text:
    A95A1465.
    KIRSCH v. JONES et al.
    (464 SE2d 4)
   Johnson, Judge.

William Brown, Jr., the owner and president of Exclusive Properties, Inc., hired attorneys Taylor Jones and Myles Eastwood to file a lawsuit concerning a portfolio of security deeds which had been assigned to Dennis Talkington and others. Jones and Eastwood eventually withdrew as counsel for Brown and Exclusive, who then hired Carl Kirsch as their lawyer. Kirsch helped Brown and Exclusive obtain a default judgment against Talkington and others.

On behalf of Brown and Exclusive, Kirsch then sued Jones, Eastwood, and their law firm, claiming they committed legal malpractice in the Talkington lawsuit by failing to place lis pendens notices on the property in question, failing to seek an interlocutory injunction, and failing to seek cancellation of the underlying transfer of property to Talkington on the basis of fraud. Jones, Eastwood and the law firm responded in part by filing a third-party complaint against Kirsch, alleging that he too was negligent in his representation of Brown and Exclusive by failing to pursue any post-judgment collection efforts in the Talkington case. The trial court granted summary judgment to Kirsch on the third-party complaint. Jones, Eastwood and the law firm did not appeal from that judgment.

On his own behalf, Kirsch next sued Jones, Eastwood, the law firm and Home Insurance Company, alleging that they were abusively litigious in filing the third-party complaint. Kirsch also sued Jones for defamation based on statements which were published in a newspaper. The trial court granted summary judgment to Jones, Eastwood, the law firm and the insurance company. Kirsch appeals from the grant of summary judgment.

1. Kirsch’s argument that the trial court erred in granting summary judgment to Jones on the defamation claim is without merit. The claim is based on the following statements published in the Fulton Daily Report newspaper and attributed to Jones: that Kirsch took over and bungled the Talkington case; that Kirsch is directly responsible for the problems of Brown and Exclusive and should be liable for any judgment rendered against Jones’ law firm in the malpractice suit; and that if Kirsch had any sense at all, he would not have touched the case with a ten-foot pole. Because the alleged statements are merely expressions of opinion and hyperbole about which reasonable people might differ and which cannot be proved to be true or false, they are not actionable as being defamatory. See Collins v. Cox Enterprises, 215 Ga. App. 679, 680 (452 SE2d 226) (1994); Bergen v. Martindale-Hubbell, 176 Ga. App. 745, 746-747 (3) (337 SE2d 770) (1985). Accordingly, the court properly granted summary judgment to Jones. See Kendrick v. Jaeger, 210 Ga. App. 376, 377-378 (436 SE2d 92) (1993).

2. Kirsch correctly asserts that the court erred in granting summary judgment to defendants Jones, Eastwood, the law firm and the insurance company on the abusive litigation claim. “Any person who takes an active part in the initiation, continuation, or procurement of civil proceedings against another shall be liable for abusive litigation if such person acts: (1) With malice; and (2) Without substantial justification.” OCGA § 51-7-81. “ ‘Malice’ means acting with ill will or for a wrongful purpose and may be inferred in an action if the party initiated, continued, or procured civil proceedings or process in a harassing manner or used process for a purpose other than that of securing the proper adjudication of the claim upon which the proceedings are based.” OCGA § 51-7-80 (5). “ ‘Without substantial justification,’ . . . means that such civil proceeding . . . is: (A) Frivolous; (B) Groundless in fact or in law; or (C) Vexatious.” OCGA § 51-7-80 (7). In the present case, there are genuine issues of material fact as to whether the defendants pursued the third-party complaint against Kirsch with malice and without substantial justification.

It is well settled that a “third-party complaint must be against one who is or may be liable to the third-party plaintiff for all or part of the original plaintiff’s claim against him. OCGA § 9-11-14 does not allow the tender of another defendant who is or may be liable to the plaintiff.” (Citations and punctuation omitted.) Mayor &c. of Savannah v. Southern Bulk Indus., 198 Ga. App. 867 (1) (403 SE2d 447) (1991). Here, the trial court properly granted summary judgment to Kirsch on the third-party complaint filed by Jones, Eastwood and the law firm as the defendants in the malpractice action because Kirsch was not liable to them for any of their own negligent acts as alleged in the malpractice claim brought by Brown and Exclusive. Rather, the third-party claim that, long after Jones and Eastwood had withdrawn as counsel, Kirsch himself acted negligently in representing Brown and Exclusive, was merely the tender of Kirsch as a substitute defendant who might also be liable to Brown and Exclusive for acts unrelated to the defendants’ acts. See Cohran v. Jones, 160 Ga. App. 761, 762 (1) (288 SE2d 80) (1981). The third-party complaint was thus completely without merit. See Lamb v. K. M. Ins. Co., 208 Ga. App. 746, 747 (431 SE2d 744) (1993).

We note that Kirsch’s entitlement to summary judgment on the third-party complaint does not automatically mean that there are genuine issues of material fact as to whether the filing of that complaint was abusive litigation. See Seckinger v. Holtzendorf, 200 Ga. App. 604, 605-607 (409 SE2d 76) (1991). Even though Kirsch was granted summary judgment on that third-party complaint, Jones, Eastwood and the law firm still would be entitled to summary judgment on Kirsch’s abusive litigation claim if the undisputed evidence proved that their pursuit of that third-party complaint was not malicious and was substantially justified. See Ibrahim v. Talley & Assoc., 214 Ga. App. 609, 611-612 (2) (448 SE2d 707) (1994). However, the evidence as it now stands presents questions of fact as to whether the defendants were abusively litigious.

Jones and Eastwood are correct in stating that acting in good faith is a complete defense to an abusive litigation claim. See OCGA § 51-7-82 (b). But, contrary to their argument, their self-serving and conclusory affidavits asserting that they pursued the third-party action against Kirsch in good faith do not entitle them to summary judgment. See Trico Ins. Agencies v. Selective Ins. Co. &c., 213 Ga. App. 138, 139 (1) (444 SE2d 119) (1994); Consolidated Elec. Supply v. Bishop Contracting Co., 205 Ga. App. 674, 675 (423 SE2d 415) (1992). Instead, the defendants’ statements that they acted in good faith are evidence to be considered by the jury in light of all the circumstances in the case. See Hodges v. Youmans, 129 Ga. App. 481, 483 (3) (200 SE2d 157) (1973).

Decided October 24, 1995

Reconsiderations denied November 2, 1995 and November 8, 1995

Carl V. Kirsch, pro se.

Freeman & Hawkins, H. Lane Young II, Thomas F. Wamsley, Jr., Thomas G. Tidwell, for appellees.

Under the circumstances of this case, a trier of fact could find that the malpractice defendants’ filing of a completely meritless third-party complaint against the lawyer for the malpractice plaintiffs was frivolous, groundless in fact and law, and done for a purpose other than that of securing the proper adjudication of the malpractice claim. Because genuine issues of material fact exist as to whether the defendants pursued the third-party complaint with malice and without substantial justification, the tried court erred in granting summary judgment on the abusive litigation claim. See OCGA § 9-11-56.

Judgment affirmed in part and reversed in part.

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

       Kirsch also sued Dwight Meredith, the attorney who gave an affidavit in support of the third-party complaint, for abusive litigation. In Kirsch v. Meredith, 211 Ga. App. 823 (440 SE2d 702) (1994), we affirmed the grant of summary judgment to Meredith.


source: Caselaw Access Project

author: Beasley, Chief Judge.

license: Public Domain

text:
    A95A1007.
    RATLIFF v. CSX TRANSPORTATION, INC.
    (464 SE2d 1)
   Beasley, Chief Judge.

Ratliff was working for CSX as a railroad switchman in Ashland, Kentucky, when he injured his back throwing a manual switch that moved rails from one connection to another. He contended the switch jammed or stuck because the switch site was poorly drained, ultimately deteriorating the structural support under the railroad bed and causing it to depress, which altered the arrangement and operation of the switch. He also contended CSX’s inspections were inadequate to detect this condition because tests done on the switch were not performed with a railcar nearby, which further depressed the rails, so the tests did not reflect the conditions encountered by those responsible for operating the switch.

He sued CSX under the Federal Employers’ Liability Act, 45 USC § 51 et seq., asserting both negligence and strict liability. The strict liability theory was premised on a violation of 49 CFR § 213.103, which requires track to be supported by material sufficient to restrain it vertically and to provide adequate drainage. Ratliff appeals the judgment entered for CSX on a jury verdict.

1. In his first three enumerations of error, he contends the court wrongly refused to admit evidence showing modifications had been made to the switch site after the accident. He urges its admissibility because it is evidence: a) in a strict liability case, b) it explains conduct of an expert witness, or c) it impeaches a defense witness. The general rule is that such evidence is not permitted in a negligence case, Gunter v. Jackson Electric Membership Corp., 198 Ga. App. 629, 631 (1) (402 SE2d 309) (1991), for it presumably would tend to show “that the defendant recognizes and admits his negligence. [Cit.]” Brooks v. Cellin Mfg. Co., 251 Ga. 395, 397 (306 SE2d 657) (1983).

(a) Ratliff contends that General Motors Corp. v. Moseley, 213 Ga. App. 875 (447 SE2d 302) (1994), allows it in cases such as his. Moseley, which involved product liability, accepted the admissibility of remedied modification evidence because such a rule would not affect a manufacturer’s decisions to create a better product; it would be subject to strict liability regardless of whether the product was improved. Id. at 881-883 (4).

Ratliff relies upon Moseley’s statement: “we find persuasive and hereby adopt the rationale discussed above for admitting evidence of subsequent remedial measures in strict liability cases.” Id. at 882 (4). We cannot reach the question whether the ruling applies in all strict liability cases or rather only in product liability cases, the context in which the statement was made. At trial, Ratliff did not argue that his theory of strict liability opened the door to such evidence, precluding its review as a ground on appeal. McBride v. State, 213 Ga. App. 857, 858 (3) (c) (446 SE2d 193) (1994).

(b) Ratliff’s expert witness, Dooman, testified about the degradation of the switch site. On cross-examination, CSX asked if it was true he had not inspected the site before drawing his conclusions. Dooman responded: “That’s correct, by the time I got involved . . . ,” and the court stopped his explanation. Outside the jury’s presence, the court accepted Ratliff’s statement that Dooman would have testified that it was his understanding the drainage and support problems were cured by the time he became involved. Ratliff contends he had a right to ask Dooman about this understanding after CSX elicited Dooman’s statement that he had not inspected the site. Ratliff did ask Dooman if he thought he had sufficient information to form a considered opinion, and he answered “absolutely.”

The court did not abuse its discretion in limiting Dooman’s testimony. Evidence of a subsequent modification should not be admitted if “the potential for prejudice in the admission of [the] evidence substantially outweighs its probative value.” West v. Nodvin, 196 Ga. App. 825, 828 (3) (b) (397 SE2d 567) (1990). Here that potential was great; the jury could have taken Dooman’s explanation as raising a reasonable inference that CSX recognized and admitted negligence. Brooks, supra. Additionally, as Dooman was confident of the reliability of his opinion based on the information he had, the modification of the switch site and his noninspection for this reason were not material to it.

(c) Ratliff also attempted to introduce the evidence to impeach a CSX witness whose testimony included reference to measurements of the site. He contends his right to a thorough and sifting cross-examination included the right to ask whether the measurements about which the witness testified were taken after the modifications. Voir dire of the witness showed that the measurements had not been changed by any subsequent modification. Thus, the information would have had little or no probative value. It was not error to conclude that such value was outweighed by the potential prejudicial aspects of the evidence. West, supra.

2. The next question is whether the court erroneously limited Ratliff’s examination of his witness Thomas, a CSX employee who testified about the condition of the switch site. When Ratliff asked Thomas about the site’s condition since 1969, the date Thomas first began working there, CSX objected on grounds that the lengthy time frame was irrelevant to the condition of the site at the time of the incident. The jury was excused, and CSX moved for mistrial, arguing Ratliff was pursuing testimony about the long-term condition of the switch site solely in an effort to prejudice the jury against CSX and elicit a punitive judgment when punitive damages were not allowed. During a long and sometimes unfocused discussion, CSX also contended that no issue concerning “years of neglect” had been previously introduced into the case.

The record does not show the court forbade Thomas to testify on any matter about which Ratliff’s earlier witness, Cole, had testified. Rather, in trying to determine what testimony Thomas would give concerning what time frame, the court referred to Cole’s earlier testimony; it did not state that Thomas could not testify on the same issue. The court’s inquiry, in light of CSX’s motion for mistrial, concerned the testimony to be given about the condition of the switch at the time of the accident and the notice CSX had of the conditions which produced the alleged defect. Although Ratliff contends the court’s ruling in denying the motion, taken in context, included a ban on any testimony similar to Cole’s, the only clear statements from the court were that the motion was denied and Ratliff should move on to relevant areas of testimony. Ratliff did not ask for any clarification of the court’s ruling, and the court had previously stated it would allow Thomas to testify about whether CSX had notice the switch was defective.

Thomas did testify as to the condition of the switch on the date Ratliff was injured, that the switch was hard to manipulate and that this defect had been often reported. He stated he had not reported the vertical movement of the track. The only testimony Ratliff now contends Thomas would have given that he did not actually give involved the historical development of the drainage problems.

If there was error, there was no harm. Cole related his knowledge of the historical development of problems at the switch site, and Dooman described how the site problems developed over time. Given this testimony and Thomas’s, the excluded testimony would have been cumulative. See Hathcock v. State, 214 Ga. App. 188, 192 (7) (447 SE2d 104) (1994).

3. Ratliff also contends the court erroneously prevented Dooman from testifying as to the bases of his opinions. As to Dooman’s decision not to visit the site, it has been addressed in Division 1 (b). As to information Dooman used in reaching his opinions, the argument is not supported by citation to the record where such testimony was excluded or a proffer of testimony was made. The enumeration is deemed waived pursuant to Court of Appeals Rule 27 (c) (2).

4. Harm is claimed by the court’s rebuke of Ratliff’s counsel for asking an improper question. It is argued that he should be excused from his failure to move for mistrial because the prejudice did not become substantial until it was added to other prejudice resulting from admission of certain evidence. He did not move for a mistrial at that time either, waiving the issue. See Carr v. State, 214 Ga. App. 367, 368 (2) (448 SE2d 33) (1994).

5. Finally, Ratliff urges that copies of 14 letters to him from various CSX personnel should not have been sent out with the jury. The letters dealt with CSX retraining and rehabilitation programs and CSX’s attempts to enroll Ratliff in them. He did not object when the letters were admitted. Instead, he contends that after the court granted his motion for directed verdict on the issue of whether he must mitigate his damages, they became irrelevant to any jury issue and served only to prejudice the jury against him. Neither the court’s grant of the motion as to mitigation nor Ratliff’s motion to have specific documents excluded was recorded. It appears, however, that the court allowed the letters to go to the jury because they had been discussed and admitted during Ratliff’s testimony. Again, if there was error, it was harmless. The general content of the letters — that CSX tried to involve Ratliff in rehabilitation, education, and different employment opportunities with CSX — had already been thoroughly aired before the jury through testimony. Moreover, “[w]here an error ... in the admission or exclusion of evidence relates only to the issue of damages, and the jury finds the defendant not liable, the error is harmless because it does not affect the verdict.” Pouncey v. Adams, 206 Ga. App. 126, 127 (1) (424 SE2d 376) (1992).

Decided October 23, 1995

Reconsideration denied November 9, 1995

Burge & Wettermark, Michael J. Warshauer, James R. Holland II, Lyle G. Woodruff, for appellant.

Alston & Bird, Jack H. Senterfitt, Robin G. Mayer, for appellee.

Judgment affirmed.

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


author: Smith, Judge.

text:
    A95A1775.
    A95A1777.
    MARK SIX REALTY ASSOCIATES, INC. v. DRAKE. NORTHSIDE REALTY, INC. v. DRAKE.
    (463 SE2d 917)
   Smith, Judge.

Lynn A. Drake brought this action against Mark Six Realty Associates, Inc. (formerly known as Northside Realty Associates, Inc.), Northside Realty, Inc., and five other defendants, alleging fraud, violation of the Fair Business Practices Act, breach of contract, negligence, and breach of warranty. Drake purchased a home in a subdivision development marketed by two real estate agents, Matsis and Rumble, whom Drake contends were employees of Mark Six or Northside. Drake alleged that the realtors, the individual agents, and a builder sold the home to her with knowledge of substantial construction defects and concealed that knowledge from her. She also sued a home inspection service for breach of contract and negligent inspection. The jury returned a verdict in favor of Drake against all defendants except Rumble. The motions of Mark Six and Northside for judgment notwithstanding the verdict were denied, and they appeal.

1. In Case No. A95A1775, Mark Six contends its motion for j.n.o.v. should have been granted because Matsis was an independent contractor rather than an agent or employee of Mark Six. Under OCGA § 9-11-50 (b), a j.n.o.v. can properly be granted only when the evidence demands a verdict contrary to that returned by the jury. Only if no evidence supports the jury’s verdict is a grant of j.n.o.v. proper. Davis v. Glaze, 182 Ga. App. 18, 19 (1) (354 SE2d 845) (1987). The standard of review is whether any evidence supports the jury’s verdict, and we must construe the evidence in the light most favorable to the party who prevailed before the jury. Sims v. Sims, 265 Ga. 55, 56 (452 SE2d 761) (1995). A careful review of the transcript of this lengthy trial shows at least some evidence from which a jury could conclude that Matsis was not a typical real estate independent contractor, but had become an employee of Mark Six through the unusual circumstances surrounding the sale of this property.

In determining whether an individual’s status is that of an employee, as opposed to an independent contractor, the analysis must focus on “whether the contract gives, or the employer assumes, the right to control the time, manner, and method of executing the work.” (Citations and punctuation omitted.) Ross v. Ninety-Two West, Ltd., 201 Ga. App. 887, 891 (412 SE2d 876) (1991). In a more typical business arrangement with a realtor or broker, a real estate salesperson clearly occupies the position of an independent contractor. Agreements with such individual salespersons denominate them as “independent contractors.” Ordinarily, great care is taken by the realtor to refrain from exercising control over the manner in which individual salespersons conduct their work. No particular working hours are set. The salespersons exercise personal initiative to obtain “listings,” or the opportunity to sell existing houses, from individual owners. Duties that could be considered “control” by the realtor, such as attending sales meetings or assisting in the broker’s office, are clearly designated as “optional.” Items such as form contracts, telephones, and office supplies are either paid for by the salesperson or provided as a convenience with no requirement that they be used. See, e.g., Bartlett v. Northside Realty Assoc., 191 Ga. App. 10, 11-12 (380 SE2d 744) (1989); Ross, supra, 201 Ga. App. at 892.

In this case, evidence was presented that Matsis was by no means a “typical” real estate salesperson. Matsis’ form agreement with Mark Six denominated her as an “independent contractor.” While the existence of such a contract creates a presumption that the relationship between the realtor and salesperson is that of independent contractor, such a presumption may be rebutted by a showing that the realtor in fact assumed control over the time, manner, and method of the salesperson’s work performance. Bartlett, supra, 191 Ga. App. at 10. Some evidence was presented that Mark Six exercised such control over Matsis.

Mark Six obtained an exclusive right to preconstruction sales of homes in a subdivision development and executed a detailed “exclusive marketing agreement” with the owner. In accordance with the terms of that agreement, Mark Six conducted interviews, selected Matsis, and assigned her to work in the subdivision as her sole and exclusive employment during certain specified business hours or “staff duty schedule.” She was required to be “on duty” during these hours by “my manager and my boss.” A second agent, Rumble, was designated as an “ambassador” or assistant agent for those hours when Matsis was unavailable. Matsis was required to use certain procedures formulated by Mark Six when negotiating the sale of a lot in the subdivision. She was required to use standard forms provided by Mark Six and the builder. Mark Six also provided an “account executive” to coordinate the activities of the “on-site sales staff and the marketing department.” Moreover, Matsis was subject to quarterly performance reviews by a “sales manager” provided by Mark Six, who was to select and supervise the staff agents, and “make changes as deemed necessary.”

Under these circumstances, despite the existence of a form contract denominating Matsis as an independent contractor, some evidence exists that Mark Six retained the right to and did, in fact, exercise control over the time, manner, and method of Matsis’ performance of her duties. Therefore, the trial court did not err in denying Mark Six’s motion for j.n.o.v.

2. In Case No. A95A1777, Northside Realty, Inc. contends its motion for j.n.o.v. should have been granted because it was a separate and distinct corporation from Mark Six. It claims Drake did not present sufficient evidence to “pierce the corporate veil” or show that Mark Six and Northside disregarded their separate corporate entities and engaged in a common business enterprise.

(a) After the time of the events giving rise to this action, the corporate name of “Northside Realty Associates, Inc.” was changed to “Mark Six Realty Associates, Inc.” Northside Realty, Inc. was a separate corporation with the same address at its creation, although its address later changed. There was some duplication but not complete identity of corporate officers and agents. The father of the president of Northside Realty Associates, Inc., now deceased, owned all the stock of Northside Realty, Inc. at the time of the events in question.

The president of Northside Realty Associates, Inc., who was also the executive vice president of Northside Realty, Inc., testified that Northside Realty, Inc. was created in the early 1980s “specifically to hold the active licenses of agents who were not active as agents for the status purpose of the Georgia Real Estate Commission.” North-side Realty, Inc. was “set up solely to meet the real estate commission requirements for an active licensee” (emphasis supplied) for North-side Realty Associates, Inc. agents who were retired or temporarily inactive. This arrangement avoided a Georgia Real Estate Commission requirement that such agents retake the real estate license examination or bear the financial burden of keeping their licenses active for purposes of the Commission’s rules on status. Agents whose licenses were assigned to Northside Realty, Inc. were “specifically under contracts with prohibitions to be active in the real estate business other than to refer customers.” They could only refer customers to Northside Realty Associates, Inc.

The witness testified that he did not operate Northside Realty, Inc. as a business, “because it was not a business in the sense as the question portends.” He simply signed the corporate papers once a year. Northside Realty, Inc. had no listings and no sales of property. It had no employees and did no business. When asked if Northside Realty, Inc. ever used the name “Northside Realty” in its business, the witness responded that it did not, adding that it “never did any business for which to use any name.” In short, it could be concluded from the evidence presented that Northside Realty, Inc., even though its ownership and officers were not identical to that of Northside Realty Associates, Inc., was created by the latter for the sole purpose of avoiding the Georgia Real Estate Commission rules, that Northside Realty, Inc. existed for the sole and exclusive benefit of Northside Realty Associates, Inc., and that it did no other business at any time.

Since Northside Realty, Inc. conducted no business and had no employees, it obviously could take no action on its own behalf to enter into a contract, to mislead, or to confuse its name and business with that of Northside Realty Associates, Inc. The evidence as to Northside Realty Associates, Inc., however, shows some such action on its part.

A publicity brochure given to Drake by Matsis refers throughout to “Northside Realty” without any corporate designation, other than two references to “Northside Realty, Inc.” This was characterized as a “mistake” or “error” by the president of Northside Realty Associates, Inc. A business card given to Drake refers to “Northside Realty” without any corporate designation. Drake’s purchase contract itself identified “Northside Realty” as the broker without any corporate designation. A later, typed version of the contract, however, identified “Northside Realty Associates, Inc.” as the selling and listing broker, but only on the signature line.

The “Reservation Agreement” completed by Matsis and executed by Drake in exchange for her downpayment identified “Northside Realty, Inc.” as the listing and selling broker. Matsis testified that she used the name “Northside Realty, Inc.” on Drake’s reservation agreement because she was “in a hurry” and used it “by error.” Several other purchase contracts prepared by Matsis on properties in the subdivision, however, identify “Northside Realty, Inc.” as the listing and selling broker.

In Fort & Turner Enterprises v. Scrocca, supra, 195 Ga. App. at 555 (1), three corporations “held themselves out to the public as being components of a single business operation.” This Court concluded that the two corporations that had not dealt with the opposing party were not entitled to a directed verdict. The court reached this conclusion because all three corporations had held themselves out as a single entity, had identity of ownership and management, had collectively entered into contracts under a trade name, and had collectively participated in litigation. Id. While the relations between Northside Realty Associates, Inc. and Northside Realty, Inc. are not identical in every respect to those in Fort & Turner, some evidence was presented of entry into contracts not only under a trade name but in the name of Northside Realty, Inc. itself and of holding the two corporations forth as a single entity or two entities engaged in a single business. Additionally, there is some evidence that Northside Realty, Inc. was created by Northside Realty Associates, Inc. exclusively for its convenience and benefit. We cannot say that Drake presented no evidence of a common business enterprise or that the evidence demanded a verdict in favor of Northside Realty, Inc. on this issue.

(b) Many Georgia decisions address the similar but distinct issue of “piercing the corporate veil:” going behind the corporate entity to hold shareholders liable for corporate acts, or vice versa. Fort & Turner, supra, 195 Ga. App. at 555. “Although great caution should be exercised in disregarding or going behind the corporate entity, it may be done when the subsidiary is shown to be the alter ego or business conduit of the parent.” Fla. Shade Tobacco Growers v. Duncan, 150 Ga. App. 34 (256 SE2d 644) (1979). The corporate entity may not be “a sham, or used to defeat a public convenience, to justify wrong, protect fraud, defend crime, or any other reason which in equity and good conscience would justify the disregard of its separate entity.” (Citations and punctuation omitted.) Id. at 35. Nor may it be used “in order to defeat justice, perpetuate fraud or to evade contractual or tort responsibility.” (Citations and punctuation omitted.) Jenkins v. Judith Sans Internationale, 175 Ga. App. 171 (1) (332 SE2d 687) (1985).

Disregard of the separate nature of legal entities may be shown by “ ‘commingling on an interchangeable or joint basis or confusing the otherwise separate properties, records or control.’ [Cits.]” (Emphasis supplied.) Amason v. Whitehead, 186 Ga. App. 320, 322 (367 SE2d 107) (1988). Relying on this authority, Northside Realty, Inc. insists that no such showing has been made, and therefore its motion for directed verdict should have been granted. It appears from the evidence, however, that Northside Realty, Inc. was created solely for the purpose of circumventing or avoiding certain regulations of the Georgia Real Estate Commission. We cannot say from the evidence before us that the creation of Northside Realty, Inc. did not constitute a sham, defeat a public convenience, or evade contractual responsibility. “[WJhether a subsidiary company is the alter ego of a parent company and whether the subsidiary company was formed to promote injustice or protect fraud are generally questions for the trier of fact, not the court on summary adjudication. [Cit.]” Artrac Corp. v. Austin Kelley Advertising, 197 Ga. App. 772, 775 (3) (399 SE2d 529) (1990). There is, moreover, some evidence of “confusion” between the two entities, including apparent confusion on the part of the employees of Northside Realty Associates, Inc.

Construing the evidence in favor of the party prevailing before the jury, as we must, some evidence was presented to support the jury verdict. There was evidence that Northside Realty, Inc. was created by Northside Realty Associates, Inc. for the purpose of avoiding certain administrative regulations and for its own sole benefit. There was also evidence that the name of Northside Realty, Inc. was confused with that of Northside Realty Associates, Inc. by such actions as the general use of an ambiguous name which could be that of either corporation, the use of printed brochures containing the Northside Realty, Inc. name, and the use of “Northside Realty, Inc.” in several written agreements by Matsis, whom we have determined to be an employee of Northside Realty Associates, Inc. See Division 1, supra. We cannot say that any of these facts, standing alone, would constitute sufficient evidence to put to the jury the question of Northside Realty, Inc.’s liability, either as a member of a common business enterprise or as the alter ego or business conduit of Northside Realty Associates, Inc. But taken as a whole, we likewise cannot say that no evidence exists to support the jury’s verdict or that the evidence demands a verdict in favor of Northside Realty, Inc. on this issue.

Judgment affirmed.

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

Decided October 27, 1995

Reconsideration denied November 9, 1995

Minkin & Snyder, Michael J. King, G. Brian Raley, for appellant (case no. A95A1775).

Frederick G. Boynton, for appellant (case no. A95A1777).

Arnall, Golden & Gregory, James W. Butler III, Charles T. Huddleston, for appellee.

       Evidence was presented that a prospective purchaser had already rejected Drake’s house on the basis of substantial construction defects, provided the agents and builder with an engineering report detailing the defects, and filed suit to recover his earnest money. Drake further alleged that defendants, through Matsis and Rumble, not only failed to inform Drake of this engineering report but actively misrepresented the reasons for the failure of the first purchase contract. There was also evidence that the builder and Matsis threatened another homeowner who intended to inform Drake of the structural problems with her house and other houses in the subdivision.

       Under ordinary circumstances, we would look to the acts of the corporation to be charged with liability. However, where evidence exists that the corporation has no employees, does no business, uses no name, and is a shell created for a very specific and limited purpose to benefit another corporation, we must look to the activities of that other corporation to determine whether the corporations were engaged in a common business enterprise. See Fort & Turner Enterprises v. Scrocca, 195 Ga. App. 554 (394 SE2d 364) (1990).

       The only possible exception appears within a photograph in the brochure. The layout includes a portion of a form residential purchase contract, covered with confetti, paint chips, fabric samples and a pen. “Northside Realty” is clearly visible, but “Associates, Inc.” is partially obscured by confetti and shadows.


author:
Andrews, Judge.
      McMurray, Presiding Judge,

text:
    A95A1622, A95A1880.
    ARBEE v. COLLINS et al. (two cases).
    (463 SE2d 922)
   Andrews, Judge.

Collins, acting as an agent and employee of Merry Land & Investment Company, Inc. which owned and operated Marsh Cove Apartments, arrested, detained and prosecuted Arbee for criminal trespass on Marsh Cove property. After a nolle prosequi was entered on the criminal charge, Arbee sued Collins and Merry Land & Investment for malicious prosecution and false imprisonment. Arbee brings these appeals from the trial court’s grant of summary judgment against him on the malicious prosecution claim in Case No. A95A1622 and on the false imprisonment claim in Case No. A95A1880.

Prior to the day of the arrest, Collins had notified Arbee, who was not a resident of Marsh Cove, that because of complaints by residents about his conduct while on the premises, he was forbidden to enter upon Marsh Cove property. See OCGA § 16-7-21 (b) (2). Subsequently, Collins saw Arbee on Marsh Cove property near the entrance to the apartments on a common area road which provided ingress and egress to the apartments. Arbee had entered on Marsh Cove property that day as the invited guest of Lineback, a Marsh Cove resident, who was walking with Arbee from his apartment toward the entrance to the apartment property. After Collins reminded Arbee that he had been notified not to enter on the premises, Collins went to the manager’s office located at the apartments to report Arbee’s presence on the property. While Collins was in the manager’s office, Arbee accompanied by Lineback walked away from the apartment entrance toward the manager’s office. Arbee was arrested and detained by Collins for criminal trespass when he reached the manager’s office.

After he was arrested and detained for a short period at the apartments, police arrived, and Arbee was taken to jail where he was detained for about 24 hours. At a subsequent preliminary hearing, the recorders court judge found probable cause and bound the criminal trespass charge over to state court. The state court later approved a nolle prosequi of the charge.

In three enumerations of error, Arbee claims the trial court erroneously granted summary judgment against him in both cases because there was no lawful basis or probable cause for the arrest and prosecution. Specifically, he claims that: (1) he was lawfully on the premises as an invited guest of a Marsh Cove resident; (2) he lacked the requisite mental intent to commit criminal trespass because an attorney advised him he had a right to be on the property; and (3) a Marsh Cove employee gave him permission to be on the property. Arbee has abandoned the second and third enumerations of error by failing to support those claims by argument or by citation to the record or authority. Court of Appeals Rule 27 (c) (2), (3). Accordingly, we address only the first enumeration of error.

1. The trial court properly granted summary judgment in favor of the defendants on the malicious prosecution claim in Case No. A95A1622.

A malicious prosecution claim must be supported by evidence showing that the prosecution was carried on without any probable cause and by evidence that it was carried on maliciously. K-Mart Corp. v. Coker, 261 Ga. 745, 746 (410 SE2d 425) (1991); El-Amin v. Trust Co. Bank, 171 Ga. App. 35, 37 (318 SE2d 655) (1984); OCGA § 51-7-40. “Lack of probable cause shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused.” OCGA § 51-7-43. Malice may be inferred from a total lack of probable cause. OCGA § 51-7-44. The existence of probable cause is a jury question where the facts regarding probable cause are disputed and a question of law for the court when the relevant facts are undisputed. OCGA § 51-7-43; K-Mart Corp., supra at 746. Although a judge’s determination of probable cause at a preliminary hearing on the criminal charge is not conclusive, it is prima facie evidence of probable cause which shifts the burden to the plaintiff to produce evidence that probable cause did not exist for his arrest and prosecution and that the charge against him was motivated by malice. Smith v. Trust Co. Bank, 215 Ga. App. 413, 416 (450 SE2d 866) (1994).

An accused violates the criminal trespass provisions of OCGA § 16-7-21 (b) (2) by entering or remaining upon the premises of another with knowledge that he has been given notice that his presence is forbidden. However, a recognized defense to such a charge is that the accused entered or remained upon the property under a right granted by a tenant in possession of the property. “In the absence of a special contract, the landlord has no right to forbid a person to go upon the premises in the possession of a tenant, by the latter’s permission and for a lawful purpose.” Mitchell v. State, 12 Ga. App. 557, 559-560 (77 SE 889) (1913); Horsely v. State, 16 Ga. App. 136, 141-143 (84 SE 600) (1915). The tenant’s invitation to a third party carries with it the same rights enjoyed by the tenant to ingress and egress to the rented premises to the extent such ingress and egress are necessary to the purpose of the invitation. Anthony v. Chicopee Mfg. Corp. &c., 168 Ga. 400, 404 (147 SE 887) (1929); W. L. N. v. State of Ga., 170 Ga. App. 689, 691 (318 SE2d 80) (1984). It follows that the invitation also carries with it the same rights enjoyed by the tenant to common areas in a multi-dwelling apartment complex to the extent the use of such common areas is connected to the purpose of the invitation. See Restatement of the Law, Torts 2d, § 189. A landlord who arrests and prosecutes a person for trespass without inquiring as to whether the person had a right to be on the premises pursuant to invitation by a tenant does so at his own risk. Ellis v. Knowles, 90 Ga. App. 40, 42 (81 SE2d 884) (1954).

Here, the facts relating to the existence of probable cause on the criminal trespass charge are undisputed, so the question is one of law. Arbee knew prior to the day of his entry upon the Marsh Cove property that he had been notified not to enter the premises. He produced evidence that he was invited by Lineback to visit Lineback at his father’s apartment, that he entered Marsh Cove property for that purpose, and that after visiting Lineback at the apartment, he and Lineback were leaving the property when they saw Collins near the entrance to the apartments. After Collins reminded Arbee that he had been notified not to enter the premises, and Collins left without taking any action, Arbee then proceeded away from the exit and remained on Marsh Cove property for the purpose of going to the manager’s office “to see what was going on.” The arrest occurred after he arrived at the manager’s office.

It is unclear from the record where the manager’s office was located on the Marsh Cove property and whether the road adjacent to it or the area around it where Arbee was arrested was a common area of the apartment complex accessible to all tenants. Even assuming that Arbee was arrested in a common area of the apartment complex, there was evidence demonstrating the existence of probable cause. We agree with the trial court’s conclusion that when Arbee proceeded to the manager’s office “to see what was going on” this was evidence he deviated from the purpose for which he was invited on the property and entered upon a portion of the premises unrelated to the invitation. A tenant’s guest may not proceed at will to a part of the premises wholly disconnected to the purpose of the invitation and use the invitation as a defense to a charge of criminal trespass. Evidence that Lineback merely accompanied Arbee to the manager’s office is insufficient to show that Arbee took this action pursuant to the invitation from Lineback.

Arbee failed to rebut the defendant’s prima facie showing of probable cause by coming forward with specific facts showing the lack of probable cause and the existence of malice. Smith, supra at 416. Under the evidence presented, a reasonably prudent person would believe they had probable cause to prosecute Arbee for the offense of criminal trespass. See K-Mart Corp., supra at 747. Moreover, although Arbee alleged that his arrest and prosecution were racially motivated, there is no evidence in the record to support this contention and no other evidence of malice. Accordingly, the trial court properly granted summary judgment in favor of the defendants on the malicious prosecution claim. Parks v. Norred, & Assoc., 206 Ga. App. 494, 496-497 (426 SE2d 12) (1992).

2. The trial court also properly granted summary judgment in favor of the defendants on the claim of false imprisonment in Case No. A95A1880.

The undisputed evidence shows that, pursuant to his employment duties, Collins detained Arbee after making a warrantless arrest. “False imprisonment is the unlawful detention of the person of another, for any length of time, whereby such person is deprived of his personal liberty.” OCGA § 51-7-20. The essential elements of the offense are the arrest or detention and the unlawfulness thereof. Scott Housing Systems v. Hickox, 174 Ga. App. 23, 24 (329 SE2d 154) (1985). The existence of probable cause standing alone is not a complete defense in a false imprisonment case because, even if probable cause to believe a crime has been committed exists, a warrantless arrest would still be illegal unless it was accomplished pursuant to one of the “exigent circumstances” applicable to law enforcement officers enumerated in OCGA § 17-4-20 (a) or applicable to private persons as set forth in OCGA § 17-4-60. Haile v. Pittman, 194 Ga. App. 105, 106 (389 SE2d 564) (1989). Thus, the defense of a warrantless arrest in a false imprisonment case must show that the arrest was made on probable cause and pursuant to the appropriate exigent circumstances. Collins v. Sadlo, 167 Ga. App. 317, 319-320 (306 SE2d 390) (1983).

Arbee’s only claim on appeal is that the arrest and detention were made without probable cause. Since we determined in Division 1 that probable cause existed, the trial court properly granted summary judgment on this claim.

Judgments affirmed.

Beasley, C. J., Birdsong, P. J., Johnson, Blackburn and Smith, JJ., concur. McMurray, P. J., Pope, P. J., and Ruffin, J., dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent in these cases. Defendants’ joint answer admitted the allegations contained in paragraph 7 of the complaint, to wit: “On May 1, 1993, Plaintiff was on the roadway leading into Defendant’s apartment complex, Marsh Cove Plantation as the invited guest of Brian Lineback.” Brian Lineback’s parents live in Marsh Cove Plantation. Maurice Collins, acting as the agent for and employee of defendant Merry Land & Investment Company, Inc., inquired of Dee Adams, the property manager, whether she had allowed plaintiff back on the property but failed to inquire of Brian Lineback whether plaintiff was still his guest. Rather, as plaintiff was walking up the street to the office with Brian Lineback two to three yards behind, defendant Maurice Collins stepped out of the office, “advised [plaintiff] that he was under arrest for criminal trespass [, . . . and] placed the handcuffs on him.” In spite of knowing that plaintiff was the invited guest of Brian Lineback, Maurice Collins believed he had witnessed the misdemeanor of criminal trespass simply because he had advised plaintiff “not to come back on the property, and he did come back.”

In light of this admission, it is my view that the majority has misapplied the controlling case of Ellis v. Knowles, 90 Ga. App. 40, 42 (2) (81 SE2d 884). In Ellis, this Court affirmed the overruling of the defendant landlords’ general demurrer and held that “[i]t was not necessary for the plaintiff to allege that the defendants actually knew that the plaintiff had been invited on the premises by the tenants. If the defendants sought to eject the plaintiff or to prosecute him for trespass without inquiring as to the plaintiff’s right to be on the premises, they did so at their own risk.” (Emphasis supplied.) Id. Where a reasonable man would investigate further before instigating a prosecution or making an arrest, he may be liable for failure to do so. McGonagil v. Treadwell, 216 Ga. App. 850, 853 (2), 854 (456 SE2d 260). In the cases sub judice, the admitted circumstances surrounding Maurice Collins’ intentional acts are themselves sufficient to rebut any prima facie case of probable cause established by the act of the recorder in binding plaintiff over on the charge of misdemeanor trespass. The jury should determine whether it was reasonable for Maurice Collins to act on the information of Dee Adams that she had not readmitted plaintiff to the property (as contended by plaintiff) without also inquiring of Brian Lineback whether the teenager was still the guest of the tenant’s son. As the majority would affirm the grant of summary judgment, I respectfully dissent.

I am authorized to state that Presiding Judge Pope and Judge Ruffin join in this dissent.

Decided November 9, 1995

Harris O’Dell, Jr., for appellant.

Karsman, Brooks & Callaway, Stanley Karsman, Trade G. Smith, for appellees.

       Comment c. to § 189 of the Restatement makes clear that the rights of third persons entering the premises by invitation of the tenant are also “subject to the terms of the lease, and may be increased or diminished by express or implied agreement. It is also subject to the right of the landlord to make reasonable regulations concerning entry upon or use of the portions of the premises retained within his control, for the protection of the premises themselves or of other tenants.”


author: Johnson, Judge.

text:
    A95A2594.
    BANNISTER et al. v. DOUGLAS COUNTY BOARD OF TAX ASSESSORS.
    (464 SE2d 29)
   Johnson, Judge.

The facts are not in dispute in this appeal from the dismissal of an ad valorem tax appeal to the superior court. Taxpayer Thomas E. Bannister and the co-owners of a parcel of real property in Douglas County filed a notice of appeal of their 1992 real property taxes. Concurrently, they tendered a check payable to the Douglas County Tax Commissioner for the amount of past due principal assessed in 1991, the last year for which taxes were finally determined to be due on the property. The commissioner refused to accept the check because it did not include payment of penalties which had been assessed and interest which had accrued. The county filed a motion to dismiss the tax appeal, asserting the trial court did not have jurisdiction to consider the matter. The trial court agreed, and Bannister appeals the dismissal of his action in superior court.

“Before the superior court has jurisdiction to entertain any civil action, appeal, or affidavit of illegality filed under this title by any aggrieved taxpayer concerning liability for ad valorem property taxes, taxability of property for ad valorem property taxes, valuation of property for ad valorem taxes, or uniformity of assessments for ad valorem property taxes, the taxpayer shall pay the amount of ad valorem property taxes assessed against the property at issue for the last year which taxes were finally determined to be due on the property.” OCGA § 48-5-29 (a). The question presented in this appeal is whether penalties and interest become part of the “ad valorem property taxes assessed against the property” such that tender of the past due principal only is insufficient to vest jurisdiction in the superior court for purposes of an ad valorem property tax appeal.

Bannister argues that although the taxes were not paid at the time of the filing of the appeal, his tender of payment of the principal should have cured any procedural bar to the action. Allright Parking &c. v. Joint City-County Bd. &c., 244 Ga. 378, 383-384 (2) (260 SE2d 315) (1979). The real issue does not involve payment versus tender, however, but whether the county’s position, accepted by the superior court as the basis for the dismissal of the appeal, that penalties and interest become ad valorem taxes when imposed, thus justifying the refusal of Bannister’s tender, is a correct interpretation of the statute. Although this issue has never been addressed in the context of an appeal pursuant to OCGA § 48-5-29, we believe that the trial court’s interpretation is consistent with other portions of the Code and previous decisions from our state’s Supreme Court.

Decided November 9, 1995.

Bannister & Black, Charles C. Black, for appellants.

Edwards & McLeod, Robert B. Edwards, for appellee.

OCGA § 48-2-42 provides: “All penalties imposed by law are part of the tax and are to be collected as such.” (Emphasis supplied.) See 1963-1965 Op. Atty. Gen., p. 25-26. In a case which involved ad valorem taxes on automobiles, Blackmon v. Scoven, 231 Ga. 307, 309 (2) (201 SE2d 474) (1973), the Supreme Court noted that the “trial court erroneously concluded that a penalty was not a tax” and held that the plaintiffs were not entitled to equitable relief because they could have contested the tax by purchasing the license plate and filing an affidavit of illegality together with a surety bond “in an amount equal to the tax and any penalties and interest which might be found to be due.” (Citations, punctuation and emphasis omitted.) Id. Several other provisions of the tax code are instructive, as they contemplate that a penalty becomes part of the tax after it has been assessed. See OCGA §§ 48-6-30 (intangible tax) and 48-7-126 (income tax).

Because Bannister failed to satisfy the jurisdictional prerequisites for maintaining his appeal, the superior court correctly concluded that it lacked jurisdiction. The dismissal of the appeal was proper.

Judgment affirmed.

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

       Unless the county believed there was an accord and satisfaction issue, we do not understand why the tax commissioner would refuse the tender of the past due principal as a partial payment.


author: Pope, Presiding Judge.

text:
    A95A1280.
    HOGUE v. THE STATE.
    (464 SE2d 30)
   Pope, Presiding Judge.

A jury convicted defendant Dewey Hogue of three counts of child molestation, two counts of aggravated child molestation and two counts of aggravated sodomy. On appeal, he contends that the trial court committed reversible error in allowing the State to improperly place his character into issue, and in allowing it to solicit unsworn testimony from the three victims in the case. Concluding that defendant’s contentions lack merit, we affirm.

1. The record demonstrates that prior to the start of defendant’s trial, the trial court held a hearing, pursuant to Uniform Superior Court Rule 31.3, to determine whether the State would be allowed to introduce similar transaction evidence. Following the guidelines set forth in Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991), the trial court determined that the State could introduce evidence of defendant’s previous 1985 child molestation conviction. The trial court also determined that the State could introduce a statement defendant had given to GBI Agent Carver at the time of his arrest in 1985. Defendant objected to the trial court’s ruling, and the court allowed the objection to be continuing.

Subsequently, during the trial, the State called Carver as a witness. Carver testified that in 1985 he had investigated defendant for child molestation. Before Carver could testify about defendant’s 1985 statement, however, the trial court interrupted Carver for the purpose of holding a Jackson-Denno hearing regarding the statement. At the conclusion of the hearing, the trial court found that defendant’s statement was inadmissible under OCGA § 17-7-210 because a copy of the statement was not provided to defendant until the day of trial. The trial court also determined that without the statement the other similar transaction evidence was inadmissible. Thereafter, the State called its next witness, and eventually rested without presenting any further similar transaction evidence.

Although defendant contends on appeal that Carver’s testimony improperly brought defendant’s character into issue, it is undisputed that defendant never asked the trial court to give a curative instruction regarding the testimony. Nor did defendant move for a mistrial, even after it became apparent that Carver would not be allowed to finish his testimony, and that the State would not be able to prove the existence of a similar transaction. Accordingly, we hold that defendant has waived any objection he might have had to Carver’s testimony. See Thaxton v. State, 260 Ga. 141, 143 (5) (390 SE2d 841) (1990); Carr v. State, 259 Ga. 318, 320-321 (2) (380 SE2d 700) (1989). This is true even though defendant had lodged a continuing objection to the introduction of the similar transaction evidence. See Worley v. State, 201 Ga. App. 704, 705 (2) (411 SE2d 760) (1991).

2. During the trial, the State called the three child victims to testify. The first victim was five years old and at first testified unsworn. Defendant did not object to the child’s testimony until after it was completed. As a result, defendant waived any objection he may have had to the child’s capacity to understand the oath. “Where a party, without objection, allows a witness to testify against him without first being sworn . . . the failure to object constitutes a waiver of the requirements of an oath.” (Citations and punctuation omitted.) Hilson v. State, 204 Ga. App. 200, 203 (1) (418 SE2d 784) (1992). Moreover, the record demonstrates that the five-year-old was given an oath after his initial testimony, and that the child told the prosecutor that everything he had testified to before was true. Defendant did not object. Under such circumstances, we find no reversible error.

Decided November 14, 1995.

Edward F. Hurley, for appellant.

Ralph Van Pelt, Jr., District Attorney, Bruce E. Roberts, Assistant District Attorney, for appellee.

We also find no reversible error in the admittance of the six and nine-year-old victims’ testimony. Both of these victims were sworn and testified that they understood the difference between the truth and a lie, and that they were telling the truth. To the degree that a child understands that she is to tell the truth, the child is in effect under oath. See Bright v. State, 197 Ga. App. 784, 785 (3) (400 SE2d 18) (1990). Furthermore, we conclude that the trial court did not err in failing to conduct a competency hearing in the absence of a specific challenge as to any of the victims’ ability to reason. See Roberson v. State, 214 Ga. App. 208, 209 (2) (447 SE2d 640) (1994).

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.


author: Blackburn, Judge.

text:
    A95A2614.
    BUCKNER v. THE STATE.
    (464 SE2d 11)
   Blackburn, Judge.

James Buckner appeals his conviction of two counts of violating the Georgia Controlled Substances Act by selling cocaine.

1. In his first enumeration of error, Buckner contends the trial court erred by refusing to grant a two-day continuance after the hearing on the State’s intent to introduce a certificate of drug analysis pursuant to OCGA § 35-3-16.

OCGA § 35-3-16 allows for the introduction of a certificate of drug analysis as evidence of “the composition, quality, and quantity of the substance submitted to the laboratory for analysis.” OCGA § 35-3-16 (b). Subsection (c) requires that the party seeking to offer a certificate of drug analysis into evidence provide notice of its intent to its opposing party ten days prior to the proceeding. The opposing party is allowed ten days from the date of receipt of notice in which to object to the use of the certificate. “Whenever a notice of objection is filed, admissibility of the certificate shall be determined not later than two days before the beginning of the trial. . . . The time limitations set forth in this Code section shall not be relaxed except upon a showing of good cause.” OCGA § 35-3-16 (c).

In the present case, Buckner was notified of the State’s intent to rely upon a certificate of drug analysis by notice dated February 24, 1995. Buckner objected to the use of the certificate by notice dated March 6, 1995. The trial in this matter took place on March 7, 1995. Prior to trial, the court held a hearing on the admissibility of the certificate. The trial court ruled that the certificate could not be introduced, and the State withdrew the certificate from consideration opting instead to have Katherine Lee testify as to the drug analysis.

Buckner’s counsel argued that regardless of the trial court’s decision, his client was entitled to a two-day continuance to meet the timing requirement for the hearing contained in OCGA § 35-3-16 (c). We cannot agree. The mandates of OCGA § 35-3-16 (c) were no longer applicable upon the State’s withdrawal of its intention to rely on the certificate of drug analysis; especially under the present circumstances, because Katherine Lee was previously listed as a witness and Buckner failed to establish any harm. Therefore, the trial court did not err in failing to allow a two-day continuance.

2. Buckner asserts the trial court erred by allowing evidence of similar transactions including his prior guilty plea thereto. On appeal, Buckner argues that during the Rule 31.3 (B) hearing, the trial court failed to make the specific findings required by Williams v. State, 261 Ga. 640, 642 (409 SE2d 649) (1991). However, Buckner failed to object to the introduction of the similar transaction evidence. “ ‘This court has held ... in cases in which a Rule 31.3 (B) hearing was held, that the failure of a defendant to object to the introduction of similar transaction evidence on the basis that the State has not made a sufficient showing and/or the trial court has not made the requisite findings as required by Rule 31.3 (B) and our Supreme Court’s decision in Williams precludes appellate consideration of those issues. See, e.g., Hunter v. State, 202 Ga. App. 195, 198 (3) (413 SE2d 526) (1991) . . . McGaha v. State, 204 Ga. App. 248 (418 SE2d 802) (1992); Shields v. State, 202 Ga. App. 659 (2) (415 SE2d 478) (1992).’ Riddle [v. State, 208 Ga. App. 8 (1) (b) (430 SE2d 153) (1993)].” Walker v. State, 208 Ga. App. 690, 693 (431 SE2d 459) (1993).

Buckner additionally asserts that the trial court erred by allowing the State’s witness to testify as to his guilty pleas to the similar transactions. Buckner argues that the State is required to prove convictions by the introduction of a certified copy of the individual’s conviction. The trial transcript reveals that the State had a certified copy of the indictment and conviction, and a discussion was held regarding redacting certain portions of it. The trial court determined that redaction of the document would not be possible without changing, the entire document, and the State was instructed to tell the jury that Buckner had pled guilty to the similar transactions. Buckner did not object to this procedure; he objected at trial only when the State’s witness regarding the similar transactions testified that Buckner pled guilty. Buckner has failed to show any harm in the State’s witness testifying as to his prior guilty pleas rather than the prosecutor stating the facts in his place. To the extent that Buckner’s objection on appeal is different from that raised in the trial court, it is not properly before us. Ellison v. State, 216 Ga. App. 639 (3) (455 SE2d 361) (1995).

3. Buckner contends the trial court erred in its response to the jury’s question regarding entrapment. After jury deliberations began, the jury requested instructions regarding entrapment. They asked: “We, the jury, do not understand entrapment under the law and how you consider somebody as being entrapped into selling.” After a conference off the record, the trial court explained to the jury that entrapment was an affirmative defense which was not raised in this case and was not within the jury’s province to decide. The trial court had not previously charged on entrapment and Buckner had not requested such a charge.

Although Buckner presented no evidence at trial and failed to request a charge on entrapment, he contends the trial court’s instruction was an improper statement of the law because a defendant may rely upon the State’s evidence to establish an affirmative defense. However, our review of the record does not reveal any evidence of entrapment, and Buckner has not cited to any evidence. Therefore, the trial court did not err in precluding the jury from considering an entrapment defense. Cf. Lawson v. State, 214 Ga. App. 464, 465 (2) (448 SE2d 14) (1994) (where charge not adjusted to facts, denial of request not error).

4. Buckner asserts the trial court erred in failing to give his requested charges regarding justification as a defense and affirmative defenses. The record does not contain evidence of justification or any affirmative defense; therefore, the trial court did not err in failing to give the requested charges. See id.

5. Buckner contends the trial court erred by allowing the evidence tags on the packages of cocaine to be admitted into evidence. Agent Collins with the Georgia Bureau of Investigation testified that on the day he purchased the cocaine he placed it in an evidence bag and labeled it with “the date, time of the buy, the property receipt number, the county where the evidence was obtained, the defendant, the reason it was obtained, and what I suspect the property to be.” At trial, Buckner asserted that the writings should not go to the jury because “it just shouldn’t testify further.” To the extent that this objection is based upon a “continuing witness” theory, we find it without merit.

Decided November 3, 1995

Reconsideration denied November 15, 1995

Harvey J. Kennedy, Jr., John L. Strauss, for appellant.

Tommy K. Floyd, District Attorney, James L. Wright III, Assistant District Attorney, for appellee.

“In Georgia the continuing witness objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once. This continuing witness objection usually concerns testimonial documentary evidence, such as an affidavit and depositions [or] interrogatories. However, the objection has also been applied to unsworn, written dying declarations and written confessions or statements of criminal defendants, on the grounds that such statements are the equivalent of depositions.” (Citations and punctuation omitted.) Parks v. State, 199 Ga. App. 736, 738 (406 SE2d 229) (1991) (admission of written statement on photographic lineup harmless).

In the present case, the information contained on the evidence tag was necessary to establish the chain of custody of the contraband. See Morgan v. State, 204 Ga. App. 178 (1) (419 SE2d 313) (1992) (physical precedent). Further, an evidence tag is not reasonably within the same category as sworn affidavits or depositions. However, we decline to find that evidence tags cannot be subject to a continuing witness objection because under the facts of this case, the admission of the evidence tags on the contraband was harmless. We find it highly improbable that the evidence tags contributed to the verdict. See Parks, supra.

To the extent that Buckner raises arguments on appeal which were not presented to the trial court, we find that such assertions are not properly before us. See Ellison, supra.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A95A1161.
    AVERETT et al. v. TROUP COUNTY.
    (464 SE2d 32)
   McMurray, Presiding Judge.

Jerry C. Averett and Rebecca Averett filed an action against Troup County, Georgia, pursuant to OCGA § 48-5-380 (c), seeking a refund of interest and penalties Troup County assessed the Averetts in conjunction with the collection of 1991 ad valorem taxes encumbering 94 parcels of the Averetts’ realty. These additional costs were levied against the parcels because the Averetts did not pay their 1991 ad valorem taxes until March 26 and 27, 1992, more than 60 days after Troup County posted tax bills advising the Averetts that the taxes would be due on December 23, 1991, and more than 90 days after the taxes actually came due. The Averetts alleged that Troup County was not authorized in assessing interest and penalties because their tax bills did not each bear a postmark as required by OCGA § 48-5-148 (a) (3). This Code section provides that “each taxpayer shall be afforded 60 days from date of postmark to make full payment of taxes due before the taxes shall bear interest. . . .”

Upon opposing motions for summary judgment, the parties stipulated that Troup County’s Tax Commissioner “bulk mailed tax notices and bills to property owners, including the [Averetts], on October 22, 1991 [; that all] the tax bills mailed to the [Averetts] stated on their face that they were due and payable in full by December 23, 1991 [; that the tax] notices mailed by the office of the Tax Commissioner, Troup County, including the tax bills mailed to the [Averetts], did not contain a postmark on the individual envelopes [, but that] the bulk mailing receipt provided to the Tax Commissioner is dated October 22, 1991.” According to the trial court’s finding, the Averetts “stipulated they received all tax bills prior to December 23, 1993.”

The trial court denied the Averetts’ motion for summary judgment and granted summary judgment in favor of Troup County. This appeal followed. Held:

The Averetts contend Troup County did not have authority to assess them with interest or impose a ten percent penalty, as authorized by OCGA § 48-2-44 (b) (1) when taxes are more than 90 days past due, because the tax notices they received from Troup County did not each bear a postmark as required by OCGA § 48-5-148 (a) (3). Specifically, the Averetts claim that such postmarks are a condition precedent to the accrual of interest on unpaid taxes, reasoning that “[t]he purpose of the postmark is to provide the taxpayer with notice of not only when the taxes are due, but by when they must be paid to avoid the imposition of interest or penalties.” These assertions are without merit.

OCGA § 48-5-148 (a) (3) does not require postmarks on tax bills or notices mailed out by the county, nor are such postmarks a condition precedent to the accrual of interest on past-due ad valorem taxes. Further, OCGA § 48-5-148 (a) (3) neither defines the postmark as a device for computing the due date for ad valorem taxes, nor refers to the postmark as a device for conveying notice to taxpayers of the date when interest will begin to accrue on past-due taxes. OCGA § 48-5-148 (a) (3) merely refers to the “date of postmark” as a computational marker for measuring when the county is authorized in charging interest after the statutory due date, which (except as otherwise provided by law) is December 20. OCGA § 48-5-148 (a) (1). Consequently, since the Averetts neither dispute that the 94 tax bills in question were posted on October 22, 1991, nor otherwise contend that Troup County improperly computed interest, the trial court did not err in affirming Troup County’s assessment of interest against the Averetts’ past-due taxes. Moreover, since the Averetts do not otherwise challenge the trial court’s finding that they wilfully failed to pay their ad valorem taxes within 90 days after the taxes came due, the trial court did not err in affirming the ten percent penalty Troup County assessed against the Averetts pursuant to OCGA § 48-2-44. In fact, we would be strained to affirm any finding to the contrary in light of the trial court’s finding that the Averetts stipulated “they received all tax bills prior to December 23, 1993.”

Decided November 15, 1995.

Wood, Odom & Edge, Arthur B. Edge IV, for appellants.

Willis, McKenzie & Long, Mark L. DeGennaro, for appellee.

The trial court did not err in denying the Averetts’ motion for summary judgment and granting summary judgment in favor of Troup County.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.

       Indeed, taxpayers are presumed to know that, “[e]xcept as otherwise expressly provided for by law, ad valorem taxes due the state or any county remaining unpaid on December 20 in each year shall bear interest at the rate specified in OCGA § 48-2-40[, i.e., one percent per month,] from December 20. . . .” OCGA § 48-5-148 (a) (1). See Puckett Paving Co. v. Carrier Leasing Corp., 236 Ga. 891, 892 (225 SE2d 910). And it appears that accrual of interest from this due date will only be suspended when the county fails to post tax notices 60 days before December 20, assuming that a period of less than 60 days has not been provided for by law. OCGA § 48-5-148 (a) (3). See Unofficial Opinions of the Georgia Attorney General, Michael J. Bowers, 1982, p. 253, U82-19 at p. 254. Of course, any loss of interest resulting from such belated mailings may constitute evidence reflecting on the county collector’s liability under OCGA § 48-5-152.


text:
    A95A1687.
    In re HARVEY.
    (464 SE2d 34)
   McMurray, Presiding Judge.

Respondent Bruce Harvey is appealing an order of Judge Robert J. James, Douglas County Superior Court, dated April 21, 1995, holding him in wilful contempt of court and ordering that he be confined in jail until he purged himself of contempt. Harvey was released from confinement by order of this Court granting an emergency motion for supersedeas.

The events leading up to the contempt order occurred during the trial of a criminal case. During the cross-examination of a State’s witness, Harvey produced a series of photographs and questioned the witness in regard to those photos. All of the photographs were marked for identification, but not all of them were tendered nor admitted into evidence. At the conclusion of cross-examination, the prosecuting attorney, Assistant District Attorney William H. McClain, asked for possession of all the photographs that were either entered into evidence or identified and used in questioning the witness. Harvey refused to give McClain the photographs not admitted into evidence. The jury was then removed from the courtroom.

After removal of the jury, the court heard arguments from Harvey and McClain. Harvey’s basic contention was that McClain had not objected to the photos when the witness was being questioned, so he had no right to the photos not admitted into evidence. McClain responded that the photos had been placed into evidence before the jury, and therefore, he had a right to question the witness in regard to those photos.

The trial court ordered Harvey to turn over those photos marked for identification and used to make comparisons but not admitted into evidence. The trial court further ruled that McClain would be restricted to using the same style of questioning Harvey had used; that is, he could ask about the comparisons but could not exhibit the photos to the jury.

The trial court pointed out that Harvey had not tendered all of the photographs. Harvey then offered to tender all the photographs. McClain argued that the photos were not admissible because the proper foundation had not been laid, and if allowed to question the witness in regard to the defense photos, he could show they had been altered.

Harvey asked for a hearing on the issue of alteration of the photos. Attorney Billy Spruell, Harvey’s co-counsel, joined Harvey by stating that since they were being accused of altering the photos, they could not turn over the photos until a foundation had been laid. He asked to call a witness who could authenticate the photos.

After a lunch recess, the trial court stated that: “The photographs are in the nature of real evidence if you study the Evidence Code and as they’re real evidence, if they’re presented to a witness to identify any contents, then the witness can be questioned about it and then can be examined by the others about it. Whether it’s offered ultimately in evidence is a different matter entirely. Tendering it and having it admitted is not the test that applies as to whether they can be questioned about the contents. It’s in the nature of any other type document that way. With that in view, we’ve got — the State has a right to have possession of those photographs that were exhibited to this witness in order to continue with the case to examine this witness as to what the witness said about the contents of any particular photographs. . . . Let’s produce the photographs to the State, those that are numbered and were presented to [the witness].”

Harvey then noted that McClain had not objected to his asking questions about photographs which were not in evidence but stated that he did object to McClain doing so. The trial court noted the objection and ordered Harvey to deliver the photos to McClain, but Harvey refused.

McClain then asked the trial court to take appropriate action to enforce the order for production of the photos. After offering Harvey an opportunity to speak and after hearing from Spruell, who both asked for an opportunity to establish a foundation for the admission of the photographs and argued that contempt was an unnecessarily drastic measure, the trial court found Harvey in wilful contempt of the court and ordered him to be jailed until such time as he surrendered the photos. Harvey was escorted from the courtroom.

After Harvey was removed from the courtroom, Spruell refused to go forward with the case without his co-counsel and stated he was no more able to comply with the trial court’s order to produce the photographs than was Harvey. The trial court recessed so that Spruell and Harvey could confer.

Harvey was brought back into the courtroom and requested the presence of his lawyer. He stated that he would reconsider his position if McClain would reconsider his position and admit the photos. McClain declined to reconsider.

McClain then urged the court to decide the issue of whether the trial could proceed with Spruell as lead counsel and moved to have him produce the photos. Spruell declined to produce the photos and stated again that he did not want to proceed without co-counsel. The trial court ordered Spruell to take the weekend to complete preparation of the entire case and be ready to proceed on the following Monday. Harvey was once again escorted from the courtroom.

The jury was brought back into the courtroom and dismissed for the weekend. McClain stated he felt the photos should be kept under seal of the trial court. Spruell said he would withdraw the photos, but the trial court told him it was too late. The defense exhibits were sealed in an envelope, signed by Spruell, and retained in the custody of the court reporter. Held:

Three out of four enumerations of error are predicated upon the erroneous assumption that this case involves criminal contempt. However, the sanction employed by the trial court being entirely remedial in nature, as opposed to an unconditional punishment, it is clear that we are dealing here with a civil contempt case. Alexander v. DeKalb County, 264 Ga. 362, 364 (1) (444 SE2d 743); Davis v. Davis, 138 Ga. 8, 10 (1) (74 SE 830). Also, see Judge Edward H. Johnson and Richard D. Reaves’ Contempt of Court in Georgia, Georgia State Bar Journal, Vol. 23, No. 2 (November 1986), pp. 66-73. This mistake must have become apparent during the pendency of this appeal since it is acknowledged in supplemental briefs filed on behalf of Harvey. We have read the enumeration of errors and original brief and taken from them the broadest possible issues. At the same time, we may not allow issues clearly beyond the scope of the enumeration of errors, as illuminated by the original brief, to be raised via the supplemental briefs. Hasty v. State, 210 Ga. App. 722, 725 (1) (437 SE2d 638); Krebsbach v. State, 209 Ga. App. 474, 475 (2) (433 SE2d 649).

Omitting the references to criminal contempt, the first enumeration of error raises an issue as to the sufficiency of the evidence to support the judgment of contempt. The appropriate standard of proof in a civil contempt case is preponderance of the evidence. In re Booker, 195 Ga. App. 561, 564 (4) (394 SE2d 791). The evidence shows that in order to implement the trial court’s ruling on an evidentiary matter, Harvey was orally directed to provide certain photographs to the prosecuting attorney. In considering the question of contempt, it is irrelevant whether the trial court’s ruling on the evidence question was correct. Bankers Life &c. Co. v. Cravey, 209 Ga. 274, 275 (71 SE2d 659); In re Spruell, 200 Ga. App. 218, 228 (2) (407 SE2d 451). The wilful refusal of Harvey to comply with the trial court’s oral order was direct contempt. Wood v. State of Ga., 103 Ga. App. 305, 316 (1) (119 SE2d 261).

The second enumeration of error maintains that Harvey was not afforded an opportunity to speak on his behalf prior to the trial court entering a finding of contempt and announcement of sanctions. This requirement that the contemnor be allowed to speak prior to summary imposition of punishment was incorporated into Georgia law by Dowdy v. Palmour, 251 Ga. 135 (304 SE2d 52), citing Taylor v. Hayes, 418 U. S. 488 (94 SC 2697, 41 LE2d 897). In the case sub judice, it appears that this contention is not well founded. Harvey was provided an opportunity to speak and stated only that he would like counsel. Spruell then proceeded to argue against the State’s motion for contempt. Only then did the trial court announce that it found Harvey to be in contempt of court.

Attempts in the supplemental briefs to expand the issues presented by the second enumeration of error are improper. These additional arguments being beyond the scope of the enumeration of error may not be considered by this Court. Hasty v. State, 210 Ga. App. 722, 725 (1), supra; Krebsbach v. State, 209 Ga. App. 474, 475 (2), supra.

Decided November 15, 1995.

Spruell & Dubuc, Brian M. Dubuc, Michael R. DuPonte, for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

The third enumeration of error contends the trial court erred by imposing an illegal sentence upon Harvey. The argument in support of this enumeration of error references OCGA § 15-6-8 (5) which sets forth the punishment which may be imposed for a criminal contempt. But the limitations imposed in this statute are not applicable to sanctions imposed for civil contempt. Minor v. Minor, 257 Ga. 706, 710 (3) (362 SE2d 208).

The fourth and final enumeration of error contends that the legal issue for which the trial court held Harvey in contempt is now moot. It is argued that, since the underlying trial did proceed without the State’s access to the photographs and since that trial has ended by mistrial, Harvey’s refusal to provide the State with access to the photographs is moot. But none of the factual predicate of this argument is apparent from the record on appeal, and it is well settled that we may not take our facts from appellate briefs. Byrd v. State, 216 Ga. App. 510, 511 (3) (455 SE2d 318); Colevins v. Federated Dept. Stores, 213 Ga. App. 49, 51 (2) (443 SE2d 871); Paul v. Joseph, 212 Ga. App. 122, 125 (441 SE2d 762). Furthermore, a conclusion that some issues in the case are moot would not be of any advantage to Harvey since such a conclusion would not authorize reversal of the trial court’s judgment of contempt.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Birdsong, Presiding Judge.

text:
    A95A2252.
    HENRY v. WATKINS.
    (464 SE2d 215)
   Birdsong, Presiding Judge.

This suit arises from personal injuries sustained by appellant/ plaintiff Dominic M. Henry in an automobile collision. Appellant appeals the judgment entered following a jury verdict in favor of appellee/defendant Demetrice M. Watkins. Appellant was the passenger in a car driven by John Smith. Smith’s car became entangled in a three-car collision; appellee was the driver of one of the other cars.

Appellant’s sole enumeration is that the trial court erred in allowing a reference to be made during trial, by appellee’s counsel, to Kaiser Permanente (HMO), as such reference violated the collateral source rule. Prior to jury selection, appellant made a motion in limine to exclude any reference during trial to Kaiser Permanente, appellant’s HMO, on the grounds that any such reference would constitute collateral source evidence; the trial court denied the motion. During cross-examination of appellant and appellant’s medical witness Dr. Saba (who testified by way of deposition), appellee’s counsel made various references to Kaiser Permanente HMO; however, no direct references regarding medical insurance were made. The jury initially rendered a verdict in favor of plaintiff but awarded zero dollars in damages. The trial court determined the verdict was inconsistent and returned the jury for further deliberation; the jury then returned a verdict in favor of appellee/defendant. Held:

1. Both appellant and appellee make reference in their briefs to the ruling of the trial court as to the initial verdict of the jury in favor of plaintiff for zero damages; the trial court held that such a verdict was inconsistent and would not accept the initial verdict. Compare Peterson v. First Franklin Financial Corp., 201 Ga. App. 849 (412 SE2d 612). Appellant does not assign the trial court’s ruling in an enumeration of error, and appellee did not cross-appeal and enumerate the ruling as error. Accordingly, the trial court’s ruling as to this issue is not subject to review on appeal. See Roberts v. Cotton States Mut. Ins. Co., 186 Ga. App. 371, 373 (2) (367 SE2d 272). Moreover, at trial, appellant/plaintiff expressly stated on the record that “we feel what the court did is appropriate as not reversible error and would oppose [appellee’s] motion [that the trial judge receive the original verdict returned by the jury].” Subsequently, appellant took no exception to the form of the verdict when the jury returned its ultimate verdict in favor of the defense. Thus, this Court is confined to examine the error enumerated in light of the existence of a defense verdict.

2. Pretermitting whether the reference to Kaiser Permanente (rather than a by-name reference to a specific doctor at the HMO) constituted the admission of collateral source evidence is the issue whether the admission of collateral source evidence constitutes reversible error when a trial results in a defense verdict. We hold it does not. Collateral source evidence goes only to matters of damages or the measure of damages. See generally Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (1) (378 SE2d 510) and progeny. Where an error in the giving of a charge or in the admission or exclusion of evidence relates only to the issue of damages, and the jury finds the defendant not liable, the error is harmless because it does not affect the verdict. Id.; Dietz v. Becker, 209 Ga. App. 678, 681 (3) (434 SE2d 103); Pouncey v. Adams, 206 Ga. App. 126, 127 (1) (424 SE2d 376); Barnes v. Wall, 201 Ga. App. 228, 230 (3) (411 SE2d 270) (physical precedent only); cf. Southern Bell Tel. &c. Co. v. Don Hammond, Inc., 198 Ga. App. 517, 518 (402 SE2d 112). Appellant invites us to speculate that the jury considered the mere mention of the name of Kaiser Permanente in determining the question of liability. “We will not engage in such unwarranted speculation regarding the conduct of the jury, as ‘(t)his court is a court for the correction of errors and its decision must be made on the record . . . and not upon the briefs of counsel.’ [Cit.]” Whelchel, supra at 157; see also Dimauro v. State, 185 Ga. App. 524, 525 (364 SE2d 900).

Decided October 31, 1995

Reconsideration denied November 16, 1995

Morris & Sharp, Donald J. Sharp, for appellant.

Sharon W. Ware & Associates, Randy Howard, Kathryn A. Thurman, for appellee.

Additionally, appellant introduced in evidence, as plaintiff's Exhibit No. 3, certain documents captioned Health Insurance Claims Forms for purposes of proving certain medical expenses. These forms, although not identifying appellant’s health insurer, reflect on their face that appellant was an insured, and each form lists a claims number, insured’s ID number, and employer’s ID number. Thus assuming arguendo mere reference of appellant’s receipt of medical treatment at Kaiser Permanente might have allowed the jury to infer appellant had health insurance, such evidence would be cumulative of the disclosure contained in plaintiff’s Exhibit No. 3. Evidence is harmless where admissible evidence of the same fact is before the jury. Wilson v. Southern R. Co., 208 Ga. App. 598, 604 (4) (431 SE2d 383); Platt v. Nat. Gen. Ins. Co., 205 Ga. App. 705, 710 (1) (423 SE2d 387).

For each of the above reasons, we find appellant’s enumeration of error to be without merit.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A93A2419.
    HATCHER v. THE STATE.
    (464 SE2d 236)
   Beasley, Chief Judge.

When this case first came before this Court, appellant’s conviction was reversed because his confession was obtained in violation of his Sixth Amendment right to counsel. Hatcher v. State, 212 Ga. App. 46 (441 SE2d 673) (1994). The Georgia Supreme Court reversed this decision, holding that the form filled out by appellant was merely a statement of financial necessity for counsel and not a request for counsel as this Court had held, so that appellant’s Sixth Amendment rights had not been violated. State v. Hatcher, 264 Ga. 556 (448 SE2d 698) (1994). Consequently, this Court must address appellant’s other enumeration of error, namely, that his confession was obtained as the result of an illegal warrantless arrest made without probable cause and thus should be excluded from evidence.

While driving by the victim’s home, an uncle of the victim noticed a red station wagon with a gray, primer-colored fender and door in the victim’s driveway. He could not determine if anyone was in the car. Because he drove by the victim’s residence on nearly a daily basis and had never seen the car, he suspected that something was amiss. He called the Mitchell County sheriff’s office and related this information to the investigators. They came and determined that a burglary had taken place at the residence. Photographs of a set of four distinctive tire marks in the dirt driveway were taken.

A relative of appellant was interviewed by the investigators as a crime victim in an unrelated case. She was asked, incidentally, if she knew of a car that fit the description of the car the victim’s uncle had seen at the victim’s residence. She told the investigators that appellant, his brother, and their father drove a car matching that description. The investigators then went to a mobile home park on Highway 82 in Dougherty County, in an attempt to locate the vehicle. There they spotted a red station wagon matching the description given by the victim’s uncle. This was six days after the burglary. They left and called Dougherty County authorities to request assistance. When they returned to the trailer park, the car was gone. A few minutes later, the investigators saw it heading east on Highway 82 near the residence and pulled it over. The tire tread appeared to match. The investigators explained to appellant, his brother, and the other occupants that the car had been involved in a burglary. Appellant and his brother were placed under arrest without a warrant and were taken to the Dougherty County sheriffs department. After Miranda warnings were given, the appellant and his brother admitted they had each been driving the red station wagon early in the day of the burglary. The victim’s uncle identified the station wagon as the same vehicle he saw parked in the driveway of the victim’s house the morning of the burglary. The distinctive tire marks in the photographs taken by the investigator matched the vehicle’s tire tread.

Whether appellant’s confession should be excluded from evidence depends on whether it was obtained as the result of an illegal warrantless arrest made without probable cause, upon application of the standard in Durden v. State, 250 Ga. 325 (297 SE2d 237) (1982). “Under this standard an arrest is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense. Beck v. Ohio, 379 U. S. 89, 91 (85 SC 223, 13 LE2d 142) (1964).” Id. at 326. See also Knox v. State, 216 Ga. App. 90, 91 (1) (453 SE2d 120) (1995).

Decided November 16, 1995.

Joseph F. Bertollo, for appellant.

J. Brown Moseley, District Attorney, Robert R. Auman, Assistant District Attorney, for appellee.

This Court will not reverse the trial court’s order on a motion to suppress unless it represents an abuse of discretion. State v. Harris, 256 Ga. 24, 25 (1) (343 SE2d 483) (1986). In this instance, reasonably believing that the persons who burglarized the victim’s residence used a distinctive red station wagon, and that the appellant and members of his family drove the car, and considering all the knowledge the officers had and the exigency of vehicular mobility, it was prudent for the sheriff’s investigators to believe that appellant likely committed or participated in committing the burglary when he was discovered six days thereafter riding in the vehicle with his brother. Appellant’s confession was obtained pursuant to a valid warrantless arrest, and the trial court properly denied his motion to suppress.

Judgment affirmed.

Smith and Ruffin, JJ., concur.