author: Benham, Judge.

text:
    74413.
    FLOWERY BRANCH NURSING CENTER v. AMERICAN CENTENNIAL INSURANCE COMPANY et al.
    (373 SE2d 399)
    Decided September 6, 1988.

      Thomas C. Holcomb, Jeffrey E. Hickcox, for appellant.

      Richard G. Farnsworth, John M. Williams, Benjamin H. Terry, Douglas E. Smith, for appellees.
   Benham, Judge.

This court having entered on November 17, 1987, a judgment in the above-styled case (185 Ga. App. 188 (363 SE2d 580) (1987)), reversing the judgment of the trial court; and the judgment of this court having been reversed by the Supreme Court in American Centennial Ins. Co. v. Flowery Branch Nursing Center, 258 Ga. 222 (367 SE2d 788), the judgment heretofore rendered by this court is vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    76394, 76395.
    COLLINS v. THE STATE (two cases).
    (372 SE2d 503)
   Benham, Judge.

The controlling issue in appellants’ appeals from their convictions at a joint trial for possession of marijuana is the legality of the search which revealed the contraband. We find the search illegal, hold that the trial court erred in denying appellants’ motion to suppress, and reverse the judgments of the trial court.

At the motion to suppress hearing, the arresting officer, Officer Downing, testified that on the afternoon of the search and arrest, she received three telephone calls from an unknown man who asked for Detective Thomas. When Officer Downing told the man for the third time that Detective Thomas was not present and could not be reached, he gave her a tip that one of two described cars would be bringing six to eight pounds of marijuana to a particular address in town that day. An officer dispatched to look for the cars reported by radio that one of them was present. That officer subsequently stopped the car when it left that address. The occupants were appellants. Appellant Judy Collins was asked for consent to search the car, but she refused it. Officer Downing then searched the car without consent, asserting that she had probable cause to believe there was contraband in the car. The search revealed marijuana in the trunk.

On cross-examination, Officer Downing testified that she did not know the identity of the caller at the time the information was given or at the time of the hearing and that she did not ask for the caller’s identity. When asked for the basis of her conclusion that the caller was reliable, Officer Downing stated that she knew Detective Thomas was working with an informant who had been giving him information, and the caller said he had been working with Detective Thomas. Asked how she knew this was the same person who had been giving information to Detective Thomas, Officer Downing replied that the caller said Detective Thomas had told him to give her the information if Detective Thomas was not present, but she then admitted that she knew nothing abut the caller whatsoever. At the suppression hearing and at a later hearing convened to permit the State to supplement the evidence it had offered at the suppression hearing, Detective Thomas testified that he had told Officer Downing that he was working with an informant who had been vouched for by a GBI agent, but that Downing had never heard the informant’s voice.

We find this case to be controlled by Parker v. State, 161 Ga. App. 37 (3) (288 SE2d 852) (1982): “Information obtained by police officers engaged in an investigation may be used by another officer common to that investigation as a reliable basis for the establishment of probable cause. [Cits.] In cases where an informant supplies the information to one officer who then relays it to a fellow officer, the question has revolved around the reliability of the informant. Where the informant is found to be reliable, probable cause for the non-receiving officer to search exists. [Cits.] However, where the officer receiving the tip could not establish the credibility of the informant, probable cause was not demonstrated. [Cit.]” In Parker, the officer receiving the information was able to establish the reliability of the informant, and we held that action taken based on the information was appropriate. Here, however, the officer receiving the information knew nothing about the person imparting it. Although the State attempted to show the reliability of the information through the testimony of Detective Thomas, it is clear from the record that Officer Downing did not even have enough information about the informant to be sure that the person she spoke to was the same person who had spoken to Detective Thomas; she certainly did not know enough to make a judgment about his reliability.

Although the two-pronged Aguilar-Spinelli test (Aguilar v. Texas, 378 U. S. 108 (84 SC 1509, 12 LE2d 723) (1964); Spinelli v. United States, 393 U. S. 410 (89 SC 584, 21 LE2d 637) (1969)) has been abandoned in favor of a “totality of the circumstances” test (Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983); State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984)), an informant’s veracity, reliability, and basis of knowledge are still “highly relevant in determining the value of his report . . .” Illinois v. Gates, supra, 462 U. S. at 230. Considering those factors in the context of the totality of the circumstances, we hold that the State was unable to establish probable cause for the search of the car appellants occupied and that the trial court erred in denying appellants’ motion to suppress.

Decided September 6, 1988.

John H. Calhoun, Jr., for appellant (case no. 76394).

Lamar A. Elder, Jr., for appellant (case no. 76395).

Harry D. Dixon, Jr., District Attorney, Albert H. Tester, Assistant District Attorney, for appellee.

Judgments reversed.

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


author: Beasley, Judge.

text:
    76396.
    PAGGETT v. THE STATE.
    (372 SE2d 504)
   Beasley, Judge.

Defendant was charged with seven counts, two of aggravated sodomy, OCGA § 16-6-2, two of aggravated child molestation, OCGA § 16-6-4 (c), and one each of rape, OCGA § 16-6-1, kidnapping, OCGA § 16-5-40, and child molestation, OCGA § 16-6-4 (a). All related to the abduction, rape and sodomizing of a 13-year-old girl, who was waiting for a bus. After conviction, the court merged the molestation counts with the others.

Defendant’s appeal from the denial of his motion for new trial claims error in the admission of the testimony of two expert witnesses, on the ground that their “scientific reports” were not provided to him pursuant to his OCGA § 17-7-211 request, which was timely made.

The first witness, Dr. Galloway, was the pediatric specialist at Grady Hospital who examined the victim the night of the assault. The “scientific report” alluded to was the emergency room medical record made by Dr. Galloway during and immediately after her exam, which documented the patient’s history, the physical examination, and the treatment given. The State did not introduce the document. Dr. Galloway used it in preparing for her trial testimony. It is not clear whether the State had a copy of it or not. The only evidence in this regard is that the investigator who interviewed the doctor by telephone stated equivocally that she did not recall whether she had a copy or not. The doctor stated that when she spoke with the district attorney’s investigator, she was “under the impression” that the investigator had a copy.

The State contended that the record was not a “scientific report” under the Code and, therefore, did not have to be provided. The court so ruled. Both were incorrect. An emergency room record is a “written scientific report” although not specifically included in the statutory language. Worth v. State, 183 Ga. App. 68, 71 (3 a) (358 SE2d 251) (1987), citing State v. Mulkey, 252 Ga. 201, 202 (2) (312 SE2d 601) (1984).

The inquiry then becomes whether it was “available” to the district attorney so that he was required by the statute to obtain a copy and provide it to the defense even though he did not intend to introduce a copy into evidence, since the district attorney may not avoid his obligation under the statute by not obtaining the report and relying solely on the oral testimony based on the report. State v. Madigan, 249 Ga. 571, 572 (1) (292 SE2d 406) (1982); Ramsey v. State, 165 Ga. App. 854, 856 (2) (303 SE2d 32) (1983); Luck v. State, 163 Ga. App. 657, 659 (2) (295 SE2d 584) (1982).

The record was one originated and maintained by a neutral third party. “Where the defendant is told of the information or knows as much as the prosecution does and has an equal opportunity to obtain the document from a non-affiliated witness, it is not a violation of the statute for the state to fail to produce it in response to a demand for scientific reports.” Worth, supra at 72 (3) (b). The rationale set forth in Worth, based on the purpose of the requirement, applies here. Defendant was aware of Dr. Galloway, having been supplied by the State a month before trial with her name as an expected witness and her place of practice. During her testimony, defendant obtained the witness’ copy from her and was given a recess to examine it, after which his only request for relief was that the entire testimony of the doctor be excluded. Under these circumstances, denial of the requested relief was not error.

The other objected-to testimony was that of the State Crime Lab serologist. The evidence examined by the lab for blood stains and semen was not delivered to the lab until June 5. There was no written report produced by the lab until the second day of the trial, June 24, at which time the prosecutor gave a copy to defendant’s counsel. The prosecutor stated that he called defendant’s counsel on June 9 to orally report that the lab had found blood and seminal fluid on his client’s clothes. The blood was not typed and matched until June 18. Again the prosecutor called counsel but was unable to reach him. He told him on Monday, June 22, the day before the trial began, that the blood type was O, consistent with that of both the victim and defendant. Since there was no written report available before the trial, the report itself was not excludable under the statute. Boyce v. State, 184 Ga. App. 578, 579 (5) (362 SE2d 229) (1987).

Decided September 6, 1988.

Michael R. Schumacher, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, J. Thomas Morgan III, Assistant District Attorneys, for appellee.

Defendant’s argument that there was a plan by the state to deliberately delay delivery of the items to be tested to the lab so as not to comply with his discovery demand is not supported by any evidence. See McDaniel v. State, 169 Ga. App. 254, 255 (3) (312 SE2d 363) (1983).

There being no violation of OCGA § 17-7-211, the refusal to exclude the testimony was not error.

Judgment affirmed.

Birdsong, C. J., and Banke, P. J., concur.


text:
    76402.
    GARRETT v. THE STATE.
    (372 SE2d 506)
   Beasley, Judge.

Defendant appeals his convictions for child molestation, OCGA § 16-6-4, and sodomy, OCGA § 16-6-2.

1. Defendant contends that he was entitled to a mistrial because the prosecution in its opening statement made reference to acts of the defendant towards the victim which, although the prosecutor did not expressly so state, would in law constitute rape, a crime with which he was not charged. This enumeration of error is meritless, for a number of reasons, one of which is that the State-anticipated evidence referred to was within the scope of the crimes charged, so that mention of it was not cause for mistrial.

“The state is entitled to present evidence of the entire res gestae of the crime. Even though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial. Chambers v. State, 250 Ga. 856 [at 859 (2)] (302 SE2d 86) (1983). This is true even if the defendant’s character is incidentally placed in issue.” Satterfield v. State, 256 Ga. 593, 598 (6) (351 SE2d 625) (1987). Bradberry v. State, 170 Ga. 859 (2) (154 SE 344) (1930); Cawthorn v. State, 119 Ga. 395, 409 (46 SE 897) (1903).

Decided September 6, 1988.

Steve Bennett, for appellant.

Stephen F. Lanier, District Attorney, Pamela H. Sellers, Fred R. Simpson, Assistant District Attorneys, for appellee.

2. Defendant asserts he was entitled to mistrial because of the State’s opening statement and introduction of evidence via the examining physician’s testimony that defendant committed similar acts against the victim on previous occasions, because he was not notified prior to the trial as required by USCR 31.3.

Because the date alleged in the indictment was not an essential averment, evidence of similar acts occurring within the statute of limitation was evidence of the crime charged and did not fall within the ambit of the rule relating to notice of the State’s intention to present evidence of similar transactions. Bowman v. State, 184 Ga. App. 197 (2) (361 SE2d 58) (1987); Pittman v. State, 179 Ga. App. 760 (1) (348 SE2d 107) (1986). Mistrial was not warranted.

3. Defendant’s last enumeration of error is that he could not be convicted of both sodomy and child molestation because child molestation is a lesser included offense of sodomy.

“OCGA § 16-6-4 (a) is not a lesser included offense of OCGA § 16-6-2, as a matter of law . . . .” Hill v. State, 183 Ga. App. 654, 658 (4) (360 SE2d 4) (1987). If both convictions were based upon the same, single act, only one conviction could stand. McCollum v. State, 177 Ga. App. 40 (1) (338 SE2d 460) (1985). However, the indictment as drawn charged defendant specifically with two separate and different sexual acts. The child molestation was proved without any reference to the act of sodomy and was factually and legally distinct from it. See Haynes v. State, 249 Ga. 119, 120 (288 SE2d 185) (1982). For this reason, the two sentences entered were authorized.

Judgment affirmed.

Birdsong, C. J., and Banke, P. J., concur.


author: Deen, Presiding Judge. Sognier, Judge,

text:
    76403.
    WASSON v. WAID.
    (372 SE2d 508)
   Deen, Presiding Judge.

Appellant Wasson, an attorney of some thirty years’ experience, fell into conversation one day shortly prior to July 7, 1981, with appellee Waid, a retired machinist whom he had known for about fifteen years as a fellow member of the local American Legion post. According to appellant Wasson, Waid complained of the rate of interest he was earning on his savings and loan account and expressed a desire to invest at a higher rate, whereupon appellant replied that he knew where he could make such an investment and almost immediately arranged for Waid to make a loan in the amount of $5,500 — to Wasson himself, according to Waid, who contends that it was not he but Was-son who had initiated the topic of the loan or “investment.” According to Wasson’s version, however, Waid had understood from the outset that the loan was to be made to a Mr. and Mrs. Causey, who were friends of Wasson’s but whom Waid knew only by sight. On July 7, 1981, Waid delivered to Wasson a certified check in the amount of $5,500 and made payable to the latter. On the same day he and Mr. and Mrs. Causey were asked to gather in Wasson’s office, where Was-son endorsed Waid’s check to Causey and asked Waid to sign as witness on a deed to secure debt which, along with a promissory note payable to Wasson, the Causeys had executed. Wasson appended to his own signature the word “Trustee.” Neither the deed to secure debt nor the promissory note executed by the Causeys mentioned any trust agreement.

The Causeys did not repay the note when it was due at the end of sixty days, and Waid, at Wasson’s urging, signed a handwritten extension for approximately one month. When no payment was forthcoming at the end of the thirty days, Wasson instituted an action against the Causeys and obtained judgment for $5,500 plus interest and attorney fees. The Causeys then filed a bankruptcy petition.

Some two years after these latter events and nearly three years after the loan had been made, Waid unsuccessfully demanded payment of Wasson and then filed an action against him, contending at trial that Wasson had borrowed the money in his personal capacity, that it was past due and owing and that demand had been made, and that there had been no discussion of a trust arrangement between them or even of an attorney-client relationship. Wasson answered the complaint, denying all allegations and counterclaiming for $10,000 for intentional infliction of emotional distress and damage to his professional reputation. He also moved for dismissal and for summary judgment. A DeKalb State Court jury found for Waid and against Wasson in the amount of $5,500.

Wasson appeals, enumerating as error the denial of his motions for summary judgment and for directed verdict, contending that Waid had introduced no written evidence either of indebtedness between him and Waid or of revocation of any purported trust agreement. Held:

Our review of the record of the instant case reveals that appellant admits the existence of the certified check drawn by Waid with Was-son as payee and with no indication that the latter is acting in other than his personal capacity; moreover, Wasson has produced no document of any sort that might arguably be construed as a trust agreement, insisting that the bare word “Trustee” which he appended to his signature is sufficient to create a trust. The law is otherwise. See OCGA §§ 53-12-21; 53-12-22; 53-12-23; 53-12-26 and annots. We find no evidence that would render appellant’s enumerations meritorious and conclude that the evidence was sufficient to authorize the jury’s finding that appellee Waid was imposed upon and taken advantage of in an unconscionable manner. The trial court did not err in entering judgment in his favor.

Decided September 6, 1988.

Johnnie C. Wages, for appellant.

Robert J. Golden, for appellee.

Judgment affirmed.

Sognier, J., concurs specially. Carley, J., concurs in the judgment only.

Sognier, Judge,

concurring specially.

I concur in judgment only. I do not find the arrangement used here unusual. Many lawyers over the years have lent money for others under the sobriquet “trustee.” I find particularly supportive of appellant’s contentions appellee’s execution of the extension agreement, and the fact that appellee retained part of the “finder’s fee.” One construction of the facts would certainly support appellant’s position that he was being required, based on an oral promise, to answer for the debt, default, or miscarriage of another contrary to OCGA § 13-5-30.

Nevertheless, “[o]n appeal, the evidence must be construed to uphold the jury’s verdict, and the sole question for determination is whether there is any evidence to authorize the verdict. [Cits.]” Gold Kist Peanuts v. Alberson, 178 Ga. App. 253, 254 (1) (342 SE2d 694) (1986). Since there is some evidence to support the jury’s findings that there was an original undertaking by appellant to borrow the funds from appellee for his own account, I am constrained to agree that the judgment below should be affirmed.


author: Pope, Judge.

text:
    76407.
    WORK CLOTHES OUTLET, INC. v. M & S PURCHASING, INC.
    (372 SE2d 509)
   Pope, Judge.

M & S Purchasing, Inc., filed an action on an open account against Work Clothes Outlet, Inc., alleging that despite repeated demands, Work Clothes had failed to pay for goods ordered and delivered in the amount of $5,452.73. Work Clothes, represented pro se by its President Herman Rothstein, answered and filed a counterclaim seeking damages for abusive litigation. Shortly before the case was to be tried Work Clothes instituted discovery procedures and, on the eve of trial, filed an amended answer and a motion to dismiss based on M & S’s alleged failure to comply with the Georgia Corporation Code by not registering as a foreign corporation transacting business within the state as required by OCGA § 14-2-310 (a). At the non-jury trial M & S’s officer Goldstein testified that he attended trade shows in Atlanta twice yearly where he displayed M & S’s line of goods and had met Rothstein; that Rothstein had personally ordered certain goods from him on behalf of Work Clothes in 1984, as shown by M & S’s delivery invoices and correspondence between the parties introduced in evidence; that the merchandise ordered was shipped to Work Clothes’ business address; and that none of these goods had been paid for upon demand although M & S received no indication that the goods were rejected or had not been received. The invoices recited that one and a half percent interest per month would be charged after maturity, that all claims must be made within seven days and that no returns were allowed without written consent. Roth-stein testified that no written contract or open account in the amount claimed had ever existed between Work Clothes and M & S; no demand had been made on Work Clothes; no proof of purchase or receipt of the goods had been shown; and no ruling on its discovery demands had been made. Rothstein and Goldstein were the only witnesses.

Based upon this evidence the trial court found as facts that a contractual obligation existed between the two corporate parties; that the obligation of M & S was to deliver shoes to Work Clothes, which it had fulfilled; and that the goods ordered by Work Clothes were delivered to it and it failed to pay. The court concluded as a matter of law that there had been no showing that M & S was obligated under OCGA § 14-2-331 to obtain a certificate of authority to transact business within the state and therefore denied Work Clothes’ motion to dismiss; that the complaint did state a claim upon which M & S was entitled to recover; that the complaint was not frivolous, thus the counterclaim was denied; and that M & S was authorized to amend its complaint to conform to the evidence by changing the amount sued on to $5,722.96. Judgment was entered on this amount against Work Clothes, plus legal interest and costs of litigation, and Work Clothes appeals.

1. Work Clothes’ first five enumerations of error dispute the trial court’s findings of fact from the evidence presented, contending that certain testimony supported its own position. Our review discloses ample evidence to authorize the trial court’s judgment. “The appellate court determines the sufficiency of the evidence, not its weight. [Cit.]” Johnson Dev. Co. v. Joe Sheehan & Assoc., 186 Ga. App. 764, 765 (368 SE2d 546) (1988).

2. Work Clothes contends that it should have been granted a continuance because the trial was held before the date M & S was due to respond to interrogatories and requests for production of documents. “It is well established that all continuances for which express provision has not been made are granted or denied in the discretion of the trial court, and this court will not reverse such decisions absent a clear abuse of discretion. OCGA § 9-10-167 (a); [Cit.]” Payton v. Green, 179 Ga. App. 438, 439 (346 SE2d 884) (1986). We find no abuse of discretion here. Accord Arilotta v. First Ga. Ins. Co., 179 Ga. App. 354 (1) (346 SE2d 391) (1986).

3. Work Clothes argues that Goldstein’s testimony that he had made trips to Georgia twice a year since 1966 to take orders for merchandise to be shipped from M & S’s place of business in Maryland established that a certificate of authority to transact business in Georgia was required, contrary to the trial court’s ruling. “We do not agree with appellant that these limited activities constitute transacting business within the state pursuant to OCGA § 14-2-310. ‘The term “transacting business” as used in a registration statute such as [OCGA § 14-2-310] is not to be confused with the same term when used in a jurisdictional statute. ... In a jurisdictional statute only minimal contact with the state is required because the limited purpose of the statute is to hold the corporation accountable for an act connected with its entry into the state. Under the registration statute more substantial activity within the state is required because significant duties, and perhaps penalties, may be incurred. [Cits.]’ [Cit.]

“OCGA § 14-2-310 (b) (6) provides that a foreign corporation ‘shall not be considered to be transacting business in this state, for the purpose of qualification under this chapter, solely by reason of carrying on in this state any one or more of the following activities: . . . Soliciting or procuring orders, whether by mail or through employees or agents or otherwise, where such orders require acceptance without this state before becoming binding contracts and where such contracts do not involve any local performance other than delivery and installation.’ . . . [T]he record clearly shows that [M & S]’s activities within this state were of the type specifically described in this exemption.” Roberts v. Chancellor Fleet Corp., 182 Ga. App. 69, 70-71 (354 SE2d 628) (1987).

4. Work Clothes’ remaining enumerations of error are without legal or factual merit, or are unsupported by relevant citations of authority and therefore are deemed abandoned.

5. There being no arguable merit to this appeal or reasonable basis to anticipate reversal of the judgment of the trial court, we must conclude that appeal was brought for the purpose of delay only and M & S’ request for an award of damages in the amount of ten percent of judgment, or $572.30, is granted. See Jernigan Auto Parts v. Commercial State Bank, 186 Ga. App. 267 (5) (367 SE2d 250) (1988); Williams v. Kaminsky, 183 Ga. App. 283 (2) (358 SE2d 667) (1987).

Decided September 6, 1988.

Herman Rothstein, pro se.

Charles N. Center, for appellee.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    76437.
    RUCKER v. CORBIN.
    (372 SE2d 512)
   Beasley, Judge.

The trial court granted summary judgment against Rucker, who sought to recover a real estate commission under an exclusive listing agreement with Corbin. Rucker alleged that he obtained a buyer ready, willing and able to purchase Corbin’s property but that Corbin refused to consummate the sale.

The exclusive listing agreement described the property to be sold as 120 acres ±, specified a price of $3,500 per acre and stated that the terms of sale were “negotiable.” The termination date of the listing agreement was May 3,1986. On May 2, Rucker brought Corbin a contract offer from Anderson which was for $3,500 per acre and provided for a closing date of July 10. Corbin objected to two provisions in the proposal. The first read: “Exact acreage to be determined by current survey which is to be provided by Purchaser at time of closing. In no event shall total purchase price be less than $420,000 [120 acres at $3,500 per acre].” The other stipulated: “The rights of Purchaser hereunder may be assigned without the consent of Seller.” Corbin contends that Anderson was not financially able to purchase the property at the time of the offer and that coupling the right to assign the contract with the closing date past the termination date of the listing agreement converted the so-called purchase offer into an option to purchase on or before July 10.

A broker’s commission is earned when he finds a “purchaser who is ready, able, and willing to buy and who actually offers to buy on the terms stipulated by the owner.” OCGA § 10-6-32. “Able” means financially able. Howell Realty Co. v. Boggs, 127 Ga. App. 867, 869 (2) (195 SE2d 253) (1973). An offer by a proposed purchaser to buy on terms not stipulated by the owner will not entitle the broker or agent to a commission. Parker v. Stubbs, 139 Ga. 46 (1) (76 SE 571) (1912). Even a slight variation will prevent the agent from recovering. Thorn ton v. Lewis, 106 Ga. App. 328, 330 (1) (126 SE2d 869) (1962). Here the offer to purchase contained stipulations which varied from the conditions of the listing agreement.

In Weldon v. Lashley, 214 Ga. 99, 100 (2) (103 SE2d 385) (1958), the Supreme Court considered a contract of listing for 15 ± acres, which made no reference to a survey or to a method for determining acreage, with regard to the following provision in an offer to purchase: “ ‘It is agreed between the parties hereto that the number of acres in the above described property shall be determined by a survey of same furnished and paid for by the purchaser, which acreage so found shall constitute the. basis for computing the total sales price of the property at. . . [$2,500] per acre.’ ” This court had found the offer was in accord with the contract of listing. The Supreme Court demurred, noting that the owner could not contest the survey, especially because of the concluding language which served to bind the owner if the survey was conducted by a competent surveyor and there was no question of fraud. The owner could have disputed the accuracy of the survey had the offer provided only that the purchaser pay for it.

Although not containing the concluding language of the Weldon offer, the clear intendment of this offer provision is that the parties would be bound by the survey. It does provide a safety net with a minimum price of $420,000, but the stipulation that it be furnished “at time of closing” results in leaving the owner without recourse to contest the accuracy of the survey, absent fraud or a showing of incompetence on the surveyor’s part. He was not required to agree to make a last minute decision on whether there was a basis to contest the survey.

“Negotiable” as used in the listing agreement must mean simply that the owner could reasonably bargain with regard to various terms and conditions contained in the offer, accepting or declining as best suited his interests. See Batchelor v. Tucker, 184 Ga. App. 761 (1) (362 SE2d 493) (1987). Cf. Howard v. Sills & Purvis, 154 Ga. 430 (114 SE 580) (1922). Because the seller would have the final say as to whether such terms were agreeable to him, this might serve to dilute the effect of the code section. For, in some instances the broker could not foresee whether the offer he brought met the terms stipulated by the owner and in such case the commissions could not be earned until the owner agreed to the conditions of the offer. However, Rucker was aware of this and must live by the bargain he freely entered into.

As to the stipulation regarding assignability, Rucker argues that under the relevant authority Corbin had no right to refuse to permit the assignment of the contract since this was a cash sale. In this he misconstrues the case authority. After the purchase money is tendered, the owner may not prevent the purchaser from assigning the rights to another even though there was a provision in the sales contract against assignability. However, until full payment is tendered such provision is enforceable and the seller may rely upon it. Cowart v. Singletary, 140 Ga. 435, 440 (5) (79 SE 196) (1913). See also Decatur North Assoc. v. Bldrs. Glass, 180 Ga. App. 862, 865 (2) (350 SE2d 795) (1986). “ ‘[T]he parties to an executory contract may in terms prohibit its assignment.’ ” Mingledorff’s, Inc. v. Hicks, 133 Ga. App. 27 (1) (209 SE2d 661) (1974). Corbin had a right to insist that the contract not be assigned.

Decided September 6, 1988.

Arch W. McGarity, for appellant.

Kirby A. Glaze, C. Crandle Bray, for appellee.

Rucker had to produce a prospective purchaser ready, able and willing to buy on the terms stipulated by Corbin. The two terms, objected to, which were included in the offer constituted variances which served to prevent Rucker from recovering a commission. Bentley Group v. Paces Ferry Anesthesiology Assoc., 180 Ga. App. 818, 819-20 (350 SE2d 826) (1986); Clover Realty Co. v. Gouyd, 153 Ga. App. 64, 65 (1) (264 SE2d 547) (1980); Donohue v. Monroe, 147 Ga. App. 835, 836 (250 SE2d 571) (1978); Fourteen West Realty v. Lane, 147 Ga. App. 171, 172 (248 SE2d 233) (1978); Turner v. Atlanta Realty Co., 112 Ga. App. 648, 649 (145 SE2d 758) (1965); Weldon v. Lashley, supra.

Judgment affirmed.

Birdsong, C. J., and Banke, P. J., concur.


author: McMurray, Presiding Judge.

text:
    76439.
    BROWN v. THE STATE.
    (372 SE2d 574)
   McMurray, Presiding Judge.

Defendant was charged by indictment with trafficking in cocaine and improper lane usage. Following his conviction of trafficking in cocaine (and acquittal on the traffic charge), defendant appeals. Held:

Defendant’s sole enumeration of error raises the denial of his motion to suppress evidence. The relevant facts as determined by the trial court and set forth in its “findings of fact” show that: “The felony charge of Trafficking in Cocaine arises from a search and seizure of alleged contraband contained in an automobile on the 8th day of October, 1986. The search and seizure was conducted by Deputy Sheriff Howell of the Whitfield County Sheriff’s Department.

“During 1986, the Georgia State Patrol began ‘Operation Nighthawk’ which is an interstate highway drug interdiction effort. Officers assigned to local patrol posts were given training in April of 1986 sponsored by the Federal Drug Enforcement Agency [”DEA”].

“The DEA training included circumstances or characteristics to watch for when officers are making traffic stops, loosely referred to as a drug courier ‘profile.’ Among the characteristics is out-of-state cars traveling north on the interstate, particularly automobiles with Florida license plates traveling north, and even more particularly, automobiles with Florida license plates which indicate a rental vehicle.

“After that training, the state troopers began making more stops of cars fitting the ‘profile’ and finding large amounts of cocaine and other drugs.

“Simply stated, ‘Operation Nighthawk’ adopted by the Georgia State Patrol utilizes officers with traffic violation duties to identify offenders and through traffic violations, consents to search, and other means to develop legal opportunities to arrest drug couriers and seize contraband.

“Deputy Howell became aware of this activity and attended part of a local training session conducted by one of the state troopers and began to copy or imitate the state troopers and use the ‘profile.’

“Deputy Howell was assigned to the Sheriffs DUI [Driving Under the Influence] Task Force and his duties dealt with the enforcement of traffic laws and particularly DUI offenses. Part of his normal patrol area included the interstate highway in Whitfield County.

“Because of his awareness of the drug courier arrests and training, he began watching for vehicles described in the ‘profile’ and if a traffic violation was observed, to stop the vehicle and try to develop a legal opportunity to search for and seize illegal drugs.

“On the occasion in question here, Officer Howell’s attention was drawn to the defendants’ vehicle because of observed characteristics contained in the ‘profile,’ i.e., Florida license plate indicating a rental car. Officer Howell began following the vehicle. No traffic violations were observed for some distance.

“While following, the defendants’ vehicle made a quick lane change and crossed the fog line on the right side of the roadway separating the traffic lane from the emergency lane with the right front and rear tires.

“Deputy Howell then activated his blue light and stopped the suspect vehicle. The quick lane change was made because the driver noticed the law enforcement vehicle behind him and was moving to the right to get out of the way. Defendant Brown would not have made the lane change if the officer had not been behind him.

“The Defendant Brown exited the suspect vehicle and gave the officer his driver’s license. Deputy Howell asked if it was a rental vehicle and Defendant Brown gave an affirmative response. Deputy Howell asked for the registration or rental agreement. During this time, the passenger, Susan Headrick, remained in the vehicle. When Defendant Brown went back to the vehicle to obtain the rental agreement, Officer Howell got closer to the vehicle and noticed Kleenex in the vehicle. The rental agreement appeared in order.

“Deputy Howell became more suspicious because of Defendant Brown’s appearance. He did not fit a new Buick Riveria, but rather looked more like a motorcyclist.

“Defendant Brown talked very little and did not appear mad about being stopped. The officer thought this was unusual.

“The deputy handed the rental agreement and the driver’s license back to Defendant Brown. At this point no ticket or warning ticket was issued. He was not under arrest or any restraint at this point.

“Deputy Howell then asked for permission to search the vehicle, that they had had trouble with cars like his carrying contraband. Defendant Brown immediately said yes without any additional questions or hesitancy. The deputy went back to his car for the written consent to search form . . . and called for back-up. Deputy Howell went over the form with Defendant Brown on the hood of the patrol car. No other officers or law enforcement vehicles were present. Deputy Howell proceeded to fill out the form using what he observed and what the Defendant told him and then read the form out loud as the defendant, standing beside him, read the form. Defendant Brown indicated he understood the form, consented to the search, and signed the form.

“Another officer came to the scene, signed the form as a witness; the passenger . . . was asked to step from the vehicle, and the search was conducted by Officer Howell. . . .

“While searching . . . the trunk . . . [Deputy Howell] seized the suspected cocaine. . . .

“The consent to search given by Defendant Brown was freely and voluntarily given to the Deputy Sheriff. Without the consent, there was no probable cause to search the vehicle with or without a warrant.” (Paragraph numbering omitted.)

“ ‘Although an officer may conduct a brief investigative stop of a vehicle, see Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979), such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct, Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 1883, 20 LE2d 889, 909) (1968); United States v. Brignoni-Ponce, 422 U. S. 873 (95 SC 2574, 45 LE2d 607) (1975). Investigative stops of vehicles are analogous to Terry-stops, Terry, supra, and are invalid if based upon only unparticularized suspicion or hunch, 392 U. S. at 27 (88 SC at 1883, 20 LE2d at 909). United States v. Smith, 799 F2d 704, 707 (11th Cir. 1986). An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. (Cits.) United States v. Cortez, 449 U. S. 411, 417 (101 SC 690, 66 LE2d 621) (1981).’ (Punctuation omitted.) Evans v. State, 183 Ga. App. 436, 438 (359 SE2d 174) (1987). . . .

Decided September 6, 1988.

Marcus R. Morris, Robert W. Ritchie, for appellant.

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

“ ‘[I]n determining when an investigatory stop is unreasonably pretextual, the proper inquiry ... is not whether the officer could validly have made the stop but whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose.’ [United States v. Smith, 799 F2d 704, 709 (11th Cir. 1986)]” Tarwid v. State, 184 Ga. App. 853, 854 (363 SE2d 63). In the case sub judice, the trial court concluded that: “The stop of the vehicle was made because of the quick lane change which would not have occurred except for the deputy’s surveillance of the vehicle. Under those circumstances, the stop was pretextual.”

While finding that the stop of defendant’s vehicle was pretextual, the trial court concluded that the consent to search was freely and voluntarily given, and denied defendant’s motion to suppress the evidence seized from defendant’s automobile. However, in order to eliminate any taint from an involuntary seizure or arrest, there must be proof both that the consent was voluntary and that it was not the product of the illegal detention. Proof of a voluntary consent alone is not sufficient. The relevant factors include the temporal proximity of an illegal seizure and consent, intervening circumstances, and the purpose and flagrancy of the official misconduct. See United States v. Miller, 821 F2d 546 (11th Cir. 1987); United States v. Smith, 799 F2d 704, supra; United States v. Thompson, 712 F2d 1356 (11th Cir. 1983); Tarwid v. State, 184 Ga. App. 853, supra.

In the case sub judice, we find that there was no significant lapse of time between the unlawful detention and the consent, that no intervening circumstances dissipated the effect of the unlawful detention and that the deputy’s conduct had no arguable legal basis. Therefore, we hold that the consent was the product of the illegal detention, and that the taint of the unreasonable stop was not sufficiently attenuated. The trial court erred in denying defendant’s motion to suppress evidence. Tarwid v. State, 184 Ga. App. 853, supra.

Judgment reversed.

Pope and Benham, JJ., concur.


author: Birdsong, Chief Judge. Beasley, Judge,

text:
    76440.
    ITT FINANCIAL SERVICES v. GIBSON et al.
    (372 SE2d 468)
   Birdsong, Chief Judge.

ITT Financial Services, appellant, filed a petition for a writ of possession in the Dougherty County State Court, seeking possession of a boat, motor and trailer in which it alleged it had a “security interest.” Appellee filed a motion to dismiss on the basis that the petition failed to state a claim. Following a hearing, the trial court entered judgment for appellees, finding that Jerry L. Gibson had borrowed $5,472 from ITT on September 19, 1986, executing a promissory note in that amount to ITT. Thereafter, ITT filed a “financing statement” with the Dougherty County Clerk of Court, on October 22, 1986, in which the collateral was described as: “1985 Bass Hawk Boat; One Hustler boat trailer; One 150 h.p. Mercury boat motor.” The trial court also entered a finding of fact that Gibson sold a “1985 Bass Hawk Boat, No. BHF11463F585, one Hustler Trailer No. 1 HUS771JN85004037 and one Mercury Motor, 150 h.p. No. OA166892XR2” to the defendant Kenneth R. Lessard. Gibson defaulted on his loan to ITT and they initiated this petition to obtain possession of the boat, motor, and trailer from Lessard. The trial court found that “plaintiff’s financing statement of October 22, 1986, is insufficient under OCGA § 11-9-110 and is thus fatally defective in its effort to describe the boat, motor and trailer,” and denied ITT’s petition for a writ of possession. This appeal followed. Held:

ITT enumerates as error the judgment of the trial court holding the description in its financing statement did not reasonably identify the collateral. Appellee argues, on appeal, that ITT failed to prove an enforceable security agreement and the financing statement relied upon by ITT did not contain an adequate description of the boat.

Appellee contends that he filed his motion to dismiss under the authority of OCGA § 9-11-12 (b) (6) (failure to state a claim upon which relief can be granted), and because ITT introduced evidence outside the pleadings, i.e., affidavits, the motion was converted to one for summary judgment. Appellee is correct as to his law (see OCGA § 9-11-12 (c); Jaynes v. Douglas, 147 Ga. App. 678 (250 SE2d 14)), but incorrect as to his facts. The trial court never ruled on the motion to dismiss. The trial court’s judgment addressed only the appellant’s petition for a writ of possession, and that is the only judgment on appeal.

Although ITT’s enumerated error regarding sufficiency of the description of the collateral in the “financing statement” may have merit (see OCGA § 11-9-110, Thomas Ford Tractor v. North Ga. P.C.A., 153 Ga. App. 820, 822 (266 SE2d 571)), we do not reach that issue. The promissory note signed by Gibson contained a “Security Agreement” which states: “To secure payment and performance of the note and all renewals and extensions ... I grant a security interest to the Secured Party in all the following property (the ‘Collateral’): . . . See Collateral List and Valuation dated 9-19-86.” The record does not contain a “Collateral List and Valuation” document.

Our Code provides that “a security interest is not enforceable against the debtor or third parties with respect to the collateral and does not attach unless: (a) The collateral is in the possession of the secured party pursuant to agreement, or the debtor has signed a security agreement which contains a description of the collateral. . . (Emphasis supplied.) OCGA § 11-9-203 (1) (a); Grier v. Skinner’s Furn. Store, 180 Ga. App. 607 (1) (349 SE2d 826). The “collateral” was not in possession of the secured party and there is no evidence of record before us, and presumably the trial court, as nothing was omitted from the record on appeal, to establish a security interest in the security agreement in accordance with the statutory requirement.

“ ‘The general rule is that “(a) financing statement does not create or impose any personal obligation. A financing statement merely gives notice of the existence of a security interest but in itself does not create a security interest, for which a security agreement is required. ... A financing statement cannot serve as a security agreement because it does not grant the creditor a security interest in the collateral and does not identify the obligation owed to the creditor.” ’ ” Amoco Oil Co. v. G. Sims & Assoc., 162 Ga. App. 307, 310 (291 SE2d 128); accord Trust Co. of Columbus v. Associated Grocers Co-Op, 152 Ga. App. 701 (2) (263 SE2d 676); 1 Anderson, Uniform Commercial Code 469, § 9-402.4 (2d ed. 1971).

A security agreement is required to create a security interest (OCGA § 11-9-105 (1)), and it is not perfected until it meets the requirements of the Uniform Commercial Code (OCGA § 11-9-201), which includes the necessity of a signed “security agreement which contains a description of the collateral.” OCGA § 11-9-203 (1) (a); First Nat. Bank &c. Co. v. McElmurray, 120 Ga. App. 134, 140 (169 SE2d 720); Grier, supra. The “security agreement” in the instant appeal does not contain a “description of the collateral” which was not in the possession of the secured party, and the “financing statement” cannot create a “security interest.” Accordingly, appellant did not have a perfected security interest in the so-called collateral, as required by our Code. McElmurray, supra at 140. Any attempt to enforce a non-existent “security interest” against a third party is impermissible. Thus, the trial court was correct in denying appellant’s petition for a writ of possession, albeit for a different reason. However, a judgment right for any reason will be affirmed. Orkin Exterminating Co. v. Walker, 251 Ga. 536, 539 (307 SE2d 914). Knight v. Stevens Logging, 173 Ga. App. 359 (326 SE2d 494). “ ‘A correct decision of a trial court will not be reversed, regardless of the reasons given therefor.’ ” Tony v. Pollard, 248 Ga. 86, 88 (281 SE2d 557); accord Adams v. Emory Univ. Clinic, 179 Ga. App. 620, 621 (347 SE2d 670); Highsmith v. Knox, 164 Ga. App. 736 (298 SE2d 41).

Judgment affirmed.

Deen, P. J., McMurray, P. J., Banke, P. J., Sognier, Pope and Benham, JJ., concur. Carley and Beasley, JJ., dissent.

Beasley, Judge,

dissenting.

Although not a basis for the dissent, it is noted that the appellee is only Lessard. Since Gibson was never served and never entered an appearance, he is not a party and thus the appeal should be styled versus Lessard alone.

The court reaches out to address an issue which the record does not show was raised or ruled on by the trial court. The issue which commanded attention below was whether the financing statement adequately described the collateral. The trial court set a hearing for both the petition and Lessard’s motion to dismiss, which was based on alleged inadequacy of the financing statement.

The court “denied” the petition on the ground that the financing statement’s description of the collateral failed to satisfy OCGA § 11-9-110. There was no finding of fact concerning the security agreement’s description of the collateral nor any record that this was made an issue at trial. No transcript or narrative of the evidence was submitted, but appellant needed none because the court’s judgment shows the finding of facts and ruling which formed the issue at trial and is the subject of the legal error complained of.

The basis for this court’s opinion is an alleged defect in the security agreement, raised for the first time, insofar as the record shows, in appellee Lessard’s brief on appeal. We cannot assume that Lessard questioned the sufficiency at trial, or that ITT was given an opportunity at trial and failed to produce the Collateral List. The trial court made no finding in this regard but dwelt on the financing statement description.

We are a court for the correction of errors of law raised and ruled on by the trial courts. Ga. Const. 1983, Art. VI, Sec. V, Par. III; Hess Oil &c. Corp. v. Nash, 226 Ga. 706, 709 (177 SE2d 70) (1970); Tandy Corp. v. McCrimmon, 183 Ga. App. 744, 746 (3) (360 SE2d 70) (1987). The sole question before us is whether the trial court erred in denying the writ of possession on the ground that the financing statement did not contain an adequate description of the collateral. We should decide that question, a resolution of which would require reversal. OCGA §§ 11-9-203 (1) (a); 11-9-110; Thomas Ford Tractor v. North Ga. P.C.A., 153 Ga. App. 820 (266 SE2d 571) (1980); Peoples Bank of Bartow County v. Northwest Ga. Bank, 139 Ga. App. 264 (228 SE2d 181) (1976).

Decided September 6, 1988.

Betty S. Frazer, William A. Erwin, for appellant.

Terry J. Marlowe, for appellees.

I am authorized to state that Judge Carley joins in this dissent.

Addendum.

The dissent finds fault with the style of the case on appeal. The appeal is styled in the exact style of the judgment of the trial court.

Exception is taken to the decision on grounds not enumerated as error. “As was stated by Justice Bleckley in Lee v. Porter, 63 Ga. 345, 346 (1879): ‘It not infrequently happens that a judgment is affirmed upon a theory of the case which did not occur to the court that rendered it, or which did occur and was expressly repudiated. The human mind is so constituted that in many instances it finds the truth when wholly unable to find the way that leads to it.’ From this keen observation of the common sense functioning of the judicial mind, the rule has arisen that ‘A correct decision of a trial court will not be reversed, regardless of the reasons given therefor.’ Coker v. City of Atlanta, 186 Ga. 473 (1) (198 SE 74) (1938).” Tony v. Pollard, supra, 88; Adams v. Emory Univ. Clinic, supra; Highsmith v. Knox, supra.

For this reason, because the trial judge reached a correct decision, we affirmed.


text:
    76446.
    CROSBY v. THE STATE.
    (372 SE2d 471)
   Beasley, Judge.

Crosby was convicted of simple battery, OCGA § 16-5-23, and public drunkenness, OCGA § 16-11-41, and acquitted of obstruction of an officer, OCGA § 16-10-24, and carrying a concealed weapon, OCGA § 16-11-126. His motion for new trial was denied.

1. Appellant contends that delay in transmitting the record of this appeal was a violation of his federal and state constitutional rights to a speedy trial and entitles him to dismissal of the charges against him. Regardless of what may be said about the legalities of expeditious appeal, we find no authority embracing this stage of proceedings in the speedy trial provisions.

Furthermore, even assuming a right to timely disposition of an appeal other than as provided in Ga. Const. 1983, Art. VI, Sec. IX, Par. II, delay was due to actions by defendant or on his behalf.

Crosby filed his notice of appeal on April 6, 1983, after the court denied a new trial on March 11. He was then granted an extension of time in which to file a transcript, and it was filed May 13.

In September 1983, Crosby’s counsel requested the trial court to consider having Crosby’s sentence reduced to probation.

Negotiations transpired and on September 5, 1985, an assistant district attorney wrote Crosby’s counsel that something must be done in the case. He suggested a resolution by way of defendant’s being placed on probation and stated that the only other alternative was defendant’s pursuing the appeal.

On September 16, defense counsel informed the assistant district attorney that Crosby would not accept the offer of probation. Defense counsel further advised that he would have to resign from the case inasmuch as the Attorney General had ruled that his special assistants could not engage in the practice of criminal law, so Crosby would need new counsel.

On July 31, 1987, the trial court revoked defendant’s supersedeas bond because the appeal had not been prosecuted. The bond was reinstated and Crosby was permitted to revitalize his appeal after a hearing on whether or not it should be dismissed.

Crosby has no cause to complain of the inordinate delay, even though part of it is attributable to the clerk’s not sending the record until January 1988.

2. Appellant contends that the trial court erred in failing to inquire into and determine the competency and qualification of a trial juror.

During deliberations, the jury foreman sent a note to the court informing it that a juror had also been a grand juror on the case and asking whether or not the juror should continue to serve. The court responded that in the absence of an objection during jury selection, the juror was competent and qualified.

After return of the verdict, the court informed the State and the defendant of the communication with the jury and made the notes a part of the record.

Crosby argues both that this communication between the court and the jury was improper because it was done without his knowledge and consent, and that the juror was disqualified to sit as a trial juror because of the undisclosed grand jury service.

But defendant made no objection below, either when the court recorded the incident or in his motion for new trial. “Having raised no objection below, he may not now assert error on this ground. [Cit.]” Davis v. State, 255 Ga. 598, 600 (1) (340 SE2d 869) (1986).

Moreover, due diligence on behalf of defendant would have revealed that the subject juror was also a grand juror on the bill of indictment. The failure to notice this fact and challenge him during jury selection in connection with the statutory questions, OCGA § 15-12-164 (a), or any others amounted to a waiver of any disqualification. Burke v. State, 76 Ga. App. 612, 620 (8) (47 SE2d 116) (1948). See also Boatright v. State, 51 Ga. App. 80, 84 (179 SE 740) (1935).

3. Appellant maintains that the evidence was insufficient and that the conviction for simple battery was repugnant to the acquittal for obstruction of an officer. As to the latter “in Georgia we have abolished the inconsistent verdict rule. [Cits.]” Robinson v. State, 257 Ga. 194, 196 (3) (357 SE2d 74) (1987).

The evidence favorable to the verdict shows that when Crosby and his son arrived at the V. F. W. club, he saw his ex-wife, walked over and kicked the back of her chair, and told her he did not think she should be talking to a married man. An exchange of words erupted between Crosby and the men sitting with his ex-wife. Other patrons came over and tried to get Crosby to leave. A uniformed deputy sheriff also asked him to leave but was unsuccessful. Crosby’s ex-wife asked the deputy to jail Crosby rather than take him home since Crosby would come right back because he was drinking.

Crosby’s son kept interfering with the deputy talking to Crosby. The deputy moved the son aside. Crosby and his son jumped the deputy and knocked him down against a wall on a bench next to the bar. Two or three people tried to pull Crosby from the deputy.

It was the deputy’s opinion that Crosby was intoxicated. His shirttail was out of his pants, his speech was slurred, he spoke loudly and cursed a lot, and his eyes were red and “wild.” A deputy called to the scene observed that Crosby had been drinking, had slurred speech, and was “pretty well high,” boisterous, and wobbling.

The evidence was sufficient for a rational trier of fact to find Crosby guilty of simple battery and public drunkenness beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

4. Appellant further claims that the court erred in allowing the testimony of the sheriff, who was called in rebuttal, because his name was not furnished on the list of witnesses. “[C] ailing an unlisted witness in rebuttal is not error and does not violate [OCGA] § 17-7-110. [Cits.]” Forney v. State, 255 Ga. 316, 318 (2) (338 SE2d 252) (1986).

Appellant also suggests that the witness should not have been permitted to testify because he had not been sequestered. “[A] witness who has violated the rule of sequestration in a criminal case shall not be prevented from testifying. [Cits.]” Jordan v. State, 247 Ga. 328, 347 (10) (276 SE2d 224) (1981).

5. Appellant contends that the court erred when it sustained the State’s objection to defense counsel’s continual reference to the witness as a special deputy sheriff, after the witness testified he was not in fact employed by the sheriff’s department but merely wore a deputy sheriff’s uniform while acting as a part-time bouncer at the club. No limitation of the substantive cross-examination occurred so defendant’s state constitutional right to confrontation has not been abridged.

Decided September 6, 1988.

J. Laddie Boatright, Ken W. Smith, for appellant.

Glenn Thomas, Jr., District Attorney, Stephen D. Kelley, Assistant District Attorney, for appellee.

6. As to the refusal to give defendant’s request to charge on impeachment, the trial court asked if there were any exceptions to its charge and defense counsel responded there were none and counsel did not reserve objections. “In the absence of a reservation and in the face of the specific inquiry of the trial court, . . . counsel’s statement that he had no objections constitutes a waiver of that portion of the charge to which objection is now, belatedly, made. [Cit.]” Butler v. State, 173 Ga. App. 168, 169 (2) (325 SE2d 835) (1984).

7. Appellant contends that the trial court erred in denying his motion for new trial, which was based on the general grounds and the contention of inconsistent verdicts. Division 3 shows that the bases of the motion were without merit.

Judgments affirmed.

Birdsong, C. J., and Banke, P. J., concur.


author: Sognier, Judge.

text:
    76463.
    HORIZON INDUSTRIES, INC. et al. v. CARTER.
    (372 SE2d 301)
   Sognier, Judge.

Agnes M. Carter was injured during the course of her employment at Horizon Industries, Inc., and was awarded benefits pursuant to both OCGA § 34-9-261 (temporary total benefits) and OCGA § 34-9-263 (permanent partial injury benefits) of the Workers’ Compensation Act, OCGA § 34-9-1 et seq. Carter initiated the instant claim asserting that Horizon Industries and its insurer, CNA Insurance Company, had failed to pay her the full sum of the § 263 benefits to which she was entitled before they suspended payment in May 1986. The administrative law judge agreed with Carter that she had been underpaid by $1,336.50 and entered an award in her favor for that sum, various penalty amounts, attorney fees, and also a $500 fine, payable to the State Board of Workers’ Compensation, “for [the employer/insurer’s] violation of Board Rule 108.” The Board, after a de novo consideration of the evidence, struck one of the legal grounds for. the ALJ’s order, and made the ALJ’s findings and conclusions its own with the exception of amending the $500 “fine” to reflect “ ‘costs’ of $500 pursuant to Board Rule 108 (b) (4).” The superior court affirmed the Board’s order and we granted the application for discretionary appeal made by the employer/insurer.

Appellants contend the superior court erred by affirming the Board’s award, asserting that because the evidence established that payment of benefits to appellee was halted only when the total payments she received exceeded the entire “lump sum” amount she had been awarded, they were entitled pursuant to OCGA § 34-9-243 to offset against appellee’s § 263 benefits the overpayment they had made to appellee on her § 261 benefits. Our grant of appellants’ application for discretionary appeal was premised on appellants’ contention that the Board and ALJ had erroneously failed to apply OCGA § 34-9-243, which provides that “[t]he payment of any weekly benefit made during an employee’s disability or to any dependent, which payment was made when not due, shall be credited against any payments of weekly benefits due by either reducing the period for which compensation is due or by reducing the amount of the weekly benefit or both.” However, our review of the record reveals that the refusal by the Board and ALJ to credit appellants with their alleged overpayments was not the result of any failure to apply OCGA § 34-9-243 as a matter of law but instead was based on their finding as a matter of fact that appellants had failed to prove entitlement to such an offset. Thus, since the award was not based upon an erroneous legal theory, our review of this appeal will be based on a determination whether there was “any evidence” to support the Board’s finding that appellants had failed to demonstrate that an overpayment had been made. See generally Keenan v. Jackson & Keenan Constr. Co., 175 Ga. App. 730, 731 (334 SE2d 329) (1985).

In support of her claim during the hearing before the ALJ, appellee introduced the checks she had received from appellants in payment of her § 263 benefits which, when totalled, were $1,336.50 less than the amount of § 263 benefits awarded to her. Appellee also introduced the forms appellants filed before the Board, including several WC-4 “case progress” forms with conflicting notations and jottings as to overpayments of inconsistent amounts in regard to unspecified benefits, as well as both the WC-2 form appellants filed in May 1986 shortly after appellee returned to work and the WC-2 form appellants filed in January 1986 at the commencement of appellee’s § 263 benefits, neither of which reflect any claim of overpayment by appellants. Appellants presented no documentation of the amount they claim they overpaid appellee, relying solely on testimony by Vergil Shubart, a claims adjuster for appellant CNA Insurance, that appellants had indeed overpaid appellee by $175.50, a sum different from any other amount claimed in the forms filed by appellants. The evidence thus was in conflict whether appellants overpaid appellee’s § 261 benefits so as to be entitled to offset the overpayment against appellee’s § 263 benefits.

Decided September 6, 1988.

Walter J. Matthews, for appellants.

Thomas M. Finn, for appellee.

“The ALJ and full board ‘as factfinders have exclusive prerogative of weighing evidence, including determinations of credibility of witnesses; the courts on appeal are bound by findings if supported by any evidence .... (I)n arriving at the truth, (they) may apply all of the rules of law with reference to the credibility of the witnesses testifying, their intelligence, their means and opportunity of knowing the facts to which they testify, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and their personal credibility so far as the same legitimately appears from the trial.’ [Cit.]” Handcrafted Furn. v. Black, 182 Ga. App. 115, 117 (2) (354 SE2d 696) (1987). Thus, “ ‘where there is conflicting evidence, then the resolution of discrepancies and the determination of witnesses’ credibility is ordinarily for the ALJ or the Board as finders of fact. [Cit.]’ [Cit.]” Galmon v. Sea-breeze Mfg. Co., 181 Ga. App. 132, 133 (351 SE2d 521) (1986).

Therefore, because there is some evidence to support the Board’s award, we affirm the superior court’s ruling. Since appellants’ final enumeration contending error in the award of penalties and attorney fees was predicated upon their contention that the award of § 263 benefits was erroneous, our holding above renders it unnecessary to address that enumeration.

Judgment affirmed.

Deen, P. J., and Carley, J., concur.


text:
    76496.
    GOOCH v. THE STATE.
    (372 SE2d 473)
   Pope, Judge.

The defendant, James William Gooch was convicted of four violations of the Georgia Controlled Substances Act involving two counts of the sale of cocaine, one count of possession of marijuana with intent to distribute and one count of trafficking in cocaine.

The drug transactions of which defendant was convicted transpired during a GBI narcotics investigation and were made to an undercover agent while under electronic surveillance. Defendant testified in his own defense that while he had sold drugs for a number of years it had only been small amounts, not “full time” or any “big time deals,” and that the reason he procured the large amount of drugs in this instance was because “they kept asking and I did it.” He further stated on cross-examination that he sold drugs for the money and that the undercover agent was not the one who made him sell drugs “part time.” The trial judge, after expressing doubt during a charge conference held outside the presence of the jury that any evidence of entrapment had been presented, nevertheless charged the jury on this principle as it was defendant’s sole defense. The jury retired at 2:37 p.m. and at 3:42 requested a supplemental charge on entrapment, which was given. After deliberating until 6:30 p.m., the jury was recessed until 9:00 a.m. the next morning. When the jurors entered the courtroom at 8:40 a.m., the trial judge delivered an Allen “dynamite charge,” and a verdict of guilty was reached at 9:43 a.m. Held.

Defendant appears to argue on appeal that the Allen charge was unduly coercive because the evidence showed that although he had made some mistakes of judgment in the past, he was a gainfully employed, productive member of society without “the sordid depraved intent usually associated with the criminal mind . . . absent strong influence from some other arena”; or put another way, that the jury was improperly deterred from considering his entrapment defense by an Allen charge which was prematurely given under these circumstances and failed to stress “the right of a juror not to acquiesce and vote against his honest convictions.” We do not agree.

Defendant concedes the Allen charge given was taken from the judicial charge book of the Council of Superior Court Judges, and no objection was made at the time of the charge. The jury was instructed that “this verdict must be the conclusion of each juror, not a mere acquiescence of the jurors in order to reach an agreement, . . Such language is not coercive and does not place undue pressure on the members of the jury to abandon their convictions. Black v. State, 255 Ga. 668 (2) (341 SE2d 436) (1986); Cunningham v. State, 185 Ga. App. 527 (1) (364 SE2d 898) (1988). Moreover, as to defendant’s contention that the Allen charge prevented the jury from adequately considering his defense of entrapment, we note the phrase “undue persuasion” as used in OCGA § 16-3-25, the entrapment statute, contemplates “ ‘something more than repeated requests for contraband drugs knowingly owned and possessed by one who at first demurs to the disposition of his drugs.’ [Cits.]” McQueen v. State, 185 Ga. App. 485, 486 (364 SE2d 617) (1988). The issue was properly presented to the jury as defendant’s sole defense, but the evidence of defendant’s guilt was overwhelming and the verdict must be upheld. Cf. Hattaway v. State, 185 Ga. App. 607 (365 SE2d 480) (1988).

Decided September 6, 1988.

G. Scott Sampson, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Paul L. Howard, Jr., Andrew Weathers, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    76509.
    CLARKE v. CLARKE.
    (372 SE2d 475)
   Benham, Judge.

This case arises from a petition in probate court for letters of administration of the estate of Ulysses George Clarke. The petition was filed by Betty Campbell Clarke, who alleged that she was the widow of Mr. Clarke. A caveat was filed by Alice Mae Clarke, who alleged that she was the lawful widow of Mr. Clarke and that she was, therefore, entitled to administer his estate. In support of a motion for summary judgment, Alice Mae Clarke showed that she and Mr. Clarke were married in 1954 and that the marriage was never dissolved, and that Mr. Clarke married Betty Campbell Clarke in 1957 and lived with her until his death. This appeal is from the grant of summary judgment to Alice Mae Clarke.

1. The undisputed evidence in this case is that Mr. Clarke’s marriage to Alice Mae Clarke was never dissolved. That being so, Mr. Clarke’s subsequent ceremonial marriage to Betty Campbell Clarke was void (Reese v. American Mut. Liability Ins. Co., 67 Ga. App. 420 (2) (20 SE2d 773) (1942)) and Alice Mae Clarke was unquestionably his widow. Since there was no evidence that Alice Mae Clarke was for any other reason disqualified, she was entitled as widow of the decedent to letters of administration. Maddox v. Maddox, 27 Ga. App. 369 (1) (108 SE 304) (1921).

In the trial court and on appeal, appellant has argued that, notwithstanding the legal invalidity of her marriage, she should be considered the widow and be permitted to administer the estate because it was she who lived with the decedent for thirty years and bore him four children. Unfortunately for appellant, the law is clear on this issue: Alice Mae Clarke is legally the widow of the decedent and is entitled by OCGA § 53-6-24 (1) to administer his estate. The trial court was correct in awarding judgment to appellee Alice Mae Clarke.

2. While appellant’s position on this appeal is without legal merit, we are not persuaded that this appeal was taken for the purpose of delay only. Appellee’s motion for the imposition of a penalty for a frivolous appeal is, therefore, denied.

Decided September 6, 1988.

Michael C. Pratt, for appellant.

Clyde M. Thompson, Jr., for appellee.

Judgment affirmed.

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


author: Birdsong, Chief Judge.

text:
    76520.
    In the Interest of K. B.
    (372 SE2d 476)
   Birdsong, Chief Judge.

This court granted appellant’s application for discretionary appeal to determine the validity of the Baldwin County Juvenile Court’s order denying the parents’ petition for visitation privileges to see their child (K. B.), following the court’s grant of temporary custody of K. B. to the Department of Family and Children Services (DFCS).

DFCS filed a petition with the juvenile court alleging that K. B., a female child, 14 years of age, was deprived. The parents and DFCS stipulated that the child was deprived and the court granted temporary custody to DFCS. Thereafter, because the order did not provide for visitation by the parents, the court was petitioned to grant them “visitation rights.” The juvenile court held: “visitation relates to custody, and once the court commits the child to the custody of DHR it does not retain the authority to determine matters of custody and control of the child.” At issue on appeal is: (1) whether the juvenile court has the authority to grant visitation rights to the parents of a child in an order granting temporary custody of a child to DFCS, and (2) if so, when such order is issued without a decision on visitation rights of the parents, does the juvenile court have the authority to amend its original order to provide for visitation by the parents? Held:

1. In acting upon a petition alleging deprivation of a child, the juvenile court is authorized to determine who will exercise custody over the child “subject to conditions and limitations as the court prescribes. . . .” OCGA § 15-11-34 (a) (1). The statute does not list the “conditions and limitations” which the courts may prescribe. But, we are instructed as to what rights and obligations are imposed upon DFCS. The legal custodian has the right to physical custody of the child, the right to determine the nature of the care and treatment, including education, ordinary medical care, discipline, etc., “subject to the conditions and limitations of the order and to the remaining rights and duties of the child’s parents or guardian.” (Emphasis supplied.) OCGA § 15-11-43. Again, we are not advised what “rights and duties” the parents retain. But, this code section reserves the right to a juvenile court to include retained parental rights in the temporary custody order.

A similar statute circumscribes the responsibilities of DFCS to physical possession of the child, the right and duty to protect, train and discipline the child, to provide food, clothing, shelter, education, and ordinary medical care, “provided that these rights and responsibilities shall be exercised subject to . . . any residual parental rights and responsibilities.” (Emphasis supplied.) OCGA § 49-5-3 (12). Our Supreme Court has held-that mere placement of custody by a juvenile court “did not deprive the parents of all parental rights in the child.” Jackson v. Anglin, 193 Ga. 737, 738 (19 SE2d 914). We find that visitation rights of a parent of a child in custody of DFCS is a residual “parental tie” which is not severed by the mere placement of the child in the temporary custody of DFCS, without a specific finding as to that right.

An appellate court will not infer severance of parental visitation rights from a silent record, because “[tjhere must be compelling facts to establish the necessary lack of ‘proper parental care or control’ justifying the government’s intrusion in cutting natural family ties.” Nix v. Dept. of Human Resources, 236 Ga. 794, 795 (225 SE2d 306). “To sever parental ties absent such ‘compelling facts’ would be tantamount to child abuse.” In re M. M. A., 166 Ga. App. 620, 624 (305 SE2d 139). The record before us does not contain such “compelling facts” as to demand severance of “visitation rights.” The stipulated facts may support the finding of deprivation, but no finding was reached as to visitation. The legislative intent is made clear that the rights and responsibilities of the temporary custodian of the child, DFCS, are “subject to the conditions and limitations of the [juvenile court’s] order and to the remaining [‘residual’] rights and duties of the child’s parents. . . .” OCGA §§ 15-11-43; 49-5-3 (12). One of those residual rights which is not severed by a grant of temporary custody to DFCS is visitation by the parents, absent specific findings.

2. Remaining for determination is whether the juvenile court may reconsider its earlier custody order in which it omitted any reference to visitation by the parents. The Code provides that “[a]n order of the court may also be changed, modified, or vacated on the ground that changed circumstances so require in the best interest of the child” with an exception not here applicable. OCGA § 15-11-42 (b). Although there is no indication of “changed circumstances” in the instant case, this code section shows the juvenile court does retain authority to change or modify its earlier orders. Here, the court decided it had no authority to change or modify its earlier order.

As to the general law regarding the authority of a judge to modify, revise, amend or revoke its orders and judgments, see C & S Nat. Bank v. Burden, 145 Ga. App. 402 (1) (244 SE2d 244) and Union Circulation Co. v. Trust Co. Bank, 143 Ga. App. 715 (1) (240 SE2d 100), Div. 2, rev’d 241 Ga. 343 (245 SE2d 297). “ ‘A trial judge has the power during the same term of court at which a judgment is rendered to revise, correct, revoke, modify, or vacate such judgment, even upon his own motion, for the purpose of promoting justice and in the exercise of a sound legal discretion.’ ” Pekor v. Clark, 236 Ga. 457, 458 (224 SE2d 30). “This well-recognized principle is not strictly applicable to a juvenile court’s judgments, because the inherent power to modify extends only for the term in which the judgment was entered, and juvenile courts do not sit in terms.” In re P. S. C., 143 Ga. App. 887, 889 (240 SE2d 165); see also OCGA § 15-1-3 (b) on general power of court to amend its orders.

The expressed legislative intent is one of continuing jurisdiction by a juvenile court over its orders, particularly during the statutory duration of an order’s length. For example, when the court issues an order removing a child from her home, the order continues in force for 18 months, unless “sooner terminated by the court. . . .” OCGA § 15-11-41 (c). This statute continues the jurisdiction of the court over its order during that period. Further, in OCGA § 15-11-42 (b), the juvenile court is authorized to change, modify, or vacate an order “on the ground that changed circumstances so require in the best interest of the child. . . .” No time limitation is placed upon this type jurisdiction. Therefore, we conclude that the juvenile court had jurisdiction to modify its order of June 29,1987, upon the date of the filing of the parents’ petition for visitation rights, November 10, 1987.

This court, in In re P. S. C., supra, recognized the gravity of court proceedings to terminate parental rights to their offspring and held: “To this end, we will not declare orders terminating parental rights, removing the child permanently from his own home, to be beyond the reach of the court issuing the order. To the contrary, the juvenile court judge who has second thoughts about such an action should, under the present Code, take whatever steps necessary to ensure the correctness of his action.” Id. at 888. In the present case we are not faced with a termination of “all” parental rights, only the severance of the important “parental tie” of visitation by the parents. However, the analogy is sufficiently close for us to consider the reasoning of this case. We find that the parents were entitled to a hearing on the issue of the severance of their right of visitation, which is a residual right not terminated by a juvenile court placement of their child with DFCS. The court erred, in finding it did not have the authority to consider this issue.

3. To insure that our holding is not misunderstood, we emphasize that the only issue here resolved is whether a temporary custody order severs the parental right of visitation, and the entitlement of the parents to a hearing on this issue if it is not resolved in the initial adjudicatory hearing. We hold nothing more than the juvenile court has the authority to reconsider its earlier order to determine this issue.

Decided September 6, 1988.

Joel D. Burns, for appellant.

Phillip B. Spivey, Michael J. Bowers, Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, for appellee.

The issue decided here, visitation rights of parents for children committed to the temporary custody of DFCS, should not be confused with earlier cases in which the juvenile court required DFCS to take specified actions on behalf of the children committed to their custody. See In re R. L. M., 171 Ga. App. 940 (321 SE2d 435); In the Interest of C. A. G., 142 Ga. App. 480 (236 SE2d 171); In the Interest of R. D., 141 Ga. App. 843 (234 SE2d 680); In re A. S., 140 Ga. App. 865 (232 SE2d 145).

4. The remaining enumerations of error will not be addressed as they are outside the limited scope for which this court granted this discretionary appeal.

Judgment reversed.

Banke, P. J., and Beasley, J., concur.


text:
    76543.
    In re Holly.
    (372 SE2d 479)
   Sognier, Judge.

A petition was filed by the Georgia Mental Health Institute (GMHI) pursuant to OCGA § 37-3-81 for a determination whether Rhonda Holly, an involuntary patient in the petitioning treatment facility, should lie retained for involuntary treatment. After an evidentiary hearing in which Holly was represented by court-appointed counsel, the hearing officer appointed by the DeKalb County Probate Court found Holly met the statutory criteria requiring involuntary treatment as set out under OCGA § 37-3-1 (12) and entered a retention order. Holly, still represented by counsel, appealed this order to the Superior Court of DeKalb County pursuant to OCGA §§ 37-3-150 and 5-3-2. After receiving and considering the evidence pursuant to a de novo investigation, OCGA § 5-3-29, the superior court found that Holly is mentally ill with a diagnosis of bipolar disorder manic type and borderline personality disorder; that she presents a substantial risk of harm to herself and others; and that commitment to an inpatient treatment facility is the least restrictive appropriate setting for her treatment. Having found Holly met the statutory criteria for involuntary treatment under OCGA § 37-3-1 (12), the superior court affirmed the retention order. While Holly included in her hand-written notice of appeal from the superior court’s order a statement of her intention to retain her right to replace court-appointed counsel, both Holly’s enumeration of error and brief were filed by the attorney representing Holly in the hearings below.

Decided September 6, 1988.

Robin S. Nash, for appellant.

Jefferson J. Davis, Roberta H. Schulte, for appellee.

Holly contends in her sole enumeration that the superior court erred by affirming the retention order in that GMHI failed to meet its burden of proving by clear and convincing evidence that Holly met the statutory criteria for committal. To address the validity of this enumeration, it is necessary to examine the transcript of the hearing in order to determine whether GMHI met its evidentiary burden. However, no transcript of evidence presented during the hearing was requested or transmitted to this court. “[T]he burden is on the party alleging error to show it affirmatively by the record, and that when the burden is not met, the judgment complained of is assumed to be correct and must be affirmed. [Cits.] . . . ‘(W)here the transcript is necessary for review and appellant omits it from the record on appeal, the appellate court must assume the judgment below was correct and affirm. [Cits.] . . .’ [Cit.]” Acker v. Jenkins, 178 Ga. App. 393, 394 (1) (343 SE2d 160) (1986). Although Holly asserts in her brief and in her other communications with this court that the physicians who testified at the hearing were not telling the truth and that not one shred of clear and convincing evidence was presented to support the superior court’s findings, it is well established that “[a] brief cannot be used in lieu of the record or transcript for adding evidence to the record. [Cits.] We must take our evidence from the record and not from the brief of either party.” Blue v. R. L. Glosson Contracting, 173 Ga. App. 622, 623 (1) (327 SE2d 582) (1985). Since in the absence of a transcript or other appropriate substitute, OCGA § 5-6-41 (g), an appellate court is bound to assume that the trial court’s findings are supported by sufficient competent evidence for there is a presumption in favor of the regularity of all proceedings in a court of competent jurisdiction, Vaughan v. Buice, 253 Ga. 540 (322 SE2d 282) (1984), we are constrained to affirm the superior court’s order.

Judgment affirmed.

Deen, P. J., and Carley, J., concur.


text:
    76562.
    RADFORD v. THE STATE.
    (372 SE2d 480)
   Sognier, Judge.

Appellant was convicted of theft by taking and he appeals.

1. Appellant contends the evidence is not sufficient to sustain his conviction, and thus, it was error to deny his motion for a new trial. The evidence disclosed that appellant endorsed and deposited a check in the amount of $742, payable to American Termite and Pest Control Company (American Termite), in his account with a brokerage firm. Because the check was a third-party check appellant was required to sign an affidavit that he was the owner of American Termite and the check belonged to him. Appellant was not the owner or an employee of American Termite and had no authority to negotiate the check. Several months later William Vaughn, the actual owner of American Termite, learned that appellant had cashed the check and contacted him by telephone. Vaughn testified that appellant told Vaughn he had obtained the check from American Termite’s post office box by telling the postal clerk he (appellant) had left his keys at home and asking for the mail. Appellant was given the mail, took the check, and placed the other mail in the drop box so it would be replaced in American Termite’s post office box. Appellant agreed to repay Vaughn, but at the time of trial had not repaid any portion of the $742. Vaughn also testified that appellant had no authority to take the check from American Termite’s post office box.

Appellant acknowledged that he negotiated the check in question, but testified that Vaughn had given appellant the check in payment of a $500 debt, and he was to return the excess amount to Vaughn.

The only issue in this case was one of credibility of witnesses, which is a question for determination by the jury. Williams v. State, 184 Ga. App. 68 (1) (360 SE2d 634) (1987). We find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), and thus, the trial court did not err by denying appellant’s motion for a new trial on this ground.

2. Appellant alleges the trial court erred by admitting a photostatic copy of the check into evidence in violation of the best evidence rule. Pretermitting the question of admissibility, we find any error in admitting a copy of the check into evidence was harmless under the facts of this case. Appellant acknowledged negotiating the check in question and as stated in Division 1, the only issue was whether appellant received the check lawfully from Vaughn, as appellant testified, or whether he took it from American Termite’s post office box without authority. Thus, the check itself was of little or no significance in determining appellant’s guilt or innocence. Applying the test for harmless error set forth in Moore v. State, 254 Ga. 674, 677 (333 SE2d 605) (1985), we find that any error in admitting a photostatic copy of the check into evidence would not have influenced the jury’s verdict in any way.

Decided September 6, 1988.

Christine A. Van Dross, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Benjamin H. Oehlert III, David Wright, Assistant District Attorneys, for appellee.

3. Appellant contends the trial court erred by failing to grant a new trial on the ground that the prosecuting attorney improperly argued the law with respect to the presumption of innocence, thereby invading the province of the court and misleading the jury. Appellant made no objection to the prosecuting attorney’s argument, and this court will not consider questions raised for the first time on review. Tolbert v. State, 180 Ga. App. 703, 704 (3) (350 SE2d 51) (1986).

Judgment affirmed.

Deen, P. J., and Carley, J., concur.


text:
    76563.
    LEWIS v. THE STATE.
    (372 SE2d 482)
   Benham, Judge.

Appellant, tried with a co-indictee, was found guilty of burglary, armed robbery, and possession of a firearm during the commission of a felony.

1. In his first enumerated error, appellant contends the trial court erred in denying his motion for continuance made in order that he might be represented by an attorney his mother had allegedly hired. “The Constitution of Georgia, Art. I, Sec. I, Par. V . . . has been interpreted to confer upon every criminal defendant the right to be represented ‘by counsel of his own selection whenever he is able and willing to employ an attorney and uses reasonable diligence to obtain his services.’ [Cit.]” Reid v. State, 237 Ga. 106 (2) (227 SE2d 24) (1976). “Whether a particular defendant has exercised ‘reasonable diligence’ in procuring counsel is a factual question, and the grant or denial of a request for continuance on grounds of absence of retained counsel is a decision within the sound discretion of the trial judge, reversible only for an abuse of that discretion.” Shaw v. State, 251 Ga. 109, 111 (303 SE2d 448) (1983).

In the case at bar, appellant sought the continuance the morning his trial was scheduled to begin. While appellant and his sister testified that their mother had hired a certain attorney to represent appellant, there was no evidence of such an arrangement. Compare Shaw v. State, supra. Prefacing its denial of the motion for continuance, the trial court noted that appellant had been aware of his trial date for 17 days; that he had accepted the representation of the public defender for those 17 days; that no other attorney had identified himself as representing appellant; and that witnesses had been subpoenaed and jurors made available. We further note that no one present knew the whereabouts of counsel alleged to have been retained. “These facts do not display the diligence by appellant or his alleged retained counsel which is contemplated by the Georgia Constitution or the Sixth Amendment, and is not sufficient to show an abuse of discretion by the trial court in proceeding with the trial.” Reid v. State, supra at 108.

Decided September 6, 1988.

Johnny Lewis, pro se.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Nancy A. Grace, Assistant District Attorneys for appellee.

2. Appellant next contends that the trial court erroneously permitted the assistant district attorney to cross-examine appellant about his failure to discuss his version of the events with anyone prior to trial. Appellant, however, voiced no objection to the cross-examination at trial. “[T]his court has often noted that even an otherwise valid objection is waived unless timely made at trial. [Cit.] Objections presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken, because one may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court. [Cit.]” Butler v. State, 172 Ga. App. 405 (1) (323 SE2d 628) (1984).

3. In his final enumeration of error, appellant argues that the trial court erred in allowing the assistant district attorney to cross-examine appellant’s co-defendant about the co-defendant’s failure to tell the police the co-defendant’s version of the events. “Appellant cannot enumerate error as to another defendant in the case, as no harm to appellant could be caused. . . .” Garner v. State, 174 Ga. App. 628 (3) (330 SE2d 750) (1985).

Judgment affirmed.

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


author: Carley, Judge.

text:
    76576.
    DAN-D, INC. v. BURNSED ENTERPRISES, INC.
    (372 SE2d 303)
   Carley, Judge.

Appellant-contractor filed suit, seeking to perfect and enforce a materialman’s lien against the real property of appellee-owner. Appellee answered and, in addition, filed a counterclaim wherein it sought to recover liquidated damages for appellant’s breach of contract. After a brief period of discovery, appellee moved for summary judgment on its counterclaim and for purposes of its motion only, appellee admitted its liability for the $15,217.02 claimed by appellant as owed to it under the contract. Following a hearing, the trial court granted the motion and entered summary judgment in favor of appellee in the amount of $23,582.98, this figure representing the sum of $38,800 found to be owing to appellee as liquidated damages less the $15,217.02 which was claimed by appellant. Appellant appeals from the trial court’s order granting appellee’s motion for summary judgment.

1. Appellant enumerates as error the trial court’s holding, as a matter of law, that appellee was entitled to liquidated damages for breach of contract.

The record shows that the parties had entered into a construction contract containing an enforceable liquidated damages clause. See OCGA § 13-6-7; Gibson v. Sheriff, 155 Ga. App. 578 (271 SE2d 710) (1980). Under this liquidated damages clause, appellant would be required to pay $100 for each day that the substantial completion of its work on the project was delayed beyond a date to which the parties had agreed. Appellant urges that any delay in the substantial completion of its contractual obligations beyond the applicable date was caused either by appellee or by another contractor. However, under the terms of the contract, if appellant’s performance was delayed for reasons beyond its control, the proper contractual remedy was for it to apply, in writing, to the project engineer and appellee for an extension of time. Appellant did, in fact, apply for and receive one such extension of time from the project engineer and appellee. Assuming that appellant experienced any additional delay for reasons beyond its control, the proper time for raising the issue was when the delay occurred and the proper method for excusing the delay was that method identified in the contract. However, this contractual right to excuse additional delays in performance was not asserted by appellant in a timely and proper fashion.

Viewing the evidence in the light most favorable to appellant, it is clear that the construction contract in question contained a valid liquidated damages clause, that appellant failed to substantially complete its contractual obligations within the time agreed upon by the parties, and that appellant produced no evidence of a contractual defense to appellee’s claim for liquidated damages. Accordingly, the trial court did not err in holding, as a matter of law, that appellee was entitled to a recovery of liquidated damages.

Decided September 6, 1988.

Harold B. Yellin, for appellant.

Bavid H. Johnson, for appellee.

2. Appellant enumerates as error the trial court’s finding that appellee was entitled to judgment in the amount of $38,800 as liquidated damages.

In its order, the trial court stated that its determination that appellant’s substantial completion of the contract work was 388 days late was based upon August 20, 1984 as the contractual due date for substantial completion and an actual substantial completion date of September 12, 1985. There is evidence in the record, however, to authorize a finding that appellee waived the contractual due date of August 20, 1984 and extended it to at least October 5, 1984. “[T]he waiver of contract provisions ... is a question for the trier of fact when the evidence in that regard is conflicting. [Cit.]” Oxford Motors Co. v. Niblack, 183 Ga. App. 771, 772 (360 SE2d 23) (1987). As there remains a genuine issue of material fact with regard to the date when appellant’s substantial completion of its work was due and when appellant’s liability for liquidated damages commenced, the trial court erred in granting summary judgment as to the specific amount of liquidated damages that appellee was entitled to recover. Since the trial court’s grant of summary judgment in the amount of $23,582.02 must be reversed for this reason, it is unnecessary to address the question of whether a genuine issue of material fact also exists with regard to whether September 12, 1985 is the date when substantial completion of the contract was actually accomplished and when appellant’s liability for liquidated damages ceased.

3. The grant of summary judgment in favor of appellee is affirmed as to appellant’s contractual liability for liquidated damages. The grant of summary judgment in favor of appellee is reversed as to the award of damages in the amount of $23,582.02.

Judgment affirmed in part and reversed in part.

Been, P. J., and Sognier, J., concur.


text:
    76589.
    SMITH v. THE STATE.
    (372 SE2d 483)
   Benham, Judge.

Appellant was convicted of homicide by vehicle in the second degree. OCGA § 40-6-393 (b). On appeal he takes issue with an instruction given the jury by the trial court during appellant’s closing argument.

Decided September 6, 1988.

Floyd W. Keeble, Jr., for appellant.

Lindsay A. Tise, Jr., District Attorney, John H. Bailey, Jr., Assistant District Attorney, for appellee.

During his closing argument, appellant’s trial attorney informed the jury that “when the defendant introduces evidence of good character, the State has the right to introduce and call witnesses to prove any and everything that the fellow who puts his character in issue ever did wrong . . . when a person puts into evidence that they are a good driver and a safe driver, the State has the right to bring in evidence to show any traffic infraction that he’s ever been accused of and there’s not a single one.” The State voiced an objection on the ground that appellant’s prior convictions, if any, that were entered when appellant was not represented by counsel were not admissible. The trial court agreed, and told the jury that “the Court states to you that other violations, if there were such, may be admissible in Court only if the defendant was represented by counsel.” Appellant maintains that the trial court’s instruction to the jury was an improper statement of the law. We disagree.

In the course of the trial, appellant called several witnesses who testified that appellant’s reputation in the community was good. Appellant contends that he “opened the character door” with this testimony, thereby permitting the State to bring to the jury’s attention “any and everything [appellant] ever did wrong” and “any traffic infraction that [appellant was] ever accused of. . . While the State may “explore specific acts of bad conduct on cross-examination of the defendant’s character witnesses for the purpose of testing the witnesses’ knowledge of the defendant’s reputation [cits.]” (Jones v. State, 257 Ga. 753, 758 (fn. 8) (363 SE2d 529) (1988)), it may not use a conviction obtained when a defendant was deprived of his constitutional right to assistance of counsel. Loper v. Beto, 405 U. S. 473, 483 (92 SC 1014, 31 LE2d 374) (1972); Morgan v. State, 235 Ga. 632 (221 SE2d 47) (1975); Houser v. State, 234 Ga. 209 (15) (214 SE2d 893) (1975). Thus, the trial court’s instruction challenged by appellant was a correct statement of the law.

Judgment affirmed.

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