because Gant was a minor, but Gant was responsible for paying maintenance costs. The father paid for tag renewals, for which Gant reimbursed him, signed the car note and wrote the checks to pay the note. The mother wrote the checks to pay the premiums on her policy for insurance which covered Gant and the car. The father reimbursed the mother for a portion of the insurance payments, and the mother reimbursed the father for a portion of the note payments. Although Gant testified that he would do chores for his parents in order to earn note payments, his parents denied it. We take the former as true, for the purpose of summary judgment.

The collision occurred shortly after Gant turned 19, when Gant was on summer break from college and working part-time. He and his brother were returning to their father’s home after having their hair cut, of which neither parent was aware. Gant testified that at the time he and his 15-year-old brother were living with their father, but other evidence showed they were living with their mother and visiting their father for the weekend. This living arrangement was authorized under joint custody provisions in the parents’ divorce decree, whereby both parents were supporting Gant and paying his college expenses.

All members of the Gant family testified that the parents imposed no rules or conditions on Gant concerning his use of the car. The car was strictly for his own personal use, and he was the only one with a key. He did not even use it to run errands for his father. Gant did testify that before he turned 18, he would have had to obtain permission to go to Florida, but that question focused on him personally rather than on his use of the car. Although he answered “no” when asked whether he was allowed to let his friends drive the car, he later explained that this was his rule and not that of his parents. He did testify that if his father had become angry he could have taken the keys from him because “[h]e’s my father, he can do what he wants.”

The conditions for application of the family purpose doctrine are: “ ‘ “[T]he defendant must own the automobile, or at least have some recognized property interest in it or supply it, and he must have made it available for family use, rather than for use in his business. The driver must be a member of defendant’s immediate household. . . . The car must be found to have been driven at the time with the permission or acquiescence of the defendant, although his consent may be inferred from a failure to protest at frequent violations of his orders not to use the car.” ’ [Cits.]” Murch v. Brown, 166 Ga. App. 538, 539 (304 SE2d 750) (1983). The same is stated a little differently in Quan v. Johnson, 190 Ga. App. 510, 511 (379 SE2d 426) (1989).

Decided September 12, 1995

Douglas L. Breault, for appellants.

Miller & Towson, James V. Towson, Buchanan & Land, Benja min A. Land, Clay D. Land, for appellee.

The doctrine is not applied to render the parent vicariously liable unless the parent “had the right to exercise such authority and control that it may be concluded that an agency relationship existed between him and the family member with respect to the use of the vehicle. In other words, the four conditions prescribe when the test is to be applied, but the actual test is authority and control. [Cits.]” Murch, supra, 166 Ga. App. at 539. Authority and control are not necessarily determined by title to the vehicle or payment for the expenses of ownership. See Walston v. White, 213 Ga. App. 441, 442 (444 SE2d 855) (1994).

Although there is evidence from which a jury could find that the conditions for application of the family purpose doctrine were present, summary judgment was appropriate because the undisputed evidence shows that the parents did not retain the right to exercise such authority and control over their son’s use of the vehicle that it could be concluded he was their agent, arising out of that purpose, in the use of the car. See Walston, supra; Bailey v. Butler, 199 Ga. App. 753 (406 SE2d 97) (1991); Keith v. Carter, 172 Ga. App. 588 (323 SE2d 886) (1984); compare Whitley v. Ditta, 209 Ga. App. 553, 555 (3) (434 SE2d 108) (1993); Murch, supra; Young v. Wooldridge, 187 Ga. App. 661, 663 (1) (371 SE2d 100) (1988).

There is no merit in plaintiffs’ argument that the parents may be held liable for Gant’s negligence on the theory that he was acting as their agent or servant in the performance of the act of taking his brother to get a haircut. This theory differs from the family purpose doctrine, Cox v. Rewis, 207 Ga. App. 832, 834 (1) (429 SE2d 314) (1993), and is not sustainable under the facts of this case, because there is no evidence that Gant performed this task at either parent’s behest. Compare Cox, supra.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.