text:
    A02A0805.
    LEWIS et al. v. DEPARTMENT OF HUMAN RESOURCES.
    (567 SE2d 65)
   Blackburn, Chief Judge.

Appellants, Carmen L. Lewis, individually and as administrator of the estate of Marvin R. Gentle, and Jane Collins, Gentle’s next of kin, appeal the grant of the Georgia Department of Human Resources’ (DHR) motion to dismiss, contending that DHR is not protected from immunity under the Georgia Tort Claims Act (GTCA). We affirm.

Gentle, a blind and retarded man, was a resident of the Macedonia Road Personal Care Home (MRPCH), a private institution. On February 6, 1999, he sustained second and third degree burns as a result of being scalded in his bath. It is undisputed that MRPCH did not comply with Chapter 290-5-35-.10 (13) (a) of DHR’s Rules and Regulations for Personal Care Homes. That regulation provides, in pertinent part: “Heated water provided for [a] resident’s use shall not exceed 110 degrees F. at the hot water fixture and a water temperature monitor shall be installed at the hot water fixture.”

Gentle was hospitalized and received treatment and rehabilitation, including skin grafts. Upon release from the hospital, he returned to MRPCH, but a short time later, the extent of his burns made it necessary for him to return to the hospital for additional care and treatment. Released from the hospital a second time, Gentle was placed in a nursing home, where care for his burns and rehabilitation continued. On November 28, 1999, Gentle was taken to the emergency room, where he died on the same day. Appellants contend that Gentle died as a result of the February 6, 1999 scalding incident, and for the purpose of reviewing the ruling on the motion to dismiss, we will assume such fact to be true. It is undisputed that DHR made at least four inspections of MRPCH over a period of seven years before Gentle’s injury and, on each occasion, found that MRPCH was in violation of the subject regulation, but took no enforcement action.

Appellants filed the underlying action against DHR for negligence in failing to enforce Chapter 290-5-35-.10 (13) (a) of the department’s Rules and Regulations for Personal Care Homes, when, for years, it had actual knowledge of the safety hazard that the violation created. DHR filed a motion to dismiss for lack of subject matter jurisdiction based on sovereign immunity, arguing that the action was barred by the inspection and licensing exceptions to state liability in the GTCA, set forth, respectively, in OCGA § 50-21-24 (8) and (9).

We note that the legislative scheme utilized in adopting the GTCA provides a general waiver of sovereign immunity and provides state liability for the torts of state officers and employees for acts within the scope of their official duties or employment in the same manner as a private individual or entity would be liable under like circumstances. See OCGA § 50-21-23 (a). This liability is limited by certain exceptions to the general waiver of sovereign immunity which are outlined in OCGA § 50-21-24. See Dept. of Transp. v. Bishop.

The trial court granted DHR’s motion to dismiss, resulting in this appeal. “Our review of the grant of a motion to dismiss is de novo. A motion to dismiss may be granted only where a plaintiff would not be entitled to relief under any set of facts that could be proven in support of its claim.” Project Control Svcs. v. Reynolds. See Colvin v. United States of America (a court does not have subject matter jurisdiction over an action beyond the limited waiver of sovereign immunity).

On appeal, appellants argue that the statutory exceptions in OCGA § 50-21-24 (8) and (9) are inapplicable in this case. They point out that they are not suing DHR for either failure to inspect or negligence in licensing, but rather for negligence in ignoring an ongoing safety hazard and failing to enforce its own water temperature regulations. They argue farther that the duty to enforce the water temperature regulations is a ministerial duty and that DHR is thus subject to suit and liability for damages resulting from its negligent failure to perform that ministerial duty. Appellants rely upon the Georgia Constitution, Art. I, Sec. II, Par. IX (d), which provides, in part, “[e]xcept as specifically provided by the General Assembly in a State Tort Claims Act, all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions.” (Emphasis supplied.)

Appellants ignore essential qualifying language in the above provision, that being “[e]xcept as specifically provided by the General Assembly in a State Tort Claims Act.” Ga. Const., Art. I, Sec. II, Par. IX (d). See Ridley v. Johns, a case involving “official” rather than “sovereign” immunity, but which is applicable on this narrow issue. The language of the Georgia Constitution provides that any tort claims act which the legislature might adopt would control any waiver of sovereign immunity. Thus, one must look to the language of the GTCA, OCGA § 50-21-20 et seq., to determine the subject law.

“The Legislature enacted the [GTCA], OCGA § 50-21-20 et seq., in order to balance strict application of the doctrine of sovereign immunity against the need for limited exposure of the State treasury to tort liability.” Ga. Ports Auth. v. Harris. While recognizing “the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity,” the legislature also realized that “[i]n acting for the public good and in responding to public need, state government must provide a broad range of services and perform a broad range of functions throughout the entire state, regardless of how much exposure to liability may be involved.” OCGA § 50-21-21 (a). With this in mind, the legislature concluded that “[t]he exposure of the state treasury to tort liability must therefore be limited,” and that “[s]tate government should not have the duty to do everything that might be done.” Id. Accordingly, the legislature declared it to be “the public policy of this state that the state shall only be liable in tort actions within the limitations of” the Act. Id.

We look first to the GTCA, OCGA § 50-21-23 (a), to determine if a general waiver of sovereign immunity applies to this case. The first limitation on the waiver of the state’s sovereign immunity is that it applies only to “torts of state officers and employees . . . acting within the scope of their official duties or employment.” Id. This necessarily means that the state is immune from liability if the tort is that of state officers or employees acting outside the scope of their official duties or employment, or if the tort was committed by a third party. Here, the tort alleged is the failure of DHR to enforce its regulations. Any duty to enforce the regulations, under the facts here, is clearly within the scope of DHR’s official duties. However, the duty not to heat the water in excess of 100°F was that of a third party, not that of the state. It was the responsibility of MRPCH, not DHR, to comply with Chapter 290-5-35-.10 (13) (a) of the department’s Rules and Regulations for Personal Care Homes.

Consideration of the requirement that the act must be that of the state and not of a third party in order for the state to be held liable leads naturally to the conclusion that the state cannot be held liable in this case because its failure to enforce the water temperature regulations was not the proximate cause of Gentle’s death.

The requirement of proximate cause constitutes a limit on legal liability; it is a policy decision that, for a variety of reasons, e.g., intervening act, the defendant’s conduct and the plaintiff’s injury are too remote for the law to countenance recovery. For this reason, before any negligence, even if proven, can be actionable, that negligence must be the proximate cause of the injuries sued upon. To establish proximate cause, a plaintiff must show a legally attributable causal connection between the defendant’s conduct and the alleged injury. Conversely, no matter how negligent a party may be, if his act stands in no causal relation to the injury it is not actionable.

(Citations and punctuation omitted.) Bacon v. Mayor &c. of Savannah. In this case, the proximate cause of Gentle’s death was his being placed into scalding water. Under normal circumstances, any person stepping negligently into scalding water would be responsible for any resulting harm because of the open and obvious risk of scalding water. MRPCH, in assuming the care of Gentle, stood in his place and assumed the responsibility for placing him safely into his bath. It was their responsibility to not place him into a scalding bath. The state, on the other hand, had neither the authority nor the ability to prevent the employees of MRPCH from putting him into the scalding water. Thus, MRPCH’s conduct constitutes the intervening proximate cause of Gentle’s injuries. As MRPCH placed Gentle into the scalding bath, DHR cannot be held liable for such tortious conduct of nongovernment employees on private property.

Here, DHR is further immune from liability as its conduct falls within exceptions to the waiver of sovereign immunity under the GTCA. Even if a state officer is acting within the scope of his official duties, the state is immune from liability if “ ‘the alleged tortious act falls within one of the exceptions set forth in OCGA § 50-21-24.’ ” Dept. of Transp. v. Bishop, supra at 58 (1).

Under OCGA § 50-21-24 (8), the state has no liability for losses resulting from “[^Inspection powers or functions, including failure to make an inspection or making an inadequate or negligent inspection of any property other than property owned by the state to determine whether the property complies with or violates any law, regulation, code, or ordinance or contains a hazard to health or safety.” (Emphasis supplied.) First, even if DHR’s act is characterized as a failure to enforce rather than a failure to inspect, DHR is nonetheless shielded from liability by this statute because any duty DHR had involved an “ ‘inspection power or function.’ ” Magueur v. Dept, of Transp. (holding that DOT’s failure to notify county that road contained safety hazards involved an inspection power or function). In addition, the language of the statute clearly provides that the state waives sovereign immunity as to injuries resulting from the exercise of inspection powers or functions only when the facility or property at issue is owned by the state. As MRPCH is a private institution, not state-owned property, sovereign immunity is not waived in this case.

DHR is also immune under OCGA § 50-21-24 (9), the plain language of which provides for state immunity for losses resulting from “[licensing powers or functions.” The term “licensing powers or functions” clearly includes the power to enforce the regulations governing the license. Further, the various enforcement actions set forth in OCGA § 31-2-6 are to be taken by DHR when it “finds that any applicant or licensee has violated any provisions of [OCGA § 31-2-6 (b)] or laws, rules, regulations, or formal orders related to the initial or continued licensing of the agency, facility, institution, or entity.” (Emphasis supplied.) OCGA § 31-2-6 (c). Indeed, the state’s power to license would be meaningless if not accompanied by the power to enforce the attendant regulations.

We also conclude that the exercise of regulatory enforcement herein involved is a discretionary rather than ministerial function, as enforcement is a natural part of inspection and licensing. Courts in other jurisdictions have held that the power to license or regulate necessarily carries with it the power to enforce. See, e.g., Brown v. District Court (holding that if state had only power to license and not also power to enforce, it “would be powerless to effectuate the intent of Congress”); Hess v. Barton Glen Club (“[i]n our view, the power to impose a binding rule, by necessity, includes the power to enforce the rule”); Cairy v. Superior Court (“[i]t is axiomatic, therefore, the power to regulate includes the power to enforce”); Commonwealth v. Morash (same); Neshaminy Federation of Teachers v. Neshaminy School Dist. (“[t]he power to regulate conduct, of course, would be illusory absent a concomitant power to enforce rules through the imposition of some form of discipline”); In the Matter of Baker (“[o]f what avail is the power to license in the absence of [the] power to prevent one not licensed from practicing as an attorney”) (punctuation omitted).

Our review of the enforcement options available to DHR in OCGA § 31-2-6 (c) makes it clear that the exercise of discretion is required in determining the appropriate enforcement procedure, and thus DHR is immune from liability under the GTCA. OCGA § 50-21-24 (2) excepts the state from a waiver of sovereign immunity for losses resulting from “[t]he exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved is abused.” Under this exception, there is no waiver of sovereign immunity even if DHR has abused its discretion in failing to enforce their regulations.

Our Supreme Court has observed, “[i]n determining the scope of the discretionary function exception, we need not consider previous cases involving discretionary versus ministerial decisions because the legislature included in [the] statute the definition of discretionary function or duty.” Dept, of Transp. v. Brown. OCGA § 50-21-22 (2) defines “discretionary function or duty” as “a function or duty requiring a state officer or employee to exercise his or her policy judgment in choosing among alternative courses of action based upon a consideration of social, political, or economic factors.” In setting forth this definition, the legislature, though conscious of the need “to limit the state’s overall exposure to tort liability [,] . . . enacted a relatively narrow definition of discretionary function as an exception to state liability.” Edwards v. Dept, of Children &c. Svcs. Thus, “[t]he plain meaning of the statutory exception is that the state employee must exercise a ‘policy judgment’ in choosing among various alternative actions based on social, political, and economic factors.” Id. at 892. In contrast, “[a] ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty.” Howard v. City of Columbus.

A decision on which of numerous possible actions the department should take in enforcing health regulations entails policy judgments in which alternate courses of action must be weighed in light of competing social, political, and economic factors rather than the simple execution of a specific duty. Bruton v. Dept, of Human Resources.

Under OCGA § 31-2-6 (c), DHR may: administer a public reprimand; suspend any license, permit, registration, or commission for a definite or indefinite period in connection with any condition which may be attached to the restoration of said license; prohibit any applicant or licensee from allowing a person who previously was involved in the management or control of any entity which has had its license or application revoked or denied within the past 12 months to be involved in the management or control of such entity; revoke any license; impose a fine for each violation of a law, rule, regulation, or formal order related to the initial or ongoing licensing of any entity; or, limit or restrict any license as the department deems necessary for the protection of the public, including, but not limited to, restricting some or all services of or admissions into an entity for a time certain.

In deciding to take any of the actions enumerated in OCGA § 31-2-6 (c) (7), “the department shall consider the seriousness of the violation, including the circumstances, extent, and gravity of the prohibited acts, and the hazard or potential hazard created to the health or safety of the public.” Of equal importance is the fact that the statute does not mandate a “simple, absolute and definite” course of action; the department is not required to take specific actions or follow a set procedure in enforcing the regulations. The range of these enforcement alternatives, the discretion of the department to fashion enforcement actions based on the circumstances and facts of the individual cases, and the direction that health and safety factors be weighed in deciding which enforcement action to take make clear that the nature of DHR’s duty in this case was discretionary.

Decided June 13, 2002.

Self Glaser & Davis, Arthur H. Glaser, Mark B. Bullman, for appellants.

We find support for this conclusion in Peele v. Dobbs. In that case, the plaintiffs, after their home was damaged by a chimney fire, sued a county building inspector for negligently approving the construction of the chimney. This Court denied relief. Citing the decision of our Supreme Court in Hennessy v. Webb, we said, “In effect, the appellants are alleging that the appellee, acting in his official capacity as building inspector, failed to exercise sound judgment (discretion) in allowing what they alleged to be a hazardous condition to exist. Therefore, the act or failure to act is not ministerial in nature, but is, rather, discretionary.” (Punctuation omitted.) Peele, supra. Likewise, the appellants in this case claim that DHR failed to exercise discretion in ignoring, and allowing to exist, a hazardous condition. Accordingly, DHR’s failure to act is discretionary, rather than ministerial, in nature.

We note that courts in other jurisdictions have held that the enforcement of laws and regulations is a discretionary function. See, e.g., Trianon Park Condo. Assn. v. City of Hialeah (“[h]ow a governmental entity, through its officials and employees, exercises its discretionary power to enforce compliance with the laws duly enacted by a governmental body is a matter of governance, for which there never has been a common law duty of care”); Hurley v. Hudson (holding that planning board was not liable for failure to enforce town ordinance, since the enforcement of laws “is certainly the kind of discretionary, ‘governmental’ activity which as a general proposition ought not to lead to tort liability”); Classen v. State (finding that administration and enforcement of licensing requirements are discretionary).

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Jennifer L. Dalton, Assistant Attorney General, Skelly & Deininger, Richard M. Skelly, for appellee.

        Dept. of Transp. v. Bishop, 216 Ga. App. 57, 58 (1) (453 SE2d 478) (1995).

        Project Control Svcs. v. Reynolds, 247 Ga. App. 889, 891 (1) (545 SE2d 593) (2001).

        Colvin v. United States of America, 153 Ga. App. 874, 875 (267 SE2d 297) (1980).

        Ridley v. Johns, 274 Ga. 241 (552 SE2d 853) (2001).

        Ga. Ports Auth. v. Harris, 274 Ga. 146, 149 (2) (549 SE2d 95) (2001).

        Bacon v. Mayor &c. of Savannah, 241 Ga. App. 211, 212-213 (525 SE2d 115) (1999).

        Magueur v. Dept. of Transp., 248 Ga. App. 575, 577 (547 SE2d 304) (2001).

        Brown v. District Court &c., 238 Mont. 248, 254 (777 P2d 877) (1989).

        Hess v. Barton Glen Club, 718 A2d 908, 914 (Pa. Commw. 1998).

        Cairy v. Superior Court, 192 Cal. App.3d 840, 843 (237 Cal. Rptr. 715) (1987).

        Commonwealth v. Morash, 402 Mass. 287, 295 (522 NE2d 409) (1988).

        Neshaminy Federation of Teachers v. Neshaminy School Dist., 501 Pa. 534, 545 (II) (A) (462 A2d 629) (1983).

        In the Matter of Baker, 8 N.J. 321, 335 (II) (85 A2d 505) (1951).

        Dept, of Transp. v. Brown, 267 Ga. 6, 7 (1) (471 SE2d 849) (1996).

        Edwards v. Dept, of Children &c. Svcs., 271 Ga. 890, 891 (525 SE2d 83) (2000).

        Howard v. City of Columbus, 239 Ga. App. 399, 414 (2) (b) (521 SE2d 51) (1999).

        Bruton v. Dept, of Human Resources, 235 Ga. App. 291, 295 (509 SE2d 363) (1998).

        Peele v. Dobbs, 196 Ga. App. 684 (396 SE2d 600) (1990).

        Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878) (1980).

        Trianon Park Condo. Assn. v. City of Hialeah, 468 S2d 912, 919 (II) (Fla. 1985).

        Hurley v. Hudson, 112 N.H. 365, 369-370 (296 A2d 905) (1972).

        Classen v. State, 131 Misc.2d 346, 354-355 (500 NYS2d 460) (1985).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A02A0816.
    KELLY v. THE STATE.
    (567 SE2d 36)
   Miller, Judge.

Kelvin Lanell Kelly was convicted of aggravated battery arising out of evidence (including incriminating statements from a child witness) that he slit a victim’s throat. He appeals the denial of his motion for new trial, arguing (1) the evidence was insufficient to sustain the conviction, (2) the court erred in denying his motion to pay expenses for a child interview expert, (3) the court erred in not determining the competency of the child witness, (4) the court erred by denying his request for the court to question a juror who allegedly manifested hostility to Kelly during the trial, and (5) he received ineffective assistance of counsel. We find that the evidence was sufficient; that the court did not abuse its discretion in refusing to provide funds or pay expenses of an expert witness; that the court did not have to determine the child’s competency; that the juror challenge was untimely; and that evidence supported a finding that Kelly did not carry his burden of showing ineffective assistance. For all of the above-stated reasons, we affirm.

1. Regarding sufficiency of the evidence, the standard of review is clear:

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia [, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)]. Conflicts in the testimony of the witnesses, including the State’s witnesses, [are] a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. The testimony of a single witness is generally sufficient to establish a fact.

(Footnotes omitted.) Phagan v. State, 243 Ga. App. 568, 569-570 (2) (533 SE2d 757) (2000).

Here the victim positively identified Kelly as the man who came to the residence where she was visiting, assaulted and coerced her into showing him where certain drugs and money were stashed in the residence, and then dragged her to the backyard where he slit her throat twice and left her for dead. The victim was able to call police and survive, albeit with permanent injuries. Kelly’s young daughter, who was in his car during and after the attack, spontaneously told police that on the way home Kelly disposed of a bloody shirt into a trash bin. The evidence sufficed to sustain an aggravated battery conviction. See OCGA § 16-5-24 (a).

2. Believing the child was improperly led into making the incriminating out-of-court statements, Kelly moved the court for funds to hire an expert to evaluate the videotaped police interview of the child. The court denied the motion, which Kelly now cites as error.

Kelly’s argument fails for two independent reasons. First, he made no showing that he was indigent and in need of public funds. Indeed, he twice was able to retain counsel to represent him in this case. He submitted no evidence of indigence outside of the bare assertion of his retained counsel that Kelly had no money. The court was authorized to discount the claim of indigence.

Second, the grant or denial of a motion for funds for an expert witness lies within the sound discretion of the trial court. Davis v. State, 244 Ga. App. 345, 348 (6) (535 SE2d 528) (2000). For various reasons, we discern no abuse of that discretion here: (i) Kelly’s conviction did not rest entirely on the State’s expert evidence (id. at 348-349 (6)), and (ii) the subject matter of the anticipated expert testimony concerned the rather routine question of whether a child was led into making certain statements, a subject that does not necessarily require the input of an expert. See Coalson v. State, 251 Ga. App. 761, 766-767 (3) (555 SE2d 128) (2001); see generally Brooks v. State, 232 Ga. App. 115, 116 (6) (501 SE2d 286) (1998) (expert funds generally granted to rebut unusual scientific evidence of the State).

3. Kelly cites as error the court’s denial of his motion to determine the competency of the child witness. Kelly had argued that at the time of trial, the child possibly did not understand the oath or the distinction between truth and falsehood. He had also argued that the child’s memory was possibly faulty.

The primary reason these arguments fail on appeal is that the child’s testimony at trial in no way harmed or incriminated Kelly; thus, a determination of trial competency would have made no difference. The child did not remember making any incriminating statements to police nor remember any of the events or circumstances of the day in question. Kelly of course had no right to challenge the child’s competency to make the out-of-court statements. Sosebee v. State, 190 Ga. App. 746, 749 (3) (380 SE2d 464) (1989).

Moreover, even if the child had testified at trial adversely to Kelly, as a witness to a crime the child was not subject to competency challenges — at least insofar as understanding the nature of the oath and understanding the difference between truth and falsehood are concerned. OCGA § 24-9-5 (b); Jeffries v. State, 272 Ga. 510, 513 (6) (530 SE2d 714) (2000); Norton v. State, 263 Ga. 448, 449-450 (3) (435 SE2d 30) (1993). Kelly did not argue that the child did not have the use of reason. Compare Sizemore v. State, 262 Ga. 214, 217 (416 SE2d 500) (1992). With regard to the child’s ability at trial to remember the day in question, this is not a question of competency, and Kelly was free to cross-examine the child on that very point. See Jones v. State, 200 Ga. App. 103 (407 SE2d 85) (1991).

4. Kelly contends that the court erred in failing to grant his request to query a juror who allegedly made hostile stares and mouthed hostile words toward defense counsel after being picked for the jury. Since Kelly’s request came mid-trial after the State had presented the majority of its witnesses, the court denied the request as untimely.

The trial court did not err. “If known to a party or his counsel, any objections to a juror for cause shall be made before the juror is sworn in the case. After a juror has been found competent, no other or further investigation before triers or otherwise shall be had, [absent newly discovered evidence but before the introduction of the State’s evidence].” OCGA § 15-12-167. Moreover, “[fiailure to apprize the court of the disqualification of a juror, discovered during the trial, as soon as the fact was ascertained by counsel, was held to be a waiver, in Lampkin v. State, 87 Ga. 516[, 517, hn. 7 (13 SE 523) (1891)].” Smith v. State, 2 Ga. App. 574, 581 (59 SE 311) (1907).

Here Kelly delayed in bringing the matter to the court’s attention. The alleged hostility of the juror was manifest immediately after it was announced that she was chosen. Kelly should have raised the matter at that time, before the jury was sworn. OCGA § 15-12-167. After the jury was sworn, Kelly asked for a side-bar, giving no reason for the request. The judge announced that he did not allow side-bars in his courtroom. After opening statements, Kelly reiterated the request for a side-bar, again giving no reason, and predictably the request was again denied. Kelly, who could have moved in open court for further voir dire (see Rhodes v. State, 264 Ga. 123, 124-125 (3) (441 SE2d 748) (1994)) or have asked for the jury to be excused for a motion to be heard, did not do so and in fact did not ask for further voir dire of the juror nor otherwise object to the juror’s presence until the following day. By this time the State had put on eight of its ten witnesses. The court correctly held that the request was untimely.

Decided June 13, 2002

Zipperer & Lorberbaum, Eric R. Gotwalt, for appellant.

Spencer Lawton, Jr., District Attorney, Michael K. Dennard, Assistant District Attorney, for appellee.

5. Kelly claims that he received ineffective assistance of counsel. To establish this claim, he was required to show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443) (1995), citing Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). “There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy.” (Citation and punctuation omitted.) Stephens, supra, 265 Ga. at 121-122 (2).

Kelly first points to his counsel’s decision not to cross-examine the victim on her inability to pick him out of a pre-trial photo lineup. At the motion for new trial hearing, trial counsel explained that he consciously chose not to do so as a matter of strategy. At the time of the photo lineup, the victim was so mentally incapacitated by her injuries that she appeared unable to make any identification, and trial counsel felt that pressing the point on this sympathetic witness would antagonize the jury. Such a strategic decision on cross-examination provides no basis for finding counsel’s performance deficient. See Dean v. State, 252 Ga. App. 204, 208 (5) (c) (555 SE2d 868) (2001).

Kelly next points to trial counsel’s failure to introduce a scientific report, which concluded that no blood was detected on the clothes Kelly was allegedly wearing that day. However, the record is replete with admissions by State witnesses that no blood was found on Kelly’s clothing. Therefore, Kelly failed to show that this prejudiced his defense. As we cannot say that the trial court clearly erred in finding Kelly did not meet his burden (see Taylor v. State, 266 Ga. 129 (464 SE2d 385) (1995)), we must affirm.

Judgment affirmed.

Blackburn, C. J., and Johnson, P. J., concur.


author: Blackburn, Chief Judge.

text:
    A02A1148.
    EARTHGRAINS BAKING COMPANY v. BIRD et al.
    (567 SE2d 59)
   Blackburn, Chief Judge.

Durden, Kaufold, Rice & Barfield, P.C. (hereinafter “DKRB”) filed a petition for citation of contempt of court against attorneys Wilson Smith and Clay Ratterree. The trial court declined to hold Smith and Ratterree in contempt, finding that there was an insufficient basis for granting the petition. DKRB appeals the decision of the trial court, and we affirm.

In October 1998, Cynthia Bird and others, plaintiffs in the underlying cases, retained DKRB to represent them against Earth-grains Baking Company in four personal injury and wrongful death actions arising out of a motor vehicle accident. Plaintiffs signed a contingent fee contract with DKRB providing for a fee of one-third of any recovery. The cases were filed by Smith, then a member and principal of the DKRB law firm. On March 15, 2000, Smith withdrew from DKRB and began his own practice. On April 12, 2000, plaintiffs discharged DKRB and entered into a new contingent fee contract with Smith.

On July 17, 2000, DKRB filed an attorney lien in each of the underlying cases, asserting liens based on the original contingent fee contract with plaintiffs. On December 15, 2000, plaintiffs filed a motion to release and cancel the attorney liens on the ground that DKRB was not entitled to claim a lien on a contingent fee basis.

After a hearing, the trial court, in an order entered January 22, 2001, denied the motion to release and cancel the attorney lien. Though the trial court found that DKRB was not entitled to collect its original one-third fee based on the prior contract, it concluded that DKRB was entitled to recover from the plaintiffs the reasonable value of its services under a theory of quantum meruit. See Yetman v. Greer, Klosik &c., 225 Ga. App. 397 (483 SE2d 878) (1997).

In February 2001, the plaintiffs and defendant Earthgrains Baking Company, represented by Ratterree, settled the underlying actions. Settlement funds were forwarded by Ratterree to Smith and disbursed to the plaintiffs, and Smith filed dismissals of the cases.

On September 27, 2001, DKRB filed a petition for contempt, seeking to have the trial court hold Smith and Ratterree in contempt for violating the court’s order of January 22, 2001, by disbursing the settlement funds to the plaintiffs. After a show cause hearing, the trial court denied DKRB’s petition for contempt of court, finding that no sufficient basis existed for granting the petition.

Decided June 13, 2002

Spivey, Carlton & Edenfield, J. Franklin Edenfield, for appellant.

1. In two enumerations of error, DKRB contends that: (1) the trial court erred in finding that the evidence and record failed to establish beyond a reasonable doubt that the acts of Smith and Rat-terree constituted either misbehavior of an officer of the court in their official transactions or, in the alternative, wilfully disobeying the court’s order, and (2) the trial court’s failure to find Smith and Ratterree in contempt of court was a gross abuse of discretion. There is no merit to these contentions.

“An order or judgment that merely declares the rights of the parties, without any express command or prohibition, is not one which may be the basis of contempt proceedings.” Mote v. Mote. See also Ogletree v. Watson; Wilson v. Chumney.

Before a person may be held in contempt for violating a court order, the order should inform him in definite terms as to the duties thereby imposed upon him, and the command must therefore be express rather than implied. . . . Furthermore, the very nature of the proceeding^] in either civil or criminal contempt for an alleged disobedience of a court order requires that the language in the commands be clear and certain.

(Punctuation omitted.) Hughes v. Browne.

In this case, the trial court’s order merely acknowledged the right of DKRB to recover from the plaintiffs in quantum meruit. It did not expressly command or prohibit any act on the part of Smith or Ratterree with respect to DKRB’s attorney lien. Since the trial court’s order may not be the basis for a contempt petition, the trial court did not err in finding an insufficient basis for granting DKRB’s contempt petition.

2. Smith has filed a motion to dismiss DKRB’s appeal. Our decision in Division 1 renders that motion moot.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

Smith & Jenkins, Wilson R. Smith, Tucker, Everitt, Long, Brew-ton & Lanier, Thomas W. Tucker, for appellees.

       Durden, Kaufold, Rice & Barfield is the successor law firm of Newton, Smith, Durden, Kaufold, Rice & Tribble, P.C. For the sake of simplicity, the acronym of the firm as presently named will be used.

        Mote v. Mote, 214 Ga. 134 (103 SE2d 565) (1958).

        Ogletree v. Watson, 223 Ga. 618, 619 (2) (157 SE2d 464) (1967).

        Wilson v. Chumney, 214 Ga. 120 (103 SE2d 552) (1958).

        Hughes v. Browne, 217 Ga. App. 567, 568 (1) (459 SE2d 170) (1995).


author: Johnson, Presiding Judge.

text:
    A02A1366.
    JOHNSON et al. v. FIRST UNION NATIONAL BANK et al.
    (567 SE2d 44)
   Johnson, Presiding Judge.

Jackie and Adlisa Johnson appeal the entry of summary judgment against them in a case alleging trover and conversion. The Johnsons sued First Union National Bank (“First Union”) and Associates Recovery, Inc. (“Associates Recovery”) after their 1989 Isuzu Trooper was repossessed pursuant to their automobile loan with First Union. The trial court awarded summary judgment to both First Union and Associates Recovery. The Johnsons allege the trial court erred in (1) granting summary judgment for the repeated, late, irregular payments that were subsequently accepted by First Union; (2) not properly considering the fact.that Associates Recovery was an agent of First Union; (3) allowing one sworn statement to take precedent over another sworn statement; (4) failing to properly consider personal belongings left in the automobile and taken by Associates Recovery’s employees during the repossession; (5) failing to consider that First Union breached the contract when it refused to accept the Johnsons’ last payment; and (6) failing to consider punitive damages for the wrongful repossession. Because each of these enumerations of error lacks merit, we affirm the trial court’s grant of summary judgment to First Union and Associates Recovery.

The record shows that on July 12,1995, the Johnsons jointly executed a promissory note in favor of First Union for the financing of the vehicle. The Johnsons admitted that they agreed to abide by the terms of the promissory note and that they read the promissory note before signing it. The promissory note provided in relevant part as follows: to purchase the vehicle, the Johnsons financed a principal amount of $18,206.50 at an interest rate of 9.7 percent (annual percentage rate of 10.07 percent), initially for a term of 48 months. The first payment of $464.14 was due on August 20, 1995, and subsequent payments were due on the twentieth of each month. To secure the payment of the amounts due under the promissory note, the Johnsons granted First Union a security interest in certain collateral, including the vehicle.

The promissory note further provided that if First Union received a payment fifteen days or more after the due date, then the Johnsons agreed to pay a late charge of five percent of their payment, or $23.20. However, the promissory note contained a no-waiver provision which expressly stated that acceptance of late payments by First Union in no way waived any of First Union’s rights under the promissory note. The promissory note also provided that failure “to make any payment or comply with any of the terms of [the agreement]” constitutes an event of default. Aid that, upon any event of default, First Union has the right to “declare the entire unpaid debt immediately due and payable without giving [the borrowers] any advance notice” and that First Union’s remedies for default include “immediate possession of the collateral, without notice or resort to legal process.” The Johnsons acknowledge that they never gained title to the vehicle and that First Union never released its lien or its security interest in the vehicle.

The Johnsons admitted that they were late on several of their payments under the promissory note and that they were late on payments at the time the vehicle was repossessed. They admitted that they missed several payments. The Johnsons also acknowledged that First Union’s summary which reflected their late and missed payments was correct. According to this history, the Johnsons made only forty-seven out of fifty-one payments, they were fifteen days delinquent twenty-six times, they were thirty days delinquent eighteen times, and they were over ninety days delinquent five times.

The Johnsons admitted that First Union never failed to apply any of their payments to their loan. And, they admitted they owed First Union money at the time the vehicle was repossessed. The undisputed evidence shows that the Johnsons were three payments behind schedule at the time of the repossession.

On March 22, 2000, Associates Recovery repossessed the vehicle. The Johnsons admit they have no evidence to suggest that First Union controlled the manner or method by which Associates Recovery repossessed the vehicle. In fact, the president of Associates Recovery testified that First Union does not control the time, manner, or method of how Associates Recovery repossesses vehicles. The agreement between First Union and Associates Recovery provides that Associates Recovery “shall render the Services in its capacity as an independent contractor of First Union.”

1. The Johnsons contend that the trial court erred in granting summary judgment to First Union because First Union’s acceptance of late and irregular payments waived First Union’s right to repossess the vehicle. We need not reach the merits of this claim. The Johnsons failed to raise this argument before the trial court, and it is well established that issues presented for the first time on appeal furnish nothing for us to review. “One may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court.”

Moreover, the Johnsons’ failure to include in the record on appeal the transcript from the hearing on the motions for summary judgment is fatal to their contention. “A party alleging error carries the burden of showing it affirmatively by the record, and when that burden is not met, the judgment is assumed to be correct and will be affirmed.”

2. The Johnsons next contend the trial court erred in granting summary judgment to First Union because Associates Recovery is an agent of First Union. First of all, the record shows that the trial court did not need to reach the question of agency because the Johnsons did not meet their burden to show that Associates Recovery committed a breach of the peace while repossessing the vehicle. However, even if the trial court had found there was a question of fact on the issue of breach of the peace, summary judgment for First Union would still be appropriate because the undisputed evidence shows that Associates Recovery is not an agent of First Union.

The president and owner of Associates Recovery testified that First Union has no control over the time, manner, or method of Associates Recovery’s work, nor over any employees or drivers for Associates Recovery. Further, the service agreement between First Union and Associates Recovery establishes that Associates Recovery undertook the repossession of the vehicle as an independent contractor and that in no way did First Union control the manner or method by which Associates Recovery effected the repossession. The record contains no evidence to the contrary. Contrary to the Johnsons’ contention, a credit report evidencing the right to repossess sent from the creditor to its independent contractor does not prove that First Union controlled the manner or method of Associates Recovery’s actions. This enumeration of error lacks merit.

3. According to the Johnsons, the trial court erred in granting First Union’s and Associates Recovery’s motions for summary judgment “by allowing one sworn statement to take precedence over another sworn statement relevant to the facts.” Specifically, the Johnsons argue that the trial court disregarded their sworn statements and deposition testimony that the vehicle was kept behind a locked gate when ruling that Associates Recovery did not breach the peace. We find no error.

Under Georgia law, a secured party, through its agents, has a right to enter premises peacefully and at any time to obtain its property. The absence of the debtor’s knowledge or consent does not constitute a breach of the peace unless abusive and insulting language which incites violence is used or some other violation of the public peace, order, or decorum occurs. Here, Jackie Johnson was not at home when Associates Recovery repossessed the vehicle, and Adlisa Johnson was sleeping. The Johnsons admit that they did not witness the repossession. Accordingly, there were no oral threats or abusive language used at the time of the repossession.

Rather, the Johnsons claim that the repossession was unlawful because, according to them, Associates Recovery cut and stole the chain and padlock they claim was blocking the entrance to their driveway. They argue that this action constitutes a breach of the peace. Even assuming that such conduct does constitute a breach of the peace in Georgia, the Johnsons have failed to support this claim.

The only competent evidence supporting the Johnsons’ claim that their driveway was blocked by a chain and padlock when the vehicle was repossessed is Jackie Johnson’s testimony that he locked the chain and padlock when he left for work that evening and affidavits stating that the Johnsons usually had a chain-guard across their driveway. However, this circumstantial evidence was directly controverted by the Associates Recovery employee’s testimony that there was not a chain or padlock across the driveway when he arrived to repossess the vehicle. According to this employee, the driveway was not blocked, and he did not cut or steal a chain or padlock when he repossessed the vehicle.

The Johnsons’ circumstantial evidence that the chain and padlock were locked at the time of the repossession because Jackie Johnson locked them when he left for work earlier in the evening is insufficient on summary judgment to create a question of material fact against Associates Recovery’s direct evidence that there was no chain or padlock across the driveway at the time of the repossession.

Where direct and positive testimony is presented on an issue, the opposing party must show some other fact which contradicts the testimony. If this other fact is direct evidence, that is sufficient to allow the case to go to the jury; if the other fact is circumstantial evidence, it must be inconsistent with the defendant’s evidence, or if consistent, it must demand a finding of fact on the issue in favor of the plaintiff.

Because a finding that a chain and padlock were present at the time of the repossession could be inferred from, but is not demanded by, the Johnsons’ circumstantial evidence, that evidence has no probative value against positive and uncontradicted evidence that the chain and padlock were not present at the time of the repossession. The trial court correctly weighed the sworn testimony and properly granted summary judgment to First Union and Associates Recovery on this issue.

4. The Johnsons contend the trial court erred in granting summary judgment to First Union and Associates Recovery on their conversion claim. We find no error.

In their one-paragraph argument and citation of authority, the Johnsons recite the elements of a conversion claim: the complaining party must show (1) title to the property or the right of possession, (2) actual possession in the other party, (3) demand for return of the property, and (4) refusal by the other party to return the property. However, the record clearly shows that the Johnsons failed to prove these elements. They have failed to provide any evidence showing that First Union or Associates Recovery possesses any of the John-sons’ personal items. In addition, Jackie Johnson admitted in his deposition that other than a few telephone calls, he never demanded the return of any personal belongings alleged to have been in the vehicle when it was repossessed. And, there is no evidence that First Union or Associates Recovery refused to return any personal items to the Johnsons. This enumeration of error lacks merit.

5. According to the Johnsons, First Union breached the promissory note when it refused to accept the Johnsons’ monthly payment. However, the record shows that First Union already had repossessed the vehicle at the time the Johnsons tendered their monthly payment. Moreover, this monthly payment did not constitute a payoff of the entire amount the Johnsons owed under the promissory note. And, the attempted tender of a payment was made at a bank branch, not at the address stated in correspondence, which the Johnsons admit they received, as the address to which payments were to be made. The Johnsons’ argument lacks merit.

6. In their final enumeration of error, the Johnsons contend the trial court erred in failing to consider punitive damages for the wrongful repossession. However, as we found in Divisions 1 through 5, the Johnsons failed to support any claim against First Union and Associates Recovery, much less a claim for punitive damages. Punitive damages are available only when a plaintiff has demonstrated through clear and convincing evidence that the defendant’s conduct showed “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” Bare conclusions and contentions unsupported by an evidentiary basis in fact are insufficient to oppose a motion for summary judgment. Here, the Johnsons failed to produce any evidence that First Union or Associates Recovery behaved maliciously or with conscious indifference to the consequences in repossessing the vehicle. The trial court correctly granted summary judgment on this issue.

Decided June 13, 2002

Jackie Johnson, pro se.

Adlisa W. Johnson, pro se.

Troutman Sanders, Michael E. Johnson, Samantha M. Rein, Hicks, Casey & Barber, William T. Casey, Jr., Lisa K. Whitfield, for appellees.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

       Assn. Sues. v. Smith, 249 Ga. App. 629, 632 (1) (549 SE2d 454) (2001).

       (Citations and punctuation omitted.) Id.

       (Punctuation and footnote omitted.) Brown v. Liberty County, 247 Ga. App. 562, 565 (544 SE2d 738) (2001).

       See Dietrich v. Trust Co. Bank &c., 179 Ga. App. 330, 331 (346 SE2d 107) (1986) (physical precedent only).

       See OCGA § 11-9-503.

        Hill v. Fed. Employees Credit Union, 193 Ga. App. 44, 48 (3) (a) (386 SE2d 874) (1989).

        See Adams v. Servpro of Macon, 189 Ga. App. 438 (375 SE2d 894) (1988).

       (Citations omitted.) Birnbrey, Minsk & Minsk v. Yirga, 244 Ga. App. 726, 728 (1) (535 SE2d 792) (2000).

       See Dial v. Natalizi, 246 Ga. App. 97, 99 (539 SE2d 617) (2000).

       See Hooks v. Cobb Center Pawn &c., 241 Ga. App. 305, 308 (5) (527 SE2d 566) (1999).

       OCGA § 51-12-5.1 (b).

        Mimick Motor Co. v. Moore, 248 Ga. App. 297, 299 (1) (b) (546 SE2d 533) (2001).

       See Hillman v. Gen. Motors Acceptance Corp., 210 Ga. App. 837, 839 (437 SE2d 803) (1993).


author: Eldridge, Judge.

text:
    A02A1452.
    SIMMONS v. REGIONS BANK, GEORGIA.
    (567 SE2d 49)
   Eldridge, Judge.

In June 1999, appellee-plaintiff Regions Bank, Georgia (the “Bank”), successor in interest to Etowah Bank, brought suit in the Superior Court of Paulding County on a promissory note against appellant-defendant E. E. Simmons seeking principal in the amount of $1,485,038.80, plus interest and attorney fees. Simmons timely filed his answer and counterclaim, denying that he owed the principal and interest which the Bank claimed, and alleging that the Bank had refused to honor verbal agreements to extend the amortization schedule on the loan thereby lowering his monthly payments and had overcharged interest and late fees and that he was entitled to actual and punitive damages. On March 6, 2000, Simmons filed a petition for bankruptcy under Chapter 11 in the United States Bankruptcy Court for the Northern District of Georgia. A year later, after a hearing upon the Bank’s motion to determine the amount of its claim against Simmons, the bankruptcy court ruled that the Bank’s claim “shall be allowed in the principal amount of $1,492,358.53, interest as of November 16, 2000 of $280,460.61, plus interest thereafter at the contract rate, which is presently $449.75 a day.” Simmons dismissed his bankruptcy case with prejudice on February 15, 2001. In the superior court, the Bank next moved for summary judgment as to its complaint on the promissory note only, and, on May 7, 2001, the court granted it partial summary judgment thereon. Four months later the Bank moved for summary judgment on Simmons’s counterclaim. On October 19, 2001, Simmons filed his amended counterclaim, averring that the Bank foreclosed on property he pledged as collateral on the note in issue, having “chilled” negotiations for the sale of the property to a third party. Summary judgment for the Bank on Simmons’s counterclaim followed on January 18, 2002, the superior court finding the same barred by the doctrine of res judicata as raising matters put in issue or which might have been put in issue before the bankruptcy court.

On appeal Simmons contends that the superior court erred in granting the Bank’s motion for summary judgment upon his amended counterclaim, arguing that (1) the judgment of the bankruptcy court was not entitled to res judicata effect as not entered at an “adversary proceeding” within the meaning of the rules of federal bankruptcy procedure; (2) the judgment of the bankruptcy court was not entitled to res judicata effect as to the Bank’s motion seeking summary judgment on his counterclaim because no issue on the counterclaim was decided by the trial court upon its grant of partial summary judgment to the Bank as to the value of its claim on the promissory note; and (3) even were the contrary true, res judicata effect cannot extend to matters as to which he had no opportunity to litigate in the bankruptcy court, such matters having arisen after the bankruptcy court entered its judgment against him. Finding no error in summary judgment for the Bank upon Simmons’s counterclaim and a valid counterclaim pending, we affirm with direction. Held:

1. Simmons correctly points out that the Bank’s motion to determine the amount of its claim against him in the bankruptcy court was procedurally defective as not initiated as an adversary proceeding by summons and complaint.

A proceeding to determine the validity, priority, or extent of a lien or other interest in property is an adversary proceeding governed by Part VII of the Bankruptcy Rules. Rule 7001 (2). Part VII requires that adversary proceedings be initiated by summons and complaint. Bankruptcy Rules 7003, 7004.

In re Crabtree, 51 Bankr. 521, 524 (I) (E.D. Tenn. 1985). However, the substantive issues raised by the Bank’s motion were nonetheless at issue during the bankruptcy court’s hearing on the motion; Simmons does not contend that the bankruptcy court disposed of the Bank’s motion over his objection through counsel or that the judgment of the bankruptcy court was improper. Under these circumstances, it was not error that the bankruptcy court disposed of the valuation question before it. Id. Even were the contrary true,

For a prior action to bar a subsequent action under the doctrine of res judicata, several requirements must be met: The first action must have involved an adjudication by a court of competent jurisdiction; the two actions must have an identity of parties and subject matter; and the party against whom the doctrine of res judicata is raised must have had a full and fair opportunity to litigate the issues in the first action. (Citations omitted.) Fowler v. Vineyard, 261 Ga. 454, 455-456 (405 SE2d 678) (1991).

(Punctuation omitted.) V.I.P. Homes v. Weader, 216 Ga. App. 412-413 (1) (454 SE2d 548) (1995); see also OCGA § 9-12-40 (“A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.”).

In the context of the last of the criteria determinative of whether the judgment of the bankruptcy court should be given res judicata effect, the question is not whether the judgment of the bankruptcy court followed an adversary proceeding under the rules of bankruptcy procedure or a hearing on motion to determine the value of the Bank’s claim. Rather, it is whether there has been a full and fair opportunity to litigate the issues. See V.I.P. Homes v. Weader, supra at 413 (1) (res judicata as not applicable following adversary bankruptcy proceeding in the absence of a hearing on the merits). This Simmons received. See Division 2, infra. Accordingly, the superior court did not err in granting the Bank summary judgment on its counterclaim for procedural defect before the bankruptcy court.

2. Simmons does not challenge the bankruptcy court as not of competent jurisdiction. Neither does he contend that there here is not an identity of parties and subject matter. Moreover, Simmons does not challenge the finding of the superior court that “substantially all points of [Simmons’s] counterclaim were raised . . . , apparently considered [by the bankruptcy court], and rejected. . . .” Also unchallenged are further findings of the superior court that:

[Simmons] objected to the [Bank’s] proof of claim, claiming (1) improperly calculated interest; (2) several renegotiations of the loan in or about 1994 that affected the amount of interest due and the amount of the contract payments; (3) payments higher than provided for in the note; (4) verbal agreements to have the loan balance “amortized over 20 years,” but later disregarded by the Bank; (5) several informal agreements to reduce the amounts of the loan payments, resulting in excess loan payments that subsequently exceeded the amount due; (6) arbitrary changes in allocations of interest and thus the amount of payment due; and that (7) the Bank had several blank contracts with [Simmons’s] name on them which were subsequently altered and used inappropriately.

Simmons argues that summary judgment for the Bank on his counterclaim was error on the basis of the doctrine of res judicata since his counterclaim was not in issue upon the superior court’s grant of partial summary judgment to the Bank as to the value of the promissory note. However, res judicata effect in the judgment of the bankruptcy court, as a matter of law, is undisputed in the record, as above. Fowler v. Vineyard, supra; V.I.P. Homes v. Weader, supra.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Rice v. Huff, 221 Ga. App. 592, 593 (472 SE2d 140) (1996).

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997). Thus considered, we conclude that the superior court properly granted the Bank summary judgment as to Simmons’s counterclaim.

3. By his final claim of error, Simmons contends that even if summary judgment for the Bank on his counterclaim were deemed proper upon the res judicata doctrine (and we have held it was), such grant of summary judgment was error insofar as it reached his amended counterclaim. In this regard, Simmons properly argues that res judicata cannot be applied to his amended counterclaim alleging tortious conduct in the Bank arising out of its foreclosure upon the land he gave as collateral for the Bank’s loan on the promissory note — this because the June 2001 foreclosure was neither in issue nor subject to being put in issue before the bankruptcy court on December 5, 2000, when it heard the Bank’s motion to determine the value of its claim against Simmons.

Decided June 13, 2002.

Gammon & Anderson, W. Wright Gammon, Jr., for appellant.

Sutton & McCreary, Timothy A. McCreary, for appellee.

Simmons nonetheless misconstrues the superior court’s grant of summary judgment on his counterclaim as reaching his amended counterclaim.

By the device of summary judgment, the trial court can eliminate extraneous issues from the ultimate trial and yet protect the party against whom the grant of summary judgment is rendered pending the trial of the counterclaim by the expedient of refusing to issue a final judgment until the counterclaim is concluded.

Mock v. Canterbury Realty Co., 152 Ga. App. 872, 879 (1) (264 SE2d 489) (1980). Here the error of the superior court is not its grant of summary judgment for the Bank on Simmons’s counterclaim; rather, the superior court erred in entering a final judgment while leaving the amended counterclaim pending; such error is harmless given supersedeas resulting upon the instant appeal as timely filed. Id. Consequently, we affirm the final order granting the Bank partial summary judgment on Simmons’s counterclaim with “direction that the amount of [the Bank’s] recovery against [Simmons] — for which fi. fa. will issue after trial of the [amended] counterclaim — be reduced by the amount, if any, that [Simmons] may recover on [such] counterclaim.” Id.

Judgment affirmed with direction. Smith, P. J., and Ellington, J., concur.

       The Bank succeeded to Etowah Bank’s interest in this case as a result of an apparent merger.


text:
    A02A1529.
    TENCH v. GALAXY APPLIANCE & FURNITURE SALES, INC.
    (567 SE2d 53)
   Eldridge, Judge.

This pro se appeal arises from a jury verdict and judgment in a declaratory judgment action finding that Galaxy Appliance & Furniture Sales, Inc. (Galaxy) owns the one-half undivided interest in the store property titled in the name of Burlin J. Tench, deceased. Such judgment ordered the Clerk of the Superior Court of Stephens County to place on the face of the executrix deed from Pauline C. Tench as executrix of the Last Will and Testament of Burlin J. Tench to herself as heir:

THIS DEED IS CANCELED, SET ASIDE, AND DECLARED NULL AND VOID BY VIRTUE OF AN ORDER OF THE SUPERIOR COURT OF STEPHENS COUNTY, GEORGIA, IN CIVIL ACTION 00-CV-241W, SAID ORDER BEING DATED THE_DAY OF OCTOBER, 2001, AND A COPY THEREOF BEING RECORDED IN DEED BOOK_, PAGES_, STEPHENS COUNTY DEED RECORDS.

Such judgment further ordered that across the face of the deed from Steve Chitwood to Burlin J. Tench, dated September 1976, recorded in Deed Book 133, page 779, Stephens County Records the following be placed:

A ONE-HALF UNDIVIDED INTEREST IN THE PROPERTY DESCRIBED IN THE WITHIN DEED WAS DECLARED TO BE THE PROPERTY OF GALAXY APPLIANCE AND FURNITURE SALES, INC. BY VIRTUE OF AN ORDER OF THE SUPERIOR COURT OF STEPHENS COUNTY, GEORGIA, IN CIVIL ACTION 00-CV-241W, SAID ORDER BEING DATED THE _DAY OF OCTOBER, 2001, AND BEING RECORDED IN DEED BOOK , PAGES_, STEPHENS COUNTY DEED RECORDS.

Pauline C. Tench, individually and as executrix of the Estate of Bur-lin J. Tench, deceased (the Estate), who was represented at trial, appeals pro se. Finding no error, we affirm.

In 1975, Thomas LeCroy and Burlin J. Tench formed a partnership to run a furniture and appliance business. In 1976, Tench purchased the land and store where he started Galaxy. In 1979, Tench had the business incorporated; however, no deed was made for the land and building to the corporation. In 1980, Galaxy borrowed $115,000. Also at the same time in 1980, Tench conveyed to LeCroy a one-half undivided interest in the land and building and one-half of the stock in the corporation; together, LeCroy and Tench co-signed the corporate note for the $115,000 and pledged as security for the corporate note the building and land, as well as their homes. A security deed conveying all three parcels of improved realty was given by them to the bank, leaving Galaxy, LeCroy, and Tench with equities of redemption.

On June 2, 1986, LeCroy and Tench entered into a stockholders agreement at the time insurance policies were purchased on each other’s lives. Each owned $120,000 in life insurance on the other’s life. The agreement provided that the survivor was to pay the other’s widow $30,000 for one-half the Galaxy business. By oral agreement, with mutual promises given in consideration, the balance of $90,000 was to be used to pay the note and other debts of Galaxy and would release each other’s home from the corporate debt. They further agreed that the survivor would own the business, building, and land.

In 1994, Tench died and his widow received $30,000 for his interest in the corporation and land. LeCroy used the entire balance of the insurance to pay off the note and other debts of Galaxy. In July 1994, LeCroy and Galaxy released Pauline Tench and the Estate from all debts or claims by Galaxy or its creditors.

LeCroy believed that title to the land and building had been transferred to Galaxy, and subsequently, the corporation paid all ad valorem taxes and insurance on the building and land. Galaxy continued to occupy the building without claim from Pauline Tench or the Estate for rent; however, in 1999, LeCroy discovered that the building was not titled in Galaxy and sought a quitclaim deed from Pauline Tench and the Estate. The quitclaim deed was refused. As a consequence, LeCroy commenced this declaratory judgment action.

As a pro se appeal, the enumerations of error were filed long after the brief and are vague; the brief does not cite to the record. The citation of authority and argument are short and unenlightening.

1. Pauline Tench contends that the trial court erred because Galaxy’s attorney was allowed to use a chart before the jury which had not been made available to Tench during discovery. We do not agree.

The brief does not refer to the trial transcript to identify what “chart” Tench refers to and how such objection was preserved as to the chart’s use before the jury. Since no chart is shown as having been admitted into evidence as a trial exhibit, then the chart must have been used as “demonstrative evidence” only.

(a) Under OCGA § 9-10-183, trial counsel may use blackboards, charts, or models for demonstrative purposes in opening statement, presentation of evidence, and argument for purposes of illustrating the contentions in the case. Counsel are given wide latitude in use of demonstrative aids at trial to assist the jury in understanding the issues that they must decide.

In the trial of any civil action, counsel for either party shall be permitted to use a blackboard and models or similar devices in connection with his argument to the jury for the purpose of illustrating his contentions with respect to the issues which are to be decided by the jury, provided that counsel shall not in writing present any argument that could not properly be made orally.

OCGA § 9-10-183; Oglethorpe Power Corp. v. Sheriff, 210 Ga. App. 299, 303 (6) (436 SE2d 14) (1993) (use of charts during closing argument); Lewyn v. Morris, 135 Ga. App. 289, 290 (1) (217 SE2d 642) (1975) (use of a blackboard to diagram positions of vehicles in opening statement). “The trial court has discretion in the control of such matters; [Tench] has failed to show an abuse of that discretion.” Oglethorpe Power Corp. v. Sheriff, supra at 303 (6). However, the trial court should not prohibit what a party has a statutory right to do. Lewyn v. Morris, supra at 290.

(b) Further, failure to respond to proper discovery will not cause the exclusion of evidence at trial. “Exclusion of probative trial evidence is not an appropriate remedy for curing an alleged discovery omission. White v. Lance H. Herndon, Inc., 203 Ga. App. 580, 581 (5) (417 SE2d 383) [(1992)].” Hunter v. Nissan Motor Co. &c., 229 Ga. App. 729 (1) (494 SE2d 751) (1997). Prior to and at trial, postponement, recess, continuance, and mistrial constitute proper remedies for discovery abuse revealed at trial and not the exclusion of probative evidence. Nathan v. Duncan, 113 Ga. App. 630, 638-641 (7) (149 SE2d 383) (1966). Prior to trial a number of sanctions are available to the trial court to deal with discovery abuse, including striking the answer and entering a default or dismissing the complaint. Riches to Rags v. McAlexander & Assoc., 249 Ga. App. 649, 652 (549 SE2d 474) (2001); Remira, Inc. v. Amory, 210 Ga. App. 48, 51-52 (1) (435 SE2d 236) (1993); Roderiquez v. Saylor, 190 Ga. App. 742, 743-744 (1) (380 SE2d 339) (1989).

The trial court did not abuse its discretion in allowing Galaxy to use demonstrative evidence not previously revealed to Tench in discovery.

2. Tench contends that jury misconduct occurred during the trial, requiring a new trial. We do not agree.

In her brief, Tench contends that, after trial, her lawyer talked to a juror who told him that another juror talked to an unidentified member of the LeCroy family about the case and that the other juror shared such biased information with the other jurors. The juror refused to give an affidavit attacking the verdict. Therefore, Tench’s lawyer refused to file a motion, and the trial judge refused to discuss the case with her, stating that he would discuss the case only with both trial counsel. Thus, no objection was timely made or ruled upon by the trial court.

(a) Tench did not file a motion for new trial and did not have as a special ground the alleged jury misconduct. Therefore, the objection was not preserved on the record for consideration on appeal; further, such objection was never passed upon by the trial court. An error cannot be raised for the first time on appeal and will not be considered by this Court. Dortch v. Atlanta Journal &c., 261 Ga. 350, 352 (4) (405 SE2d 43) (1991); Vickers v. Coffee County, 255 Ga. 659, 661 (340 SE2d 585) (1986).

(b) Further, had the issue been properly preserved by timely motion for new trial and passed upon by the trial court after eviden-tiary hearing into the allegations of jury misconduct, jurors cannot impeach their verdict, unless Sixth Amendment rights under the United States Constitution are involved, which did not occur in this case. OCGA § 9-10-9; Riddle v. Beker, 232 Ga. App. 393 (501 SE2d 893) (1998); Lozynsky v. Hairston, 168 Ga. App. 276 (308 SE2d 605) (1983). The exceptions to this statute apply only in criminal cases in “certain very limited occasions where human life or liberty sways in the balance. But such compelling personal interests of life and liberty rarely are at issue in civil litigation and are not so at issue in this case.” Perryman v. Rosenbaum, 205 Ga. App. 784, 787 (3) (423 SE2d 673) (1992); accord Riddle v. Beker, supra at 393.

For jurors to report misconduct, a juror must speak out prior to discharge after their return of the verdict; thus, jurors must speak out during trial, deliberations, or upon the poll of the jury after the return of the verdict, determining if this was their verdict, to disclose any jury misconduct impeaching the verdict. Under such circumstances the trial court can voir dire the jurors individually to determine if any misconduct took place and either dismiss one or more jurors for misconduct, declare a mistrial, or give curative instructions. Lee v. State, 258 Ga. 481, 483 (3) (371 SE2d 389) (1988) (curative instructions after investigating reported misconduct prior to verdict). See generally Joachim v. State, 263 Ga. 816, 817-818 (3) (440 SE2d 15) (1994) (jury already discharged when issue arose); Williams v. State, 252 Ga. 7, 8-9 (1) (310 SE2d 528) (1984) (same); Pie Nationwide v. Prickett, 189 Ga. App. 77, 78 (374 SE2d 837) (1988) (after dismissal of jury but prior to entry of judgment declared mistrial error).

It is the uncontrovertible law of this state that statements of jurors or of third parties indicating that certain of the jurors may have acted on private knowledge or on matters not in evidence will not be received subsequent to trial to impeach or impugn a verdict nor does a superior court have the legal power to hear or receive such statements.

Samples v. Greene, 138 Ga. App. 823, 825 (4) (227 SE2d 456) (1976); accord Lozynsky v. Hairston, supra at 276.

Under very rare circumstances where jurors do research and investigation into material facts of the case on their own and share such information with the other jurors, a juror may impeach their verdict in criminal cases, because such juror misconduct violates the defendant’s Sixth Amendment right to confront witnesses against them in open court. See Bobo v. State, 254 Ga. 146, 148 (1) (327 SE2d 208) (1985). No such conduct has been alleged to have occurred in this case. Thus, the trial court did not abuse his discretion in refusing to talk with the party ex parte.

3. Tench contends that the trial court erred in entering the judgment on the verdict. We do not agree.

(a) The stockholders agreement was not intended to provide all the terms of the agreement and had no merger clause or clause prohibiting oral modification. The agreement in paragraph 9 provided that the surviving stockholder would retain the $90,000; however, all the parties testified that by oral agreement the survivor was to pay the debts of the corporation with such funds. While the written agreement made no provision for disposition of the land and building upon the death of a tenant in common of the undivided one-half interest, this was a collateral oral agreement supported by mutual promises and fully performed. Thus, the oral agreement could be proven by parol evidence. OCGA § 13-2-2 (1); Adams v. North American Business Brokers, 168 Ga. App. 341, 343 (309 SE2d 164) (1983); accord Cooper v. Vaughan, 81 Ga. App. 330, 338 (58 SE2d 453) (1950). The agreement constituted a valid contract partially in writing and partially parol. Tanner v. Tinsley, 152 Ga. App. 330, 331 (2) (262 SE2d 602) (1979).

(b) At trial, Tench raised the four-year statute of limitation to a contract action; however, there exists no statute of limitation for the recovery of an equitable interest in land. Smith v. Aldridge, 192 Ga. 376, 380 (1) (15 SE2d 430) (1941). Likewise, the equitable doctrine of laches does not bar this action, because delay alone will not give rise to laches but must be accompanied by prejudice caused by such delay. See generally Stone v. Williams, 265 Ga. 480 (458 SE2d 343) (1995). “One who is in possession of property under a claim of ownership will not be guilty of laches for delay in resorting to a court of equity to establish his rights.” Davis v. Newton, 215 Ga. 58, 60 (2) (108 SE2d 809) (1959).

(c) The Statute of Frauds is not a bar to an equitable claim to title of land, because there was a full performance of the terms of the written agreement and the collateral oral agreement. Thus, equity can compel the conveyance of legal title by specific performance where there has been full performance of the oral agreement and possession of the land, taking such agreement outside the Statute of Frauds. Smith v. Cox, 247 Ga. 563, 564 (277 SE2d 512) (1981).

(d) Estoppel by silence has no application to this case, because such doctrine applies where silence amounts to constructive fraud through the acts or omissions of the party under a duty to speak. Balest v. Simmons, 201 Ga. App. 605, 609 (2) (411 SE2d 576) (1991); Dodson v. Kern, 136 Ga. App. 522, 527 (221 SE2d 693) (1975). Here, LeCroy spoke out as soon as he discovered that neither he nor Galaxy had title to Burlin J. Tench’s undivided one-half interest in the land and building although he had fully performed the agreement’s terms.

(e) The release signed by LeCroy and Galaxy to Tench and the Estate did not cover the conveyance of the undivided one-half interest, because it did not apply to “unknown claims” and was limited to “any transaction arising out of any business dealings with, from, or on behalf of Galaxy, from the beginning of time through the date of this agreement,” which preceded the duty to convey that arose upon the first death of either LeCroy or Tench. Where the issue of intent of the parties regarding future actions was ambiguous and could not be resolved by the trial court through the application of the rules of contract construction, such intent became a jury issue. Vasche v. John Wieland Homes, 243 Ga. App. 178, 179-180 (530 SE2d 276) (2000). A general release does not discharge a party for unknown conduct already committed unless the release clearly expresses such intent. Gibbs v. Dodson, 229 Ga. App. 64, 68 (2) (492 SE2d 923) (1997). Unless clearly appearing within the release as a subject matter of release, parties will not be presumed to intend to contract away such legal rights. U. S. Anchor Mfg. v. Rule Indus., 264 Ga. 295, 298 (2) (443 SE2d 833) (1994).

(f) The jury after considerable deliberation were deadlocked nine to three, and the trial court gave them an Allen charge. The trial court suggested to the parties that they consider accepting by agreement a nine-to-three verdict instead of a unanimous twelve-juror verdict. After discussion with counsel, each party agreed to accept a nine-to-three verdict. The verdict was accepted by all parties, and the jury was not polled on the record.

Judgment affirmed.

Ellington, J., concurs. Smith, P. J., concurs in judgment only.

Decided June 13,2002.

Pauline C. Tench, pro se.

Alton M. Adams, for appellee.


author: Barnes, Judge.

text:
    A02A0726.
    FINEZA v. THE STATE.
    (567 SE2d 17)
   Barnes, Judge.

Craig Fineza was indicted for aggravated assault, aggravated battery, false imprisonment, and three counts of possessing a knife while committing a felony. He subsequently pled guilty to aggravated battery, into which the aggravated assault charge merged, and the State nolle prossed the remaining charges. The trial court granted Firieza’s motion for an out-of-time appeal, and he now contends that his guilty plea was invalid because he did not understand the impact of pleading guilty under North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970) (a defendant may plead guilty but not admit committing the crime). For the reasons that follow, we affirm.

1. Initially, the State contends that the trial court erred in granting Fineza’s motion for an out-of-time appeal, arguing that the evidence presented at a hearing on the motion showed that the failure to file a direct appeal within 30 days lay with Fineza, not with his trial counsel.

An out-of-time appeal is properly granted if the defendant’s trial counsel either fails to file a timely appeal after his client directs him to do so or fails to inform the defendant of his right to a direct appeal. Towns v. State, 228 Ga. App. 267 (1) (491 SE2d 497) (1997). On the other hand, if the defendant fails to take action and causes the appeal not to be filed within 30 days, he is not entitled to an out-of-time appeal. Glass v. State, 248 Ga. App. 91 (1) (545 SE2d 360) (2001). Absent an abuse of discretion, we will not reverse a trial court’s decision on a motion for out-of-time appeal. Lunsford v. State, 237 Ga. App. 696, 697 (1) (515 SE2d 198) (1999).

In this case, we find no abuse of discretion. After the trial court sentenced Fineza on September 11, 2000, it informed him that he had a right to file an appeal, that trial counsel would not handle his appeal, that if he could not afford his own counsel he would be entitled to appointed counsel, that if he wanted to apply for appointed appellate counsel he needed to do so quickly, that he had a right to try to file his own appeal, and that he must try to do so within 30 days.

On September 14, 2000, Fineza’s trial counsel wrote him at the White County detention center, stating incorrectly that Fineza received a sentence of more than 12 years and thus had a right to appeal his sentence to the Sentence Review Panel. Counsel included a sentence review form for Fineza’s convenience and further noted that Fineza had a right to appeal his conviction. Although he did not believe Fineza had any meritorious grounds for an appeal and would not be representing him, he noted that any appeal had to be filed within 30 days, so he urged Fineza to decide quickly and apply for appointed counsel to represent him if he decided to appeal.

Fineza testified at his motion hearing that he had tried to appeal from the day he was sentenced. He completed and filed the sentence review form on September 19, 2000, because his trial counsel told him that he could do so, but his request for review was denied because his ten-year sentence was not eligible for review. He also filed this application under the wrong case number, apparently using the case number from an earlier matter, in which his probation was revoked based on the charges to which he later pled guilty. Fineza further testified that, along with the application, he completed the first of two applications for an appointed attorney and gave it to detention center staff to forward to the court. Fineza was subsequently transferred on September 21, 2000, to the diagnostic center in Jackson.

Fineza testified that, in addition to the applications for sentence review and appointed appellate counsel, he also filed what he described as “a lame attempt of a motion to appeal,” of which he had a carbon copy. He explained that he mixed up his case numbers and did not receive a file-stamped copy in return. That motion was not docketed in the clerk’s office. A review of the record shows that case number 2000-CR-067 appears on a pro se motion for out-of-time appeal dated June 12, 2001, as well as on the cover page of the plea transcript, while other documents in the file bear the correct case number, 2000-CR-069.

Based on this evidence, the trial court did not abuse its discretion in granting Fineza an out-of-time appeal. The record shows that Fineza’s counsel gave him incorrect advice about his right to a sentence review and may have confused him about the appeals process. This is not a case in which the defendant failed to pursue his right to appeal (compare Thompson v. State, 250 Ga. App. 761 (552 SE2d 130) (2001)). Evidence in the record supports a finding that Fineza did try to file a timely notice of appeal and that he sought appointed counsel to no avail. Under the peculiar facts and circumstances of this case, we cannot say the trial court abused its discretion.

2. The next issue we consider is whether Fineza has a right to directly appeal his guilty plea. A defendant may directly challenge a guilty plea if the issue on appeal can be resolved through facts appearing in the record. Caine v. State, 266 Ga. 421 (467 SE2d 570) (1996). If the issue cannot be resolved by facts in the record, the appeal would ordinarily have to be remanded for an evidentiary hearing, and thus permitting a direct appeal would not resolve the issue swiftly. Id. Rather, the defendant should move in the trial court within the same term of court to withdraw his guilty plea, which would result in an evidentiary hearing. Id. If the trial court denies the motion, the defendant may then appeal that denial, on a record that contains the evidence needed to resolve the issue. Sibley v. State, 249 Ga. App. 664 (550 SE2d 104) (2001).

We thus consider whether the issues Fineza raises on appeal may be resolved through facts appearing in the record. He asserts two enumerations of error: (a) he did not enter a “valid plea of guilty”; and (b) his counsel was ineffective for telling him that if he remained silent when asked how he pled, he would receive a trial. If at least one of these issues can be resolved by facts appearing in the record, he may pursue a direct appeal from his plea of guilty. Thorpe v. State, 253 Ga. App. 263 (558 SE2d 804) (2002). In this case, we can resolve Fineza’s first enumeration by facts appearing in the record, but we cannot resolve his second enumeration in this direct appeal.

(a) Fineza contends in his first enumeration that he remained “virtually silent” during his plea colloquy and sentencing hearing. When the trial court asked him, “As to the offense of aggravated battery and, of course, aggravated assault is going to merge into that, how do you plead, sir, guilty or not guilty?” Fineza did not respond. Instead, his counsel responded, “Your Honor, Mr. Fineza wants to enter a plea of guilty under North Carolina versus Alford,” However, after trial counsel explained to the trial court why Fineza wanted to tender sen. Alford plea, the trial court summed up the exchange as follows:

THE COURT: Mr. Fineza, basically you are tendering a guilty plea under North Carolina versus Alford which means basically, sir, that you don’t think you did it, you think that’s a defense simply because you said you don’t think you did it. There may be something else that I’m not aware of there, too. But you also realize that if the jury believes the state’s evidence you are likely to be convicted of this crime. And you just have decided then that it’s in your best interest to plead guilty and accept the plea offer that’s been made by the state rather than running the risk of going to trial and winding up with twenty or more years to serve. Is that basically what your position is, sir?
DEFENDANT: Yes, sir, I guess.
THE COURT: So you are pleading guilty under North Carolina versus Alford?
DEFENDANT: Yes, sir.

Before this exchange, the trial court determined that Fineza was not under the influence of any intoxicants, had two years of college education, and had discussed the charges with his counsel. The court then listed the rights Fineza would lose by pleading guilty and pointed out that it was not obliged to accept the district attorney’s recommended sentence of ten years to serve five, but could sentence Fineza to as much as twenty years in prison and fine him as much as $100,000. After Fineza tendered his Alford plea, he affirmed that he had talked with his lawyer before entering the plea, had enough time to discuss the plea, and had no objections to the way his lawyer had handled his case. After questioning Fineza regarding factors affecting his ability to pay restitutioxi, the trial court announced its sentence and then asked Fineza if he wanted to withdraw his plea of guilty, to which Fineza responded, “No, sir.”

The record belies Fineza’s contention that the trial court erred in failing to adequately determine whether Fineza understood the charges against him, and in failing to inform him on the record of the terms of the negotiated plea. The record further establishes that Fineza did not “remain silent” when asked how he pled to the charges, but affirmatively pled guilty pursuant to the provisions of North Carolina v. Alford, which were explained to him on the record by the trial court. Because Fineza has failed to demonstrate from the facts in the record that his guilty plea was not valid, we affirm his conviction based on his plea of guilty. Flanigan v. State, 238 Ga. App. 296 (517 SE2d 569) (1999).

(b) Fineza also contends that his plea is invalid because his trial counsel’s assistance was ineffective in failing to educate him before the plea date regarding the meaning of an Alford plea. He also contends that he told his attorney to try the case and that his attorney told him that if he did not say “guilty” he would go to trial. A defendant who seeks to appeal a guilty plea on the ground of ineffective assistance of counsel must develop those issues in a post-plea hearing and may not file a direct appeal where the only evidence in the record is the transcript of the guilty plea hearing. Obi v. State, 229 Ga. App. 94, 96 (2) (493 SE2d 246) (1997). The proper remedy is to move to withdraw the plea, or if the term of court in which the plea was entered has expired, to petition for a writ of habeas corpus. Caine v. State, supra, 266 Ga. at 422. Fineza failed to take either action, and as a result he cannot raise the issue of ineffective assistance of counsel in this direct appeal of his conviction.

Judgment affirmed.

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

Decided April 17, 2002

Reconsideration denied June 14, 2002

Elizabeth B. Reisman, for appellant.

Craig Fineza, pro se.

N. Stanley Gunter, District Attorney, Gerald W. Bruce, Assistant District Attorney, for appellee.


text:
    A02A0654.
    FONTAINE v. GORDON CONTRACTORS BUILDING SUPPLY, INC.
    (567 SE2d 324)
   Miller, Judge.

In this action on an alleged guaranty of an account, Charles Fon-taine, a defendant below and an alleged guarantor, appeals from both the grant of summary judgment against him awarding a money judgment and the denial of his motion for summary judgment against Gordon Contractors Building Supply, Inc., the plaintiff below. Fontaine contends that the controlling document fails to identify the principal debtor and that such failure is fatal to Gordon’s claim. We agree and reverse both rulings.

The controlling — and only — document is an application form for credit from Gordon Contractors, which Fontaine signed on a blank calling for “Name of Guarantor.” His signature followed immediately after a paragraph beginning, “[I]n consideration of the extension of credit by Gordon Building Supply Inc. the undersigned customer hereby agrees that the terms and conditions of all sales are as follows.” There is also a blank following this paragraph for “Customer Name,” and it is signed by a Robert Schlaefli, although it is unclear whether he signed it individually or as an agent. At the beginning of the application, the blank for “Name of INDIVIDUAL APPLYING” is filled in with both Fontaine’s and Schlaefli’s names, and the blank for “Name of COMPANY OR BUSINESS” bears the words “McIntyre Development, Inc.” Finally, the blank for “NAMES OF PEOPLE AUTHORIZED TO PURCHASE” is filled in with Schlaefli’s name and that of a Glen Bush.

Fontaine claims that the credit application violates the applicable portion of the Statute of Frauds, requiring a signed writing for enforceability of a promise to answer for the debt or default of another. OCGA § 13-5-30 (2). He contends that this is so because it fails to identify the principal debtor. If he is correct that the principal debtor is unidentified, that omission mandates reversal under a line of cases going back to 1982. Roden Elec. Supply v. Faulkner, 240 Ga. App. 556 (1) (524 SE2d 247) (1999); Workman v. Sysco Food Svcs. &c., 236 Ga. App. 784-785 (513 SE2d 523) (1999); Indus. Mechanical v. Siemens Energy &c., 230 Ga. App. 1, 2 (495 SE2d 103) (1997); Sysco Food Svcs. v. Coleman, 227 Ga. App. 460, 461 (489 SE2d 568) (1997); Ellis v. Curtis-Toledo, Inc., 204 Ga. App. 704, 705 (2) (420 SE2d 756) (1992); Northside Bldg. Supply Co. v. Foures, 201 Ga. App. 259-260 (411 SE2d 87) (1991); Builder’s Supply Corp. v. Taylor, 164 Ga. App. 127, 128 (296 SE2d 417) (1982).

Gordon points out that the credit application “identifies the name of the company or business as ‘McIntyre Development, Inc.’ ” In Roden Elec., supra, 240 Ga. App. at 556 (1), however, the controlling document consisted of a credit application portion and a guaranty portion, neither of which stated the identity of the principal debtor, although the credit application portion showed a corporation as the “billable party” and the guaranty portion referred to “the above business.” In appealing from the grant of summary judgment to the purported guarantor, the Roden Elec, creditor argued that the guaranty sufficiently identified the principal debtor for purposes of the Statute of Frauds. We affirmed, however, pointing out the necessity of explicit identification of the principal debtor:

Where a guaranty omits the name of the principal debtor, it is unenforceable as a matter of law. This is true even where the intent of the parties is manifestly obvious. Further, this Court is not authorized to determine the identity of the principal debtor by inference as this would entail consideration of impermissible parol evidence. Neither may we construe the defect sub judice as in the nature of contractual ambiguity. Parol evidence is inadmissible to provide a description of that which is wholly omitted.

(Citations and punctuation omitted.) Roden Elec., supra, 240 Ga. App. at 556-557 (1). Likewise, here there is no clear identification of the principal debtor.

Similarly, in Coleman, supra, 227 Ga. App. at 460, the “terms agreement”.identified the “purchaser” by trade name of a corporation. On the guaranty form appearing below the terms agreement, however, “the name of the principal debtor (_‘Company’) and [the] name of the person individually guaranteeing the indebtedness are left blank.” Id. We affirmed the trial court’s grant of summary judgment to the purported guarantor, again noting the necessity of explicit identification of the principal debtor:

[W]here the name of the principal debtor is omitted from the document, the agreement is not enforceable because it fails to satisfy the statute of frauds. . . . [T]he contemporaneous writing rule, even if applicable, would not authorize a different result. Although the “Terms Agreement” and “Individual Personal Guaranty” appear on the same paper, the two sections do not incorporate each other by reference or use the same terms. The terms agreement refers to “seller” . . . and “purchaser.” ... In contrast, the individual personal guaranty refers to “company” (unidentified, unnamed) and “seller.” . . . The trial court correctly found that in order to determine the identity of the “company” debtor, it would have to make inferences and consider impermissible parol evidence. . . . Judicial construction of the contract of guaranty at issue is improper because this defect cannot be treated as an ambiguity.

Decided June 14, 2002.

Olim & Loeb, Jay E. Loeb, David A. Webster, for appellant.

Weinstock & Scavo, Jeffrey P. Yashinsky, James F. Ledbetter, for appellee.

(Citations omitted.) Id. at 461-462. We also noted “the statutory bar precluding the extension of a contract of guaranty by interpretation or implication (OCGA § 10-7-3).” Id. at 463. Here there is no other writing that could arguably invoke the contemporaneous writing rule.

Finally, Gordon points to Fontaine’s admission in his deposition that he signed this document as guarantor “on behalf of McIntyre Development.” A similar situation was presented in Workman, supra, 236 Ga. App. at 785, however, and there this Court held it was irrelevant that the purported guarantor testified that it was her intent to guarantee the debt. Murray v. Pratt-Dudley Builders Supply Co., 176 Ga. App. 225 (335 SE2d 443) (1985), is distinguishable. See Coleman, supra, 227 Ga. App. at 462.

Judgment reversed.

Blackburn, C. J., and Johnson, P. J., concur.