text:
    A94A0136.
    JOHNSON v. THE STATE.
    (444 SE2d 334)
   Smith, Judge.

Jeffery Keith Johnson was charged with seven counts of armed robbery. At trial, one count, involving the robbery of a man on the street, was severed. Johnson was tried by a jury on the remaining counts, all involving the robbery of restaurants. He was convicted of three counts and acquitted of three. His motion for new trial was denied.

1. Johnson contends the trial court erred in denying his motion to sever. We do not agree. To avoid the “smear” effect possible when unrelated charges are tried together, severance is required if the offenses are joined solely because they are similar in nature. Dingler v. State, 233 Ga. 462 (211 SE2d 752) (1975). However, if the similarity reaches the level of a pattern, so that it evidences a scheme, plan, or bent of mind, joinder is not based solely on the similarity of the charges. See Cooper v. State, 253 Ga. 736, 737 (3) (325 SE2d 137) (1985). Where the modus operandi of the perpetrator is strikingly similar, and the facts demonstrate that the defendant is the common perpetrator, joinder may be proper. Jordan v. State, 172 Ga. App. 496, 497 (1) (323 SE2d 657) (1984). Under such circumstances, severance lies within the discretion of the trial judge. Wilson v. State, 188 Ga. App. 779, 780 (1) (374 SE2d 325) (1988).

Here, six fast-food restaurants were robbed within a 30-day period. Each occurred during the evening shift. In each case, the perpetrator was described as being a black man in his late twenties to mid-thirties, approximately six feet tall with a medium build. In each case, the robber entered the restaurant and either asked the cashier for a small amount of change or ordered food, pulling a large silver-colored handgun when the cash drawer was opened and taking either the entire cash drawer or all the money from it. In each case, the gunman then left quietly and without further instructions or incident.

As pointed out in Parks v. State, 199 Ga. App. 736, 738 (1) (406 SE2d 229) (1991), these similarities evidence a pattern that would justify the admission of the other robberies in each trial even if the charges were severed. Since they were not joined solely because they are of the same or similar character, the trial court did not abuse its discretion in refusing to sever the offenses. Miller v. State, 201 Ga. App. 124 (410 SE2d 355) (1991).

Decided April 15, 1994

Reconsideration denied May 11, 1994.

Abbi S. Taylor, for appellant.

Jeffery Johnson, pro se.

J. Tom Morgan, District Attorney, Gregory J. Giornelli, Gregory A. Adams, Robert E. Statham III, Assistant District Attorneys, for appellee.

2. Johnson maintains the evidence was insufficient to support his conviction. He argues that after the victims had selected Johnson’s photograph from the line-up, a detective indicated that Johnson had been implicated in other robberies. On this basis, he contends the victims’ in-court identifications of him were tainted. We find no merit in this contention.

Johnson raises this issue for the first time on appeal. He did not object to the victims’ identification testimony below or ask the trial court to rule on its admissibility. He has therefore failed to preserve this issue for appeal. Hall v. State, 180 Ga. App. 881, 882 (2) (350 SE2d 801) (1986).

He also asserts that no physical evidence linked him to any of the robberies. The only evidence against him was the victims’ positive identification of him as the robber. However, the testimony of a single witness is sufficient under Georgia law to establish a fact, and these victims’ testimony did not require corroboration. OCGA § 24-4-8. The victims in the three robberies for which he was convicted testified they were certain that Johnson was the man who robbed them at gunpoint. The evidence was sufficient under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to support Johnson’s conviction on three counts of armed robbery.

Judgment affirmed.

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


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A94A0189.
    ALLISON v. THE STATE.
    (444 SE2d 347)
   Smith, Judge.

Kenneth M. Allison appeals his conviction on one count of armed robbery, OCGA § 16-8-41.

1. (a) Allison enumerates as error the trial court’s admission of evidence of a similar transaction. The record shows that the trial court held a pretrial hearing pursuant to Uniform Superior Court Rule 31.3 (B) and Williams v. State, 261 Ga. 640 (2) (b) (409 SE2d 649) (1991). The trial court found that the State satisfied the three affirmative showings required under Williams. Allison contends that the State failed to show the third part of the Williams test: a sufficient connection or similarity between the similar transaction and the crime charged.

The State presented evidence of a similar transaction in Phenix City, Alabama, immediately across the Chattahoochee River from Columbus, Georgia, which was the site of the crime charged. Both incidents involved armed robberies of grocery stores in July 1992. In both cases, the perpetrator, acting alone, robbed the grocery store during the evening hours. He entered a restricted office area and confronted the employee on duty with a black handgun, which he carried in his pants. He also produced a plastic bag from his pants and demanded that the employee give him “only the big bills.” He held the bag open, and the employee placed the money in the bag herself. He was “jerking,” “jumping around,” and nervous. After each robbery, the perpetrator ordered the victim and a second witness to go to the back of the store while he fled on foot.

“Evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct outweighs its prejudicial impact. . . . There is no requirement that a previous offense be absolutely identical to the one being prosecuted so as to make it admissible.” (Emphasis in original; citations and punctuation omitted.) Dobbs v. State, 204 Ga. App. 83, 85 (3) (418 SE2d 443) (1992). The numerous points of similarity between these two incidents are more than sufficient to support the trial court’s admission of evidence of the Phenix City armed robbery. See, e.g., Dobbs v. State, 199 Ga. App. 793, 794-795 (3) (406 SE2d 252) (1991).

(b) Allison contends that State’s Exhibit “A,” a list of similarities between the two robberies used in the Williams hearing, was somehow analogous to the certified copy of conviction impermissibly used to prove a similar transaction in Stephens v. State, 261 Ga. 467 (6) (405 SE2d 483) (1991). In Stephens, the certified copy of the conviction was the only evidence of the similar transaction introduced at trial. In contrast, the prosecutor here properly stated in his place what he expected the evidence to show at trial; he then presented eyewitnesses to the similar transaction, who identified Allison as the perpetrator. This is precisely the method outlined in Stephens. 261 Ga. at 468-469. The State’s Exhibit “A” was used for illustrative purposes during the Williams hearing only and was not introduced at trial. This contention has no merit.

2. Allison also contends that the trial court erroneously allowed testimony regarding out-of-court photographic identifications without reviewing the photo line-up or submitting it to the jury. This contention is inaccurate with respect to the photo line-up prepared in connection with the crime charged. It was reviewed by the trial judge and submitted to the jury as State’s Exhibit 5. The testimony of the victims of the Phenix City robbery was properly admitted as evidence of a similar transaction, as noted in Division 1 of this opinion. Allison cites no authority in support of his assertion that failure to submit the Phenix City photo line-up to the jury was error. The Georgia courts have never required that such evidence be submitted to the jury, although it has been permitted over defendant’s objection that it constitutes a “continuing witness.” See, e.g., Parks v. State, 199 Ga. App. 736, 738 (2) (406 SE2d 229) (1991). There is no requirement that the similar transaction with which Allison is not charged be proved beyond a reasonable doubt. Dobbs, supra, 199 Ga. App. at 795. This enumeration is without merit.

Decided April 29, 1994

Reconsideration denied May 11, 1994.

Joseph Wiley, Jr., for appellant.

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

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A94A0585.
    McKOWN v. AMERICAN ARBITRATION ASSOCIATION.
    (444 SE2d 114)
   McMurray, Presiding Judge.

Fasullo and plaintiff McKown are parties to a contract which under its provisions is governed by the law of Louisiana. The contract also provides that any dispute arising thereunder shall be settled by arbitration to be held in or near New Orleans, Louisiana, in accordance with the rules in effect of the defendant American Arbitration Association. Fasullo, who is not a party to this action, initiated an arbitration proceeding with defendant in New Orleans against plaintiff, who then filed this action in the Superior Court of DeKalb County seeking an injunction prohibiting defendant from continuing the arbitration proceeding.

Although plaintiff was initially granted, ex parte, a temporary restraining order, after a hearing the lower court entered an order denying further injunctive relief. Plaintiff appealed to the Supreme Court which transferred the case to this court since only issues of law were presented on appeal. The Supreme Court transfer order states the primary issue on appeal as “whether the trial court was correct in ruling that the American Arbitration Association is not a proper and necessary party to the proceeding. . . .” Held:

Although a first impression question in Georgia and rarely addressed elsewhere, the courts of other jurisdictions appear to have rejected any argument that defendant has an interest in the subject matter of the controversies submitted to it for arbitration and have held defendant is an unnecessary party in judicial proceedings seeking to enjoin arbitration. Aberle Hosiery Co. v. American Arbitration Assn., 337 FSupp. 90; Peters Sportswear Co. v. American Arbitration Assn., 233 A2d 558; Candor Central School Dist. v. American Arbitration Assn., 411 NYS2d 162. See also Dunellen Bd. of Ed. v. Dunellen Ed. Assn., 311 A2d 737. These cases note a judicial preference to restrain parties to a controversy rather than restraining the tribunal from hearing the matter, and there are also repeated references to defendant’s rules which parties (such as plaintiff) have contractually agreed to accept and which provide that defendant is not a necessary party in judicial proceedings related to the arbitration. These cases are consistent with the Georgia rule that: “A person without any interest in the subject-matter of an equity suit, and who can not be affected by the decree rendered therein, is neither a necessary nor proper party.” Pope v. U. S. Fidelity &c. Co., 193 Ga. 769, 779 (6) (20 SE2d 13). We find the reasoning of these cases persuasive but must address one further point.

Plaintiff maintains that this action does not relate to the arbitrability of her dispute with Fasullo, but “rather this action is simply to enjoin [defendant] from ignoring Louisiana’s statutory scheme governing the arbitration of disputes and depriving [plaintiff] of her rights under the Louisiana statute.” This is a reference to LSA-R.S. 9:4203, plaintiff’s construction of which may be reasonably said to be the cornerstone of her position in this case. Plaintiff maintains that the provisions of this Louisiana statute are mandatory so as to give her the right to await an order compelling arbitration, that the burden to obtain such an order is placed upon Fasullo, and that defendant’s procedures force her to forego these rights. Based on this statutory construction, plaintiff would also distinguish much of the case law from other jurisdictions cited above as arising in a different statutory framework. The weakness in plaintiff’s position is that the provisions of LSA-R.S. 9:4203 have been held to be permissive and not mandatory where, as in the case sub judice, the parties to the controversy have provided an alternative procedure via their agreement (i.e., defendant’s rules). Musso’s Corner v. A & R Underwriters, 539 S2d 915, 917.

Decided April 29, 1994

Reconsideration denied May 11, 1994

J. Wayne Pierce, Dargan S. Cole, for appellant.

Gambrell & Stolz, Bryan M. Cavan, Linda A. Klein, for appellee.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


text:
    A94A0024.
    DELAY v. THE STATE.
    (444 SE2d 140)
   Smith, Judge.

William Columbus Delay was indicted by the Cobb County grand jury for the murder of his female companion and convicted of involuntary manslaughter in the commission of an unlawful act, OCGA § 16-5-3 (a). His motion for new trial was withdrawn and he appeals the conviction and sentence on the jury’s verdict.

1. Delay enumerates the general grounds. Viewed in the light most favorable to the verdict, the evidence showed that Delay and the victim were guests at a relative’s home in Marietta. When they returned from a birthday party late in the evening, Delay was heavily intoxicated, to the point of falling down. Delay and the victim retired together to their guest bedroom, and none of the other residents or guests at the house heard any loud noises from the room during the night. In the early morning hours Delay emerged from the bedroom and told his host that the victim was dead. There was blood embedded under Delay’s fingernails and blood spattered and smeared across his shirt, cuffs and pants. Another guest observed that his hands were swollen, with blood between the fingers. When the first police officers arrived they discovered the victim’s body lying across the bed. Delay came forward as the person who had found the body. As police officers continued to arrive, Delay went into the bathroom and began to wash the blood off his hands. The officers asked him to stop, and Delay became “irate” and “words were passed.”

Further examination of the scene revealed no signs of forced entry; the window screens were intact and several curtains were nailed down and had not been disturbed. Blood was spattered on the bed, furniture, and personal articles in the room. After the crime scene was secured, Delay was taken to the Marietta Police Department for questioning. In a videotaped statement taken by the police, he admitted that he had slept with the victim the preceding night, but denied hitting her. He stated that “if I hit that woman, I had to be completely out of it” and stated that he had touched the victim only to see if she was alive. He gave inconsistent statements regarding when and how he and the victim returned from the party. He could not explain how the blood got on his clothes and hands, although he suggested that the victim may have been beaten elsewhere before she entered the room. After the interview Delay was charged with the victim’s murder. Clippings of his fingernails were taken, and his clothing and rings were collected for evidence.

The state medical examiner testified to the results of the autopsy performed upon the victim. He concluded that the victim was beaten severely about the head and strangled and that either mechanism could have been the cause of death. In his opinion, the quantities of blood at the scene and the spatter patterns on furnishings and clothing indicated that the victim was beaten and died in the room in which her body was found. The blood found on Delay’s skin and clothing was consistent with the victim’s blood, and the spatter and smear patterns on the clothing were consistent with the wearer standing or kneeling very close to a person who was being beaten. An imprint on the victim’s face matched the size and design of a distinctive sculptured ring worn by Delay.

Delay contends the evidence presented against him was circumstantial and did not exclude every reasonable hypothesis but that of his guilt. However, “circumstantial evidence must exclude only reasonable inferences and hypotheses and it is not necessary that such evidence be devoid of every inference or hypothesis except that of the defendant’s guilt. The evidence was sufficient for a rational trier of fact to have found the appellant guilty of involuntary manslaughter beyond a reasonable doubt. . . . Questions as to reasonableness are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilty is unsupportable as a matter of law.” (Citations and punctuation omitted.) Torgersen v. State, 200 Ga. App. 837, 839 (1) (410 SE2d 40) (1991). The trial court charged the jury as to the burden of proof beyond a reasonable doubt and the “reasonable hypothesis” rule. A rational trier of fact could have reasonably concluded that Delay was guilty of involuntary manslaughter under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Delay complains that admission into evidence of his statements to the police on the scene that he wanted to wash his hands violated his pretrial right to discovery under OCGA § 17-7-210. However, Delay’s demand for discovery fails to refer to that Code section or specifically request that any statements be furnished ten days before trial. His statements to the police therefore are not subject to the requirements of OCGA § 17-7-210. Dinkins v. State, 202 Ga. App. 403, 404 (1) (414 SE2d 545) (1992).

3. Delay also complains of the admission of his videotaped statement. At trial, however, Delay withdrew his objection to the videotape and it was admitted into evidence without objection. Delay has failed to preserve this enumeration for appeal. Wilburn v. State, 199 Ga. App. 667, 668 (2) (405 SE2d 889) (1991).

4. A blood sample was taken from Delay pursuant to a search warrant. His motion to suppress this evidence was denied and he enumerates that ruling as error, contending the officer’s affidavit was insufficient to authorize the issuance of a warrant. However, the officer testified that he gave additional facts to the magistrate. Even assuming the warrant was insufficient, when it was supplemented by the officer’s oral testimony probable cause was shown. Chapman v. State, 257 Ga. 19, 20 (2) (354 SE2d 149) (1987).

“The warrant was sought after probable cause to arrest appellant had already otherwise been established and he had, in fact,. . . been arrested.” (Emphasis in original.) Ferrell v. State, 198 Ga. App. 270, 272 (2) (401 SE2d 301) (1991). There was probable cause to believe that Delay had been concerned in the victim’s death, and a sample of Delay’s blood was needed to assist in establishing the source of the blood found on his hands and clothing. The trial court did not err in denying Delay’s motion to suppress.

5. Delay also complains of the trial court’s failure to give his requested charge on mutual combat. To warrant a charge on this issue, there must be evidence that the parties were armed with deadly weapons and mutually intended or agreed to fight with those weapons. Martin v. State, 258 Ga. 300, 301-302 (3) (368 SE2d 515) (1988). Neither at the charge conference nor in his brief did Delay point to any evidence of mutual combat, and we have found none. The trial court’s refusal to charge on this principle was not error.

6. The trial court on its own motion gave a charge regarding the voluntariness of Delay’s videotaped statement to the police. Delay, citing no pertinent authority, complains only that he did not request such a charge and that it prejudicially “amplified” his statement. It is true, as Delay contends, citing Serrano v. State, 146 Ga. App. 781 (247 SE2d 593) (1978), that a charge on voluntariness is not necessary in the absence of a request. However, “[t]his instruction states a legally correct principle of the law and there was sufficient evidence presented at trial to authorize the giving of the instruction in this case. Where there is any evidence, however slight, upon a particular point, it is not error for the court to charge the law in relation to that issue.” (Citations and punctuation omitted.) Shields v. State, 202 Ga. App. 659, 661 (3) (415 SE2d 478) (1992). This enumeration has no merit.

Judgment affirmed.

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

Decided May 11, 1994.

Robert H. Alexander III, for appellant.

Thomas J. Charron, District Attorney, Charles M. Norman, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.


text:
    A94A0310.
    DeLOACH v. GEORGIA FIREMEN’S PENSION FUND et al.
    (444 SE2d 137)
   Smith, Judge.

Frank DeLoach brought suit against the Georgia Firemen’s Pension Fund (“the fund”) and others, challenging the denial of his application for disability benefits. We granted his application to appeal from the trial court’s grant of appellees’ motion for summary judgment. OCGA § 5-6-35 (a) (1).

The motion was granted on two grounds. The court found that it lacked jurisdiction because DeLoach had not timely filed the action. The court also ruled that even assuming jurisdiction existed, evidence in the record supported the denial of benefits, and therefore the Board of Trustees of the fund had not abused its discretion in denying the application.

1. DeLoach contends the trial court erroneously granted appellees’ motion for summary judgment on the ground of timeliness because a fact issue exists regarding whether his complaint was timely filed.

OCGA § 47-7-124 (b) provides that “[n]o action shall be brought contesting any determination of the board with respect to eligibility for . . . disability benefits . . . after the expiration of 60 days from the date on which written notice of the final determination of the board is mailed by first-class mail to the last known address of the fireman ... as such address is reflected on the records of the fund; and no court shall have jurisdiction of any action brought after the expiration of such period.” A letter dated July 20, 1992, from John C. Kilpatrick, Secretary/Treasurer of the fund, notified DeLoach that the board had denied his application. DeLoach’s complaint was filed on September 21, 1992, 63 days later. If the notice is deemed “mailed” on July 20, the complaint was untimely, unless the 60-day period prescribed by the statute was extended under some other rule of law. However, if the letter was not “mailed” until July 21, the complaint was timely filed because the 60th day fell on a Saturday.

(a) DeLoach first argues that the 60-day period was extended through the application of OCGA § 9-11-6 (e). That statute provides that “[wjhenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper, other than process, upon him, and the notice or paper is served upon him by mail, three days shall be added to the prescribed period.” However, OCGA § 9-11-6 (e) applies “when and only when notice is effectuated by regular mail and the statutes prescribe that another method will ‘satisfy’ the notice requirement. . . . [It has] no application where transmittal by ordinary mail is the prescribed method of giving notice and the statutes specify that such mailing (not certified or registered) will ‘satisfy’ the notice requirement. . . .” Favors v. Travelers Ins. Co., 150 Ga. App. 741, 748 (258 SE2d 554) (1979). Since OCGA § 47-7-124 (b) specifically prescribes that the notice be sent by first-class mail, OCGA § 9-11-6 (e) is not applicable here.

(b) DeLoach next argues that the letter was not “mailed” until July 21, 1992. OCGA § 47-7-124 (b) does not specify when a notice is deemed “mailed.” In support of the motion for summary judgment, appellees presented an affidavit from Kilpatrick, in which he stated he placed the notification letter in the mail on the date shown on the face of the letter: July 20, 1992. In an affidavit submitted in opposition to the motion, DeLoach stated that when he received Kilpatrick’s letter he “noticed that the envelope the letter was mailed in was postmarked July 21, 1992,” but he did not know what happened to that envelope.

Relying upon Kicklighter v. Blocker, 164 Ga. App. 306 (297 SE2d 83) (1982), DeLoach argues that the postmark evidence he presented must prevail over Kilpatrick’s affidavit. It has been held that a postmark will control over an affidavit as to the time of mailing. Abbott Constr. Co. v. Hartsfield, 237 Ga. 247, 248 (227 SE2d 254) (1976). In both Kicklighter and Hartsfield, however, the official postmark on the envelope was presented as evidence. Here, the evidence regarding the postmark consisted only of DeLoach’s affidavit stating his recollection about it. It was opposed by Kilpatrick’s affidavit, in which he stated his own recollection of when he placed the envelope in the mail. Under these circumstances, we hold that an issue of fact was created regarding when the envelope was mailed. Therefore, a summary judgment based on this issue was inappropriate.

2. Nevertheless, the trial court properly awarded summary judgment to appellees, because evidence in the record supports the board’s denial of benefits.

The board is an administrative body statutorily vested with responsibility for ruling on all applications to the fund for pensions. OCGA § 47-7-23 (a) (2). The superior court was limited to determining whether the board abused its discretion in ruling on DeLoach’s application. Washington v. Ga. Firemen’s Pension Fund, 211 Ga. App. 83, 85 (438 SE2d 118) (1993).

Decided May 11, 1994.

Kirwan, Goger, Chesin & Parks, A. Leroy Parks, Jr., Edmund J. Novotny, Jr., for appellant.

Michael J. Bowers, Attorney General, Harman, Owen, Saunders & Sweeney, Timothy J. Sweeney, for appellees.

It is undisputed that DeLoach was employed by the Savannah Fire Department from 1971 to 1992. It is further undisputed that he suffers from a disabling back condition and is unable to work as a firefighter. In his application for disability benefits, DeLoach claimed this condition gradually resulted from a work-related fall in 1983. The board denied the application because it was unable to determine that DeLoach’s disability stemmed from that fall.

Evidence in the record supports the board’s decision. The fall was not documented in fire department records. Moreover, two treating doctors indicated that DeLoach’s condition did not arise out of his employment, and one treating physician stated that DeLoach’s back symptoms dated back to 1973. This evidence supports the Board’s denial of disability benefits. Therefore, despite some evidence that the fall occurred, it follows that the Board did not abuse its discretion in denying DeLoach’s application. See Washington, supra at 86 (2). The superior court correctly granted summary judgment in favor of appellees on this ground, and a judgment right for any reason will be affirmed. Scott v. Hamilton Dorsey Alston Co., 206 Ga. App. 504, 505 (2) (426 SE2d 55) (1992).

Judgment affirmed.

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


text:
    A94A0385.
    KNOWLES v. OLD SPARTAN LIFE INSURANCE COMPANY, INC.
    (444 SE2d 136)
   Smith, Judge.

Angela Marie Knowles brought suit to recover the proceeds of her late mother’s life insurance policy. Knowles was the named beneficiary of the policy, which was issued by appellee Old Spartan Life Insurance Company. The complaint acknowledges that Old Spartan paid the proceeds under the policy to Knowles’s father as her “custodian.” Knowles also joined as defendants her stepmother and her late father’s estate on the ground that while alive the father and stepmother converted those proceeds “to their own personal uses.” Old Spartan answered, filed a motion to dismiss for failure to state a claim, and cross-claimed against the other defendants. Old Spartan’s motion to dismiss was granted. Knowles filed a motion to vacate that order, which was denied. She appeals from the dismissal and the subsequent denial of her motion to vacate the dismissal order.

1. Knowles contends that the trial court considered matters outside the complaint itself and that the trial court’s order therefore should be treated as the grant of summary judgment. See, e.g., Ledford v. Meyer, 249 Ga. 407 (290 SE2d 908) (1982). Knowles’s argument, made for the first time on appeal, is that Old Spartan invited consideration of matters outside Knowles’s pleading by arguing that the value of Knowles’s property was equivalent to the $8,000 value of the insurance proceeds.

This, Knowles argues, is relevant to the question of whether Old Spartan improperly paid the insurance proceeds to her father since he was not her “legally qualified guardian” under OCGA § 29-4-2 (b). Under that Code section, property valued in excess of $10,000 may not be demanded or received by the natural guardian until he or she is declared the “legally qualified guardian of the property of [the] child by the judge of the probate court.” Knowles’s complaint sets forth that the amount of the proceeds was $8,000, and alleges the existence of no other property other than those proceeds. Old Spartan’s bare assertion that the “property” in dispute consists solely of the insurance proceeds is contrary to no element of Knowles’s complaint; it merely states an inference wholly consistent with it. We find no support in the record for the proposition that the court’s order should be treated as one granting summary judgment.

2. Old Spartan moved “to dismiss the above-styled action for failure of the complaint to state a claim upon which relief can be granted,” apparently oblivious to Knowles’s claims against its co-defendants. In its brief in support of the motion, Old Spartan acknowledges Knowles’s allegation of wrongful conversion made against its co-defendants and makes no argument contrary to that theory. Indeed, Old Spartan relied upon essentially the same contention in its cross-claim.

“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” OCGA § 9-11-54 (b).

Decided May 11, 1994.

E. Kontz Bennett, Jr., for appellant.

Gordon & Hires, Raymond S. Gordon, Kopp & Conner, Neal L. Conner, Jr., for appellee.

The court’s order on the motion refers solely to “the defendant, Old Spartan Life Insurance Company, Inc.” in granting Old Spartan’s motion to dismiss. Neither party suggests, and we do not find, that the trial court’s order likewise served to adjudicate Knowles’s claims against Old Spartan’s co-defendants based on a separate and distinct theory of wrongful conversion.

We conclude that “[t]he order[s] sought to be appealed [are] not final within the meaning of OCGA § 5-6-34 (a) because the case remains pending below” against Old Spartan’s co-defendants. Coley Fertilizer Co. v. Gold Kist, 174 Ga. App. 471 (330 SE2d 597) (1985). “Because the procedures set forth in OCGA § 5-6-34 (b) have not been followed, the appeal must accordingly be dismissed.” Id. at 471-472.

Appeal dismissed.

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


text:
    A94A0414.
    TAYLOR v. THE STATE.
    (445 SE2d 577)
   McMurray, Presiding Judge.

Defendant Taylor appeals his convictions of child molestation, sexual battery, and aggravated sodomy. The sole enumeration of error •complains of the denial of defendant’s motion for new trial on the ground of ineffective assistance of counsel at trial. Held:

The only argument attempted in defendant’s brief to this court consists of a reiteration of the alleged deficiencies of trial counsel. The brief raised at most issues as to the sufficiency of the evidence presented at the hearing on defendant’s motion for new trial. At that hearing, the State presented evidence in regard to each alleged deficiency of trial counsel which was sufficient to authorize the trial court to determine that defendant’s allegations concerning trial counsel’s representation of defendant were without merit and that defendant had been afforded effective assistance of counsel. York v. State, 207 Ga. App. 494, 495-497 (2) (428 SE2d 113).

Judgment affirmed.

Pope, C. J., and Smith, J., concur.

Decided May 11, 1994.

Stephen H. Harris, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.


text:
    A94A0454.
    SMITH v. THE STATE.
    (444 SE2d 146)
   McMurray, Presiding Judge.

Defendant Smith and co-defendants Broomfield and Johnson were indicted in two counts for felony murder and murder. The State presented evidence at a joint jury trial that defendant Smith struck the victim in the head with a board during a violent multi-party brawl. The State also presented evidence that co-defendant Broom-field fatally wounded the victim during the brawl by striking the victim in the head with a baseball bat. Before completion of its case, however, the State moved to dismiss (nolle prosequi) the charges against co-defendant Johnson based on lack of evidence. The trial court granted this motion over objection asserted on behalf of co-defendant Broomfield.

The jury found co-defendant Broomfield guilty of malice murder and defendant Smith guilty of the lesser included offense of aggravated assault. Defendant Smith and co-defendant Broomfield filed separate appeals to the Supreme Court of the State of Georgia after the denial of separate motions for new trial. The Supreme Court transferred defendant Smith’s appeal to the Court of Appeals. Held:

1. In his first two enumerations, defendant Smith contends the trial court erred in denying his motion for mistrial and overruling his objection to the State’s motion to dismiss (nolle prosequi) the charges against co-defendant Johnson.

“Failure to object at trial constitutes waiver, and there is nothing for the appellate court to review. Pulliam v. State, 236 Ga. 460 (224 SE2d 8) (1976), cert. denied 428 U. S. 911, reh. denied 429 U. S. 874; Hill v. State, 183 Ga. App. 654 (360 SE2d 4) (1987); Williams v. State, 183 Ga. App. 373 (358 SE2d 914) (1987).” Millines v. State, 188 Ga. App. 655, 657 (3) (373 SE2d 838). The trial transcript in the case sub judice reveals that defendant Smith failed to join with co-defendant Broomfield in objecting to the State’s motion to dismiss (nolle prosequi) the charges against co-defendant Johnson. Further, there is no indication in the trial transcript that co-defendant Smith asserted a motion for mistrial either before or after the trial court granted the State’s motion to dismiss (nolle prosequi) the charges against co-defendant Johnson. In fact, counsel for defendant Smith twice stated, “Nothing, Your Honor,” in response to invitations by the trial court to respond to the State’s motion to dismiss (nolle prosequi) and the trial court’s ruling on said motion. Under these circumstances, enumerations of error 1 and 2 present nothing for review.

Decided May 11, 1994.

Stein & Cauthen, James E. Stein, for appellant.

W. Glenn Thomas, Jr., District Attorney, C. Keith Higgins, Assistant District Attorney, for appellee.

2. Defendant challenges the sufficiency of the evidence in his third enumeration. This contention is without merit. Eyewitness testimony that defendant hit the victim in the head with a board is sufficient to authorize the jury’s finding that defendant Smith is guilty, beyond a reasonable doubt, of the lesser included offense of aggravated assault. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); McCloud v. State, 210 Ga. App. 69 (435 SE2d 281).

Judgment affirmed.

Pope, C. J., and Smith, J., concur.

       The record reveals that defendant Smith only joined in a request on behalf of co-defendant Broomfield for remedial jury instructions to diminish any prejudice injected as a result of the departure of co-defendant Johnson from the case.


author: Beasley, Presiding Judge.

text:
    A94A0483.
    ELROD v. THE STATE.
    (444 SE2d 595)
   Beasley, Presiding Judge.

A five-count indictment was returned against appellant for second degree arson. OCGA § 16-7-61. The jury found him not guilty of the first two counts but guilty of the remaining three. He appeals the judgment of conviction, challenging the sufficiency of the evidence and the trial court’s admission of his statement to police.

Appellant completed schooling up through the ninth grade. School personnel testified that although he is of average intelligence, he was placed in a special education class because of learning deficiencies in reading, math, and written expression. He learned to read and comprehend the printed word but not cursive writing. He did not always understand difficult words or complex sentences.

Lieutenant Kirk interviewed appellant concerning the charges against him. Kirk was not involved in, or given information concerning, the investigation of these arsons. He conducted the interview at the request of another officer, at the community correctional center. Prior to questioning appellant, he advised him of his Miranda rights, and appellant said he understood them and that he would be glad to talk to Kirk. Kirk testified that he did not threaten, coerce, or intimidate appellant, or offer him any hope of benefit or reward.

Prior to making a statement, appellant, who was 17 years old, printed his name on a printed form acknowledging his waiver of rights. Kirk then asked appellant to tell him what happened. Appellant began giving an oral statement, which Kirk wrote down. Appellant then said he remembered an earlier incident which he had omitted from the statement, so he began his statement anew. Kirk began to write a new statement on another sheet. When completed, it was read aloud to appellant. Both documents were admitted in evidence, over objection.

Appellant related to Kirk the facts underlying the charges in Counts 1, 3, 4, and 5. He admitted participating in the arsons charged in Counts 3, 4, and 5, but stated that the ring leader, Hammontree, committed the arson charged in Count 1.

Following the Jackson-Denno hearing, the court found by a preponderance of the evidence that appellant was advised of his Miranda rights, understood and waived them, and “gave his statement completely and voluntarily without any hope of benefit or fear of injury.”

Hammontree testified at trial to the facts underlying the charges against appellant in Counts 1 through 5. Appellant and Hammontree gave the same detailed description of the events in Counts 3, 4, and 5.

1. The first enumerated error is that in view of appellant’s deficiencies of reading comprehension and written expression, the court was not authorized to find that his statements were freely and voluntarily given.

The deficiencies were not ones which would affect the validity of his oral statement, or the cursive writing which memorialized it and which was read to him, or the printed waiver. They would affect only his reading of the writing. Thus, the evidence supports the trial court’s determination that appellant knowingly and intelligently waived his Miranda rights and voluntarily gave the statements written down by Kirk, free of undue influence. “ ‘There being ample evidence presented in the trial court to support its determination [in favor of admissibility], it will not be disturbed on appeal.’ [Cit.]” Donaldson v. State, 249 Ga. 186, 190 (5) (289 SE2d 242) (1982).

2. Due to conflicts in the evidence created by appellant’s testimony denying that he is guilty of the charges against him and by the testimony of his alibi witnesses, he contends that the evidence was insufficient to authorize a rational trier of fact to find him guilty beyond a reasonable doubt.

Decided May 11, 1994.

Michael A. Corbin, for appellant.

Jack O. Partain III, District Attorney, Kermit N. McManus, Assistant District Attorney, for appellee.

“ ‘Although the evidence was in conflict . . . , the credibility of witnesses and the resolution of such conflicts are for the jury. On appeal of a conviction based on a jury verdict, this court resolves all conflicts in favor of the verdict and examines the evidence in a light most favorable to support that verdict.’ (Citation and punctuation omitted.) [Cit.] We concluded that a rational trier of fact could have found [appellant] guilty . . . beyond a reasonable doubt. [Cit.]” Fuller v. State, 211 Ga. App. 104, 106 (6) (438 SE2d 183) (1993).

Judgment affirmed.

Andrews and Johnson, JJ., concur.


text:
    A94A0486.
    WHEELING v. RING RADIO COMPANY.
    (444 SE2d 144)
   McMurray, Presiding Judge.

Plaintiff Wheeling filed this action for damages against defendant Ring Radio Company alleging breach of an employment contract. An amendment to the complaint added a second claim predicated on a theory of fraud and deceit.

Plaintiff was employed in the communications industry in North Carolina when he was approached by defendant’s president and offered a position as operations manager with defendant. In the ensuing negotiations, plaintiff and defendant’s president orally agreed to a three-year term of employment.

After two years working for defendant, plaintiff was terminated. This action resulted and plaintiff now appeals from a grant of summary judgment in favor of defendant. Held:

“Employment in Georgia is terminable at the will of either party (OCGA § 34-7-1), so an employee has no entitlement to a certain term of employment unless a contract exists therefor. An oral contract of employment for a term beyond one year is unenforceable under the statute of frauds. OCGA § 13-5-30 (6).” Golden v. Nat. Svc. Indus., 210 Ga. App. 53 (435 SE2d 270). Plaintiff maintains that a letter written to him by plaintiff’s president is sufficient to satisfy the requirements of the statute of frauds. The letter in question, dated July 7, 1988, sets forth a scheme of compensation for plaintiff, stating increasing levels of salary and opportunities for bonus for each of three years, and that the salary would be paid on the 15th and last day of each month. While the letter suggests that a more formal document was contemplated by the parties, no further document was ever signed. The letter does not address the duration of the term of plaintiff’s anticipated employment and the compensation scheme alone does not establish a definite term of employment of a length which would affect the outcome of this appeal. An employment contract containing no definite term of employment is terminable at the will of either party. Burton v. John Thurmond Constr. Co., 201 Ga. App. 10 (410 SE2d 137). See also Gatins v. NCR Corp., 180 Ga. App. 595, 597 (349 SE2d 818); Taliaferro v. S & A Restaurant Corp., 172 Ga. App. 399 (323 SE2d 271).

Nor was there such partial performance as would remove this case from the statute of frauds. While plaintiff terminated his employment in North Carolina, moved to Georgia and worked for defendant for two years, these acts are all consistent with an employment at will and thus insufficient to create a jury issue as to part performance. Baxley Veneer &c. Co. v. Maddox, 261 Ga. 309, 310 (1) (404 SE2d 554); Gatins v. NCR Corp., 180 Ga. App. 595, 598, supra; Katz v. Custom Spray Products, 168 Ga. App. 451, 452 (309 SE2d 663).

The allegation of fraud stated in the complaint was that at the time the job was offered to plaintiff, defendant’s owners did not intend to honor the three-year commitment. On appeal, plaintiff argues that the promises made to plaintiff were given with such reckless disregard for the defendant’s poor business prospects in entering a very competitive Atlanta radio market as to amount to a knowing misrepresentation. Construing the evidence in the light most favorable to plaintiff as the party opposing the motion for summary judgment, it is difficult to find any support for these propositions in the evidence. In any event, while there is a general rule that actionable fraud may not result from a failure to perform a promise, it is clear that plaintiff’s fraud claim is predicated on an exception to this general proposition, that is, that fraud may be predicated on a promise made with a present intention not to perform. However, the exception upon which plaintiff relies is not applicable under the circumstances of the case sub judice. The promises upon which plaintiff relies were related to future acts and were not enforceable even absent any fraud at the time of their utterance because the underlying employment contract, not being in writing, was unenforceable. Ely v. Stratoflex, Inc., 132 Ga. App. 569, 571 (2), 572 (208 SE2d 583). See also Richard A. Naso &c. v. Diffusion, 194 Ga. App. 201, 203 (390 SE2d 106); Marshall v. W. E. Marshall Co., 189 Ga. App. 510, 511 (1) (376 SE2d 393).

Judgment affirmed.

Pope, C. J., and Smith, J., concur.

Decided May 11, 1994.

David C. Cole, for appellant.

Vincent, Chorey, Taylor & Feil, Jean B. Blumenfeld, for appellee.


author: Pope, Chief Judge.

text:
    A94A0620.
    DAVIS v. THE STATE.
    (444 SE2d 142)
   Pope, Chief Judge.

Defendant Melvin J. Davis appeals from his convictions for shoplifting, attempting to elude an officer and obstruction of an officer. Defendant also challenges his sentence of confinement in the Lowndes County jail for a period of more than one year.

1. In his first two enumerations of error the defendant argues the trial court erred in failing to grant his motion for directed verdict resulting in a verdict that was contrary to the weight of the evidence and in denial of his right to due process. A directed verdict of acquittal is authorized only when there is no conflict in the evidence and the evidence and all reasonable deductions and inferences that can be drawn from it demand a verdict of acquittal. Pierce v. State, 209 Ga. App. 366, 368 (4) (433 SE2d 641) (1993). On appeal, this court does not reweigh the evidence but only determines its legal sufficiency. Lysfjord v. State, 208 Ga. App. 811 (1) (432 SE2d 247) (1993).

The following evidence was presented by the State: On November 11, 1992, an employee at a gasoline station (the “station”) observed a young man carrying cases of two-liter Pepsi Cola from a display area in the front of the store to a car parked at the side of the store. The employee alerted his colleague to call the police. The man, realizing the employee saw him, put down the colas and fled around the southeast corner of the building. The employee stood watch until a police officer arrived. He told the officer what he saw and that he suspected the white car parked on the side of the store was where the man was taking the colas. The officer parked his car behind that vehicle in case it was being used in the crime, noted the tag number and called it in to determine who was the owner. Then the employee and officer walked inside the store to complete a report.

While they were inside, an off-duty officer stopped by the station to buy gasoline. The investigating officer told that officer what happened. When the off-duty officer went back outside the station, someone told him a man wearing no shirt was watching them from a ditch area in apartments across the street. The off-duty officer walked across the street to those apartments and observed a man wearing no shirt running across the street toward a vehicle located at the station. He radioed the officer inside the store and told him what he was observing and also gave chase. Before either officer could arrive at the vehicle, the man entered the vehicle and locked the doors.

The police officers approached the vehicle, advised him they were officers and ordered him to exit the vehicle. The man refused, started the car, and began to try to free the vehicle from being blocked by the patrol car. While the officers were attempting to get the man out of the car, they were very close to him. Both were able to give accurate descriptions and later identify him as the defendant. The defendant was able to free the car and fled the scene. The investigating officer gave chase, but defendant abandoned the vehicle and was able to escape on foot. The automobile was recovered and stolen colas were found in the trunk.

When the owner of the vehicle was contacted by the police, she informed them that she had lent her automobile that evening to defendant, her boyfriend. Defendant was later arrested and charged.

Clearly the evidence presented by the State in this case did not demand a verdict of acquittal and it was sufficient to allow a rational finder of fact to find the defendant guilty of the crimes for which he was convicted. The trial court did not err in refusing to grant defendant’s motion for directed verdict.

2. Defendant also argues the trial court erred in sentencing him to serve his full sentence in the Lowndes County jail. Defendant was sentenced to six months in the Lowndes County jail for shoplifting, six months for attempting to elude an officer and twelve months for obstruction of an officer, all sentences to run consecutively. Defendant argues that because his total confinement period in the jail of Lowndes County exceeds 12 months, this sentence is in violation of OCGA § 17-10-3 (a) (1), which provides: “(a) Except as otherwise provided by law, every crime declared to be a misdemeanor shall be punished either: (1) By a fine not to exceed $1,000.00 or by confinement in the county or other jail, county correctional institution, or such other places as counties may provide for maintenance of county inmates, for a total term not to exceed 12 months, or both.” (Indentation omitted.) When construing a statute this court must look to the plain meaning of words and if there is only one reasonable construction, the statute must be construed in that manner. See Macon-Bibb County Hosp. Auth. v. Houston County, 207 Ga. App. 530, 531 (428 SE2d 374) (1993). The only reasonable interpretation of the disputed statutory language is that for the conviction of any single misdemeanor a defendant’s sentence for such crime shall not exceed a fine of $1,000, confinement in any of the correctional facilities listed in the statute for a period of time not to exceed 12 months, or both. It should not be interpreted as defendant argues to prohibit confinement in the correctional facilities listed for more than twelve months if the defendant is convicted of more than one misdemeanor, as the defendant was in this case. See Bishop v. State, 21 Ga. App. 236 (6) (94 SE 49) (1917).

Decided May 11, 1994.

Copeland, Thomas & Haugabrook, Vincent D. Hyman, for appellant.

H. Lamar Cole, District Attorney, J. David Miller, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

       There is no merit to defendant’s contention that because the station employee could not positively identify him he cannot be convicted of the crime of shoplifting. The other crimes for which defendant was convicted arose out of the same transaction and evidence of the crime of shoplifting was removed from the vehicle that defendant was driving on the night in question.


text:
    A94A0823.
    CAPITAL ATLANTA, INC. et al. v. CARROLL.
    (444 SE2d 592)
   Pope, Chief Judge.

In this workers’ compensation case, the employer and its insurer appeal an order of the Superior Court affirming the Board’s award granting the claimant income and medical benefits as well as attorney fees.

The claimant, a 35-year-old ironworker, injured his right knee while on the job on January 22, 1992. Fifteen years earlier, the claimant had injured the same knee and undergone surgery. However, Dr. Lawrence Reckles, the claimant’s treating physician, testified that the claimant’s prior injury had completely healed; that the current injury involved a different part of the patella tendon; that the prior injury and surgery had no significant relationship to the current injury; and that the prior injury did not make the current injury any more significant or serious than it otherwise would have been. Even Dr. Frederick Wener, the independent medical examiner who examined the claimant at the employer/insurer’s request, opined that there was “probably no relationship” between the prior and current injuries.

Immediately after the accident, the claimant was taken to the Industrial Clinic, a clinic listed on the employer’s panel of approved physicians. See Board Rule 201. There he came under the care of Dr. Reckles, who subsequently operated on his knee and continued to provide follow-up care. On February 13, 1992, the employer/insurer filed a notice to controvert the claim, asserting that it was not liable for income or medical benefits because the claimant failed to disclose his prior knee injury on his employment application and reserving its right to controvert the claim on “any and all issues which may arise.” On February 18,1992, Dr. Reckles noticed that the claimant was having difficulty adjusting to being in pain, out of work and uncertain about his future, and he agreed to the request of claimant and his wife for a referral to a psychologist near their home, Dr. Middleton Morehead.

The employer/insurer based its defense on Ga. Elec. Co. v. Rycroft, 259 Ga. 155 (378 SE2d 111) (1989), in which our Supreme Court held that an employer/insurer could deny compensation to a worker who wilfully misrepresented his physical condition on his employment application if the employer relied on the misrepresentation in hiring the employee and there was a causal connection between the misrepresentation and the injury. After an evidentiary hearing, the Administrative Law Judge found that the claimant wilfully misrepresented his medical history on his application and that the employer relied on this misrepresentation, but that there was no causal connection between the misrepresented injury and the current injury. Accordingly, the ALJ rejected the employer/insurer’s Rycroft defense and awarded the claimant benefits and attorney fees.

1. The employer/insurer argues that it showed a causal connection and that its Rycroft defense is consequently meritorious. The ALJ’s finding that there is no causal connection between the misrepresented prior injury and the current injury is supported by evidence in the record and thus must be accepted on appeal. See Maddox v. Elbert County Chamber of Commerce, 191 Ga. App. 478 (382 SE2d 150) (1989). Nonetheless, the employer/insurer argues that there is a causal connection between the misrepresentation and the current injury because the claimant would not have been employed, and thus would not have received the current work-related injury, if he had not misrepresented his medical history. However, if this type of causal connection were sufficient, the third prong of the three-prong test — causal connection — would be rendered meaningless, since it would be satisfied any time the second prong — reliance — was met. Indeed, “[t]he obvious import of the third factor is that there must be a causal connection between the employee’s pre-existing physical condition, regarding which the employee made the false representation, and the injury for which benefits are claimed, since to interpret it otherwise would lead to the ludicrous requirement that the false representation, in and of itself (rather than the subject matter of that representation), be causally connected to the injury.” Byrd’s Elec. &c. v. Johnson, 199 Ga. App. 621, 622 (405 SE2d 548) (1991). See also Ledbetter v. Pine Knoll Nursing Home, 180 Ga. App. 654 (1) (350 SE2d 299) (1986). Accordingly, the employer/insurer’s argument is without merit and its Rycroft defense was properly rejected.

2. The award of attorney fees was also not error. OCGA § 34-9-108 (b) (1) provides for the assessment of attorney fees against a party who prosecutes or defends a proceeding “without reasonable grounds.” In this case, the uncontroverted medical testimony was that there was no causal connection between the claimant’s prior medical condition and his current injury. Moreover, at the time of these proceedings, we had already rejected the employer/insurer’s position that there was a causal connection because the claimant would not have been working and thus would not have been injured had the misrepresentation not been made. See Byrd’s Elec., supra. The employer/ insurer’s reliance on a Rycroft defense was therefore unreasonable and there was no error in assessing attorney fees.

3. The employer/insurer also contends that it is not responsible for medical payments to Dr. Morehead, the psychologist, because the claimant did not follow the procedures set forth in OCGA §§ 34-9-200 (b) and 34-9-201 (d) for changing his treating physician. It is clear from the record that the claimant was not changing physicians when he went to see Dr. Morehead for psychological counseling but was instead seeking specialized medical services ancillary to his treating physician’s care, which is explicitly authorized by OCGA § 34-9-201 (c). As the employer/insurer points out, however, this Court has held that despite the express authorization of referrals contained in OCGA § 34-9-201 (c), a referral by a treating physician to another care provider constitutes a change of physician or treatment requiring approval by the Board as set forth in OCGA §§ 34-9-200 (b) and 34-9-201 (d). See Lee Fabricators v. Cook, 203 Ga. App. 450 (417 SE2d 35) (1992); Brown v. Transamerica, IMS, 200 Ga. App. 272 (1) (407 SE2d 430) (1991).

(a) The employer/insurer’s contention is without merit because the employer/insurer had controverted the claimant’s claim at the time of the referral. The statutory scheme set forth in OCGA §§ 34-9-200 and 34-9-201 reflects a quid pro quo: the employer provides medical benefits and is in turn afforded some degree of control over the claimant’s course of treatment. On the other hand, when the employer refuses to pay medical benefits and that refusal is later deemed unfounded, the employer cannot rely on the claimant’s failure to comply with the requirements of the statutory scheme to deny liability for claimant’s medical expenses. See Boaz v. K-Mart Corp., 254 Ga. 707 (1) (334 SE2d 167) (1985); Ga. Power Co. v. Brasill, 171 Ga. App. 569 (320 SE2d 573) (1984), aff’d, 253 Ga. 766 (327 SE2d 226) (1985).

Decided May 11, 1994.

Swift, Currie, McGhee & Hiers, Jodi B. Ginsberg, Michael H. Friedman, Leigh L. Jones, for appellants.

Charles H. Lumpkin, Jr., for appellee.

(b) Furthermore, we note for the benefit of counsel practicing in this area that the General Assembly has just amended OCGA § 34-9-201 to specify that referrals for ancillary medical services do not require authorization from the Board, thereby legislatively overruling Lee Fabricators and Brown as of July 1, 1994, the effective date of the bill. H. B. No. 1505. Ga. L. 1994, p. 895, § 11 (b) (2).

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

        Lee Fabricators and Brown rely on Holcombe v. Brown Transport Corp., 253 Ga. 719 (324 SE2d 446) (1985). Unlike the claimants in Lee Fabricators, Brown and this case, however, the claimant in Holcombe had in fact “changed” doctors, as he moved to another state and necessarily stopped seeing his prior treating physician. Thus, Holcombe could be read to simply hold that a claimant cannot avoid getting Board approval for a change of physicians by accomplishing the change through a referral from the old physician to the new one.


text:
    A94A1131.
    TAYLOR v. THE STATE.
    (445 SE2d 577)
    Decided May 11, 1994.
    Elvis J. Taylor, pro se.

      Lewis R. Slaton, District Attorney, J. Clayton Culp, Vivian D.

      Hoard, Assistant District Attorneys, for appellee.
   Pope, Chief Judge.

On February 19, 1991, the appellant, Elvis Taylor, was convicted of trafficking in cocaine and possession of marijuana. This court subsequently affirmed his conviction on April 30, 1992. Taylor v. State, 204 Ga. App. 236 (419 SE2d 56) (1992).

On January 6, 1994, Taylor filed a “petition to correct void sentences,” in which he contended that the trial court failed to conduct a pre-sentence hearing required under OCGA § 17-10-2. The trial court denied that “petition,” and this appeal followed.

In this case, although he raises a contention not previously asserted, Taylor attempts to appeal directly what has already been appealed and decided against him. For that reason, this court will not entertain this second appeal. See, e.g., Collier v. State, 170 Ga. App. 616 (317 SE2d 657) (1984).

Appeal dismissed.

McMurray, P. J., and Smith, J., concur.


author: Johnson, Judge.

text:
    A94A0100.
    JORDAN v. PLACER HOLDING COMPANY.
    (444 SE2d 112)
   Johnson, Judge.

Brenda Jordan bought 40 shares of stock in English Colony Homeowners Association, Inc., a cooperative. By virtue of the ownership of the stock, Jordan became a member of the housing cooperative. As a member, she was entitled to lease a residential unit from the cooperative subject to an occupancy agreement. A provision in the agreement obligated Jordan to pay certain fees. When she failed to pay her fees, the cooperative instituted a dispossessory action against her pursuant to Article XIII of the agreement. In a de novo review of the magistrate court’s ruling, the state court granted the cooperative’s motion for summary judgment, issuing a writ of possession and entering judgment in favor of the cooperative for past due fees and finding that a landlord-tenant relationship existed between the parties. Jordan appeals, pro se, asserting that she has ownership rights in her unit which preclude a dispossessory action.

1. Appellate courts in Georgia have rarely been presented with issues arising out of housing cooperatives. A cooperative housing association creates a hybrid form of property ownership. The association is comprised of members who attain their membership by virtue of their purchase of stock in the association. Members are entitled to exclusive possession of a housing unit, but the real estate is owned by the association. Owners may deduct interest payments from their federal income taxes based on the amount of association dues used to pay the mortgage associated with their share of the property, and some states, although not Georgia, allow members local homestead credits. Compare Mehralian v. Riverview Tower Homeowners Assn., 464 NW2d 571, 574 (1) (Minn. 1991); State of Fla., Dept. of Revenue v. Swinscoe, 376 S2d 1 (Fla. 1979); Brandywine Townhouses v. Joint City-County Bd. of Tax Assessors, 231 Ga. 585 (203 SE2d 222) (1974). The ownership of the stock, personalty, entitles one to many rights generally associated with ownership of real estate, and therein the confusion lies. See generally 15A AmJur2d 889-891, 907-912, Condominiums & Cooperative Apartments, §§ 59, 60, 77-80; 4B Powell & Rohan, Powell on Real Property, Chapter 54.

Whether a cooperative may maintain a dispossessory action against a cooperator who is in default in his maintenance fees is a question of first impression in this state. Other states considering this issue have reached opposing results. For example, in New York: “It is our opinion that the relationship between the petitioner, a co-operative, and respondent, its stockholder, is that of landlord and tenant to the extent that petitioner may maintain a summary proceeding against respondent [for nonpayment].” Earl W. Jimerson Housing Co. v. Butler, 425 NYS2d 924, 925 (4) (1979). In New Jersey, it has been held: “[A] cooperative is a unique form of property ownership and the relationship between the association and a cooperator-shareholder is not that of landlord and tenant for the purpose of a summary dispossess action.” Plaza Rd. Cooperative v. Finn, 492 A2d 1072, 1077 (1, 2) (1985). Several of the decisions considering dispossessory proceedings turned on the issue of whether certain statutorily-created courts had jurisdiction to hear such proceedings and/or whether the relationship between the cooperative and the member falls within certain statutory definitions contained in particular housing codes. See generally Kohler v. Snow Village, 475 NE2d 1298 (Ohio 1984) (regarding whether a landlord-tenant relationship exists in the context of cooperatives).

In affirming the trial court, we rely upon and find controlling the express terms of the occupancy agreement signed by the parties which authorizes the cooperative to terminate the member’s right to occupancy under the agreement in the event a member fails to pay the cooperative fees, special charges, repairs and maintenance. Art. XIII, Secs. 13.1,13.1.3-4. We note that without these operating funds, the cooperative would be unable to satisfy its mortgage obligations, as well as its obligations to maintain the property, adversely affecting not just the defaulting member, but all of his innocent neighbors. It makes practical sense that the cooperative must have the benefit of access to summary proceedings in order to protect the interests of all of its members.

We also consider the Georgia Supreme Court’s observations in Brandywine, supra. “Although a member does possess some characteristics of ownership, the terms of the occupancy agreement also limit the rights of each member in many respects inconsistent with ordinary elements of ownership.” Id. at 587. The Supreme Court went on to hold that the members of a cooperative, being tenants, are not regarded as owners for purposes of claiming a credit under Georgia’s homestead exemption. We conclude that the trial court did not err in finding that a landlord-tenant relationship exists in the context of housing cooperatives and accordingly entering judgment in favor of the cooperative.

2. Jordan’s remaining enumerations of error are without merit and in light of our holding in Division 1, need not be addressed.

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.

Decided April 29, 1994

Reconsideration denied May 12, 1994.

Brenda Jordan, pro se.

Storey & Obenschain, Stuart M. Neiman, for appellee.


author: Cooper, Judge.

text:
    A94A0157.
    PERRY v. THE STATE.
    (444 SE2d 150)
   Cooper, Judge.

This appeal follows our grant of defendant’s application seeking discretionary review of the trial court’s order revoking his probation.

During a search of defendant’s home in July 1992, defendant was found to be in possession of illegal drugs as well as $623 worth of food stamps. At that time, defendant was on probation for previous convictions of aggravated assault, carrying a pistol without a license and carrying a concealed weapon. In August 1992, the State filed a civil forfeiture action condemning the food stamps and a petition to revoke defendant’s probation pursuant to OCGA § 16-13-49. This petition alleged that defendant violated his probation by committing the offense of possession of cocaine with intent to distribute and possession of marijuana. The petition did not make any allegations regarding the illegally obtained food stamps.

In September 1992, a hearing was held on the State’s petition to revoke defendant’s probation, and defendant was found, by his own admission, to be in violation of his probation. Accordingly, five years of defendant’s probation was revoked.

In April 1993, defendant was tried on charges related to the drugs found during the July 1992 search, and defendant was convicted of misdemeanor possession of marijuana and possession of cocaine. Defendant admitted at trial that he was fraudulently in possession of the food stamps seized in his apartment. The trial judge, upset about defendant’s admissions and conduct at trial, requested that the State pursue charges against defendant related to the food stamps. Consequently, a second petition for probation revocation was brought, this time alleging that defendant violated his probation by illegally obtaining food stamps. Following the hearing in June 1993, the remainder of defendant’s probation was revoked.

Defendant argues that the trial court erred by permitting defendant to be prosecuted in successive actions for probation revocation based on violations which were part of the same conduct occurring on the same day, both of which were known to the district attorney at the time of the initial probation revocation.

OCGA § 16-1-7 proscribes successive criminal prosecutions for the same conduct. OCGA § 16-1-7 (b) provides “[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution. . . This Code section “constitute[s] Georgia’s statutory bar to successive prosecutions, the procedural aspect of double jeopardy. [Cit.]” Mann v. State, 160 Ga. App. 527, 528 (287 SE2d 325) (1981).

However, “[t]he Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be. [There have been] established many types of criminal sanctions under which the defendant is unaware of the precise extent of his punishment for significant periods of time, or even for life, yet these sanctions have not been considered to be violative of the Clause. Thus, there is no double jeopardy protection against revocation of probation and the imposition of imprisonment.” United States v. DiFrancesco, 449 U. S. 117, 137 (101 SC 426, 66 LE2d 328) (1980). “Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.” Morrissey v. Brewer, 408 U. S. 471, 480 (92 SC 2593, 33 LE2d 484) (1972). Therefore, “[i]f the probation is revoked, the imprisonment is not imposition of confinement but revocation of his conditional liberty permitted by his probation.” (Citations and punctuation omitted.) In the Interest of B. N. D., 185 Ga. App. 906, 907 (366 SE2d 187) (1988).

Thus, it has become well-settled in this state as well as in the federal courts, that a proceeding to revoke a probated sentence is not a criminal proceeding, and there is no double jeopardy protection against revocation of probation and the imposition of imprisonment. Smith v. State, 171 Ga. App. 279 (319 SE2d 113) (1984). See also Johnson v. State, 240 Ga. 526 (242 SE2d 53) (1978); Teague v. State, 169 Ga. App. 285 (1) (312 SE2d 818) (1983). Accordingly, we are unable to conclude that the trial court erred by permitting defendant to be prosecuted in successive actions for probation revocation based on violations which were part of the same conduct. “As jeopardy did not attach at the first hearing . . . the second hearing is not subject to an objection on the ground of double jeopardy.” Smith v. State, supra at 283.

Based upon this holding, we need not address the issue of whether the district attorney had knowledge about defendant’s food stamp offenses at the time of the initial probation revocation hearing. We also need not address defendant’s argument that the trial court exceeded its authority in revoking the balance of defendant’s probation in violation of OCGA § 42-8-34.1 (c). “Such claim may not be considered because enumerations may not be enlarged by brief on appeal to cover issues not contained in the original enumeration.” (Citations and punctuation omitted.) Tibbs v. State, 207 Ga. App. 273, 275 (5) (427 SE2d 603) (1993).

Decided May 12, 1994.

J. Ellis Millsaps, for appellant.

Alan A. Cook, District Attorney, Jefferson B. Blandford, Anne M. Templeton, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


author: Andrews, Judge.

text:
    A94A0601.
    FRANKEL v. CLARK.
    (444 SE2d 147)
   Andrews, Judge.

Lavond Clark filed a dental malpractice suit on August 28, 1992 against Dr. David Frankel and his partner Dr. Alan Stein for damages resulting from the failure to discover a cyst in her lower right jaw. Her complaint alleged that on or about August 30, 1990, as a result of the negligence of defendants she suffered various damages.

The affidavit of plaintiff’s expert, Thomas David, D. D. S., was filed in which he stated that both Drs. Frankel and Stein were negligent in failing to diagnose the presence of the cyst. Specifically, David avowed that they were negligent in failing to take adequate diagnostic x-ray films of Clark prior to the placement of a bridge on the right side of her mouth; in failing to take adequate diagnostic x-ray films of her subsequent to the placement of the bridge on the right side of her mouth when she continued to experience pain; by rendering improper and inadequate dental treatment to her by placing a bridge in an area where a cyst was present; and in failing to diagnose the cyst in the area where the right bridge was placed.

On October 19, 1992, Clark dismissed Stein from the action. In May 1992, Frankel filed a motion for summary judgment arguing that the two-year statute of limitation under OCGA § 9-3-71 expired prior to the filing of the suit. He contended that even according to David, the latest possible date for the misdiagnosis was March 29, 1990 and that the suit should have been filed by March 29, 1992. Frankel filed his own affidavit in support of the motion, in which he stated that he had seen Mrs. Clark for preparation of a bridge during March 1990 and that he treated her on March 9, March 26 and March 29, 1990. Further, he stated that he saw Mrs. Clark on August 30, 1990, when her jaw was x-rayed, although he stated that she was “seen” by Dr. Stein on that date and referred to a specialist for consultation. Dr. Frankel avowed that the last professional treatment he rendered to Mrs. Clark was on May 4, 1990.

Also attached to the motion were Clark’s responses to discovery in which she stated that in addition to the acts listed in David’s affidavit, Frankel’s failure to drain the infection and become aware of the cyst occurred on March 2, 1990 and the bridge placement and painful drilling took place on March 26, 1990.

The depositions of David and Clark were also filed. David stated that Clark’s problems with her right jaw indicated that a cyst was probably present as early as January 1990. Clark testified that although her right jaw area was sensitive as early as October 1989, she did not begin having problems with the area until March 1990. She testified that August 30 was the last date on which she considered Frankel her dentist and on that date the x-ray showed a possible growth on her jaw. She was immediately referred to a specialist, whom she went to on August 31, 1990, when the presence of a cyst was confirmed.

Clark filed her response to the motion, claiming that the statute of limitation was tolled under a continuing tort theory because of Frankel’s continued failure to diagnose the cyst. She argued that the date of discovery of the cyst controlled the statute of limitation and that the statute was tolled by Frankel’s fraudulent misrepresentations.

The trial court denied the motion for summary judgment, and we granted Frankel’s application for interlocutory review.

In three enumerations of error, Frankel argues that the trial court erred in denying his motion for summary judgment since the statute of limitation expired before Clark filed suit. OCGA § 9-3-71 (a) provides that a medical malpractice action must be brought within two years “after the date on which an injury . . . arising from a negligent or wrongful act or omission occurred.” This is a case of misdiagnosis. “In most such cases, the injury begins immediately upon the misdiagnosis due to the pain, suffering, or economic loss sustained by the patient from the time of the misdiagnosis until the medical problem is properly diagnosed and treated. The misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis.” (Citations and punctuation omitted.) Zechmann v. Thigpen, 210 Ga. App. 726 (3) (437 SE2d 475) (1993).

At the latest, Clark’s injury occurred on March 29, 1990. By that date, the act of alleged negligence had occurred and the injury had manifested itself to Clark. The fact that Clark did not know the medical cause of her suffering did not affect the application of OCGA § 9-3-71 (a) when the evidence established that her injury had occurred and had physically manifested itself to her at the time of misdiagnosis. Bryant v. Crider, 209 Ga. App. 623 (3) (434 SE2d 161) (1993); see generally Stone v. Radiology Svcs., P.A., 206 Ga. App. 851 (2) (426 SE2d 663) (1992); Jones v. Lamon, 206 Ga. App. 842 (1) (426 SE2d 657) (1992); Surgery Assoc., P.C. v. Kearby, 199 Ga. App. 716 (405 SE2d 723) (1991). Accordingly, the trial court erred in denying Frankel’s motion for summary judgment since the complaint was filed August 28, 1992, several months after the statute expired.

Decided May 12, 1994.

Berlon & Timmel, Michael R. Berlon, for appellant.

Steve A. Didio, for appellee.

Clark argues that four separate acts of negligence are involved here and that the statute had not expired on all of them. She contends that in addition to the misdiagnosis, her expert identified that two acts of negligence occurred subsequent to the placement of the bridge — between March 29, 1990 and August 30, 1990. She contends that Frankel’s failure to take adequate diagnostic x-ray films subsequent to the placement of the bridge on the right side of her mouth and his failure to diagnose the presence of a cyst in the area where the right bridge was placed continued until August 30, 1990. We do not accept Clark’s argument. Unlike situations in which separate acts of negligence may occur, see, e.g., Vitner v. Miller, 208 Ga. App. 306 (430 SE2d 671) (1993), in this case the allegedly negligent act — the failure to diagnose the cyst and the subsequent placement of the bridge — was complete by March 29. Frankel’s alleged failure to correct his previous negligence does not constitute additional acts of negligence and we do not accept Clark’s argument that his continued failure to recognize the problem constituted a continuing tort.

Moreover, contrary to Clark’s assertions, we find no evidence of fraud so as to toll the statute of limitation. Clark did not plead such fraud and there is nothing in the record to reflect that Frankel knew at any time that his treatment was in error, nor is there any evidence that he fraudulently withheld such information from Clark. See Stone, supra at 853; Zechmann, supra; see generally Rowell v. McCue, 188 Ga. App. 528 (373 SE2d 243) (1988).

Because of our conclusion with respect to these enumerations, we need not address Frankel’s claim that Clark’s response to the motion for summary judgment was improperly considered.

Judgment reversed.

Beasley, P. J., and Johnson, J., concur.


author: Birdsong, Presiding Judge.

text:
    A94A0158.
    REGENCY MALL ASSOCIATES v. G. W.’s RESTAURANT, INC.
    (444 SE2d 572)
   Birdsong, Presiding Judge.

Regency Mall Associates, an Ohio general partnership, appeals from the judgment of the trial court canceling a foreign judgment against G. W.’s Restaurant, Inc., a Georgia corporation, because the trial court found the provision in the contract between the parties fixing jurisdiction in an Ohio court was void because it was against the public policy of this state. The particular provision in the contract provides: “Any action, suit or proceeding relating to, arising out of or in connection with the terms, conditions and covenants of this lease may be brought by lessor against lessee in the Court of Common Pleas of Mahoning County, Ohio. Lessee hereby waives any objection to jurisdiction or venue in any proceeding before said court.” Regency Mall Associates contends, however, that the cases upon which G. W.’s Restaurant relies concern venue fixing provisions in contracts, and not provisions which confer jurisdiction upon the court of another state. Held:

While it is the public policy of this state that provisions fixing the venue of an action on the contract are void (Cartridge Rental Network v. Video Entertainment, 132 Ga. App. 748 (209 SE2d 132) and Fidelity &c. Co. of Maryland v. Gainesville Iron Works, 125 Ga. App. 829, 830 (189 SE2d 130)), the contract provision in this appeal is not such a provision. Instead, this type of provision is a forum selection clause which does not offend the principles of Fidelity &c. Co. of Maryland v. Gainesville Iron Works, supra. Harry S. Peterson Co. v. Nat. Union Fire Ins. Co., 209 Ga. App. 585, 591 (434 SE2d 778). Moreover, the language of Cartridge Rental Network v. Video Entertainment, supra, referring to “ ‘broad considerations of public policy against limiting venue by contract’ ” was disapproved by the majority opinion in Harry S. Peterson Co. v. Nat. Union Fire Ins. Co., supra at 590.

Accordingly, this appeal is governed by Lightsey v. Nalley Equip. Leasing, 209 Ga. App. 73, 74 (432 SE2d 673); Brown v. U. S. Fidelity &c. Co., 208 Ga. App. 834, 835 (432 SE2d 256); and Harbin Enterprises v. Sysco Corp., 195 Ga. App. 694, 695 (394 SE2d 618), upholding the validity of forum selecting clauses in contracts. “It is clear under Georgia law that personal jurisdiction, unlike subject matter jurisdiction, may be waived. The United States Supreme Court has recognized a variety of legal arrangements as representative of consent to personal jurisdiction. Advance consent to the jurisdiction of a particular court in a contract is one such arrangement.” (Citations and punctuation omitted.) Id.

Accordingly, the trial court erred by canceling the foreign judgment against G. W.’s Restaurant on this basis.

Decided March 30, 1994

Reconsideration denied May 13, 1994

Fulcher, Hagler, Reed, Hanks & Harper, Robert C. Hagler, J. Edward Enoch, Jr., for appellant.

Jay M. Sawilowsky, for appellee.

Judgment reversed.

Cooper and Blackburn, JJ., concur.


text:
    A94A0204.
    A94A0205.
    A94A0206.
    STRICKER et al. v. EPSTEIN et al. EPSTEIN v. STRICKER et al. FEINBERG v. STRICKER et al.
    (444 SE2d 91)
   Pope, Chief Judge.

In 1984, defendants Alan Epstein and Kenneth Feinberg established defendant Macon Gas Resources Corporation (“MGRC”) and became its officers, directors and shareholders. MGRC and Orlando Capital Resources (“Orlando”) then formed Macon Gas Resources General Partnership (“the partnership”), a partnership created for the purpose of recovering methane gas from a Macon landfill, processing it and selling it as an energy source. The methane gas recovery system in Macon became operational and successful, and the partnership’s revenues were split evenly between MGRC and Orlando on a monthly basis. In the meantime, Epstein and Feinberg also established other, separate corporations to engage in similar projects at landfills in Atlanta (Atlanta Gas Resources Corporation or “AGRC”) and Birmingham (Birmingham Gas Resources Corporation or “BGRC”). The projects in these cities were not as successful, and there is evidence that in 1987 Epstein and Feinberg decided they needed to raise additional capital for them. However, instead of asking people to invest in AGRC or BGRC, they invited various family members to buy stock in the successful Macon corporation. The monies raised by this sale of stock in MGRC were then used for AGRC and BGRC.

Epstein contacted his cousin, Leila Strieker, and she and her husband (“plaintiffs”) agreed to purchase 140 shares of stock in MGRC for $35,000. In January 1988, at the same time as the purchase of the stock, plaintiffs and Epstein and Feinberg executed two stockholder agreements. Pursuant to these agreements, plaintiffs were to be paid seven percent of MGRC’s gross revenues on a monthly basis or a minimum of $7,000 per year, plus a special distribution of $35,000 in 1989. In return, plaintiffs gave Epstein and Feinberg their voting rights and a right of first refusal with respect to their stock.

Plaintiffs received several monthly checks pursuant to the agreement, but the checks soon stopped. The partnership ceased operations at the Macon landfill in 1989, when the gas recovery equipment was destroyed and never rebuilt or replaced. Nonetheless, MGRC had income of $250,000 in 1990. In 1986, the partnership had sold some of its unused rights to gas at the Macon landfill to Cherokee Brick & Tile Company (“Cherokee”). In addition to the amount paid to the partnership at the time of the sale, Cherokee agreed that it would pay the partnership an additional $500,000 in March 1990 if specified levels of productivity were achieved. This contingency occurred, and the $500,000 payment to the partnership became due. In the meantime, however, Epstein and Feinberg had borrowed $200,000 from Cherokee for use on the Birmingham project; and Epstein arranged for the $250,000 owed to MGRC (one-half of the $500,000 owed to the partnership) under the Cherokee agreement to be used to pay off that obligation.

Plaintiffs sued Epstein, Feinberg and MGRC for breach of contract, an accounting, fraud, violation of securities laws and breach of fiduciary duty. After discovery, the parties filed cross-motions for partial summary judgment. With respect to the breach of contract claim, both plaintiffs’ and defendants’ motions were denied. However, defendants’ motions for summary judgment were granted on the fraud, violation of securities laws and breach of fiduciary duty counts. In Case No. A94A0204, plaintiffs appeal the grant of summary judgment to defendants as to fraud, violation of securities laws and breach of fiduciary duty, as well as the denial of their own motion for summary judgment on the breach of contract count. In Case Nos. A94A0205 and A94A0206, Epstein and Feinberg appeal the denial of their motions for summary judgment on the breach of contract claim.

Case No. A94A0204

1. Plaintiffs first argue that the trial court erred in ruling that the merger clause in the stockholder agreement, which provides that no representations other than those contained in that document were made, precludes their fraud action. We agree that the trial court erred. A plaintiff who is fraudulently induced to enter into a contract cannot sue for breach of that contract and for damages for fraud if the contract in question contains a merger clause, because the plaintiff cannot simultaneously affirm a contract which states that no representations were made and allege fraud based on such representations. See Carpenter v. Curtis, 196 Ga. App. 234 (395 SE2d 653) (1990). But see 196 Ga. App. at 238-239 (Deen, P. J., concurring specially) (two of the three judges on the panel in Carpenter joined in a special concurrence criticizing this rule as unfair because it may leave the defrauded plaintiff without an adequate remedy). In this case, however, the fraud plaintiffs allege is the fraud which induced their actual purchase of stock in MGRC, while the document containing the merger clause — which is also the agreement upon which their breach of contract action is based — reflects an agreement between stockholders in which plaintiffs sold voting rights and rights of first refusal in return for certain payments. Accordingly, the contract plaintiffs “affirm” by suing for breach is not the agreement allegedly induced by fraud, so the rule of Carpenter does not apply.

Defendants contend the purchase of stock was actually part of the stockholder agreement because it happened at the same time as the stockholder agreement and would not have occurred without it since the payments provided for in that agreement were really returns on plaintiffs’ investment rather than payments for voting and first refusal rights. However, the language of the stockholder agreement clearly contemplates that all parties are already stockholders; and the merger clause, which states that “[t]his instrument represents the entire understanding between the parties,” itself belies defendants’ argument that the purchase of stock was an implicit part of the same transaction. Thus, the purchase of the stock and the agreement between the stockholders were two separate transactions, regardless of the fact that the purchase was made in contemplation of execution of the stockholder agreement; and the merger clause in the latter does not preclude a fraud action based on the former.

Evidence in this case, viewed in a light favorable to plaintiffs, shows that Epstein and Feinberg agreed to sell stock in one corporation but use the invested money for the benefit of other corporations they owned. There is additional evidence that Epstein expressly represented to plaintiffs that the invested money would be used for improvements to the Macon project, knowing that it would in fact be used for the benefit of the Atlanta and Birmingham projects which were owned and operated by other corporations. However, we hold that even without this express misrepresentation, evidence of an agreement to sell stock in one corporation and use the money for other corporations is alone sufficient to establish fraud and conspiracy to commit fraud on the part of both parties to the agreement.

Feinberg argues he could not have defrauded plaintiffs because he never met or talked with them prior to their purchase of stock. While it appears that Feinberg is less culpable than Epstein, the fact remains that, according to his own testimony, Feinberg was party to an agreement to sell stock in MGRC and use the money for the benefit of other corporations. If proved, such an agreement would be fraudulent per se, and Feinberg’s participation in it would be sufficient to support a finding that he was party to a conspiracy to defraud despite his lack of direct contact with plaintiffs. See Grainger v. Jackson, 122 Ga. App. 123 (1 & 2) (176 SE2d 279) (1970); Quinn v. Forsyth, 116 Ga. App. 611 (1) (158 SE2d 686) (1967).

Defendants assert that summary judgment on the fraud claim was nonetheless proper because plaintiffs’ action was brought more than two years after the alleged fraud. However, this is a common law fraud claim governed by a four-year statute of limitation, see OCGA § 9-3-31, and the limitation period is not reduced from the four-year period applicable to fraud claims to the two-year period applicable for claims based on violation of securities laws simply because the alleged fraud involves the sale of stock. See Quinn, 116 Ga. App. at 619 (4).

2. Plaintiffs contend that summary judgment for defendants on their claim that defendants violated various securities laws was also error. In Georgia, all claims alleging violations of securities laws are governed by a two-year statute of limitation. See Friedlander v. Troutman, Sanders &c., 788 F2d 1500 (11th Cir. 1986); OCGA § 10-5-14 (d). As plaintiffs purchased their stock in January 1988 and filed this action in June 1991, their suit was brought more than two years after the alleged violations occurred. Plaintiffs contend, however, that the fraudulent acts on which this claim is based — the sale of stock in one corporation to raise money for the use of other corporations :— tolled the running of the limitation period until the fraud was discovered, which was less than two years before they brought the suit. See OCGA § 9-3-96. “Where actual fraud is the gravamen of an action, ‘the statute of limitations is tolled until the fraud is discovered or by reasonable diligence should have been discovered.’ [Cit.]” Hartley v. Gago, 202 Ga. App. 770, 771 (1) (415 SE2d 510) (1992); see also Shipman v. Horizon Corp., 245 Ga. 808 (267 SE2d 244) (1980). Assuming that actual fraud is the gravamen of this cause of action based on violations of securities laws, we nonetheless conclude that plaintiffs cannot rely on the tolling provisions of OCGA § 9-3-96 because if they had exercised reasonable diligence they would have discovered the fraud more than two years before they filed their claim. Plaintiffs stopped receiving their monthly checks in September 1988 and should have realized that something was wrong at that time. As stockholders, they had the right to look at the corporation’s books to see how their investment was used, see OCGA § 14-2-1602, but they did not attempt to do so. Compare Quinn, 116 Ga. App. at 618-619 (3). Moreover, though a fiduciary relationship among the parties arose subsequently, no relationship of trust which would excuse plaintiffs’ failure to exercise due diligence existed at the time the actual fraud occurred. Thus, summary judgment for defendants was properly granted on plaintiffs’ cause of action based on violations of securities laws. See also Brooks v. Freeport Kaolin Co., 253 Ga. 678 (1) (324 SE2d 170) (1985).

3. The trial court also granted summary judgment to defendants on plaintiffs’ breach of fiduciary duty claim. In this cause of action, plaintiffs point to instances subsequent to their purchase of stock in which Epstein and Feinberg used MGRC funds to support their other activities, including Epstein and Feinberg’s misuse of the proceeds of the Cherokee sale to pay off their personal obligations to Cherokee. The trial court reasoned that this claim was against Epstein and Feinberg on behalf of the corporation and all its other shareholders, and thus could only be brought as a derivative action. We agree with the trial court. See Thomas v. Dickson, 250 Ga. 772 (301 SE2d 49) (1983); OCGA § 14-2-740 et seq.

Plaintiffs argue that Epstein and Feinberg owed them fiduciary duties not only as officers, directors and majority shareholders, but also as the holders of plaintiffs’ voting rights pursuant to the stockholder agreements. We agree that if plaintiffs had simply assigned their voting rights to Epstein and Feinberg through a proxy or voting trust arrangement, Epstein and Feinberg would have become plaintiffs’ agents and would have owed them special fiduciary duties apart from those owed by officers, directors or majority stockholders to other stockholders. Cf. Tigner v. Shearson-Lehman Hutton, Inc., 201 Ga. App. 713 (411 SE2d 800) (1991) (agent owes fiduciary duties to principal). Here, however, plaintiffs completely and unconditionally sold their voting rights in return for money. Under these circumstances, we conclude the parties they sold these rights to, Epstein and Feinberg, did not owe them any special duties based on that sale, and the trial court did not err in granting summary judgment for defendants on this claim.

4. Lastly, plaintiffs argue that the trial court should have granted summary judgment to them on their breach of contract claim. Pursuant to the stockholder agreements, Epstein and Feinberg agreed that plaintiffs were to be paid seven percent of MGRC’s gross revenues on a monthly basis or a minimum of $7,000 per year, plus a special distribution of $35,000 in 1989; and in return, plaintiffs gave Epstein and Feinberg their voting rights and a right of first refusal with respect to their stock. As it is undisputed that plaintiffs performed their part of the agreement but have not received most of the promised payments, it would seem that Epstein and Feinberg’s liability for breach of the agreement is clear. Epstein and Feinberg contend that the obligation belongs to MGRC and they are not personally liable. By definition, however, a stockholders’ agreement is between stockholders and cannot bind the corporation. Epstein and Feinberg signed the agreements as individuals, without indicating that they were representing the corporation in any way. Moreover, the trade of payments for voting and first refusal rights which was the subject of the agreement was clearly between plaintiffs and Epstein and Feinberg rather than plaintiffs and the corporation; and, as we discussed in Division 1, Epstein and Feinberg’s contention that the payments were really in return for plaintiffs’ investment in the corporation is belied by the merger clause in the stockholders’ agreements. The circumstances that the amount of the payments was to be measured by the corporation’s gross annual revenues, that the payments plaintiffs did receive came from the corporation, and even that the parties contemplated that all the payments would come from the corporation do not change the fact that payments to plaintiff are clearly promised in an agreement between plaintiffs and Epstein and Feinberg as individuals. See Attkisson v. Cavanagh, 201 Ga. App. 633 (411 SE2d 786) (1991) (where individual signs note without indicating that he signs in a representative capacity, he cannot rely on parol evidence to show he is not individually liable); Upshaw v. Southern Wholesale Flooring Co., 197 Ga. App. 511 (3) (398 SE2d 749) (1990) (where context and face of document show individual signed in individual rather than representative capacity, individual liability is clear and parol evidence to contrary is neither admissible nor probative). The agreements in this case are unambiguous, and the trial court erred in failing to grant summary judgment to plaintiffs with respect to Epstein and Feinberg’s liability for breach of the stockholders’ agreements.

Case Nos. A94A0205 & A94A0206

5. In these cross-appeals, Epstein and Feinberg argue that the trial court erred in denying their motions for summary judgment on plaintiffs’ breach of contract claim. In light of our conclusion in Division 4 that summary judgment should have been granted for plaintiffs on this claim, the trial court’s denial of summary judgment to Epstein and Feinberg is affirmed.

Judgment affirmed in part and reversed in part in Case No. A94A0204. Judgments affirmed in Case Nos. A94A0205 and A94A0206.

Decided April 11, 1994

Reconsideration denied May 13, 1994

Davis, Zipperman, Kirschenbaum & Lotito, Barry L. Zipper-man, Steven A. Suna, for Strieker.

Howard A. Becker, for Epstein.

Jeffrey N. Berman, for Feinberg.

McMurray, P. J., and Smith, J., concur.

       Feinberg told his father, who bought stock in MGRC at about the same time as plaintiffs, that the invested money would be used for the other corporations. Part of the funds Feinberg’s father invested was used to pay the Birmingham project’s power bill and other accumulated bills of BGRC and AGRC.

       Plaintiffs in this case, “in consideration of the payments to [them] detailed herein, [agree] that the voting rights incident to [their] ownership of Macon common stock shall be transferred to and exercised jointly by Epstein and Feinberg.”

       Actually, plaintiffs did receive several monthly checks in 1988 and one check in 1989. The total of these checks should be considered in determining what defendants owe plaintiffs on this claim, of course.