author: Birdsong, Presiding Judge.

text:
    A91A0745.
    SARANTIS v. KROGER COMPANY et al.
    (411 SE2d 758)
   Birdsong, Presiding Judge.

Theodore Sarantis appeals from the grant of summary judgment to The Kroger Company and Jim Strong & Associates, Inc. (“Strong”) on his claims against them for injuries he allegedly received after a floor cleaning machine, owned and operated by Strong, backfired while Sarantis was shopping in a Kroger store. Sarantis alleges that he was so scared by the loud noise that it affected his heart permanently.

Kroger’s motion for summary judgment contended it was not liable because Strong was an independent contractor and because Kroger was not negligent since it had no knowledge the machine would backfire. Strong’s motion contended it also was not negligent because the machine was maintained and operated properly and the machine had never backfired before and it had no reason to know the machine would backfire.

Sarantis’ response to the motions for summary judgment asserted that the defendants were liable on grounds that Kroger was aware this machine would backfire because Kroger employees told him they would pay for his medical expenses and another employee told him the machine had backfired before. Held:

Pretermitting Kroger’s independent contractor argument, it is clear that the trial court did not err by granting the motion for summary judgment because neither defendant is liable to Sarantis as a matter of law. Neither Kroger nor Strong was an insurer of Sarantis’ safety, and they did not become so merely because a piece of equipment backfired while he was shopping. See Kenny v. M & M Supermarket, 183 Ga. App. 225, 226 (358 SE2d 641). Proof that an injury may have resulted from an unusual incident in a store is not sufficient to establish liability on the part of the proprietor. Standard Oil Co. v. Harris, 120 Ga. App. 768 (172 SE2d 344). Although expressed in the context of a slip and fall case, the principle restated in Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) is also applicable here: The dangerous instrumentality must have been known to the proprietor and unknown to the invitee before the invitee can recover. See also Pound v. Augusta National, 158 Ga. App. 166 (279 SE2d 342).

Although Sarantis attempted to rebut the defendants’ defenses by stating in his affidavit that weeks after the incident a Kroger employee told him the machine had backfired before and that another employee stated Kroger would pay for his expenses; no affidavits from those employees were attached and these statements are mere hearsay which has no probative value and cannot be considered in summary judgment proceedings (Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 65 (397 SE2d 576)), and they do not fall under the res gestae exception to the hearsay rule. OCGA § 24-3-3. Further, the statements of the Kroger employees are not admissible under OCGA § 24-3-33. OCGA § 10-6-64; Brooks v. Kroger Co., 194 Ga. App. 215, 216 (390 SE2d 280).

Decided October 21, 1991.

Carr, Tabb & Pope, W. Pitts Carr, Eric E. Huber, for appellant.

S. F. Carley, Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Douglas A. Wilde, for appellees.

Accordingly, Sarantis did not respond adequately to the defendants’ motion for summary judgment, and even affording him the benefits granted in our law as the respondent to a motion for summary judgment (see OCGA § 9-11-56 (c); Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843)), his response was not sufficient to show the existence of a genuine issue of material fact for trial. “While the moving party on a motion for summary judgment has the burden of establishing the non-existence of any material fact and all doubts are resolved in favor of the party opposing the motion, the burden of proof can be shifted, however, when a prima facie showing is made that the moving party is entitled to judgment as a matter of law. The opposite party must come forward with rebuttal evidence at that time or suffer a judgment against him. A defendant who has cast upon a plaintiff the burden of responding with evidence to create or preserve a genuine issue of fact is entitled to prevail by summary judgment in the absence of any rebuttal evidence.” (Citation and punctuation omitted.) Balke v. Red Roof College Park Co., 190 Ga. App. 779, 781 (380 SE2d 61).

Therefore, the trial court did not err by granting the motion for summary judgment.

Judgment affirmed.

Pope and Cooper, JJ., concur.


source: Caselaw Access Project

author: Judge Arnold Shulman.

license: Public Domain

text:
    A91A1111.
    POOLE v. THE STATE.
    (411 SE2d 562)
   Judge Arnold Shulman.

The appellant was convicted of possession of cocaine with intent to distribute. She brings this appeal from the denial of her motion for new trial.

1. The appellant contends that the trial court erred in refusing to declare a mistrial after the state’s attorney made a reference during his opening statement to a prior cocaine distribution offense committed by her. She contends that this remark was improper because the trial court had not yet held a hearing on the admissibility of the evidence in question, pursuant to Uniform Superior Court Rule 31.2. The state had served notice of its intention to present evidence of the similar transactions well in advance of trial, in compliance with Uniform Superior Court Rule 31.1, and a hearing was conducted during the trial, following which the evidence was ruled admissible. “Rule 31.3 permits the trial court to conduct the hearing ‘at such time as may be appropriate . . . out of the presence of the jury.’ By its language concerning the jury’s presence, Rule 31.3 anticipates mid-trial as a possible appropriate hearing time. Thus, while it is preferable that the hearing be held before trial, it is not reversible error to conduct the hearing in mid-trial where, as here, appellant can show no prejudice suffered from the failure to have the hearing before trial.” Thaxton v. State, 260 Ga. 141, 144 (6) (390 SE2d 841) (1990).

2. The appellant challenges the trial court’s ruling permitting the state to introduce evidence of the similar transactions which consisted of certified copies of two prior convictions for possession of cocaine with intent to distribute and one prior conviction of sale of cocaine, to which she had pled guilty. After the state had established a prima facie case of similarity at the hearing pursuant to Uniform Superior Court Rule 31.3 (B), the proof at trial demonstrated that on two previous occasions, the appellant sold a quantity of cocaine to an undercover GBI officer; and on a third occasion, an undercover purchase of cocaine was made from an individual who handed the monetary proceeds of that sale to the appellant. Accordingly, there was adequate “evidence to establish between the independent crime[s] and the crime on trial such similarity to and logical connection with each other so that proof of the independent crime tends to establish, by evidence of identity, bent of mind, or intent, the commission of the crime for which [the appellant] is on trial.” Stephens v. State, 261 Ga. 467, 469 (405 SE2d 483) (1991).

3. The appellant contends that the trial court improperly propounded questions to several witnesses in violation of OCGA § 17-8-57. However, since no objection was made to the questioning at trial, this contention presents nothing for review on appeal. See Parrish v. State, 182 Ga. App. 247 (3) (355 SE2d 682) (1987).

Decided October 21, 1991.

M. Randall Peek, for appellant.

Harry N. Gordon, District Attorney, Richard J. Weaver, Assistant District Attorney, for appellee.

4. The trial court did not err in charging the jury that “in determining the degree of credibility that shall be accorded [the appellant’s] testimony, you have the right to take into consideration the fact that she’s interested in the result of the prosecution as well as her demeanor and conduct upon the witness stand.” See Walker v. State, 132 Ga. App. 274, 278 (5) (208 SE2d 5) (1974). The trial court prefaced this instruction with the charge suggested in Hudson v. State, 108 Ga. App. 192 (4) (132 SE2d 508) (1963), to he given in cases where the defendant elects to testify. “Th[e] interest of a witness in the result of the matter on trial, whether civil or criminal in nature, or lack thereof, is a matter which the jury is always authorized to consider in passing upon his credibility.” Walker v. State, supra at 278.

5. The appellant contends that the trial court erred in sentencing her to life imprisonment. The state submitted evidence in aggravation of punishment showing that the appellant had been convicted of possession of cocaine with intent to distribute on five prior occasions. Thus, a life sentence was mandatory pursuant to OCGA § 16-13-30 (d). See Grant v. State, 258 Ga. 299 (368 SE2d 737) (1988).

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


author: McMurray, Presiding Judge.

text:
    A91A1302.
    PINSON v. THE STATE.
    (411 SE2d 564)
   McMurray, Presiding Judge.

Defendant was charged in Count 1 of a three count indictment with aggravated child molestation. In Counts 2 and 3 of the indictment, defendant was charged with child molestation. The crimes allegedly occurred at the victims’ home in Gwinnett County, Georgia. In Counts 1 and 2, the victim was the same child. In Count 3 the victim was another child.

The case was tried before a jury and the victims testified that defendant sexually molested them at their home in Rockdale County, Georgia. The victims further testified that they moved from Rockdale County to Gwinnett County and that defendant sexually molested them at their Gwinnett County home. Defendant was found guilty on all counts of the indictment. This appeal followed the denial of defendant’s motion for new trial. Held:

Decided October 21, 1991.

Nelson H. Turner, for appellant.

Thomas C. Lawler III, District Attorney, David K. Keeton, Assistant District Attorney, for appellee.

1. Defendant first challenges admission of the similar transaction evidence that he sexually molested the victims at their home in Rockdale County, arguing that its prejudicial impact outweighed its probative value. We do not agree.

“ ‘Evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact.’ Oller v. State, 187 Ga. App. 818, 819 (371 SE2d 455).” Barnes v. State, 196 Ga. App. 797, 798 (2) (397 SE2d 70). In the case sub judice, evidence that defendant sexually molested the victims at their Rockdale County home was relevant to prove defendant’s motive, plan, scheme, bent of mind and course of conduct in molesting the victims at their Gwinnett County home. Further, the relevance of this similar crimes’ evidence outweighed any prejudicial impact it might have. Oller v. State, 187 Ga. App. 818, 819 (2), supra.

2. Defendant contends that venue was not proven beyond a reasonable doubt. This contention is without merit.

The victims testified that defendant committed the crimes in Gwinnett County, Georgia. The victims’ parents testified that defendant stayed at their home in Gwinnett County. This evidence was sufficient to prove, beyond a reasonable doubt, that defendant committed the crimes in Gwinnett County, Georgia as alleged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Inman v. State, 195 Ga. App. 805 (1) (395 SE2d 52).

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


author: Sognier, Chief Judge.

text:
    A91A0735.
    THE STATE v. GARY et al.
    (411 SE2d 536)
   Sognier, Chief Judge.

Ronald Gary and Alma Gary were indicted on a charge of possession of marijuana with intent to distribute; Ronald Gary was also indicted on a charge of possession of a firearm during the commission of a felony. The trial court granted the Garys’ motion to suppress evidence seized during a search of their home pursuant to a search warrant. The State appeals.

Decided October 8, 1991

Reconsideration denied October 22, 1991

Timothy G. Madison, District Attorney, Jeffrey G. Morrow, Assistant District Attorney, for appellant.

Jack S. Davidson, H. Bradford Morris, Jr., for appellees.

We reverse. The affidavit submitted by the officer in the case sub judice is substantially similar to the affidavit at issue in Davis v. State, 198 Ga. App. 310 (401 SE2d 326) (1991). In that case we held that even assuming, without deciding, that the affidavit did not provide the issuing magistrate with probable cause to believe that contraband would be found in the defendant’s residence, under United States v. Leon, 468 U. S. 897 (104 SC 3405, 82 LE2d 677) (1984) suppression of the seized evidence did not necessarily follow unless it was established that the magistrate in issuing the warrant abandoned his detached and neutral role or that the officer was dishonest or reckless in preparing the affidavit or that the officer could not have harbored an objectively reasonable belief in the existence of probable cause. Davis, supra at 311.

Here, as in Davis, “there are no allegations that the magistrate abandoned his detached and neutral role in issuing the warrant for the search of [appellees’] home. Further, there is no evidence that the affiant was dishonest or reckless in preparing the affidavit or that he could not have harbored an objectively reasonable belief in the existence of probable cause to search [appellees’] residence. On the contrary, the evidence shows that the officer’s reliance on the magistrate’s determination of probable cause for the search of [appellees’] house was objectively reasonable. Consequently, application of the exclusionary rule [was] inappropriate. [Cit.]” Id. The trial court erred by granting appellees’ motion to suppress.

Judgment reversed.

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


author: Carley, Presiding Judge.

text:
    A91A1104.
    GOODE BROTHERS POULTRY COMPANY et al. v. KIN et al.
    (411 SE2d 724)
   Carley, Presiding Judge.

Mr. Phon Kin died suddenly and unexpectedly during his regularly scheduled working hours. No signed death certificate was ever issued and no autopsy was ever performed. Within 21 days of Kin’s death, appellants-employer/insurer filed a notice to controvert the right of appellee-dependents to receive workers’ compensation benefits. At the hearing, appellants introduced expert medical opinion testimony which would authorize a finding that Kin had died from preexisting heart disease and that his death from that cause was not attributable to his employment. In opposition, however, appellees introduced expert medical testimony which would authorize a finding that the conclusion that Kin had died from heart disease was speculative and that his death could be attributable to other causes.

Based upon this conflicting testimony and the lack of any autopsy report, the Administrative Law Judge (ALJ) found that the cause of Kin’s death was unexplained and, applying the presumption that the unexplained death arose out of and in the course of Kin’s employment, the ALJ awarded benefits to appellees. Appellees were also awarded attorney’s fees. On its de novo review, the Full Board adopted the ALJ’s award as its own. On appeal to the superior court, the award was affirmed. The instant appeal is the result of this court’s grant of appellants’ application for a discretionary appeal.

1. Appellants urge that the finding that Kin’s death was unexplained is erroneous.

Appellants attempted to show that Kin’s death was not unexplained, but that he had died from heart disease. If Kin had died from heart disease, the compensability of his death would be subject to an entirely different evidentiary presumption than that which would be applicable if his death was unexplained. “[Wjhen the death is explained as [caused by a] heart attack, there arises a natural inference the death was work-related if the evidence shows the work engaged in by the employee was sufficiently strenuous or of such a nature that, combined with the other facts of the case as to raise such a natural inference through human experience that the exertion contributed toward the precipitation of the attack. [Cit.] This is not the same inference that arises when a death is unexplained.” LaVista Equip. Supply v. Elliott, 186 Ga. App. 585, 587 (367 SE2d 811) (1988).

Appellants’ medical evidence showing that Kin’s death was explained by his non-work-related heart condition was not unrefuted. As noted, this evidence was countered by appellees’ medical evidence showing “that the conclusion [Kin] suffered a heart attack is speculative, and the death could have resulted from other causes; thus the board’s conclusion that in the absence of an autopsy the death is unexplained, is supported by evidence. The board therefore correctly followed the inference appropriate to unexplained deaths.” LaVista Equip. Supply v. Elliott, supra at 587. “The evidence of heart attack is evidence of cause, and once it has been rejected as proof of cause, it cannot be used again to rebut the presumption of work-relatedness [which arises in the case of an unexplained death]. [Heart attack] has been rejected [as the cause of Kin’s death]. [Appellants’] contention that ‘any evidence’ of heart attack successfully rebuts the presumption of work-relatedness [of an unexplained death] has . . . never been sanctioned by this court. . . .” (Emphasis omitted.) LaVista Equip. Supply v. Elliott, supra at 589.

2. The award includes a finding that appellee-Mrs. Kin “was not a partial dependent and that she was a total dependent within the meaning of OCGA [§] 34-9-13.” Appellants urge that this finding is erroneous.

OCGA § 34-9-13 (b) (1) provides, in relevant part, that a surviving spouse “shall be conclusively presumed to be the next of kin wholly dependent for support upon the deceased employee . . ., except that, if the surviving spouse was employed for a period of 90 days next prior to the accident which resulted in the death of the deceased employee, the presumption of total dependence shall be rebuttable. . . .” (Emphasis supplied.) It is undisputed that appelleeMrs. Kin was employed during the 90 days preceding her husband’s death. Accordingly, there is no conclusive presumption of her total dependency. Instead, the presumption of her total dependency is rebuttable. The issue for resolution is, therefore, whether the evidence in the instant case was such as to demand a finding that this presumption had been rebutted. See Jones v. Winners Corp., 189 Ga. App. 875 (377 SE2d 705) (1989).

The uncontradicted evidence shows that appellee-Mrs. Kin was employed full time and that she, her husband and their four adult children all made regular and substantial contributions toward payment of the household expenses. Thus, the undisputed evidence shows that appellee-Mrs. Kin earned a substantial part of her own support and that she received substantial contributions toward her support from sources other than her husband. This evidence would authorize a finding that appellee-Mrs. Kin was dependent upon her husband for support, but it would not authorize a finding that she was totally rather than partially dependent upon him. Jordan v. Vulcan Materials Co., 121 Ga. App. 695 (175 SE2d 123) (1970); Travelers Ins. Co. v. Campbell, 114 Ga. App. 601 (152 SE2d 430) (1966); Aetna Cas. &c. Co. v. Johnson, 70 Ga. App. 698 (29 SE2d 318) (1944); Glens Falls Indem. Co. v. Jordan, 56 Ga. App. 449 (1) (193 SE 96) (1937). It follows, therefore, that the finding of appellee-Mrs. Kin’s total rather than partial dependency is clearly erroneous.

3. Appellants enumerate the award of attorney’s fees as error.

The award of attorney’s fees was premised, in part, upon OCGA § 34-9-108 (b) (1) and the finding that “this claim was defended [by appellants] without reasonable grounds. The presumption of compensability for unexplained deaths is well established in this state. Without an autopsy or death certificate^] this presumption is difficult to rebut.” This finding would clearly not authorize an award of attorney’s fees pursuant to OCGA § 34-9-108 (b) (1). The presumption applicable in the case of an unexplained death is well established in this state and, without an autopsy or death certificate, it may well be difficult to convince any given factfinder that this presumption has been rebutted. Where, however, a reasonable attempt has been made to convince the factfinder that the presumption has been rebutted, an award of attorney’s fees would not be authorized simply because that reasonable attempt ultimately proved unsuccessful. Pacific Employers Ins. Co. v. Peck, 129 Ga. App. 439 (200 SE2d 151) (1973). It is not the difficulty in rebutting the presumption, but the reasonableness of the attempt to do so that is the relevant inquiry.

Moreover, appellants’ defense was in no way premised upon an attempt to rebut the presumption applicable in the case of an unexplained death. To the contrary, appellants were attempting to show that the presumption was inapplicable and need not be rebutted because Kin’s death was not unexplained, but had been caused by his non-work-related heart disease. Although the evidence submitted by appellants would not have demanded a finding that the cause of Kin’s death was explained as non-work-related heart disease, that evidence nevertheless would have authorized such a finding. Accordingly, as a matter of law, attorney’s fees could not be assessed against appellants pursuant to OCGA § 34-9-108 (b) (1). The medical opinion testimony relied upon by appellants to show that the cause of Kin’s death was explained as non-compensable heart disease discloses “that reasonable grounds for defending the matter did exist and were presented. While, in view of other evidence presented by [appellees], . . . the award of compensation was authorized, it was not demanded. The board did not accept the defense made and awarded compensation, but it was not an unreasonable or unfounded defense.” Pacific Employers Ins. Co. v. Peck, supra at 442.

The award of attorney’s fees was also premised, in part, upon the finding that “this claim was controverted by [appellants, pursuant to OCGA § 34-9-221 (d),] prior to conducting any reasonable investigation.” OCGA § 34-9-108 (b) (2) does provide, in relevant part, that attorney’s fees may be awarded “[i]f any provision of Code Section 34-9-221, without reasonable grounds, is not complied with. . . .” There is, however, no evidence of appellants’ non-compliance with any applicable provision of OCGA § 34-9-221. To the contrary, there was a timely compliance with OCGA § 34-9-221 (d) by the filing of a notice to controvert within 21 days of Kin’s death. There is no statutory requirement that, prior to doing so, appellants must have conducted a “reasonable investigation.” The only requirement is that the notice itself must specify “the ground upon which the right to compensation is controverted.” OCGA § 34-9-221 (d). The notice filed by appellants complied with this requirement by specifying that it was their contention that Kin’s “death was as a result of a pre-existing disease and not as any consequence of [his] employment. . . .” Having fully complied with OCGA § 34-9-221 (d) by filing a timely notice to controvert on a specific ground, appellants’ liability for attorney’s fees would be entirely dependent upon whether the defense on that ground as subsequently presented at the hearing was reasonable. As previously discussed, although appellants’ defense on that ground was unsuccessful, it was, as a matter of law, not unreasonable.

Decided October 3, 1991

Reconsideration denied October 22, 1991

McClain & Merritt, Thomas C. Holcomb, for appellants.

Whitehurst & Frick, Elaine W. Whitehurst, Stephen P. Riexinger, for appellees.

Appellees suggest that appellants should have begun the voluntary payment of compensation benefits pursuant to OCGA § 34-9-221 (b) and, after having conducted a reasonable investigation, only then have made the decision whether to controvert pursuant to OCGA § 34-9-221 (h). However, there is obviously no basis in law or logic for holding that an employer/insurer must forego the opportunity to file a timely and sufficient pre-payment notice to controvert pursuant to OCGA § 34-9-221 (d) and can only rely instead upon the post-payment right to controvert that is authorized by OCGA § 34-9-221 (h). By enacting OCGA § 34-9-221 (d), the legislature has provided a means by which an employer/insurer can controvert compensability prior to paying any benefits. Neither the Full Board nor the courts of this state can ignore that statutory provision. Appellants fully complied with the applicable requirements of OCGA § 34-9-221 (d). As a matter of law, attorney’s fees could not be assessed against appellants pursuant to OCGA § 34-9-108 (b) (2).

4. For the reasons given in Divisions 2 and 3, the superior court erred in affirming the award of the Full Board. Accordingly, the order of the superior court is reversed with direction that the case be remanded to the Full Board for the entry of a new award not inconsistent with this opinion.

Judgment reversed with direction.

Beasley and Andrews, JJ., concur.


author: Beasley, Judge.

text:
    A91A1395.
    JOHNSON v. LOMAS MORTGAGE USA, INC.
    (411 SE2d 731)
   Beasley, Judge.

Appellant Harold Johnson, as legal guardian of Marion Johnson, filed the present pro se action against appellee Lomas Mortgage seeking damages for abusive litigation under OCGA § 51-7-80 et seq. The trial court dismissed the complaint under OCGA § 9-11-37 (b) (2) (C) because of Johnson’s failure to comply with a court order compelling discovery.

The complaint is that Lomas named Marion Johnson as one of several defendants in a proceeding in Florida to foreclose a mortgage on property titled in the name of Harold Johnson. Johnson contends that “[t]here was no substantial justification to include Mrs. Johnson in that foreclosure and it was but a frivolous act groundless in fact and law and was intended to be vexatious. . . .” See OCGA § 51-7-80 (7). On Marion Johnson’s behalf, he alleges that the foreclosure proceedings damaged her credit and reputation.

In the proceeding in Florida to foreclose the mortgage, Lomas named Harold Johnson, an unknown spouse of Harold Johnson (if married), Marion Johnson, a bank, a credit union, a savings and loan association, and the Florida Department of Revenue, on grounds that each of the foregoing parties might have a claim or demand in the subject property.

By virtue of a power of attorney executed in July of 1988 and authorizing Harold Johnson to represent Marion Johnson, he filed an answer on her behalf, stating that she had no interest in the property as a result of a quitclaim deed conveying her interest to Harold Johnson and the Florida courts were therefore without jurisdiction over her. The quitclaim deed was dated February 24, 1987, and was filed on March 11, 1987. It was also executed by Harold Johnson on Marion Johnson’s behalf, pursuant to a power of attorney that was dated December 26, 1985, but filed on January 23, 1987, approximately one month before the quitclaim deed was executed.

In the Florida proceeding, Harold Johnson asserted that he had not defaulted on the mortgage but that fraud and improper servicing by the mortgagee’s servicing agent had caused the default.

Final judgment confirming the foreclosure sale was entered by the Florida court.

In this case, Lomas served Johnson with interrogatories and a request for production of documents pursuant to OCGA §§ 9-11-33 and 9-11-34, seeking, among other things: the dates Johnson acquired his interest in the property, took possession of the property, and vacated the property; loan applications by Johnson with any lender offering the property as security for a loan; the reasons that legal guardianship of Marion Johnson was required; the application for guardianship and the date it was made; and each and every place Harold Johnson had resided over the past ten years and documents relating thereto.

In response, Johnson filed a collection of documents, letters, and pleadings. These papers chronicled such things as a settlement agreement between him and the mortgagee allowing him to reinstate the mortgage by paying various sums; a subsequent letter to Johnson from the mortgagee’s servicing agent stating that foreclosure proceedings would be commenced, but that he could appeal to HUD for an assignment of the mortgage; and correspondence requesting that HUD and a congressional subcommittee investigate the servicing agent.

After service of the collection, Lomas filed a motion under OCGA § 9-11-37 (a) to compel response to its discovery requests, stating that what was served was not responsive and that Lomas had unavailingly requested Johnson to respond, pursuant to Uniform Superior Court Rule 6.4.

The trial court entered an order finding that Johnson’s collection of papers was not responsive to Lomas’ discovery requests and directing Johnson to file a response within 15 days of the court order and to pay expenses to Lomas. Johnson filed various successive motions but no response to Lomas’ discovery requests other than the statement that he had no documents other than those originally served.

After the 15-day period had passed, Lomas sought sanctions and dismissal of the complaint pursuant to OCGA § 9-11-37 (b) (2) (C) for failure of Johnson to comply with the court order.

The court denied each of the successive motions filed by Johnson and granted Lomas’ motion to dismiss the complaint because of Johnson’s “persistent and unjustified refusal to respond to the legitimate discovery requests of defendant, and blatant refusal to comply with the Court’s order . . . compelling discovery.”

1. Johnson contends that the trial court erred in denying his motions for summary judgment.

Summary judgment was denied because of the existence of issues of fact as to whether the naming of Marion Johnson in the Florida foreclosure proceeding was with “malice,” OCGA §§ 51-7-81 (1); 51-7-80 (5), and “[w]ithout substantial justification.” OCGA §§ 51-7-81 (2); 51-7-80 (7).

Lomas asserts that given the circumstances under which the quitclaim deed was executed, Marion Johnson had at least a colorable claim to the property, so that naming her as a defendant along with the other claimants was justified and not malicious. Lomas also asserts that it has a defense to Johnson’s abusive litigation claim under OCGA § 51-7-82 (c) since it was “substantially successful on the issue forming the basis for the claim of abusive litigation in the underlying civil proceeding.”

OCGA § 51-7-81 provides: “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.”

“Malice” is defined in OCGA § 51-7-80 (5) as meaning “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.” Cf. OCGA §§ 13-6-11; 9-15-14 (b); Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986). The undisputed facts by no means establish that, as a matter of law, Lomas acted “maliciously” in naming Marion Johnson as a defendant/claimant in the foreclosure proceeding. Cf. Yost v. Torok, supra.

“Without substantial justification” is defined in OCGA § 51-7-80 (7) as meaning “any civil proceeding, claim, defense, motion, appeal, or other position [which] is: (A) Frivolous; (B) Groundless in fact or in law; or (C) Vexatious.” Cf. OCGA § 9-15-14 (b), supra; Ferguson v. City of Doraville, 186 Ga. App. 430, 434 (2a, c) (367 SE2d 551) (1988), overruled on other grounds, Vogtle v. Coleman, 259 Ga. 115, 119 (n. 8) (376 SE2d 861) (1989). The undisputed facts do not establish that, as a matter of law, Lomas acted “without substantial justification” in naming Marion Johnson as a defendant/claimant in the foreclosure proceeding.

Johnson was not entitled to summary judgment. See OCGA § 9-11-56 (c); cf. Ferguson, supra.

2. Johnson contends that the trial court erred in denying his requests for oral argument.

Since Johnson did not file a written request for oral argument on his summary judgment motion within five days after the time for response, as provided by USCR 6.3, the trial court did not err in denying his request for oral argument as to his motion for summary judgment. Likewise, Rule 6.3 authorized the court to refuse oral argument as to Johnson’s remaining motions.

3. Johnson contends that the trial court erred in dismissing his complaint for noncompliance with the court order that he respond to Lomas’ discovery requests, citing Rivers v. Goodson, 184 Ga. App. 70, 71 (2) (360 SE2d 740) (1987), and Thornton v. Burson, 151 Ga. App. 456, 457 (2) (260 SE2d 388) (1979). These decisions hold that a mere technical failure to comply with an order compelling discovery, or an inadequate discovery response after entry of such an order, does not justify the extreme sanction of default or dismissal of the complaint.

“ ‘(T)he drastic sanctions of dismissal and default cannot be invoked . . . except in the most flagrant cases — where the failure is wilful, in bad faith or in conscious disregard of an order.’ [Cit.]” Thornton, 151 Ga. App. at 459, supra. There must be “ ‘a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance.’ [Cit.]” Evans v. East Coast Intermodal Systems, 191 Ga. App. 749 (382 SE2d 743) (1989).

Decided October 4, 1991

Reconsideration denied October 22, 1991

Harold A. Johnson, pro se.

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

In this case, the trial court was authorized to find that Johnson intentionally and wilfully failed to comply with the court order compelling discovery. Such finding could be made from the record, without the necessity of conducting a separate hearing. The trial court did not err in dismissing the complaint. See Schrembs v. Atlanta Classic Cars, 261 Ga. 182 (402 SE2d 723) (1991).

4. Inasmuch as the foregoing holdings are not affected by the matters set forth in Johnson’s supplemental briefs, Lomas’ motion to disregard such briefs because of noncompliance by Johnson with Court of Appeals Rules is moot.

5. Lomas’ motion to impose a penalty not to exceed $500 against Johnson for frivolous appeal is granted. The trial court’s complete and explanatory order was clearly correct. “Being unable to discern any reasonable ground upon which [Johnson] might have anticipated the reversal of the trial court’s judgment, we assess a [$300] penalty against [Johnson] pursuant to Rule 26 (b) of this court for pursuing a frivolous appeal. The trial court is hereby directed to enter judgment against [Johnson] in such amount. . . upon the return of the remittitur in the case.” Hulstzman v. State Farm Fire &c. Co., 188 Ga. App. 12, 13 (3) (372 SE2d 9) (1988).

Judgment affirmed with damages.

Birdsong, P. J., and Carley, P. J., concur.


text:
    A91A0930.
    BUSINESS SOFTWARE, INC. v. INFORMATION ASSOCIATES, INC.
    (411 SE2d 565)
   McMurray, Presiding Judge.

Information Associates, Inc, (plaintiff) filed a petition for declaratory judgment against Business Software, Inc. (defendant), seeking a determination of its obligation to comply with the restrictive covenant of a sales contract wherein plaintiff agreed to exclusively license defendant’s computer software product. The trial court entered declaratory judgment for plaintiff, finding the restrictive covenant to be unenforceable. This appeal followed. Held:

Decided October 22, 1991.

Bassett, Gerry, Friend & Koenig, William D. Friend, Rhonda L. Klein, for appellant.

Hicks, Maloof & Campbell, J. David Dantzler, Jr., for appellee.

“ ‘Absent an actual controversy involving palpable insecurity, a court is without power to act by way of declaratory judgment. (Cit.)’ Fourth St. Baptist Church v. Bd. of Registrars, 253 Ga. 368, 369 (1) (320 SE2d 543) (1984).” Gordon v. Southeastern Fidelity Ins. Co., 182 Ga. App. 790 (357 SE2d 146). In the case sub judice, plaintiff failed to demonstrate that an actual or justiciable controversy exists between adverse parties. Plaintiff shows only that accrued contractual rights and duties exist between parties. Plaintiff must demonstrate that it was in need of direction with respect to future conduct which might increase its liability or otherwise affect its interest. Consequently, “ ‘the trial court erroneously entered an advisory declaratory judgment which held, in effect, that, should the accrued rights and obligations at issue result in future litigation, then [plaintiff] would prevail on the merits.’ Oxford Fin. Cos. v. Dennis, 185 Ga. App. 177, 178 (363 SE2d 614) (1987).” Logan Paving Co. v. Peoples Bank & Trust, 196 Ga. App. 42, 43 (395 SE2d 287). The trial court’s judgment must therefore be vacated as nugatory. Logan Paving Co. v. Peoples Bank & Trust, 196 Ga. App. 42, 43, supra.

Judgment vacated.

Sognier, C. J., and Andrews, J., concur.


author: Cooper, Judge.

text:
    A91A1107.
    EDMONDSON v. THE STATE.
    (411 SE2d 879)
   Cooper, Judge.

Appellant was convicted by a jury of violating the Georgia Controlled Substances Act and raises as a sole enumeration of error the trial court’s failure to give his request to charge on entrapment.

The State presented the following evidence at trial. Appellant’s employer hired a private firm to investigate theft and drug problems within the company. The firm placed Alfonso Futch (“Futch”) with the company as an undercover investigator, and Futch was assigned to operate a forklift alongside appellant. While working together over several months, the two discussed appellant’s claims that he sold drugs at the work site. On one occasion, appellant told Futch that he had a quantity of drugs for sale which was selling out fast. Futch notified Clayton County narcotics officers to arrange an authorized drug buy from appellant, and the officers supplied Futch with money with recorded serial numbers and wired Futch with a body bug. The buy was conducted under the surveillance of the officers; however, the body bug malfunctioned, and the recording was practically inaudible. Futch turned over to the officers two bags containing $20 worth of marijuana. Appellant testified that he became suspicious of Futch because of Futch’s persistence in trying to obtain drugs from him and that he set up a fake dope deal to expose Futch, in which he sold an herb called golden seal, instead of marijuana.

Decided October 22, 1991.

Lillian L. Neal, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.

“(I)f a reasonable inference of entrapment may be drawn by a rational jury from the State’s evidence, the defendant is entitled to a jury charge on entrapment unless he has presented evidence of entrapment inconsistent with his denial of the commission of the crime.” (Cits.)’ [Cits.]” Clayton v. State, 197 Ga. App. 616 (398 SE2d 723) (1990). Appellant presented evidence of entrapment and denied committing the crime; therefore, we must look to the evidence presented by the State to determine whether appellant was entitled to a charge on entrapment. See Gregoroff v. State, 248 Ga. 667 (285 SE2d 537) (1982). In our view, the State’s evidence did not raise the issue of entrapment. “Entrapment exists where the idea and intention of the commission of the crime originated with a government officer or employee, or with an agent of either, and he, by undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer.” OCGA § 16-3-25; Wyatt v. State, 194 Ga. App. 159 (2) (390 SE2d 85) (1990). There is no evidence that such means were employed by Futch. “As stated by the United States Supreme Court in Mathews v. United States, 485 U. S. 58, 66 (108 SC 833, 99 LE2d 54) (1988), ‘(e)vidence that Government agents merely afforded an opportunity or facilities for the commission of the crime would be insufficient to warrant ... an instruction (on the defense of entrapment).’ ” Clayton, supra at 617. Accordingly, the trial court did not err in refusing to give appellant’s charge on entrapment.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A1159.
    MILES v. THE STATE.
    (411 SE2d 566)
   Sognier, Chief Judge.

James Matthew Miles was convicted of aggravated sodomy and child molestation of his 11-year-old niece. He appeals from the denial of his motion for new trial.

1. Appellant first contends the trial court erred by concluding that certain evidence introduced by the State — two audio tapes of interviews with the victim, one audio tape of appellant’s statement to detectives, and a medical report — was not subject to his pretrial discovery motions. Contrary to his assertions, the record reveals that the medical report was provided by the State in its discovery responses. The trial court correctly held that the interview tapes, which the court reviewed in camera, were not required to be produced under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963) because they contained no exculpatory material. Castell v. State, 250 Ga. 776, 781 (2) (a) (301 SE2d 234) (1983). With regard to the tape of appellant’s statement, the State was not precluded from introducing it into evidence because the prosecutor complied with the requirements of OCGA § 17-7-210 (d) by providing a written summary of the incriminating and inculpatory portions to appellant prior to trial. Golden v. State, 163 Ga. App. 629, 632 (3) (295 SE2d 144) (1982). Moreover, appellant waived his right to object on appeal to the playing of any of the tapes for the jury because counsel expressly stated at trial that he had no objection to their presentation even after being invited by the trial judge to register an objection. See Hight v. State, 195 Ga. App. 727, 730 (6) (394 SE2d 636) (1990). Accordingly, we find no error.

2. Appellant’s objection to the court’s ruling concerning allegedly untimely discovery responses served by the State is similarly without merit. Pretermitting the question whether the responses were filed within the requisite time periods, the record reveals the medical reports were made available to appellant as soon as the prosecutor received them, thereby complying with OCGA § 17-7-211 (b), and appellant was afforded a ten-day period within which to interview the two additional witnesses, which satisfied the purpose of OCGA § 17-7-110. See Williams v. State, 242 Ga. 757-758 (1) (251 SE2d 254) (1978).

3. Appellant’s enumeration concerning the trial court’s refusal to give his proposed pre-evidentiary charge is controlled adversely to him by Cagle v. State, 160 Ga. App. 803 (1) (287 SE2d 660) (1982).

4. We find no error in the trial court’s decision to restrict appellant’s cross-examination of Judy Haralson, the Department of Family & Children’s Services investigator, as to the issues appellant listed in enumerations 5 and 6. As to enumeration 5, while evidence tending to

establish that someone else committed the crime at issue is admissible under certain circumstances, Butler v. State, 254 Ga. 637, 640 (332 SE2d 654) (1985), we find no abuse of discretion in the trial court’s conclusion that evidence suggesting that the victim’s mother’s boyfriend had slapped the victim several weeks after the molestation at issue occurred was not relevant to the question whether appellant molested the victim. With regard to enumeration 6, the information sought from Haralson was purely conjectural. “ ‘The right of cross-examination is not abridged where cross-examination of a witness is not permitted as to irrelevant matters or as to relevant matters but by improper questions. The trial court has a discretion to control the right of cross-examination within reasonable grounds, and the exercise of this discretion will not be controlled unless abused. (Cits.)’ [Cit.]” Owens v. State, 178 Ga. App. 750, 751-752 (4) (344 SE2d 722) (1986).

5. Appellant next contends the trial court erred by allowing the county victim-witness coordinator to sit near the victim while she testified. This situation is analogous to the circumstances dealt with in cases such as Walker v. State, 132 Ga. App. 476 (208 SE2d 350) (1974) and Nunnally v. State, 235 Ga. 693, 699-700 (2) (221 SE2d 547) (1975) in which our courts have addressed the propriety of allowing a relative of a crime victim to sit at counsel table with the prosecutor. Here, as in Nunnally, the State established that the coordinator’s presence was needed for the orderly presentation of the case (the victim had asked that the coordinator sit with her), and the coordinator’s answers to voir dire questions demonstrated that she had not coached the victim or otherwise influenced her testimony. Moreover, as in Nunnally, no evidence of improper conduct by the coordinator was brought to the trial court’s attention. In addition, we cannot consider appellant’s argument based on OCGA § 17-8-54 because it was not raised or ruled upon in the trial court. Evans v. State, 191 Ga. App. 364, 365 (2) (381 SE2d 760) (1989). Accordingly, we find no deprivation of appellant’s right to a fair trial.

6. Appellant next enumerates as error the trial court’s failure to “requir[e] on its own motion the attendance of [his] subpoenaed witness, Bo Parsons.” Appellant’s characterization of the events is belied by the record, which reveals that appellant did not follow up on the service of the subpoena to ensure that the witness had been served and would attend the trial. Indeed, he did not even raise the issue of Parsons’ appearance until the third day of trial despite being offered several opportunities to present the matter to the court. The record further reveals that appellant never requested or made the proper showing for a continuance under OCGA § 17-8-33 or for any other relief despite the court’s repeated invitations. We find no authority for appellant’s theory that the trial court should have ordered relief he specifically declined to request. Thus, there is nothing for this court to review.

7. We find no error in the court’s refusal to charge the jury on the provisions of former OCGA § 19-7-5 (e), which classified as a misdemeanor the willful failure of certain officials to report a suspected case of child abuse. Appellant was not charged with a violation of that provision, and any effect this statutory requirement had on the victim’s teacher’s decision to report the abuse the victim had described was wholly irrelevant to the issues in the case. See generally Elrod v. State, 195 Ga. App. 571, 573 (6) (394 SE2d 548) (1990) (no error when court denies request to charge on matter not in issue).

8. After charging the jury on the elements of aggravated sodomy and child molestation, the trial court instructed them, over appellant’s objection, that “the law in this State provides that a child under fourteen (14) years of age is incapable of consenting to illicit sexual acts with another.” Appellant enumerates this charge as error, contending that consent is not an element of the charged crimes and that the charge improperly suggested that appellant’s defense was that sexual contact did occur but was consensual. We do not agree. Aggravated sodomy is defined as the commission of “sodomy with force and against the will of the [victim].” OCGA § 16-6-2. In Drake v. State, 239 Ga. 232 (1) (236 SE2d 748) (1977), a case involving charges of forcible and statutory rape, the court held that the phrase “against [the] will means without the victim’s consent. Id. at 233. Since “[a] female under 14 years of age is legally incapable of giving consent,” the court reasoned, the trial court correctly charged that “the element of ‘against her will’ was automatically shown by her age.” Id. This analysis is equally applicable to the identical element required in proof of aggravated sodomy. See Huggins v. State, 192 Ga. App. 820-821 (1) (386 SE2d 703) (1989). Thus, the trial judge correctly charged the jury that the element of “against the will,” or consent, was automatically shown by the victim’s age.

9. Finally, we address appellant’s contentions that the trial court erred by denying his motions for directed verdict and new trial. The victim testified she shared the same house with appellant in the fall of 1989 when he lived for several months in the home she shared with her mother and sister and again in March 1990 when she stayed with her grandmother. She testified that on a number of occasions he pulled her into his bedroom in the middle of the night and inserted his finger into her vagina, forced her to perform fellatio, masturbated to ejaculation in her presence, and removed her clothing and rubbed his penis on her. She also testified that she was afraid of appellant, that he offered her money in exchange for these acts, and that he threatened to do the same things to her younger sister if she told. The victim’s trial testimony was consistent with statements she had given to her teacher, her mother, the school counselor, and county investigators. Dr. Janet Bull testified that upon examining the victim she found scabies on the victim’s buttocks and genitals, which she testified could be transmitted by skin-to-skin contact, and a sexually transmitted vaginal infection. Dr. Bull also testified that in the course of the examination, the victim’s vagina accommodated digital penetration, which Dr. Bull stated was unusual for a girl of that age. Dr. Bull stated further that these conditions were consistent with sexual abuse.

Decided October 22, 1991.

John W. Knapp, Jr., for appellant.

J. David McDade, District Attorney, David R. York, Assistant § District Attorney, for appellee.

We find this evidence sufficient to satisfy the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Goode v. State, 171 Ga. App. 901-902 (1) (321 SE2d 410) (1984). Appellant’s contention that the conviction cannot be sustained because the victim’s testimony was not corroborated is without merit, as no corroboration was required for the charged offenses. Scales v. State, 171 Ga. App. 924-925 (2) (321 SE2d 764) (1984). Moreover, this contention mischaracterized the evidence, for Dr. Bull’s testimony did provide corroboration.

Judgment affirmed.

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


text:
    A91A1013.
    COASTAL EQUITIES, INC. v. CHATHAM COUNTY BOARD OF TAX ASSESSORS.
    (411 SE2d 540)
   Sognier, Chief Judge.

Coastal Equities, Inc., the owner of a motel in Savannah, appealed to the superior court from a decision of the Chatham County Board of Tax Assessors fixing the motel’s fair market value for tax purposes. The case was tried by a jury, which found the fair market value of the property to be $2,350,000, and the trial court entered judgment on the jury’s verdict. Coastal Equities brought this appeal in the Supreme Court from the trial court’s denial of its motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, and the Supreme Court transferred the appeal to this court.

1. Appellant contends the trial court erred by denying its motion for judgment n.o.v. because the verdict was dependent upon appellee’s evidence of valuation, and appellee’s method of determining the fair market value of the property at issue violated the uniform taxation clause of the Georgia Constitution and the equal protection clauses of the Georgia and United States Constitutions. We do not agree.

“It is the duty of the board of tax assessors to see that all taxable property within the county is assessed and returned at its just and fair valuation and that valuations as between individual taxpayers are fairly and justly equalized. This does not require the tax assessors to use any definite system or method, but demands only that the valuations be just and that they be fairly and justly equalized among the individual taxpayers according to the best information obtainable.” (Punctuation and citations omitted.) Kight v. Gilliard, 214 Ga. 445, 448-449 (4) (105 SE2d 333) (1958).

Appellee’s expert witness, Steve Corcoran, testified he was the only person who performed motel appraisals for appellee in 1988, the year at issue. Corcoran testified that the method he used to determine the fair market value of appellant’s property was the gross income multiplier method, in which a multiplier consisting of the ratio between selling price (taken from a study of sales of motel properties) and room revenue is applied to an average of room revenues over three years. Corcoran, an 11-year employee of appellee who had completed all certification courses required by the Georgia Department of Revenue, testified that the multiplier used for appellant’s motel was derived from a review of sales of motels in Savannah with similar physical properties. He testified that the gross income multiplier method of appraising income producing property is a widely accepted method of real estate appraisal, incorporating both the income and the market approaches to valuation.

(a) Appellant’s argument that the method used by appellee is defective because it depends on the gross income of the motel, which is a product of many factors other than the value of the real estate, has been decided adversely to appellant. The income approach has been recognized by the Supreme Court as being a valid method of appraisal. Housing Auth. &c. v. Southern R. Co., 245 Ga. 229, 230-231 (1) (A) (264 SE2d 174) (1980). The cases cited by appellant to support its argument are all distinguished by their facts and do not hold that the income method of appraisal is defective.

(b) The record belies appellant’s assertion that appellee did not review Corcoran’s appraisals or adopt his methodology. William J. Parsons, the county chief tax assessor and a member of appellee, testified that he discussed appraisal matters often with his staff and had discussed with them the methodology to be used for valuing income producing properties. Parsons specifically recalled approving the use of the gross income multiplier method. He also testified that he had reviewed the appraisal performed on appellant’s property prior to certifying the appeal to the superior court.

The record also fails to support appellant’s allegation that the method used by Corcoran merely applied a statistical formula without taking into account the characteristics of the individual property. Corcoran testified that because actual room revenues reflect the amount a customer will pay and reflect occupancy rates, the condition, age, and physical location of the motel are fully taken into account when calculating fair market value by the gross income multiplier method.

(c) The uniformity clause of the State Constitution and the equal protection clauses of the State and Federal Constitutions were not offended by appellee’s valuation of one motel in Savannah by a different method. In his trial testimony, Corcoran explained that he personally visited the other motel and observed that a number of its units was gutted and not suitable for occupancy, and that some units were being used as efficiency apartments rented on a monthly basis. He concluded that the property could not properly be valued as a motel using the standard method for motels because it was not being operated as a motel and there was no income stream from which to calculate room revenue for use with the gross income multiplier method.

“In reviewing the overruling of motions for judgment n.o.v., the appropriate standard to be utilized is the any evidence test.” (Citations and punctuation omitted.) Archer Motor Co. v. Intl. Business Investments, 193 Ga. App. 86, 87 (1) (386 SE2d 918) (1989). The methods used by appellee were not defective, and appellee presented evidence of valuation at trial that supported the jury’s verdict. Accordingly, the trial court did not err by denying appellant’s motion for judgment n.o.v. See generally id.

2. Appellant enumerates as error the denial of its motion for a new trial based on the trial court’s refusal to give its requested charge no. 5: “I charge you that income is not property, and it has been held not to be since the Hartridge case in 1850 (8 Ga. 23). The legislature has taxed it differently from property from that day down to this day. The fact is, property is a tree; income is the fruit; labor is a tree; income, the fruit; capital, the tree; income, the fruit. Waring v. Savannah, 60 Ga. 93[, 100 (4) (1878).]”

Decided October 9, 1991

Reconsideration denied October 23, 1991

H. Lehman Franklin, Jr., for appellant.

Smith, Gambrell & Russell, John A. Blackmon, Howard & Racz, Molly M. Howard, Emily E. Garrard, for appellee.

Although when taken out of context the quotation from Waring seems relevant to the issue in this case, our review of Waring reveals that the portion of the opinion from which the quotation is taken resolved the question whether earned and unearned income constituted “property” so as to be subject to a property tax, not whether the income stream of a property may be used in determining its fair market value for tax purposes. Here, appellee did not seek to levy property tax on the income from appellant’s motel, but rather used the income stream as one basis for calculating the value on which the property tax would be levied. “ Tn order for a refusal to charge to be error, the requests must be entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge. (Cit.)’ [Cit.]” Brown Realty Assoc. v. Thomas, 193 Ga. App. 847, 850 (6) (389 SE2d 505) (1989). As it was not adjusted to the issues or evidence in this case, the trial court did not err by denying appellant’s motion for a new trial based on its refusal to give the requested charge. Id.

Judgment affirmed.

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

       In Champion Papers v. Williams, 221 Ga. 345 (144 SE2d 514) (1965) and Hutchins v. Howard, 211 Ga. 830 (89 SE2d 183) (1955), the Supreme Court found arbitrary increases in valuation of classes of properties for the sole purpose of increasing revenue were defective where no individual valuations were made. Vann v. DeKalb County Bd. of Tax Assessors, 186 Ga. App. 208 (367 SE2d 43) (1988) did not involve the income valuation method, and was not an opinion on the merits but a remand to the trial court for a hearing on a previously unheard constitutional argument. In O’Quinn v. Ellis, 224 Ga. 328 (161 SE2d 832) (1968), the Supreme Court held that using a tobacco allotment as the only permissible distinguishing factor among otherwise comparable cultivated lands was a defective method of valuation when other possible distinguishing factors were ignored.
      Contrary to appellant’s argument, Evans v. Henry County Bd. of Tax Assessors, 168 Ga. App. 792 (310 SE2d 562) (1983) did not hold that only evidence of cash sales could be used to determine fair market value. Evidence of cash sales was discussed in the opinion because it was the only evidence of value presented at trial in that case.


text:
    A91A1193.
    GARNER v. THE STATE.
    (411 SE2d 503)
   Beasley, Judge.

Appellant, Robert Michael Garner, was convicted of armed robbery. OCGA § 16-8-41.

The evidence showed that on January 22, 1990, he robbed a convenience store with a handgun. Witnesses Jeff Hughes and 14-year-old Jamie Bennett, who were working at the store when it was robbed, testified that at the time of the robbery appellant was wearing a green toboggan hat. This hat covered his hair, his ears and the upper part of his forehead, leaving the remainder of his face visible. Appellant walked into the store and immediately brandished the gun. He was in the store for one or two minutes. Although it was night, there were fluorescent lights in the store which kept it well lit. Bennett testified that he was watching the robber “real close” as Hughes was emptying the cash register in compliance with the robber’s demand. Both Bennett and Hughes testified they had gotten a good look at the robber. After the robber fled on foot, Bennett and Hughes called police. The police recovered a dark blue toboggan hat approximately 45 to 50 feet from the store, which was consistent with the direction in which the robber fled. Microanalysis showed sufficient similarities between hair found in the cap and appellant’s hair samples so as to support a conclusion of common origin.

The day after the robbery, Hughes assisted in compiling a composite sketch of the robber through which appellant was identified as a suspect.

A sheriff’s investigator obtained a mug shot of appellant which was approximately three years old. He incorporated it into a photographic array which contained five other mug shots and was shown to Hughes and Bennett on January 30. Hughes was unable to identify the robber. Although Bennett was not “one hundred percent sure about the picture,” he identified appellant’s photograph as resembling or looking like the robber. All of the photographs depicted white mustachioed males of the same age range; three had hair below their ears and three had shorter hair.

Officer Perry next obtained a recent photograph of appellant and incorporated it into a second photographic array, which he showed to Bennett and Hughes on February 8. Both of them identified appellant as the robber. The investigator testified that Bennett immediately picked out appellant; he “just simply sat up and said, ‘That’s him that’s him, that’s him.’ ” Thereafter, Bennett and Hughes were told each had identified the individual under investigation.

Appellant’s photograph was the only one common to both photographic arrays. All photographs in the second array showed white men of the same age range wearing mustaches. Three showed men with hair which did not cover their ears, and two had hair which was of a length to partially cover their ears. Appellant’s photograph was the only one showing shoulder length hair. The robber’s hair was not seen during the robbery.

On February 14, Bennett identified appellant from a lineup in which appellant was the only individual who had shoulder length hair which covered his ears. One other person had long hair, all were dark-haired white males of approximately the same age group, height, and weight. All were wearing the same prison uniform except one, not appellant, who wore jeans. After viewing the lineup, Bennett identified appellant as the robber.

At trial, Hughes and Bennett again identified appellant as the robber. They responded in the negative to the inquiry whether there was any uncertainty or doubt as to whether appellant was the robber and whether they would ever forget the face of the robber.

1. Appellant contends that the trial court erred in admitting evidence of the photographic arrays and lineup. He argues that the pretrial identification procedures were impermissibly suggestive and, under the totality of the circumstances, gave rise to a substantial likelihood of irreparable misidentification, Pack v. State, 182 Ga. App. 618 (356 SE2d 557) (1987), so that Bennett’s and Hughes’ identification of appellant at trial was tainted and did not have an independent basis. See Smith v. State, 160 Ga. App. 60 (1) (286 SE2d 45) (1981). He also challenges the investigator’s statement to Bennett that he had identified the suspect.

As was done in Pack v. State, supra at 619, we make no judgment on the first part of the United States Supreme Court’s test and apply only the second: whether there was a substantial likelihood of irreparable misidentification after the police have shown witnesses impermissibly suggestive (we assume) photographic arrays or lineups. We consider the appropriate factors, which were listed in Goswick v. State, 150 Ga. App. 279, 282 (2) (257 SE2d 303) (1979).

The witnesses viewed the robber at close range in a well-lighted area for one or two minutes; the robber was wearing a toboggan cap which covered only the outer extremities of his face; the witnesses’ degree of attention was well focused; both witnesses were certain that appellant was the robber; the witnesses viewed the second photographic array 17 days after the robbery and the lineup 23 days after the robbery. Neither the defense nor the state address the question of whether the witnesses’ prior description of the robber was accurate, although it appears to be so from a comparison of the description with the photographs.

“It is not a good practice to indicate to a witness that he has chosen the ‘right’ person as it could lead to an improper tainting of a subsequent . . . identification in a questionable case. However, whether a subsequent . . . identification is tainted depends on all the circumstances of each case.” Dodd v. State, 236 Ga. 572, 573 (224 SE2d 408) (1976). This practice of confirming the choice as correct is also disapproved in Lowe v. State, 141 Ga. App. 433, 434 (233 SE2d 807) (1977).

Given the certainty with which the witnesses identified appellant, and their opportunity to view him at close range in a well-lighted area, the evidence supports the trial court’s finding that the witnesses’ identification of appellant was based on their observation of him at the scene of the crime and not on the identification procedures employed by the police. See Selbo v. State, 186 Ga. App. 779, 781 (368 SE2d 548) (1988); see generally Woods v. State, 165 Ga. App. 39 (1) (299 SE2d 97) (1983). In these circumstances, “ ‘such evidence is for the jury to weigh.’ ” Pack v. State, supra at 619.

Decided September 12, 1991

Reconsideration denied October 23, 1991

Rafe Banks III, for appellant.

Garry T. Moss, District Attorney, T. Russell McClelland III, C. David Gafnea, Assistant District Attorneys, for appellee.

2. Appellant next contends that the trial court erred in admitting evidence concerning the toboggan hat and the hair samples found in the hat. The argument is that if the witnesses were correct in describing the hat as green, then the blue hat and its contents were not relevant, whereas if the witnesses inaccurately described the hat’s color, then the accuracy of their identification of appellant is destroyed.

The trial court did not err in admitting the hat and hair samples and testimony concerning the same, since there was evidence connecting them to defendant and to the scene, thus leaving to the jury whether the hat was worn during the commission of the crime and whether it was appellant who wore it and whether the hair in it was appellant’s. See Heard v. State, 126 Ga. App. 62, 66 (4) (189 SE2d 895) (1972). The witnesses’ testimony that the hat was green rather than blue did not require exclusion of the blue hat nor did it vitiate their identification of appellant as the robber. Bennett said the hat produced at trial could have been the one worn and Hughes said he could have been mistaken about the color. The ultimate issue is the identification of the robber, not the identification of the hat.

Judgment affirmed.

McMurray, P. J., and Carley, P. J., concur.


author: Andrews, Judge.

text:
    A91A1361.
    HARRISON v. THE STATE.
    (411 SE2d 738)
   Andrews, Judge.

Defendant Harrison, a former bail bondsman, appeals her convictions of two counts of criminal attempt to hinder the apprehension of a criminal and one count of attempt to commit bail jumping.

Viewed in favor of the verdict, the evidence was that Harrison operated the All County Bonding Company which provided the majority of bonds written in Rockdale County. One of her competitors was Sue Cagle of Cagle Bonding Company. In July 1990, Deborah McKenzie was arrested in Rockdale County on a burglary charge for which Harrison posted the $1,500 bond. After McKenzie had been out on bond for a while, Harrison had her picked up by two employees and returned to jail and came off her bond, as the terms of the bond allowed. Harrison did this on the basis of tips she received which led her to believe McKenzie was going to leave the jurisdiction. After her return to jail, McKenzie was bonded out by Cagle on September 8, 1990. Cagle also posted her bond on a public drunk charge four days later.

On September 27, McKenzie called a local bar looking for a friend. The bartender asked who she was and then handed the phone to a man known as “Rambo,” one of Harrison’s skip tracers. Harrison then spoke with McKenzie and told her she would give her $2,000 and a ticket to skip bond on Cagle. McKenzie then called an airline for a ticket price and called Harrison back. Because the price was too high, Harrison suggested she call the bus station the following day. This conversation was not recorded, although a number of others were during the investigation.

McKenzie contacted Cagle about the offer and Cagle called the GBI, which initiated an investigation. A number of phone calls between Harrison and McKenzie were taped, as well as several meetings between the two. McKenzie, after consulting with Harrison, went to the Covington, Decatur, and Conyers bus stations over a period of days. Harrison met her at the Covington bus station, but found the station closed. Harrison called the bus company from her car phone and obtained information about the ticket purchase. She and McKenzie agreed to meet the next day at Decatur. Harrison did not appear, but informed McKenzie she was tied up with other business. On September 29, Harrison and McKenzie met at the Conyers bus station where Harrison purchased a one-way ticket to Los Angeles for McKenzie. All of the bus station meetings were taped and the Decatur and Conyers tapes were transcribed.

After purchasing the ticket, Harrison told McKenzie that if she got a California driver’s license, to obtain it in a false name and that she needed a false birth certificate to get one. Harrison also advised her to call only from pay phones and not to write home for fear the letters could be traced. Finally, Harrison told McKenzie to call her in two or three months and she would check to see if McKenzie had been placed in N.C.I.C., the national crime information network. Harrison left the station before the bus arrived, leaving McKenzie waiting. McKenzie did not board the bus and the ticket was introduced at trial.

The first count of the indictment charged Harrison with attempt to hinder apprehension and punishment of McKenzie over the period September 27 through September 29, 1990.

On October 3, McKenzie attempted to contact Harrison by phone, but only reached her answering service. McKenzie told the service to have Harrison at that number the next morning at 10:00 a.m., or she would call Cagle and return to Georgia.

Upon calling the next morning, McKenzie reached Harrison and told her she was in Corisicana, Texas and needed money. Harrison said she would consider the request.

Two investigators met Harrison at the jail on October 8, and had a conversation concerning McKenzie’s whereabouts.

On October 16, McKenzie again spoke with Harrison by phone and indicated she was considering returning to Georgia. Harrison discussed with her the fact that, after two years, Cagle would not look for her on the bond because of the expense and after that time, Cagle could not recover the bond amount. Harrison also explained that the district attorney would have to pursue extradition in order to bring her back and that, in her experience, for that small an amount, the district attorney would probably not do so because the cost of returning her would exceed the bond amount.

Count 2 of the indictment alleged attempting to hinder apprehension and punishment based on the events from October 4 through October 16. Count 3 charged attempt to commit bail jumping based on the purchase of the bus ticket and encouraging of McKenzie to leave Georgia and not appear for court dates.

1. On December 26, 1990, prior to trial beginning January 31, 1991, Harrison’s present counsel made a motion for disclosure of “all tape recorded evidence” to be used by the State at trial and other tapes containing her voice. The motion also requested an in-camera inspection of the tapes to determine if they contained any exculpatory material. The in-camera review was conducted by the court and no such evidence was found. Denial of pretrial disclosure of the tapes is enumerated as error on the basis it denied Harrison due process and the right to effective assistance of counsel under the United States and Georgia Constitutions.

The written motion did not seek to have the tapes reviewed by experts nor was any allegation made that the tapes had been tampered with or altered. The focus of the motion was that because Harrison was “simply unaware of what she allegedly said,” she could not prepare to explain the statements at trial without review of the tapes. Also, the motion stated that if the State intended to use transcripts, the defense had the right to hear the tapes and examine the State’s transcripts for accuracy.

In Sabel v. State, 248 Ga. 10, 17-18 (6) (282 SE2d 61) (1981), the Supreme Court held that “[a] criminal defendant ... is entitled on motion timely made to have an expert of his choosing, bound by appropriate safeguards imposed by the court, examine critical evidence whose nature is subject to varying expert opinion.”

In Carpenter v. State, 252 Ga. 79, 80 (310 SE2d 912) (1984), the Sabel rationale was used to analyze a request for pretrial expert examination of tape recordings. The Supreme Court there concluded that the tapes were not “critical” evidence because the State’s case included testimony of officers who overheard the conversations as they were being taped via an FM transmitter, along with notes between the accused and other parties to the conversations. Id. at 81. Similarly, here, McKenzie, the other participant in the conversations, testified, as did the agents and Cagle who overheard some FM transmissions as well as McKenzie’s side of some conversations. The bus company employee who sold the ticket identified Harrison as the one who purchased the ticket with cash and handed it to McKenzie. McKenzie and the agents who overheard the transmission testified similarly. During the trial of the case, the defense was allowed to hear the tape made of the face-to-face bus station meetings during a lunch break.

Since Harrison requested “all” the tapes, it is not clear that she carried her burden of making a specific and not general request for critical information. Green v. State, 250 Ga. 610 (1) (299 SE2d 544) (1983).

Harrison testified and acknowledged the phone calls and meetings with McKenzie and making some of the statements. She said she did not recall making others. Her defense was that she thought McKenzie was only leaving for a short while and Harrison had no intent to have her jump bail or leave permanently. She relied upon the defense of entrapment.

Here, we find no basis in the record for concluding that the tapes, which are included in the record and have been reviewed, were in fact subject to varying expert opinion. Reinhardt v. State, 197 Ga. App. 825, 826 (1) (399 SE2d 729) (1990). While defense counsel would have preferred to have had all the State’s evidence before trial, and contends that he could have presented a better defense if he had, the failure of the court to order the evidence produced before trial was not reversible error. Id. at 827. The fact that Harrison, the other participant in all of the taped events and conversations, was unable to adequately recall any of the events and assist her counsel in this way does not provide an adequate basis for the relief requested.

2. The second enumeration alleges that the denial of the motion for disclosure and inspection of the transcripts and tapes denied Harrison effective assistance of counsel under both United States and Georgia Constitutions. The effective assistance of counsel right was cited as a basis for the motion below.

Neither a motion for new trial nor a request for evidentiary hearing on the issue of ineffective assistance of counsel was made at the trial level. No factual showing was made by counsel as to how earlier availability of the tapes and transcripts would have changed trial strategy. Dawson v. State, 258 Ga. 380, 381 (3) (369 SE2d 897) (1988). Even if the contention is that counsel was ineffective as a matter of law on this ground, a hearing is still necessary in such a situation. See Williams v. State, 257 Ga. 311, 312 (2) (357 SE2d 578) (1987).

Counsel who made the motion below is appellate counsel. Defense counsel is precluded from presenting a claim of ineffective assistance of counsel concerning a trial in which he participated due to the ethical prohibition against a lawyer acting as a witness. Dobbs v. State, 199 Ga. App. 793, 796 (5) (406 SE2d 252) (1991); McGuire v. State, 185 Ga. App. 233, 238 (363 SE2d 850) (1987); see Castell v. Kemp, 254 Ga. 556 (331 SE2d 528) (1985).

“Although the defendant’s right to raise ineffective assistance of counsel is not waived under these circumstances, we do not address it because the issue is not properly before this court for consideration.” Dobbs, supra.

3. The argument made in the third enumeration was not presented to the court below and will not be considered here for the first time. Barnwell v. State, 197 Ga. App. 116, 118 (4) (397 SE2d 717) (1990). Moreover, the revamping of the discovery rules in criminal cases as apparently sought by Harrison is the province of the legislature, not this court.

4. At the close of the State’s case, a motion for directed verdict was made by Harrison. Her fourth enumeration contends it was error to deny that motion as to count 3, the attempt to commit felony bail jumping. OCGA §§ 16-10-51 (a); 16-4-1.

The premise for the motion was that there was insufficient proof that Harrison knew or believed that McKenzie had received “actual notice” to appear in court on the burglary charge.

Although the motion was made only at the close of the State’s evidence, on appeal we consider all the evidence. Parker v. State, 181 Ga. App. 590, 591 (1) (353 SE2d 83) (1987). This court determines whether there was legally sufficient evidence to support the verdict. Causey v. State, 154 Ga. App. 76, 77 (1) (267 SE2d 475) (1980).

OCGA § 16-10-51 (a) requires that a person who has been charged with a felony and set at liberty on bond, “after actual notice ... or notice ... by mailing to his last known address or otherwise being notified personally in writing by a court official ... he fails without sufficient excuse to appear at that time and place.”

An attempt requires a person to perform a substantial step toward the commission of the crime with the intent to commit that specific crime. OCGA § 16-4-1.

While Harrison focuses on claimed uncertainty as to the date when McKenzie was to appear on the burglary charge, specificity of date is not necessary where, as here, the evidence showed that Harrison, having bailed McKenzie out on the felony burglary charge, was aware of its pendency and discussed with McKenzie how she would have notice of any court dates. Further, Harrison advised McKenzie that, whenever that date was, if McKenzie remained gone for two years from that time, the bonding company would quit looking for her. Harrison advised McKenzie to call her in April or May of 1991, after telling McKenzie that “[i]t (the burglary charge) won’t even come up until like January or February [1991].”

The evidence was sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

5. Enumerations 5 and 6 deal with claimed infirmities in the sentence imposed.

Harrison was sentenced to two-and-a-half years to serve on Count 1, two-and-a-half years on Count 2, consecutive to the sentence on Count 1, and two-and-a-half years on Count 3, concurrent to Count 1. Harrison was also prohibited from participating in the bonding business.

At the time of the sentencing, no objection was made to the consecutive sentences, nor was any voiced as to the ban from the bonding business.

Here, Harrison contends the consecutive sentences were inappropriate because the charges on Counts 1 and 2 involved the same conduct and the dates of the conduct, alleged over different periods of time, were not alleged as material or essential elements. This argument was not made below, presenting nothing for our review. Alonso v. State, 190 Ga. App. 26, 30 (7) (378 SE2d 354) (1989); Hill v. State, 183 Ga. App. 654, 658 (4) (360 SE2d 4) (1987) (physical precedent). Compare State v. McCrary, 259 Ga. 830 (1) (388 SE2d 682) (1990).

Decided October 10, 1991

Reconsideration denied October 23, 1991

Garland & Samuel, Edward T. M. Garland, Donald F. Samuel, Kathleen V. Duffield, for appellant.

Robert F. Mumford, District Attorney, for appellee.

We note that the indictment here alleged two separate offenses, including different facts as well as different dates, upon which Harrison was properly sentenced consecutively. Garrett v. State, 147 Ga. App. 666, 667 (2) (250 SE2d 1) (1978), aff’d 243 Ga. 322 (253 SE2d 741) (1979); Williams v. State, 133 Ga. App. 66, 67 (4) (209 SE2d 729) (1974).

Finally, the court banned Harrison from engaging in the bonding business in Georgia. A sentence or portion thereof that is unauthorized by law is a nullity and void. Mullins v. State, 134 Ga. App. 243 (214 SE2d 1) (1975). Here, there was no probation, nor was any portion of the sentence suspended and defendant placed on probation. OCGA § 42-8-34 (c). Therefore, there was no probation to which to attach conditions, such as not engaging in a particular business, assuming the reasonableness of such a condition. Parrish v. State, 182 Ga. App. 247, 248 (2) (355 SE2d 682) (1987); Grant v. State, 176 Ga. App. 460 (1) (336 SE2d 354) (1985). This portion of the sentence is void and must be stricken upon return to the superior court.

Judgment affirmed with direction.

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

       Defendant was acquitted of making a false statement to the police.

       This conversation was the basis of Count 4, the false statement charge, of which Harrison was acquitted. During the conversation, Harrison told the agents McKenzie might be in Tennessee or Texas.

       Even if the court had refused the request for in-camera review of the tapes, since all were produced and played at trial, defendant would not be entitled to reversal solely on that basis. Smith v. State, 171 Ga. App. 758, 760 (2) (321 SE2d 213) (1984). Also, an accused’s own non-custodial statements recorded on tape are not subject to discovery under a Brady request. Fancher v. State, 190 Ga. App. 438, 440 (3) (378 SE2d 923) (1989).

       McKenzie, upon defense counsel’s oral motion to be allowed to interview her, was personally interviewed by the judge who concluded that she was afraid of Harrison and did not wish to be interviewed.

       Three notices with different appearance dates were sent to McKenzie who was asked not to appear by the GBI as part of the continuing investigation.


text:
    A91A1546.
    LAMB v. DECATUR FEDERAL SAVINGS & LOAN ASSOCIATION.
    (411 SE2d 527)
   Birdsong, Presiding Judge.

This appeal arises out of a suit for rent on a commercial lease transaction brought by appellee, Decatur Federal Savings & Loan Association (Decatur Federal) against T. Gordon Lamb, d/b/a Lamb & Associates (Lamb), a law firm. After both sides rested, the trial court granted appellee’s motion for directed verdict.

On April 1, 1986, appellant entered a written lease for certain office space of appellee; the lease ran through September 1, 1991. In 1988, certain informal discussions began between the parties regarding the early termination of the lease. Appellee testified, through its agents, that appellant made an offer to terminate the lease, but coupled its offer with certain requirements for concessions; accordingly, appellee never accepted the terms of the offer. Appellant Lamb and his brother testified at trial, and on appeal Lamb contends that appellee Decatur Federal made the offer for early termination, through its agents, that the offer for early termination was accepted, and that an oral contract to this effect thereby arose between the parties. For purposes of this appeal, we will accept as factual that the offer to terminate the lease originated from appellee Decatur Federal. The uncontroverted evidence shows that the Lamb law firm is a proprietorship, and that only T. Gordon Lamb is empowered to enter binding contracts in behalf thereof.

In granting appellee’s motion for directed verdict, the trial court in essence found that, following an offer for early termination by Decatur Federal, Lamb wrote a letter, dated February 2, 1990, which constituted a counteroffer thereby rejecting and negating the original offer of Decatur Federal; and, that thereafter Decatur Federal did not assent to the terms of the Lamb counteroffer. In opposition, Lamb asserted before the trial court that his letter of February 2 did not contain a rejection of the Decatur Federal offer, and that prior to Decatur Federal’s response to Lamb’s suggestion (wherein Decatur Federal denied the existence of any agreement for early lease termination and demanded compliance with the terms of the written lease) he had accepted unconditionally the Decatur Federal offer by his actions “by moving without receiving any response to the concessions.” Lamb also asserted he had “at no time received, prior to [his] commitment to move and [his new leasing] contract . . . response from anyone [at Decatur Federal] saying that they had withdrawn that offer [for early lease termination].” Held:

1. Appellant argues the trial court erred in invading the province of the jury by finding as a matter of fact that appellant’s letter of February 2, 1990, constituted a rescission of a prior oral contract between appellant and appellee; and, that the trial court erred by determining the lease in question was not terminated between the parties by a new oral contract for early lease termination.

Appellant’s third and fifth enumerations of error are without merit. Appellant in effect asserts before this court as he did before the trial court that his letter of February 2 does not constitute a counteroffer. Appellant has not directed our attention to any portion of the trial record which would show that he (being as was uncontrovertedly established by his own testimony the only person entitled to enter binding contracts on behalf of the Lamb law firm) ever accepted the oral offer of Decatur Federal to terminate the lease prior to his letter of February 2.

The February 2 letter reads pertinently as follows: “Over the past several months, our offices have discussed an early termination of our lease, as it appears that Decatur Federal may have need for this space prior to our lease expiration date. . . . This may be an opportune time to make such a move, as there appears to be numerous, comparable and acceptable locations with adequate space to accommodate this firm. However, as discussed in the past, the cost of relocating this firm, including moving cost, computer and telephone installation, and the time and expense of employees in reorganizing will be substantial. Recently, we have discussed with Lillian Deaver several concessions we request of Decatur Federal for vacating the premises early. ... I would suggest a reasonable agreement as follows: Decatur Federal would retain that deposit, allow three month’s free rent, by which time we would be able to relocate, and pay $10,000.00 to reduce the extreme expense of this relocation. I look forward to working with you in this matter and await your response.” (Emphasis supplied.)

In accordance with OCGA § 13-3-1, to form a valid contract there must be a subject matter, a consideration, and mutual assent by all parties to all the terms. In this regard, acceptance of an offer must be unconditional, unequivocal, and without variance of any sort; otherwise, there can be no meeting of the minds and mutual assent necessary to contract formation. Accordingly, a subsequent communication by one party to the alleged contract that varies even one term of the original offer is a counteroffer. Panfel v. Boyd, 187 Ga. App. 639, 645 (3) (371 SE2d 222). A counteroffer operates to reject an offer and to terminate the power of acceptance. Duval & Co. v. Malcom, 233 Ga. 784, 787 (2) (214 SE2d 356). Thus, “ ‘[a]n attempted acceptance which seeks to modify one or more terms of the offer is of no legal effect as an acceptance. It is really a rejection of the offer, and a counter-proposition in lieu of the original offer, and must be accepted by the party making the original offer, in order to constitute an agreement.’ [Cit.] ‘An offer, when once rejected, loses its legal force and cannot be accepted thereafter so as to create a binding agreement unless it is renewed after the rejection by the original offerer. No revocation of the offer is, therefore, necessary to prevent its subsequent acceptance after it has once been rejected.’ [Cit.] ‘A proposal to accept, or an acceptance, upon terms varying from those offered, is a rejection of the offer, and puts an end to the negotiation, unless the party who made the original offer renews it, or assent to the modification suggested.’ ” Winder Mfg. Co. v. Pendleton Co., 27 Ga. App. 476, 478 (108 SE 823). The February 2 letter on its face unequivocally constituted a counteroffer, as a matter of law, thereby rejecting the original offer; the record contains no evidence showing that Decatur Federal thereafter renewed its original offer or assented to the modification suggested in Lamb’s counteroffer. Moreover, as the counteroffer acted to reject immediately and nullify the original offer (Duval, supra; Winder, supra), any subsequent performance on the part of appellant in quitting the premises could not unilaterally breathe life into the then non-existing original offer; appellee having declined to assent to the counteroffer could and did withdraw its original offer or proposition for early lease termination (OCGA § 13-3-2).

Considering the posture of this record in toto, we find the trial court did not err as asserted and properly relied on the precedent of Winder as dispositive of the issue of non-formation of the alleged oral contract.

2. Appellant asserts the trial court erred by supplanting the jury in ruling as a matter of fact that appellee did act reasonably and fulfilled its responsibility to mitigate damages, and in failing to place the issue of mitigation and the amount thereby owing from appellant to appellee under jury consideration.

In view of our holding in Division 1 above, we find it was appellant who repudiated the lease agreement. In Duff’s Enterprises v. B. F. Saul &c. Trust, 170 Ga. App. 9, 10, n. 1 (316 SE2d 21), it was observed that unlike some jurisdictions Georgia does not require mitigation of damages in lease contracts. See generally Cobb & Eldridge, Ga. Law of Damages, § 28-15. Thus, in Georgia notwithstanding the provisions of OCGA § 13-6-5, “ ‘the general rule, that it is the duty of a party suffering from the breach of a contract to diminish, if possible, the damages, has no application to a contract of lease. . . . While generally a plaintiff must mitigate his damages when the defendant has breached a contract and while damages are generally a question for the jury, yet. . . where a lessee has breached his lease contract the landlord is entitled to recover his past-due rents less only what he has received from any new tenant.’ ” Peterson v. Midas Realty Corp., 160 Ga. App. 333, 334 (287 SE2d 61). “A surrender of premises by a lessee has no legal effect until accepted by the lessor. [Cits.] The mere entry upon the premises ... to protect the property after abandonment by the lessee will not amount to an acceptance of a surrender of a lease. [Cits.] Abandonment by the tenant [as occurred in this case] permits the landlord under the terms of the lease to terminate the lease, or to enter and obtain another tenant holding the original tenant liable for any deficiency, or to permit the premises to remain vacant and collect the agreed rent each month.” (Emphasis supplied.) Kimber v. Towne Hills Dev. Co., 156 Ga. App. 401 (1), 402 (274 SE2d 620). The uncontroverted evidence of record shows that appellee entered the premises in an attempt to obtain another tenant for the remainder of the lease term, and being unable to do so allowed the premises to remain vacant; and, there is no evidence that appellee either has received any sum as rent from any other source after appellant’s breach or has made personal use of the leased premises so that it has obtained a direct benefit therefrom. Compare Szabo Assoc. v. Peachtree-Pied mont Assoc., 141 Ga. App. 654 (234 SE2d 119); Dehco, Inc. v. Greenberg, 105 Ga. App. 236, 238 (2) (124 SE2d 311). In such circumstances mitigation of damages caused by appellant’s breach of the lease agreement is not required. Duff’s Enterprises, supra; Peterson, supra. Further, assuming mitigation of damages was required it is appellant who bears the burden of alleging and proving as a defensive matter appellee’s failure to mitigate (Western Host Atlanta v. Bass, 183 Ga. App. 160 (1) (358 SE2d 312); Mimms v. Betts Co., 9 Ga. App. 718 (2) (72 SE 271)), and “[s]uch a contention must be supported by evidence from which a jury could reasonably estimate the amount by which damages could have been mitigated” (Considine Co. &c. v. Turner Comm. Corp., 155 Ga. App. 911, 913 (3) (273 SE2d 652)). Appellant has not met its burden in this regard. Thus, appellant “did Dot show as a matter of law, so as to preclude recovery altogether or of a particular amount, that plaintiff failed to mitigate his damages or to what extent he failed.” Central Nat. Ins. Co. &c. v. Dixon, 188 Ga. App. 680, 682 (3) (373 SE2d 849). Appellant’s fourth and sixth enumerations of error are without merit.

3. Where there is no evidentiary conflict as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed; thus, direction of a verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. Armech Svc. Co. v. Rose Elec. Co., 192 Ga. App. 829, 831 (2) (386 SE2d 709). In view of our holdings in Divisions 1 and 2 above, and applying the principles of law pertaining to directed verdicts in light of the posture of the evidence in this case, we find that the trial court did not err in granting a directed verdict in favor of appellee, and that appellant’s first and second enumerations of error are without merit.

Judgment affirmed.

Pope and Cooper, JJ., concur.

On Motion for Reconsideration.

In his motion for reconsideration, appellant attacks the statement of fact in our opinion that the uncontroverted evidence shows that T. Gordon Lamb is the only individual empowered to enter binding contracts in behalf thereof, and our statement that the law firm was a proprietorship. In so doing appellant states: “However, factually, such is not the case inasmuch as Herbert Lamb, as an agent for T. Gordon Lamb and T. Gordon Lamb d/b/a Lamb & Associates was empowered to act on behalf of T. Gordon Lamb d/b/a Lamb & Associates in such capacity as negotiation of lease agreements.” (Emphasis supplied.) Our examination of the trial transcript does not support this contention. We find that Herbert Lamb testified: “Again, I am not a signer of any of the leases. I am simply an employee of the firm. And I, of course, took this information to Gordon.” (Emphasis supplied.) Appellant, T. Gordon Lamb, after having been placed under oath was cross-examined as to certain of the contents of a letter, plaintiff’s Exhibit 13, written by appellant to a certain third party. In plaintiff’s Exhibit 13, appellant wrote: “I wish to apprise you that Lamb & Associates is a proprietorship with T. Gordon Lamb as the owner. T. Gordon Lamb is the only individual who has authority to bind Lamb & Associates to any agreements whatsoever.” In court, without posing any objection, appellant testified and admitted that he had claimed in the letter that Lamb & Associates “was a proprietorship.” Thereafter, in response to a question as to whether the situation has changed; can Herbert Lamb bind Lamb & Associates, appellant testified: “No, he can’t sign any contracts on my behalf.” He further testified that Herbert Lamb could not bind Lamb & Associates, that he could not bind Lamb & Associates orally, and that it was he and not Herbert Lamb who accepted appellee’s alleged offer to terminate early.

Decided October 1, 1991

Reconsideration denied October 23, 1991.

Lamb & Associates, Dennis E. Henry, R. Craig Henderson, for appellant.

McCurdy & Candler, Donald C. Suessmith, Jr., Dana B. Miles, for appellee.

The above discussed testimony constituted an admission in open court that Herbert Lamb was only an employee of the firm, Herbert Lamb could not sign any contracts in behalf of appellant, Herbert Lamb could not bind Lamb & Associates, and he could not bind Lamb & Associates orally. An admission in open court is an admission in judicio; a judicial admission is conclusive. See generally Lingerfelt v. State, 255 Ga. 180 (3) (336 SE2d 250); Hargroves v. State, 179 Ga. 722, 725 (177 SE 561); Johnson v. State, 171 Ga. App. 91 (1) (318 SE2d 799); Cape v. State, 165 Ga. App. 825 (303 SE2d 77).

Additionally, appellant has failed to cite any page in the trial transcript or record where evidence was introduced to controvert the above testimony of appellant and his brother. Appellant must show error by the record; it is not the function of this court to cull the record on behalf of a party in search of instances of error. Manderson & Assoc. v. Gore, 193 Ga. App. 723, 733 (8) (389 SE2d 251), citing Armech Svc. Co. v. Rose Elec. Co., supra at 830.

Motion for reconsideration denied.