text:
    A00A2318.
    MELVIN v. THE STATE.
    (542 SE2d 140)
   Ruffin, Judge.

A Lowndes County jury found Jerry Melvin guilty of armed robbery and possession of a firearm during the commission of a crime. On appeal, Melvin challenges the sufficiency of the evidence. He also contends that the trial court erred in permitting the prosecutor to make prejudicial remarks in closing argument. Melvin’s contentions lack merit, and we affirm.

1. On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury’s verdict. So viewed, the evidence shows that, on December 21, 1998, Marie Gilliland, a clerk in a convenience store, was waiting on a female customer. Two men entered the store together and walked to the back. After the customer paid for her purchases and left, the two men returned to the front of the store. While one man, later identified as Melvin, stood by the front door, the other man walked to the cash register, produced a gun, and demanded money. According to Gilliland, the gunman told her to give him the money or he would “blow [her] brains out.” Gilliland handed the gunman money from the safe. She testified that, once the gunman had the money, Melvin “eased out” of the convenience store, followed by the gunman.

As Melvin was leaving, he was spotted by Arthur Fiffie, who was on his way into the store to do some shopping. According to Fiffie, Melvin was leaving with two other men. Fiffie called out to Melvin, who “broke off” from the other two and stopped to talk to Fiffie while the other men kept walking. While talking to Fiffie, Melvin said nothing about having witnessed an armed robbery.

Sergeant Ben Brinson of the Valdosta Police Department questioned Melvin about the crime. According to Brinson, Melvin “advised [him] that he went to the [convenience store], and when he walked in, there was a black male inside robbing the store. [Melvin] said he just stood at the door while the guy proceeded to rob the store.” Contrary to Melvin’s contention, this evidence was sufficient to support the jury’s finding of guilt.

Melvin argues that he cannot be found guilty based upon his mere presence at the scene of the crime. While it is true that

mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.

Here, Melvin entered the store with the gunman and walked with him to the back of the store. After the lone customer left the store, Melvin walked with the gunman back to the front of the store and stationed himself by the front door. Only after the gunman obtained money from the cashier did Melvin leave. Moreover, Melvin’s statement that he entered the store while the robbery was in progress was flatly contradicted by Gilliland’s testimony.

Based on this evidence, the jury was authorized to conclude that Melvin was a lookout for the gunman, not an innocent bystander who, although conveniently positioned next to the front door of the store, chose to stay for the duration of the armed robbery rather than flee. And, although Melvin did not actually wield the gun, any person who “[intentionally aids or abets in the commission of [a] crime” may be convicted of committing the crime.

2. In his second enumeration of error, Melvin claims that the trial court erred in allowing the prosecutor to make “improper and prejudicial comments” in closing argument. During closing, the prosecutor stated:

[I]t comes to a point where you have to make a determination as to truth and fiction, you look at [Melvin’s] credibility, whether or not a statement or a witness that has testified has a reason not to be truthful, has something to gain or benefit. And I think when you compare the statements that Jerry Demetrius Melvin. . . .

At this point, Melvin’s attorney objected, arguing that his client did not testify and, thus, his credibility was not at issue. In addition, he argued that the prosecutor’s remarks were “getting awful close to . . . commenting on ... [a defendant’s] right to testify or not testify.” Although the trial court overruled the objection, it instructed the jury that a defendant has a right to not testify and that the jury was not to draw any inference from the defendant’s exercise of that right. Rather than requesting additional instructions or moving for a mistrial, Melvin’s attorney thanked the trial court.

Decided November 8, 2000.

Vernita L. Lee, for appellant.

J. David Miller, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.

If a defendant is dissatisfied with a trial court’s curative instruction, it is incumbent upon him either to move for a mistrial or to request additional relief, and failure to do so precludes appellate review. Here, Melvin’s failure to either renew his objection or move for a mistrial following the trial court’s instruction to the jury precludes us from addressing the alleged error on appeal.

Judgment affirmed.

Andrews, P. J., and Ellington, J, concur.

        Murray v. State, 239 Ga. App. 659 (522 SE2d 48) (1999).

       Although Fiffie recognized Melvin, he could not remember his name and called out a nickname. Fiffie, who had attended high school with Melvin, subsequently identified Melvin from a yearbook.

       (Punctuation omitted.) Peppers v. State, 242 Ga. App. 416, 417 (1) (530 SE2d 34) (2000).

       OCGA § 16-2-20 (a), (b) (3).

       Melvin’s attorney also argued that the prosecutor was improperly injecting his personal feelings into the closing argument, but Melvin does not address this contention on appeal. Accordingly, this argument is deemed abandoned. See Vick v. State, 237 Ga. App. 762, 763 (1) (516 SE2d 815) (1999).

        Wells v. State, 243 Ga. App. 629, 631 (3) (534 SE2d 106) (2000).

       See Miller v. State, 240 Ga. App. 18, 19 (2) (522 SE2d 519) (1999).


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A00A2451.
    KWICKIE/FLASH FOODS, INC. v. LAKESIDE PETROLEUM, INC.
    (541 SE2d 699)
   Eldridge, Judge.

Appellee-plaintiff Lakeside Petroleum, Inc. (“Lakeside”) brought the instant action for breach of contract or, in the alternative, for quantum meruit or unjust enrichment against appellant-defendant Kwickie/Flash Foods, Inc. (“Flash Foods”). Lakeside sought damages in the amount of $21,297.42, the balance owing for gasoline and diesel fuel it delivered to a Milledgeville Flash Foods store. Flash Foods timely filed its answer denying the material allegations of the complaint and admitting its receipt of such fuel in the alleged amount under a contract between the parties. Thereafter, Lakeside filed its motion for judgment on the pleadings, arguing that Flash Foods had otherwise admitted liability for the value of the fuel on quantum meruit or an unjust enrichment theory, Counts 2 and 3 of the complaint, respectively. Flash Foods now appeals from the superior court’s order granting Lakeside judgment on the pleadings in the sum of $21,297.42, as well as its costs of litigation and interest. Held:

“The grant of a motion for judgment on the pleadings under OCGA § 9-11-12 (c) is proper only where there is a complete failure to state a cause of action or defense. Pressley v. Maxwell, 242 Ga. 360 (249 SE2d 49) [(1978)].” Maxwell v. Cronan, 241 Ga. App. 491, 493 (1) (527 SE2d 1) (1999). “ Tor the purposes of the motion, all well-pleaded material allegations of the opposing party’s pleading are to be taken as true, and all [well-pleaded] allegations of the moving party which have been denied are taken as false.’ [Cits.]” Pressley v. Maxwell, supra at 360.

Recovery in quantum meruit is not authorized when, as here, the claim is based on an express contract, Stowers v. Hall, 159 Ga. App. 501 (1) (283 SE2d 714) (1981); Brumby v. Smith & Plaster Co., 123 Ga. App. 443 (181 SE2d 303) (1971); see also Millican Elec. Co. v. Fisher, 102 Ga. App. 309, 310 (1) (116 SE2d 311) (1960) (“The averment of an express contract within the allegations of a single count predicated on the theory of quantum meruit is sufficient to subject the count to demurrer[.] [Cit.]”). Neither does an unjust enrichment theory lie where there is an express contract. Cochran v. Ogletree, 244 Ga. App. 537, 538 (1) (536 SE2d 194) (2000); Zampatti v. Tradebank Intl. Franchising Corp., 235 Ga. App. 333, 340 (5) (508 SE2d 750) (1998).

While Lakeside argues that Flash Foods otherwise admitted liability on quantum meruit and an unjust enrichment theory by its answer, the record shows that Lakeside pled its entitlement to recovery on these theories on the basis of the contract between the parties alone. Pretermitting whether Flash Foods answered, in part, by admitting the elements of an action in quantum meruit or unjust enrichment, Flash Foods nevertheless denied liability for damages under either theory. Doing so sufficiently stated a defense to each claim, i.e., neither Count 2 (quantum meruit) nor Count 3 (unjust enrichment) alleged a cause of action as based on the contract between the parties. Stowers v. Hall, supra; Brumby v. Smith & Plaster Co., supra; Millican Elec. Co. v. Fisher, supra; Cochran v. Ogletree, supra; Zampatti v. Tradebank Intl. Franchising Corp., supra. As a consequence, the superior court erred in granting Lakeside’s motion for judgment on the pleadings as to Counts 2 and 3 of the complaint. Pressley v. Maxwell, supra. Finally, Flash Foods, having sufficiently stated its defense by general denial as to Count 1 (breach of contract), see Knickerbocker Tax Systems v. Texaco, 130 Ga. App. 383, 385 (203 SE2d 290) (1973) (express denial of the allegations of the complaint sufficient to create a triable issue), overruled on other grounds, Eckles v. Atlanta Technology, 267 Ga. 801, 806 (485 SE2d 22) (1997), Lakeside would not have been entitled to judgment on the pleadings on this basis even had such relief been sought. See Pressley v. Maxwell, supra at 360; Maxwell v. Cronan, supra at 493 (1). For the foregoing reasons we must reverse.

Decided November 8, 2000.

Gibson & Spivey, Douglas L. Gibson, for appellant.

Robert D. Schoen, for appellee.

Judgment reversed.

Blackburn, P. J., and Barnes, J., concur.

       The complaint does not specify whether the contract was oral or written.

       However, the contrary is true in the absence of such a contract or in circumstances where the contract has been repudiated by the parties. Brumby v. Smith & Plaster Co., 123 Ga. App. 443, 444 (1) (181 SE2d 303) (1971). If “there is no specific contract or the contract agreed to is repudiated by both parties, an action sounding in quantum meruit will lie for whatever work was done and accepted.” Stowers v. Hall, 159 Ga. App. 501, 502 (3) (283 SE2d 714) (1981). Recovery in quantum meruit also lies in the event a written employment contract is breached by the employer. OCGA § 10-6-37; Gilbert v. Powell, 165 Ga. App. 504, 508 (2) (301 SE2d 683) (1983); Redman Dev. Corp. v. Pollard, 131 Ga. App. 708, 710 (206 SE2d 605) (1974).


text:
    A00A2469.
    JACKSON v. THE STATE.
    (541 SE2d 701)
   Eldridge, Judge.

A Turner County jury found Zachery Jackson guilty of being a party to the crime of the burglary of R. Giddens’ home in Ashbum. Jackson appeals by challenging the sufficiency of the evidence and by claiming error in the content of the trial court’s charge to the jury on “mere presence.” Finding no merit to either contention, we affirm.

1. Jackson first challenges the sufficiency of the evidence corroborating the testimony of co-defendant James Hope, who pled guilty prior to trial and testified for the State. In that regard, Here, Hope’s testimony established that, using his own car, he drove appellant Jackson and a third co-defendant, Anthony Bentley, to victim Giddens’ house; that Jackson was in the front passenger seat and Bentley was sitting in the backseat; that, upon arrival at the victim’s residence, Jackson and Bentley entered the house and Giddens’ safe was brought into the front yard; that Giddens returned home unexpectedly in the middle of the burglary; that Jackson and Bentley saw Giddens and jumped back into Hope’s car; that Hope drove off into a field and Giddens gave chase; that Hope then engaged in a “high speed chase through the cotton patch”; that the chase dead-ended in the woods and Hope “couldn’t find a way out”; that Jackson, Hope, and Bentley abandoned the car and ran though the woods on foot; that Jackson and Bentley were “hanging buddies in the street so they decided to go their way” and Hope went his way alone; and that Hope made his way to a dirt road where he caught a ride home.

[i]n Georgia, a defendant may not be convicted on the uncorroborated testimony of an accomplice. OCGA § 24-4-8. The corroboration must be independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty. However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict. The corroborating evidence may be circumstantial. The sufficiency of corroborating evidence should be peculiarly a matter for the jury to determine.

Hope’s testimony was corroborated by testimony from victim Giddens and the officers involved in the case which established that Giddens came home in the middle of the burglary; that a car was parked in his drive; that one man was in his yard and another man was exiting Giddens’ house carrying his safe, which he dropped in the yard; that, upon seeing Giddens, one of the two men jumped into the passenger side of the front seat and the other into the backseat of the car; that the car took off into a field and Giddens gave chase; that the perpetrators drove into a wooded area where “[tjhere was no way out”; that the perpetrators abandoned the car and took off through the woods on foot; that the car had paperwork in it showing Hope as its owner; that the police called a canine unit into the area where the car was abandoned and proceeded to track the suspects through the woods in that area; that a helicopter unit was called in; that the police were also “riding the roads, trying to keep them pinned down to an area”; that Jackson and Bentley were found on a dirt road in the general area the police had cordoned off; that Jackson and Bentley were on foot “in the middle of nowhere”; that they were very muddy and their clothes were disheveled; that their appearance was consistent with “where the chase had gone through”; and that both men “looked very out of place in that area” of Turner County. When asked what they were doing, the men replied that “they were just walking,” although both men apparently lived in Worth County. We find this evidence provides sufficient corroboration of co-defendant Hope’s testimony so that a rational trier of fact could find Jackson guilty beyond a reasonable doubt of being a party to the crime of burglary as charged in the indictment.

2. Jackson claims reversible error in the trial court’s jury instruction on “mere presence.” We disagree.

Jackson took the stand in his defense and testified that co-defendant Hope was the only perpetrator of the burglary and that he and Bentley had unknowingly accepted a ride with Hope just prior thereto. Jackson testified that he fled from the scene because victim Giddens had a gun. In furtherance of this defense, Jackson submitted a request to charge on “mere presence” that stated “[m]ere presence at the scene of a crime or where criminal acts are committed, even when coupled with flight, is insufficient to authorize conviction.”

The trial court agreed to give an instruction on this principle that was phrased, in essence, “presence and flight without more is not enough.” The record shows that the trial court specifically intended that “ ‘[w]ithout more’ is going to be right after ‘even if coupled with flight.’ It’s going to be phrased just like I have it.” Defense counsel agreed with this instruction. However, the record reflects that, when charging the jury, the trial court stated, “[t]he presence of a person at the scene of the commission of a crime at the time of its perpetration, even when coupled without flight, without more, will not authorize a jury to find the person who was merely present guilty.” (Emphasis supplied.)

Clearly, based on the trial court’s expressed intentions, “without flight” was a palpable slip of the tongue. But we do not find reversible error therein. Jackson was charged in the indictment as a party to the crime; his presence at the scene and his conduct with his co-defendants before, during, and after the offense, including his flight with Hope and Bentley, may be used to infer his guilt as a party to the crime. Thus, any misstatement regarding “flight” in relation to “mere presence” is rendered harmless. The court’s charge on “mere presence” was otherwise a correct statement of the law, and “[u]nder such circumstances, viewing the charge as a whole, we find that the error caused by the trial court’s slip of the tongue was harmless, and as such, does not warrant reversal.”

Further, in this case, the trial court specifically sent out with the jury a written copy of its entire jury instructions, which included the originally intended statement on “flight” in relation to “mere presence,” as agreed upon during the charge conference. Moreover, the trial court established on the record that the jury, in fact, reviewed the written instructions and found them “helpful.” Under such circumstances, the jury had before it a correct version of the instruction about which Jackson complains, and any confusion engendered by the trial court’s slip of the tongue during the oral charge is rendered harmless.

Decided November 8, 2000.

Benjamin Gratz, Jr., for appellant.

C. Paul Bowden, District Attorney, Kevin E. Hutto, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       (Citations and punctuation omitted.) Short v. State, 234 Ga. App. 633, 635 (507 SE2d 514) (1998).

       The jury hung on the issue of Bentley’s guilt.

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

        Jackson v. State, 239 Ga. App. 77, 81 (519 SE2d 746) (1999); Cummings v. State, 227 Ga. App. 564, 566 (489 SE2d 370) (1997); Wakily v. State, 225 Ga. App. 56, 57 (1) (483 SE2d 313) (1997); Okongwu v. State, 220 Ga. App. 59, 60-61 (467 SE2d 368) (1996).

       (Citation and punctuation omitted.) Turner v. State, 241 Ga. App. 431, 437 (6) (b) (526 SE2d 95) (1999).

       See generally Anderson v. State, 262 Ga. 26, 27 (3) (413 SE2d 732) (1992); Patterson v. State, 264 Ga. 593 (449 SE2d 97) (1994).


text:
    A00A2497.
    VICKERS v. THE STATE.
    (541 SE2d 694)
   Eldridge, Judge.

A Gwinnett County jury found Thomas C. Vickers guilty of driving with a suspended license, driving without insurance, and no proof of insurance, which charges arose following an automobile accident wherein a GMC Jimmy truck improperly pulled out into oncoming traffic and was struck by Vickers’ Chevrolet Astro van. Vickers appeals, raising four enumerations of error which, upon review, are without merit. Accordingly, we affirm his conviction.

1. In his first two enumerations of error, Vickers challenges the sufficiency of the evidence against him because both he and his father, Ted Vickers, testified that he was not driving the Astro van at the time of the collision; his father was. However, the State presented evidence from a passenger in the GMC Jimmy who testified unequivocally that Thomas Vickers was driving the van at the time of the collision. Further, the investigating officer took statements from the driver of the Jimmy and both passengers that Thomas Vickers was driving the van. The officer testified that he arrested Vickers

based on statements and written statements from the passengers and the driver of Vehicle No. 1 [GMC Jimmy]. I weighed that against what Mr. Ted Vickers [father] may have vested in it to keep his son from going to jail. I didn’t see any reasons why the drivers — why the other passengers and driver would make such statement.

Decided November 8, 2000.

Harrison & Harrison, G. Hughel Harrison, for appellant.

“The testimony of a single witness is generally sufficient to establish a fact.” That another witness may provide contradictory evidence goes only “to the weight of the evidence and the credibility of the testifying witness, which is solely within the purview of the jury.” Because at least one witness identified Thomas Vickers as the driver of the van, the jury was authorized to believe that witness, and the evidence was sufficient to support Vickers’ convictions.

2. We find no error in the admission of a redacted Georgia Crime Information Center printout showing the two driving-related convictions that formed the basis for the suspension of Vickers’ license. Such was admissible to prove the requisite notice of suspension “by operation of law” pursuant to OCGA § 40-5-63 (a).

3. Vickers challenges the trial court’s jury charge that

[i]t is not necessary that the defendant show that another person committed the alleged offense. It is sufficient if there are facts and circumstances in this case which would raise a reasonable doubt whether this defendant is, in fact, the person who committed the crime.

Vickers contends that the error in such charge is “self-explanatory,” and he offers no argument or citation of law in support thereof. Although an error in such charge appears neither “self-explanatory” nor extant, we conclude Vickers’ contention is abandoned.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

Gerald N. Blaney, Jr., Solicitor, Jeffrey P. Kwiatkowski, Emilien O. Loiselle, Jr., Assistant Solicitors, for appellee.

       This evidence was admissible as original evidence under OCGA § 24-3-2, since Vickers created an issue regarding the basis for his arrest. See, e.g., Smith v. State, 236 Ga. App. 122, 125 (4) (511 SE2d 223) (1999).

       OCGA § 24-4-8.

       (Citations and punctuation omitted.) Anderson v. State, 238 Ga. App. 866, 870 (519 SE2d 463) (1999).

       Id.

        Eppinger v. State, 236 Ga. App. 426 (512 SE2d 320) (1999); Hale v. State, 188 Ga. App. 524, 525 (1) (373 SE2d 250) (1988).

       Court of Appeals Rule 27 (c) (2).


author: Pope, Presiding Judge.

text:
    A00A0960.
    SIHARATH v. THE STATE.
    (541 SE2d 71)
   Pope, Presiding Judge.

Chanthala Siharath appeals following his conviction on one count of rape and four counts of child molestation. We affirm.

Viewed in the light most favorable to the verdict, the evidence showed that at the relevant time, the victim was a ten-year-old girl, who lived with her mother, stepfather and two younger siblings. In the fall of 1997, William Goggins of the DeKalb County Police Department’s Community Oriented Policing Program taught a Drug Abuse Resistance Education (DARE) class at the victim’s school. Gog-gins provided a box at the school in which students could place questions that they did not wish to ask in front of a group. On October 16, 1997, Goggins checked the box and discovered the following three notes signed by the victim:

(1) If a stepfather had sex with a stepdaughter, what would she do?
(2) If you stay home with an oder [sic] person an [sic] with two little kides [sic] would would [sic] you do?
(3) If someone try to threat [sic] you that they go [sic] to kill you what would you do?

Goggins told the victim’s teacher about the notes, and the child was subsequently referred to the school social worker.

The victim told the social worker that her mother worked at night and that her stepfather came into her bedroom and put his hands all over her body. She said that she had not told her mother and that the family was afraid of her stepfather because he had threatened to kill them with a knife. The social worker did not attempt to interview the girl at any length, but instead referred the matter to the Department of Family & Children Services.

After DFACS was notified, the victim was taken into protective custody and placed in a foster home. Shortly after she arrived at her foster home, the victim told her foster mother that her stepfather was very violent and that she was afraid for her mother and younger siblings. She said that her mother worked in the evenings and that her stepfather would fondle her and had placed his penis inside her.

The next day she was interviewed by police. The victim told the investigating police officer that her stepfather was a violent man. Although the violence was most often directed toward her mother, the girl stated that she was afraid of him. In August and September 1997, the victim’s mother was working the evening shift at her job. While her mother was away, the girl said that her stepfather would put his hands inside her shirt and play with her breasts. He would also come into her bedroom after she had gone to bed at night and touch her breasts with his hands and mouth. He also would fondle her private area and place his penis inside her. The girl used anatomically correct drawings to demonstrate to the officer the areas of the body she was describing. A videotape of this interview was shown to the jury.

The evidence also showed that while in DFACS’ custody, the victim was examined by a physician. During the examination, the victim, using drawings, told the doctor that her stepfather had touched her breasts with his mouth and hands and had touched her genitals with his hand and his penis. She also told the doctor that she had not told anyone about these events earlier because she was afraid her stepfather would hit her. The physician testified that although she found no evidence of scars, bruises or other traumatic injury, her findings were not inconsistent with the girl’s story given the girl’s age and the passage of time between the events and the reporting of those events.

In her testimony at trial, the victim stated that her stepfather had hit her mother, younger sister and her on more than one occasion. She also recounted a fight that occurred when her mother tried to leave her stepfather and he had almost cut her mother’s hand. Using diagrams, the victim demonstrated where her stepfather had touched her and the parts of his body he had used to touch her. She said that she tried to tell him to stop, but that he would not stop. She did not try to get away or scream out, however, because she was afraid. The girl stated that she told her best friend that her stepdad had “slept” with her and had raped her. But she stated that she did not tell anyone else about these things for a long time because she was afraid her stepfather would hit her for telling.

1. Siharath first contends that the trial court erred in qualifying Vicky Fadley as an expert in the area of “forensic evaluation” of the victims of child sexual abuse. Fadley was qualified at trial as an expert in the areas of forensic evaluation and therapy of child sexual abuse victims. Fadley testified that, in this context, forensic evaluation consists of a formalized process to determine whether a child has been sexually abused, whereas therapy is the process of providing support to a child who has been abused. Siharath objects only to Fadley’s qualification as an expert in forensic evaluation because he argues that her training was primarily in therapy. In particular, he argues that it was improper to allow Fadley to testify that it was not unusual for a child to endure sexual abuse, yet keep it a secret, even where the child might have a safe outlet to report the abuse. Because the primary evidence against Siharath was the victim’s statements, he argues that Fadley’s testimony improperly swayed the jury’s decision.

The qualification of an expert witness is within the sound discretion of the trial judge. Vasquez v. State, 241 Ga. App. 512, 513 (2) (527 SE2d 235) (1999). And it is well established that a witness may be qualified as an expert based upon knowledge gained through study or experience:

To qualify as an expert, generally all that is required is that a person be knowledgeable in a particular matter; his special knowledge may be derived from experience as well as study, and formal education in the subject is not a requisite for expert status.

(Citation omitted.) Id.

Fadley is a psychotherapist at the Georgia Center for Children. She has a master’s degree in child and family studies from Syracuse University and a master of social work degree from the University of Michigan. At Michigan, Fadley was a civitas scholar, which meant that she received 16 months of specialized training on child maltreatment with an emphasis on child sexual abuse. Fadley testified that in the civitas scholar program she trained to be a therapist, an interviewer and an evaluator. Fadley lectures in the area of child trauma and maltreatment, specifically on behaviors associated with child sexual abuse. She is a licensed master social worker in the State of Georgia and belongs to the American Professional Society on the Abuse of Children, the Association for Play Therapy and the National Association of Social Workers. In her position at the Georgia Center, she conducts evaluations and interviews and does therapy on a number of children daily. She testified that she had conducted over 300 interviews with children and had seen thousands of children in connection with her role as a therapist. At the time of her testimony, Fadley had worked at the Georgia Center for 18 months and prior to that had worked at Duke University Medical Center conducting forensic interviews and therapy, although not forensic evaluations, from approximately April 1996 to October 1997.

Based on this evidence, we find no abuse of discretion in the trial court’s qualification of Fadley as an expert in the area of forensic evaluation. And because the testimony about which Siharath complains falls within Fadley’s area of expertise, the testimony was properly admitted. Thomas v. State, 239 Ga. App. 460, 462-463 (3) (521 SE2d 397) (1999).

Decided October 19, 2000

Reconsideration denied November 9, 2000.

Gerard B. Kleinrock, for appellant.

Chanthala Siharath, pro se.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.

2. Siharath next contends that the evidence was insufficient to support his convictions because it consisted primarily of the victim’s testimony, supported by hearsay testimony of prior statements. Moreover, he argues that the evidence was insufficient to establish the required element of force to sustain his conviction for rape.

It is well settled, however, that a victim’s testimony, without more, is sufficient to sustain a conviction for rape or child molestation. See, e.g., Alford v. State, 243 Ga. App. 212, 213 (1) (534 SE2d 81) (2000) (victim’s testimony, even without more, can be sufficient to sustain rape conviction); Atkins v. State, 243 Ga. App. 489, 490 (1) (c) (533 SE2d 152) (2000) (Georgia law does not require corroboration of a child molestation victim’s testimony). Moreover, in order to prove the rape of a child, only minimal evidence of force is required. Proof of physical violence, intimidation or threats may be used to prove force. State v. Collins, 270 Ga. 42, 44-45 (508 SE2d 390) (1998). And “[l]ack of resistance, induced by fear, is force, and may be shown by [the victim’s] state of mind from her prior experience with [the defendant] and subjective apprehension of danger from him.” (Citation, punctuation and emphasis omitted.) House v. State, 236 Ga. App. 405, 408 (1) (512 SE2d 287) (1999).

Here, the victim showed the jury through the use of diagrams where and how her stepfather had touched her. She testified that prior to telling anyone else she had told her best friend that her stepfather had raped her. She said that she did not resist his advances because she was afraid of him. And she testified as to prior acts of violence against her mother, her sister and her by her stepfather. Moreover, a number of witnesses testified regarding extremely consistent prior statements made by the victim describing what had happened and her stepfather’s violent nature and acts.

Accordingly, we find the evidence was sufficient to sustain Siharath’s convictions. See Drake v. State, 239 Ga. 232, 235-236 (2) (236 SE2d 748) (1977); Calloway v. State, 199 Ga. App. 272, 273 (1) (404 SE2d 811) (1991).

Judgment affirmed.

Miller and Mikell, JJ., concur.


author: Blackburn, Presiding Judge.

text:
    A00A2445.
    FOWLER v. CATOOSA COUNTY et al.
    (541 SE2d 127)
   Blackburn, Presiding Judge.

Following a dismissal of his pro se Catoosa County lawsuit, Leon Claude Fowler appeals, alleging that: (1) his due process rights were violated by the dismissal of his action in replevin; (2) Judge W. Ralph Hill, Jr. should have recused himself from the case because he was personally involved and therefore biased; and (3) the dismissal was premature due to the appellees’ failure to answer interrogatories he posed to the appellees. Because Fowler has failed to show error by the record on appeal, we affirm the trial court’s decision.

In its order, the trial court found that Fowler had filed his petition for writ of replevin on or about April 7, 2000. Defendant Renzo Wiggins filed a motion to dismiss or in the alternative a motion for summary judgment and a notice of hearing on May 5, 2000. After a hearing on Wiggins’ motion, on June 7, 2000, the trial court dismissed Fowler’s petition and found that it was frivolous based on the fact that it was an attempt to relitigate issues that were the subject matter of no less than three prior lawsuits. The trial court barred the underlying action based on the doctrines of res judicata and collateral estoppel. Thereafter, Fowler filed his notice of appeal and indexed his own documents to be filed with the appeal.

1. Fowler has the burden of proving error on appeal; however, he has failed to present this Court with any evidence refuting the trial court’s determination that the underlying action was the subject of three prior actions. Nor does the record contain any evidence showing a bias or personal involvement by Judge Hill. Additionally, Fowler has failed to present this Court with a transcript of the hearing on Wiggins’ motion to dismiss.

The appellant has the burden to show the alleged error by the record, and “where the proof necessary for determination of the issues on appeal is omitted from the record, an appellate court must assume that the judgment below was correct and affirm.” Regency Exec. Plaza Unit Owner’s Assn. v. Wilmock, Inc.

Because Fowler failed to meet his burden on appeal, we affirm the trial court’s order dismissing his action.

2. Fowler failed to attend the hearing on the appellees’ motion to dismiss. He contends that the trial court violated his due process rights by dismissing his action after the hearing for which he was not present. However, Fowler had notice of the hearing and voluntarily chose not to attend. He asserts in his brief that anyone “can understand why [he] refused to appear at a scheduled hearing.” “The fundamental idea of due process is notice and an opportunity to be heard.” Nix v. Long Mountain Resources. Fowler was availed of his due process rights and elected to refuse them. Appellees’ motion for frivolous appeal sanction is denied.

Decided October 25, 2000

Reconsideration denied November 9, 2000.

Leon C. Fowler, pro se.

Hall, Booth, Smith & Slover, Phillip E. Friduss, Russell E. Owens, Ben T. Hickey, for appellees.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Regency Exec. Plaza Unit Owner’s Assn. v. Wilmock, Inc., 237 Ga. App. 193, 194 (514 SE2d 446) (1999).

        Nix v. Long Mountain Resources, 262 Ga. 506, 509 (422 SE2d 195) (1992).


author: Andrews, Presiding Judge. Ruffin, Judge,

text:
    A00A1252.
    THORNE v. THE STATE.
    (542 SE2d 157)
   Andrews, Presiding Judge.

John Wayne Thorne appeals from the judgment of conviction entered on a jury verdict finding him guilty of the armed robbery of a convenience store.

1. The State produced testimony from a cashier at the store who testified that she saw Thorne in the store twice on the night of the robbery. In the first encounter, the cashier testified that Thorne approached her to buy some beer, but left after saying he did not have enough money to make the purchase. The cashier testified that the second encounter occurred about three hours later when Thome returned to the store and stole about $160 from the cash register while holding her at knifepoint. The cashier identified Thorne as the robber during a subsequent lineup, on a videotape taken by the store’s camera system, and during the trial of the case. In support of the cashier’s eyewitness identification, the State also introduced into evidence the continuous videotape taken by the store’s camera system on the night of the robbery which clearly showed the robbery, the robber, and the robber’s visit to the store about three hours prior to the robbery. A police investigator testified that one of Thome’s friends identified him as the robber on the videotape. Although Thorne presented an alibi defense, the cashier’s eyewitness identification and the videotape showing the commission of the robbery provided overwhelming evidence of guilt. The evidence was clearly sufficient for the jury to find that Thorne was guilty of the armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Thorne claims the trial court should have sua sponte declared a mistrial after a police investigator testified on direct examination by the prosecutor that Thome’s own defense counsel made statements to the investigator which indicated that defense counsel believed Thorne was guilty. Thome argues that, even in the absence of a proper objection or a motion for a mistrial, this was “plain error” which violated his attorney-client privilege, resulted in ineffective assistance of counsel, and requires reversal of the conviction.

During direct examination of the police investigator, the prosecutor asked the investigator to name persons who had identified Thorne as the robber of the convenience store from a review of the videotape taken during the robbery by the store’s camera system. The following testimony and colloquy took place in the presence of the jury:

[PROSECUTOR:] In terms of everything you’ve mentioned you had several different people including his best friend that identified him, don’t you?
[INVESTIGATOR:] That’s correct.
[PROSECUTOR:] Did anybody identify anyone else except him to you?
[INVESTIGATOR:] Did anyone else identify . . . identify him?
[PROSECUTOR:] Yes.
[INVESTIGATOR:] Yes, sir, ... I mean the [store] clerk identified him.
[PROSECUTOR:] Yes.
[INVESTIGATOR:] Allen Stubblefield identified him.
[PROSECUTOR:] Yes.
[INVESTIGATOR:] Mr. Kennedy (Thorne’s defense counsel) looked at him and said it was him on tape.
[KENNEDY:] No, sir. No, sir. [I] looked at him and said that resembles him on tape.
[THE COURT:] The Court will. . . . Mr. Kennedy, you can raise an objection, but not . . . don’t get in an argument with the witness.
[KENNEDY:] Well, I object to that. That’s not what I told this officer, and he knows it. . . . And I resent . . . him characterizing something I told him as something other than what I told him.
[THE COURT:] I can’t resolve that issue, but I’ll give you an opportunity to explain that to the jury as well.
[KENNEDY:] Thank you, Judge.
[THE COURT:] Do you want to correct what you’ve just said?
[INVESTIGATOR:] Mr. Kennedy stated that he can’t believe that John Thorne would go to court with this. Quote, unquote.

Thereafter, defense counsel made no further objection or motion for a mistrial, and the trial court took no curative action.

Although this Court will not generally consider issues not properly raised and ruled upon in the trial court, an exception exists in cases of “plain error” which is “so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or which seriously affects the fairness, integrity or public reputation of a judicial proceeding.” (Citation and punctuation omitted.) Lynd v. State, 262 Ga. 58, 61, n. 2 (414 SE2d 5) (1992). Almond v. State, 180 Ga. App. 475, 478-481 (349 SE2d 482) (1986). The evidentiary use by the State of the alleged statements made by defense counsel to the investigator implicating Thorne in the robbery, along with defense counsel’s own statement at trial as to what he told the investigator about Thome, was a violation of Thorne’s attorney-client privilege. Although it does not appear that the prosecutor was attempting to elicit this testimony from the investigator, the State must nevertheless exercise extreme caution to avoid prejudicial error by breach of the defendant’s attorney-client privilege. Williams v. State, 258 Ga. 281, 285 (368 SE2d 742) (1988).

In Almond, we found that a similar violation of the attorney-client privilege was “plain error” which seriously affected the fairness, integrity, or public reputation of the proceedings and required reversal even in the absence of any objection. Almond, 180 Ga. App. at 480-481. However, despite the erroneous breach of the attorney-client privilege in the present case, we decline to reverse the conviction under the “plain error” rule. Because there was overwhelming evidence of Thorne’s guilt, we find no basis for concluding that the error seriously affected the fairness, integrity, or public reputation of the proceedings and find no grave miscarriage of justice in refusing to notice the forfeited error. See Johnson v. United States, 520 U. S. 461, 470 (117 SC 1544, 137 LE2d 718) (1997) (refusing to reverse under the federal “plain error” rule where there was overwhelming evidence of guilt). “Indeed, it would be the reversal of a conviction such as this which would have that effect.” Id.

As to Thorne’s ineffective assistance of counsel claims, even if defense counsel's conduct was deficient, no reversal of the conviction is required because there was no reasonable probability that the outcome of the proceedings would have been different but for the deficiency. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

3. Because no objections were made at trial, Thorne’s claims related to alleged improper impeachment and interjection of his character into evidence were not preserved for appellate review.

Judgment affirmed.

Ellington, J., concurs. Ruffin, J., concurs specially.

Ruffin, Judge,

concurring specially.

I concur fully with both the reasoning employed and the result reached by the majority. I write separately merely to emphasize the clear error in the trial court’s admission of the investigator’s testimony as to what Thorne’s attorney allegedly told him.

The relationship between a criminal defendant and his attorney is sacrosanct, and anything that undermines the integrity of that relationship should be soundly condemned. As the United States Supreme Court recognized in Penson v. Ohio,

[o]f all rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have. The paramount importance of vigorous representation follows from the nature of our adversarial system of justice. This system is premised on the well-tested principle that truth — as well as fairness — is best discovered by powerful statements on both sides of the question.

Here, by testifying that the attorney identified his client from the surveillance video, the investigator essentially thrust the attorney into the role of witness against his client, a role which no lawyer should be required to assume. Even more egregious, the investigator’s statement suggested that Thorne’s attorney thought his client was guilty. I can think of nothing that undermines an attorney’s ability to effectively represent his client more than intimating that the attorney thinks his client is guilty. Such intimation stabs at the very heart of the attorney-client privilege, which, as the oldest of privileges, serves as the bedrock of our criminal justice system. Clearly, no client would have the unfettered ability to discuss his case with his attorney if he knows that there is the slightest chance that what is discussed will not be confidential. Such would be far more egregious than a Miranda violation.

Decided November 9, 2000.

George D. Bush, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

By permitting the attorney to be a witness against his client, the trial court completely eviscerated that attorney’s ability to effectively represent his client. Indeed,

[i]t has been uniformly recognized by the courts which have been presented with the question, that requiring the defendant’s attorney to testify against him on a contested, material issue so diminishes the persuasive force of his advocacy on behalf of the defendant in the eyes of the jury that the defendant is denied his right to effective assistance of counsel.

Here, Thome undeniably was deprived of effective assistance. However, in addressing the attorney’s effectiveness, we employ the Strickland standard. Absent a showing of prejudice, this Court will not reverse. And, although I am aghast at the magnitude of the error, I must agree with the majority that the overwhelming evidence of Thorne’s guilt precludes reversal.

       We note that in earlier questioning about who had seen the videotape, the prosecutor cautioned the investigator that he was not asking about other investigators or lawyers.

       488 U. S. 75 (109 SC 346, 102 LE2d 300) (1988).

       (Citations and punctuation omitted.) Id. at 84.

       See OCGA § 24-9-25 (“No attorney shall be competent or compellable to testify for or against his client to any matter or thing, the knowledge of which he may have acquired from his client by virtue of his employment as attorney or by reason of the anticipated employment of him as attorney.”).

       See Upjohn Co. v. United States, 449 U. S. 383, 388 (101 SC 677, 66 LE2d 584) (1981) (attorney-client “privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer’s being fully informed.”) (punctuation omitted).

        Shelton v. State, 206 Ga. App. 579, 580 (426 SE2d 69) (1992).

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

       See Wright v. State, 267 Ga. 496, 497 (2) (b) (480 SE2d 13) (1997).

        Williams v. State, 258 Ga. 281, 285 (5) (c) (368 SE2d 742) (1988).


text:
    A00A1358.
    WILLIAMSON et al. v. HARVEY SMITH, INC. et al.
    (542 SE2d 151)
   Pope, Presiding Judge.

On or about August 22, 1994, Charles N. and Sallie G. Williamson entered into a New Construction Purchase and Sale Agreement with Harvey Smith, Inc. to build a house in Roswell. The contract price for the house was $331,750. During the construction process, the Williamsons paid out between $46,000 and $47,000, including earnest money and funds advanced in connection with change orders. The transaction was scheduled to close on March 15, 1995. On the morning of the closing, Max Croft, an independent building inspector hired by the Williamsons, inspected the property. Based upon Croft’s inspection, the Williamsons decided not to attend the closing and subsequently refused to complete their purchase of the house.

Twelve days later, on March 27, 1995, the Williamsons filed suit against the corporation and Harvey Smith. HSI counterclaimed. Although both sides asserted a number of claims, several were dropped during the pendency of the litigation. The matter proceeded to trial on the Williamsons’ claims for breach of contract, fraud, conversion and attorney fees as well as HSI’s counterclaim for breach of contract and attorney fees. The jury awarded HSI damages on its counterclaim in the amount of $15,000 along with attorney fees of $38,034.13. The trial court subsequently denied the Williamsons’ motion for new trial, and the Williamsons appeal.

1. The Williamsons’ first contention on appeal is that the jury’s verdict was contrary to the evidence presented at trial. Under the terms of the parties’ contract, construction was to be completed “in accordance with all applicable governmental regulations, ordinances, and codes.” The Williamsons argue that the evidence showed that HSI failed to comply with the applicable codes as required by the parties’ contract.

On appeal, our review of the evidence is limited to a consideration of whether there was any evidence to support the jury’s verdict:

Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of defendant’s motion for . . . new trial will not be disturbed.

(Citation and punctuation omitted.) MARTA v. Green Intl., 235 Ga. App. 419, 420 (1) (509 SE2d 674) (1998).

The Williamsons presented two experts at trial who testified that the construction did not comply with the applicable codes. But HSI presented the testimony of two county building inspectors and an independent expert witness stating that the construction did comply with the governing codes. This evidence presented a conflict for the jury to resolve, “and it is not within our province to second-guess their factual findings.” (Citations and punctuation omitted.) Burchfield v. Madrie, 241 Ga. App. 39, 42 (2) (524 SE2d 798) (1999).

Moreover, we note that the provision upon which the William-sons rely also provides that the project was to “be considered completed and ready to close upon issuance of a Certificate of Occupancy or Final Inspection Certificate issued by the city or county in which the Property lies.” And the contract further provides that HSI would not be “governed by outside inspections other than those required by governmental agencies.” It is undisputed that Cobb County issued a Certificate of Occupancy on the property prior to closing and that the certificate represented the county inspectors’ findings that the construction complied with the applicable codes.

Accordingly, we find the evidence was sufficient to support the jury’s verdict in favor of HSI.

2. The Williamsons also assert that the award of $15,000 was contrary to law because it conflicted with the contract’s liquidated damages provision. That provision states that HSI is “entitled to retain the earnest money as full and complete liquidated damages for such default . . .” if the Williamsons did not fulfill their obligations under the contract. In lieu of accepting the earnest money as liquidated damages, the contract provides that HSI could sue for specific performance. The Williamsons argue that because HSI has retained the earnest money, it is not entitled to any further recovery. See OCGA § 13-6-7.

Generally, the issue of whether a liquidated damages provision is enforceable is a question of law for the court. Swan Kang, Inc. v. Kang, 243 Ga. App. 684, 686 (1) (534 SE2d 145) (2000). But the record shows that the Williamsons did not raise the issue of liquidated damages before the trial court in any pleading, pre-trial motion or even in the pre-trial order. Nor did they assert the issue at trial. They failed to object to Harvey Smith’s testimony detailing his damages arising from the breach of contract; they failed to move for directed verdict on the issue of damages after the evidence showed that HSI had retained the earnest money; and they failed to object when the issue of damages was submitted to the jury. In fact, the record shows that aside from several isolated cross-examination questions, the first time they raised the issue was in their motion for new trial.

Under these circumstances, we find that the Williamsons failed to properly raise the issue for appellate review:

Appellate courts review enumerations for correction of errors of law committed by the trial court — where motions or objections are properly presented for a ruling by the trial court. Enumerated errors which raise issues for the first time in a motion for new trial or on appeal present nothing for review.

(Citations and punctuation omitted.) Cohen v. Lowe Aviation Co., 221 Ga. App. 259, 261 (2) (470 SE2d 813) (1996). But cf. Sweatt v. Intl. Dev. Corp., 242 Ga. App. 753 (531 SE2d 192) (2000) (vacating arbitration award in excess of liquidated damages provision where issue properly preserved for appellate review).

3. The Williamsons further assert that the trial court erred in qualifying Macon Gooch as an expert because the evidence showed that he was not properly licensed at the time he conducted his inspection of the property. We find no error.

“The question of whether a witness is qualified to render an opinion as an expert is a legal determination for the trial court and will not be disturbed absent a manifest abuse of discretion. OCGA § 24-9-67; [cits.]” Dayoub v. Yates-Astro Termite Pest Control Co., 239 Ga. App. 578, 579-580 (1) (521 SE2d 600) (1999). In this case, the evidence showed that Gooch held a license in his individual name at the time he conducted the inspection. He was unaware, however, that he was also required to get a license in the name under which he conducted business, “Marvin Gooch, III, Building Consultant.” And his company did not possess its own separate license until 1998 when he learned of the rule. But this omission did not prevent Gooch’s qualification as an expert. “The possession of a license in Georgia does not go to qualification as an expert witness but may go to the weight and credibility that a jury gives to such expert’s opinion.” (Citation and punctuation omitted.) Id. at 580 (1).

The Williamsons do not question Gooch’s qualifications on any other ground. Therefore, we find that the trial court did not abuse its discretion in qualifying Gooch as an expert.

4. Next the Williamsons argue that the trial court should not have allowed Gooch to testify from a report that may have been prepared by someone else in his office, which they assert was hearsay. Gooch could not recall whether he had, in fact, prepared the report. But the Williamsons raised no objection to Gooch’s testimony on this ground and thus waived their objection. In the Interest of M. D., 244 Ga. App. 156, 158 (2) (a) (534 SE2d 889) (2000).

Even if Gooch did not prepare the report, he testified that he went back to the property and verified the report’s contents. Moreover, the fact that Gooch may have testified, in part, from hearsay does not render his testimony inadmissible:

[E]ven when an expert’s testimony is based on hearsay, the lack of personal knowledge on the part of the expert does not mandate the exclusion of the opinion, but, rather, presents a question as to the weight which should be assigned the opinion. The evidence should go to the finder of fact for whatever it’s worth. [Cit.]

(Punctuation omitted.) In the Interest of M. D., 244 Ga. App. at 158 (2) (b). Accordingly, there was no error in admitting Gooch’s testimony.

5. The Williamsons also object to the trial court’s qualification of defendant Harvey Smith as an expert. They argue that the court erred in qualifying a party as an expert. But there is no rule barring a party from testifying as an expert. See, e.g., Cornelius v. MaconBibb County Hosp. Auth., 243 Ga. App. 480, 483 (1) (533 SE2d 420) (2000) (defendant doctor testified as expert in medical malpractice action); Cambron v. Canal Ins. Co., 246 Ga. 147, 150 (5) (269 SE2d 426) (1980) (defendant lawyer testified as expert in action to set aside prior judgment). The fact that Smith was a party to the case simply goes to the weight and credibility of his expert testimony, not to his qualifications as an expert.

The Williamsons do not challenge Smith’s qualifications on any other grounds. Smith testified that he had worked in construction almost all of his life and had built over 100 houses. The trial court concluded that he had “more knowledge than the average citizen” and qualified him as an expert.

To qualify as an expert [pursuant to OCGA § 24-9-67], generally all that is required is that a person must have been educated in a particular skill or profession; his special knowledge may be derived from experience as well as study. Formal education in the subject at hand is not a prerequisite for expert status.

(Citations and punctuation omitted.) Coursey Bldg. Assoc. v. Baker, 165 Ga. App. 521, 522 (1) (301 SE2d 688) (1983). We find no abuse of discretion by the trial court.

6. The Williamsons further contend that the trial court erred in allowing Smith to testify as to damages without providing documentary evidence to support his testimony. The trial court sustained the Williamsons’ objection to the introduction of a summary sheet detailing HSI’s damages because HSI did not have the supporting documentation. And aside from an objection that a portion of the damages related to a corporate entity other than HSI, they raised no further objection during the remainder of Smith’s testimony detailing damages. Therefore, they waived any objection that Smith’s testimony was inadmissible for want of documentation, “because the objection at trial must be on the specific ground enumerated as error on appeal and not as a new ground raised for the first time on appeal.” (Citations omitted.) Witty v. McNeal Agency, 239 Ga. App. 554, 562 (5) (521 SE2d 619) (1999).

Moreover, HSI did introduce documentary evidence to support at least some of its claimed damages. It introduced a copy of the promissory note on the property to support Smith’s testimony that HSI paid a total of $45,224 in monthly mortgage payments between the time of the failed closing and when the property was sold. HSI also introduced the closing statement from the sale to substantiate Smith’s testimony that HSI had paid $9,100 in taxes on the property. Accordingly, we find no error.

7. The Williamsons also contend that there was insufficient evidence to support the award of attorney fees under OCGA § 13-6-11. We agree that a bona fide controversy existed between the parties in this case precluding an award of damages for stubborn litigiousness or unnecessary trouble and expense under that section. Graves v. Diambrose, 243 Ga. App. 802, 803 (2) (534 SE2d 490) (2000); Plemons v. Weaver, 243 Ga. App. 464, 466 (2) (533 SE2d 747) (2000).

But we find there was sufficient evidence of bad faith to submit the issue of attorney fees to the jury:

[W]hether or not the [Williamsons] acted in bad faith in [their] contractual relations is an issue for the jury to determine. Bad faith warranting an award of attorney fees must have arisen out of the transaction on which the cause of action is predicated. It may be found in [the Williamsons’] carrying out the provisions of the contract, that is in how [they] acted in [their] dealing with [HSI]. Bad faith other than mere refusal to pay a debt is sufficient, provided it is not prompted by an honest mistake as to one’s rights or duties but by some interested or sinister motive. So [the Williamsons] can be liable for attorney fees if they committed the breach.

(Citations and punctuation omitted.) Plemons v. Weaver, 243 Ga. App. at 466 (2).

Here the evidence showed that after receiving their inspector’s report, the Williamsons cut off all further dealings with HSI despite the fact that the contract required them to furnish HSI with a list of defects and allow it the opportunity to correct any deficiencies. Smith testified that when he called the Williamsons the night of the failed closing, they directed him to make all further communications through their lawyer. He was required to furnish a copy of the signed blueprints before they would even give him a copy of the inspector’s report, and they filed suit against him shortly after the scheduled closing. Based upon this evidence, the jury was authorized to find that the Williamsons had acted in bad faith in ignoring their obligations under the contract.

Decided November 9, 2000.

John R. Burdges, for appellants.

Macey, Wilensky, Cohen, Whittner & Kessler, Susan L. Howick, for appellees.

8. Nevertheless, we agree with the Williamsons that the jury was not authorized to award HSI its total attorney fees of $38,034.13 in this case. As a general rule, only a plaintiff is authorized to recover attorney fees under OCGA § 13-6-11. But where a defendant asserts an independent counterclaim, he may recover litigation expenses under OCGA § 13-6-11 in connection with that claim. Gardner v. Kinney, 230 Ga. App. 771, 772 (498 SE2d 312) (1998). The defendant is limited, however, to recovering only the portion of his attorney fees allocable to the prosecution of his counterclaim. Arford v. Blalock, 199 Ga. App. 434, 439 (10) (405 SE2d 698) (1991). Therefore, HSI had “the burden of proof and must segregate out the hours that are recoverable from those hours not recoverable. [Cit.]” Southern Co. v. Hamburg, 233 Ga. App. 135, 139 (503 SE2d 383) (1998).

HSI presented no evidence, however, “from which the jury could determine what portion of the total amount of attorney time and litigation expenses incurred . . . was attributable to [HSI’s counterclaim].” Professional Consulting Svcs. &c. v. Ibrahim, 206 Ga. App. 663, 666 (3) (426 SE2d 376) (1992). The evidence showed that HSI was seeking to recover all attorney fees billed over the four-year history of the case. In fact, HSI’s attorney testified that the fees were increased by the Williamsons’ asserting a number of claims which they later dropped, but which HSI was required to defend. Accordingly, the award of attorney fees is reversed. See Cherokee Ins. Co. v. Lewis, 204 Ga. App. 152, 154-155 (2) (418 SE2d 616) (1992); Arford v. Blalock, 199 Ga. App. at 440.

Judgment affirmed in part and reversed in part.

Miller and Mikell, JJ., concur.

       The original order in the case, entered on February 9, 1999, mistakenly entered judgment on the counterclaim in favor of both HSI and Smith, individually. But only HSI asserted a counterclaim. Pursuant to consent order, that judgment was set aside and a new one entered on April 12, 1999.


author: Andrews, Presiding Judge.

text:
    A00A1453.
    NEALY v. THE STATE.
    (542 SE2d 521)
   Andrews, Presiding Judge.

Ronald Nealy appeals from denial of his motion for new trial following his conviction of aggravated assault.

Viewed with all inferences in favor of the jury’s verdict, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was that, on the evening of November 24, 1995, a group of people, including Nealy and Jefferson, were congregated in front of a neighborhood store at the corner of Lucille and Holderness in West End, an Atlanta neighborhood. Nealy, known as “Ron Ron,” was selling marijuana. At approximately 7:00 p.m., Clarence Poon was walking toward the intersection when a burgundy four-door Buick pulled up to the curb in front of the store. Four men got out of the car, and at least one was carrying a firearm. One of the men, known as “Dray,” appeared to be trying to get behind Nealy. Nealy asked what was up, and none of the men responded. Nealy then said, “Okay, I got something for that,” and walked across the street toward a vacant apartment building. At that point, Jefferson crossed the street near Poon and both men were walking down Holderness. Jefferson saw Rodney, one of the four men in the car, come out of the store and start to get in the car. Poon told Jefferson to go back and tell these guys to leave because there was a weapon, which Poon described as an AK-47, pointed at them. As Jefferson walked back down the street, shots came from the vacant apartment building across the street from the store as wéll as from the Buick. Jefferson testified that “I saw Ron [Nealy] shooting a gun. He was like kneeled down and he was shooting out of the window at the car.” Jefferson ran across a vacant lot and saw Poon running down Holderness. Poon was struck in the back by a .40 caliber bullet and bled to death. The medical examiner opined that, based on the location of Poon’s wound and the bullet’s path through his body, Poon had been running up Holderness or crouching when hit. Further, in his opinion, the bullet which struck Poon was most likely fired from the apartment building. Spent .40 caliber shells were found by the police in an upstairs apartment near a window, as well as some .9 millimeter shells. Shells from a .9 millimeter were also found on the sidewalk in front of the store.

The evidence was legally sufficient. Jackson, supra.

1. Nealy’s first enumeration is that the trial court erred in allowing into evidence the fact that, when arrested on December 20, 1995, he was wearing a bulletproof vest.

As recently discussed in Benford v. State, 272 Ga. 348, 350 (3) (528 SE2d 795) (2000),

the admission of evidence which shows the commission of another crime may not automatically be admitted solely on the basis that the evidence was incident to an accused’s arrest where the evidence is wholly unrelated to the charged crime, the arrest is remote in time from the charged crime, and the evidence is not otherwise shown to be relevant. See Crosby [v. State, 269 Ga. 434 (498 SE2d 62) (1998)]; Ivester v. State, 252 Ga. 333 (2) (313 SE2d 674) (1984); Bixby v. State, 234 Ga. 812 (1) (218 SE2d 609) (1975). Just as evidence of the circumstances connected with an accused’s arrest is not automatically prejudicial neither is it automatically relevant. Rather, such evidence is subject to the same standard of relevancy and materiality applicable to other evidence. Thus, “the admission or exclusion of this evidence ‘lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.’ (Cit.)” Johnson v. State, 272 Ga. 254, 257 (1) (526 SE2d 549) (2000).

Under this standard and pretermitting the fact that there was no showing that possession of a bulletproof vest was illegal, we find that the trial court properly concluded that, under the facts of this case involving a multiple weapon shootout 26 days earlier in the same neighborhood in which Nealy was arrested, his wearing of a bulletproof vest was relevant. Benford, supra; Gagnon v. State, 240 Ga. App. 754, 757 (6) (525 SE2d 127) (1999).

2. The second enumeration is that the trial court erred “in reseating jurors number 23, 24 and 28” after Nealy had used peremptory strikes against them.

The trial court upheld the challenges of the State to Nealy’s use of peremptory challenges against those three jurors pursuant to Georgia v. McCollum, 505 U. S. 42 (112 SC 2348, 120 LE2d 33) (1992). See Morris v. State, 243 Ga. App. 824, 826 (2) (534 SE2d 509) (2000).

Although the enumeration is as set out above, Nealy acknowledges in his argument that a trial court, having found the State’s McCollum challenge meritorious, may reseat the affected jurors. McKibbons v. State, 216 Ga. App. 389, 391 (1) (455 SE2d 293) (1995).

The argument then made is that the trial court erred in failing to use the “silent strike” method and allowing the jurors to know which party had used a strike on them. Pretermitting that this ground is not enumerated as error, no authority is cited by Nealy, and we are aware of none, that indicates that the silent strike method is mandated. See Uniform Superior Court Rule 11. Therefore, this ground is without merit. See Morris, supra; Curry v. State, 238 Ga. App. 511, 513 (1) (519 SE2d 269) (1999); Ware v. State, 232 Ga. App. 165, 166 (2) (500 SE2d 601) (1998).

3. Nealy’s third enumeration asserts error in the trial court’s denial of his motion for new trial alleging that his trial counsel was ineffective because she failed to file a demand for speedy trial.

Nealy contends that the 18-month delay from the time of his arrest on December 20, 1995, until his trial beginning June 30, 1997, violated his right under the Sixth Amendment of the United States Constitution to a speedy trial. Nealy’s speedy trial claim is analyzed under the four factors set forth in Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972): (1) the length of the delay; (2) the reasons for the delay; (3) the defendant’s assertion of the right to a speedy trial; and (4) the prejudice to the defendant.

(1) Length of delay. Although mere passage of time, standing alone, does not compel a finding that the right to a speedy trial was violated, the passage of 18 months is sufficient to trigger inquiry into the other Barker factors. Obiozor v. State, 213 Ga. App. 523, 524 (445 SE2d 553) (1994).

(2) Reasons for the delay. Nealy was arrested pursuant to an arrest warrant concerning these charges. Although a bond was set, he was unable to post bond and remained in jail. He was originally indicted on April. 26, 1996, slightly more than four months after his arrest. Although he was reindicted on June 3, 1997, we consider the timing of the initial indictment for the Barker inquiry.

Although the delay is considered to be caused by the State’s negligence, Boseman v. State, 263 Ga. 730, 733 (438 SE2d 626) (1994), because there is no evidence that the State deliberately delayed the trial to hamper the defense, the unexplained delay is relatively benign. Johnson v. State, 268 Ga. 416, 418 (490 SE2d 91) (1997); Collingsworth v. State, 224 Ga. App. 363, 365 (1) (480 SE2d 370) (1997); Obiozor, 213 Ga. App. at 525.

(3) Nealy’s assertion of his right to a speedy trial. The record shows that Nealy failed to assert either his statutory or constitutional right to a speedy trial until November 14, 1996, when he filed a pro se demand. This was nearly eleven months after his arrest and seven months after the original indictment. Accordingly, this factor weighs against Nealy’s claim that he was denied a speedy trial. Haisman v. State, 242 Ga. 896, 898-899 (252 SE2d 397) (1979).

(4) Prejudice to Nealy’s defense. Prejudice is the factor weighed most heavily in determining whether the constitutional right to a speedy trial has been violated. Jernigan v. State, 239 Ga. App. 65, 67 (517 SE2d 370) (1999). Nealy has failed to show any evidence that he was exposed to substandard jail conditions or that he suffered undue anxiety or concern. Hall v. State, 240 Ga. App. 356, 358 (3) (523 SE2d 409) (1999).

In fact, his argument is merely that anyone in jail facing a murder charge would experience anxiety and concern. This is not enough to require balancing this factor in his favor. Nor did Nealy show prejudice to his defense as a result of the delay. He argues only that the State used the additional time to add charges of possession of a firearm by a convicted felon and felony murder. Since, however, a new trial has been granted on the possession of firearm charge and Nealy was acquitted of felony murder, no prejudice can be shown. This factor is weighed against Nealy.

Balancing all four Barker factors, we find that the 18-month delay did not violate Nealy’s constitutional right to a speedy trial. It follows from this finding that, even if Nealy’s trial counsel performed deficiently by failing to raise the speedy trial claim, Nealy cannot demonstrate that this failure prejudiced his defense. Accordingly, Nealy’s ineffective assistance of counsel claim also fails. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

4. Nealy enumerates as error the trial court’s allowing the written statement of Marva Jones to go out with the jury.

During the hearing on the motion for new trial, trial counsel for Nealy appeared as a witness and the State and Nealy were represented by new counsel. After the hearing on the motion, the trial court entered its order of August 11,1999, finding that it was “generally this Court’s practice to disallow such statements from going to the jury room, and there is nothing in the record which indicates that these statements were taken to the jury room in this case. [Cits.]” The parties were given ten days from the date of that order to submit any documentation regarding the issue, absent which, the motion was denied on that ground.

No such documentation was submitted, and there is, therefore, nothing for us to review in this regard. Kitchens v. State, 198 Ga. App. 284, 286 (5) (401 SE2d 552) (1991).

5. Finally, Nealy contends that the trial court’s charge on aggravated assault was error.

The indictment charged that Nealy did “unlawfully commit an assault upon the person of Clarence Poon by shooting him with a handgun, the same being a deadly weapon.” Nealy claims that the trial court’s charge explaining two of the three methods by which aggravated assault may be committed, OCGA § 16-5-21 (a) (1) and (2), was reversible error.

While the trial court did, during its instructions, define two methods of committing aggravated assault, this portion of the charge is not considered in a vacuum. “[T]he charge to the jury is to be taken as a whole and not out of context when making determinations as to the correctness of same.” (Punctuation omitted.) Redd v. State, 232 Ga. App. 666, 667 (2) (b) (502 SE2d 467) (1998). See also Sabree v. State, 195 Ga. App. 135, 139 (9) (392 SE2d 886) (1990).

Decided November 9, 2000.

David D. Bishop, for appellant.

Paul L. Howard, Jr., District Attorney, George W. K. Snyder, Jr., Assistant District Attorney, for appellee.

Here, the trial court read the indictment to the jury at the beginning of the instructions. The trial court instructed that the State bore the burden of proving every material allegation of the indictment, “including the method of carrying out the alleged crime”; that, if the jury believed Nealy used force against the alleged victim “in the way and manner alleged in the indictment. . . ,” they could convict; and that, if they found Nealy did “as accused in the indictment in the manner it was accused commit any of the charges he has been indicted for,” the jury would be authorized to convict.

Therefore, based on the charge as a whole, we do not believe Nealy has shown that his due process rights were violated by raising a reasonable probability that the jury convicted him of the commission of the crime in a manner not charged in the indictment. Wright v. State, 240 Ga. App. 763, 765 (3) (525 SE2d 143) (1999).

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

       Nealy was also convicted of possession of a firearm by a convicted felon, but the trial court granted the motion for new trial on that conviction and it is not before us. Nealy was acquitted of murder and felony murder.


author: Ruffin, Judge.

text:
    A00A1035.
    HEAD et al. v. DEKALB COUNTY et al.
    (542 SE2d 176)
   Ruffin, Judge.

The Druid Hills Civic Association, Inc. and three individual homeowners sued DeKalb County, the DeKalb County Board of Commissioners, and Dr. John Rock, seeking a declaration as to the zoning status of certain property owned by Dr. Rock. The trial court granted summary judgment in favor of Dr. Rock, holding that the lawsuit was untimely and that the plaintiffs lacked standing to bring it. We granted the plaintiffs’ application for discretionary appeal. Because the trial court erroneously treated this case as an appeal of a zoning decision, we reverse the trial court’s ruling.

The ultimate issue in this case revolves around the meaning of Section 9 (a) (10) of the DeKalb County Organizational Act, which states that “no planning or zoning ordinance shall become law unless approved by the member of the Commission representing the district in which the subject property is located, or by one of the members of the Commission elected from the county at large.” When this provision was originally enacted, the county commission consisted of five district members and two members elected from the county at large. Subsequently, however, the act was amended to eliminate the two at-large seats, replacing them with “superdistrict” commissioners. These superdistrict commissioners were not elected from the entire county; rather, the county was divided into two superdistricts, with one commissioner elected from each. While the legislature eliminated the two at-large seats, however, it did not amend Section 9 (a) (10), which requires that any zoning ordinance be approved by the appropriate district commissioner or a commissioner “elected from the county at large.”

On April 30, 1998, the Board of Commissioners held a public hearing to consider Dr. Rock’s application for rezoning of his property from residential to office use. Four members of the Board voted in favor of the rezoning, while three members voted against rezoning. The district and superdistrict commissioners in whose respective districts the property was located both voted against the rezoning, while the other superdistrict commissioner voted in favor. The county attorney, Jonathan Weintraub, publicly announced his opinion that the rezoning did not become law because neither of the commissioners in whose district the property was located voted in favor of the rezoning. The vote was noted in the official minutes of the meeting, along with Weintraub’s opinion that the rezoning was not approved. The minutes were reduced to writing and signed on April 30, 1998, the same day as the vote.

At some point after the meeting, after being contacted by Dr. Rock’s attorney, Weintraub decided that his earlier opinion was erroneous and that the vote of the commissioners was in fact sufficient to approve the rezoning. He apparently concluded that the favorable vote of either superdistrict commissioner was sufficient to constitute the vote of a commissioner “elected from the county at large,” even though neither of the superdistrict commissioners was actually elected from the county at large. On May 26, Weintraub sent a letter to Dr. Rock’s attorney indicating that the rezoning was effective. Apparently in reliance on this letter, the county zoning map was changed to reflect that the property had been rezoned “O-I,” an office classification. In response to a request from Rock, the county land use and planning coordinator provided a letter stating that the property was zoned O-I.

Around November 1998, Rock filed an application for a Certificate of Appropriateness with the DeKalb County Historic Preservation Commission (HPC), seeking approval of certain renovations to the property. When the application came before the HPC on November 12, 1998, Rock produced the letter from the land use and zoning coordinator stating that the property was zoned O-I. The HPC ultimately issued a Certificate of Appropriateness on December 9, 1998.

On that same date, the plaintiffs sued DeKalb County, the Board of Commissioners, Dr. Rock, the HPC, and several other defendants, seeking a declaration that the Board of Commissioners did not vote to rezone the property and that the amendment of the zoning map was thus unauthorized. The plaintiffs also sought various forms of injunctive relief, including an order requiring the county to “rescind the unlawful amendment to the zoning map and ordinance,” to enjoin the HPC from approving the Certificate of Appropriateness based on the improper zoning, and to prevent the issuance of any development permits based on the purported rezoning. On December 14, 1998, the trial court entered an order denying the plaintiffs’ motion for a temporary restraining order, based in part on its preliminary conclusion that the property had been validly rezoned.

On December 22, 1998, the Board of Commissioners amended the minutes of the April 30 meeting to state that “it is unclear whether the [April 30] vote approved the zoning item or not.” On January 9,1999, the county informed Dr. Rock’s attorney that, due to the uncertainty as to whether the rezoning had been approved, no permits or certificates of occupancy would be issued “[u]ntil that matter is cleared up.”

On January 13, 1999, the plaintiffs filed an amended complaint to “recast their claims” in light of developments since the filing of the original complaint. In the amended complaint, which was apparently intended to supersede the original complaint, the plaintiffs did not seek injunctive relief, but simply sought “a declaratory judgment that the vote of the Board of Commissioners on April 30, 1998 resulted in the denial of the rezoning application and that the subsequent purported amendment of the official zoning map was unlawful, ultra vires and void.” The plaintiffs dismissed all defendants except DeKalb County, the Board of Commissioners, and Dr. Rock.

Dr. Rock filed a motion to dismiss, which by agreement of the parties was treated as a motion for summary judgment. The trial court granted the motion on two separate and independent grounds. First, it held that the lawsuit constituted an untimely appeal of a zoning decision. Second, it held that the plaintiffs lacked standing to appeal the zoning decision because they did not present evidence that their properties would suffer special damages as a result of the rezoning.

1. In holding that the plaintiffs’ action was time-barred, the trial court characterized the action as “[a]n appeal of a rezoning decision.” Because OCGA § 5-3-20 requires that appeals to superior court be filed “within 30 days of the date the judgment, order, or decision complained of was entered,” and because the lawsuit was not filed within 30 days of the Board’s vote on the rezoning applicátion, the court held that the lawsuit was time-barred.

The trial court’s reasoning is faulty because it is based upon the erroneous premise that this lawsuit is an appeal of a zoning decision. The plaintiffs are not seeking to reverse the Board’s action, but are seeking a declaration that such action resulted in the denial of the rezoning application.

Whether the Board’s vote was sufficient to approve the rezoning in compliance with the Organizational Act turns on a legal issue: Was the affirmative vote of one of the two superdistrict commissioners sufficient to constitute the approval of a commissioner “elected from the county at large”? If the plaintiffs are correct in their interpretation of the Organizational Act, then the vote of the Board operated as a denial of the rezoning application, since it did not receive the votes necessary for passage. If the application was denied, there would have been no grounds for the plaintiffs to appeal the decision in their favor. To the contrary, it would have been incumbent upon Dr. Rock to file a timely appeal if he wished to challenge the Board’s decision on the merits. Because the plaintiffs do not seek to change the Board’s decision in any way, but simply seek a declaration as to the legal effect of the Board’s action, this case cannot be considered an “appeal” of the zoning decision. Accordingly, the trial court erred in dismissing the action under OCGA § 5-3-20.

2. The trial court’s alternative basis for granting summary judgment to Dr. Rock — i.e., that the plaintiffs lacked standing to appeal the zoning decision because they failed to present evidence that they would sustain special damages — suffers from the same problem, in that it is based on the erroneous assumption that this is an appeal from a zoning decision.

It is true that, “[i]n order to challenge on the merits a decision of a governing authority to rezone, plaintiffs must show special damages under the substantial interest-aggrieved citizen test.” The term “special damages” refers to damages that are not common to all “similarly situated” property owners. If the plaintiffs were appealing the merits of the Board’s decision to rezone the property, this would be the proper test. As discussed above, however, the plaintiffs are not appealing the decision, but are seeking a declaration that the Board did not rezone the property. They are not seeking to change the Board’s action, but simply seek a declaration as to the effect of such action. In essence, they are asking the court to declare what is the zoning status of Dr. Rock’s property.

Under these circumstances, the proper question is not, “Do the plaintiffs have standing to appeal the merits of a rezoning decision?”, but “Are the plaintiffs entitled to obtain a declaratory judgment as to the zoning status of Dr. Rock’s property?” The answer depends upon whether the plaintiffs have standing under the Declaratory Judgment Act. Under that act, a court has the power to issue declaratory judgments in “cases of actual controversy” and in “any civil case in which it appears to the court that the ends of justice require that the declaration should be made.” “The object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated.” In order to obtain a declaratory judgment, a plaintiff must show that he is “in a position of uncertainty or insecurity because of a dispute and of having to take some future action which is properly incident to [his] alleged right, and which future action without direction from the court might reasonably jeopardize [his] interest.”

It is apparent that the plaintiffs (as well as the Board) are uncertain as to the zoning status of Dr. Rock’s property. Whether the plaintiffs are entitled to have a court tell them what that status is, however, depends upon whether they are “in need of judicial guidance to enable [them] to avoid incurring additional liability or jeopardizing [their] rights.” This, in turn, depends in part on (1) whether the plaintiffs have the ability to prevent Dr. Rock from developing the property in violation of its zoning status, whatever that may be, and (2) whether this ability would be jeopardized by the court’s failure to declare the property’s zoning status. Because Dr. Rock did not raise this issue in his motion to dismiss and the trial court did not consider it in ruling on the motion, it would be improper for this Court to rule on the issue in the first instance.

Decided November 13, 2000

Susan M. Garrett, for appellants.

Jenkins & Nelson, Frank E. Jenkins III, Peter R. Olson, Dillard & Galloway, G. Douglas Dillard, Andrea C. Jones, for appellees.

3. The plaintiffs contend that the trial court erred in holding that the property was legally rezoned. However, although a different judge, in denying the plaintiffs’ motion for a temporary restraining order, preliminarily concluded that the property was legally rezoned, the trial court made no final ruling on this issue. While we have doubts as to whether a superdistrict commissioner who is not elected from the entire county qualifies as a commissioner “elected from the county at large,” we do not believe it is appropriate to resolve this issue in the absence of a final ruling by the trial court, particularly since the plaintiffs’ standing to seek a declaratory judgment has not yet been adjudicated.

Judgment reversed.

Andrews, P. J, and Ellington, J., concur.

       Ga. L. 1981, pp. 4304, 4311.

       Id. at 4305.

       Ga. L. 1992, pp. 6566, 6572-6575, 6577-6578.

       Id. at 6572-6575, 6577.

       The other defendants did not join in Dr. Rock’s motion or file motions of their own.

       See Chadwick v. Gwinnett County, 257 Ga. 59, 60 (1) (354 SE2d 420) (1987) (30-day period commences upon signing of initial document reducing zoning decision to writing). In this case, the minutes of the Board meeting were reduced to writing and signed on April 30, 1998, the same date as the vote.

       Although Dr. Rock argued below that Section 9 (a) (10) is unconstitutional to the extent that it prevents enactment of a zoning ordinance approved by a majority of the Board, the trial court did not rule on this issue. Accordingly, the constitutionality of the statute is not preserved for appellate review. See Santana v. Ga. Power Co., 269 Ga. 127, 129 (6) (498 SE2d 521) (1998) (“[W]e will not rule on a constitutional question unless it clearly appears in the record that the trial court distinctly ruled on the point.”). In any event, the constitutionality of the statute goes to the merits of the plaintiffs’ contentions and does not change the nature of their action.

       See Holland v. State Farm &c. Ins. Co., 244 Ga. App. 583, n. 4 (536 SE2d 270) (2000) (“Only a party who has been ‘aggrieved’ by a judgment has the right to appeal the judgment.”).

        City of Marietta v. Traton Corp., 253 Ga. 64, 65 (316 SE2d 461) (1984).

       See DeKalb County v. Wapensky, 253 Ga. 47, 48 (315 SE2d 873) (1984).

       OCGA § 9-4-2 (a), (b).

       (Punctuation omitted.) Royal Lepage Real Estate Svcs. &c. v. Spalding Partners, 192 Ga. App. 284 (1) (384 SE2d 424) (1989).

       (Punctuation omitted.) Farm &c. Ins. Co. v. Skelton, 235 Ga. App. 507, 508 (510 SE2d 76) (1998).

        Royal Lepage, supra at 285 (1).

       Whether a property owner may challenge the rezoning of a neighbor’s property is a different question than whether such owner may prevent his neighbor from developing his property in violation of its existing zoning. See Palmer v. Tomlinson, 217 Ga. 399, 400 (6) (122 SE2d 578) (1961) (“ ‘A property owner residing in that portion of a municipality where a zoning ordinance is in force restricting the use of property in the zone to residential purposes, may properly apply for an injunction against the use of an existing structure within the restricted area, where such use is in violation of the zoning ordinance, without showing special damages.’ ”); Graham v. Phinizy, 204 Ga. 638, 645 (51 SE2d 451) (1949).

       See Hodge v. SADA Enterprises, 217 Ga. App. 688, 690 (1) (458 SE2d 876) (1995) (“The issues that must be rebutted on motion for summary judgment are those raised by the motion.”).

       The order stated that “[f]or the purpose of this decision, it is found that. . . [t]he subject property was legally rezoned.” The plaintiffs subsequently abandoned their claims for injunctive relief when they amended their complaint.