text:
    A92A0889.
    CHIP KASSINGER, INC. v. STEIMER et al.
    (422 SE2d 241)
   Beasley, Judge.

This is another suit involving the construction of the Steimer house. See Steimer v. Northside Bldg. Supply, 202 Ga. App. 843 (415 SE2d 688) (1992).

In March of 1987, Thomas and Norma Steimer, as purchasers, entered into a written contract with Chip Kassinger, Inc., as seller, for the construction of a house for the Steimers by Kassinger. Plans and specifications were attached. For a purchase price of $320,000, Kassinger, through its president E. T. “Chip” Kassinger, agreed to sell the Steimers the house and the lot. The Steimers paid Kassinger $10,000 shortly thereafter. Later, the same parties executed a new written contract for construction and sale of the house for a purchase price of $319,824. It was dated November 1, 1987, and signed by the Steimers as the purchasers. Norma Steimer, a licensed real estate agent, also signed as the associated sales person of ReMax, shown as the selling broker. The house was constructed, and the contract was closed on the new written contract in June of 1988, with an attorney signing for Kassinger in the absence of E. T. (Chip) Kassinger.

In April 1990, Seitz Landscaping sued Chip Kassinger, Inc. and the Steimers, alleging that it did landscaping work at the Steimers’ residence in May of 1988, that it had not been paid, and that the defendants were jointly and severally liable for $670 in labor and materials furnished.

Kassinger answered and filed a cross-claim against the Steimers and a third-party complaint against ReMax. It alleged that prior to execution of the first written contract, in March 1987, Kassinger had entered into an oral agreement with the Steimers under which they were to compensate Kassinger for construction of the residence on the basis of actual cost plus a fee of $10,000; but that in July 1988, after Kassinger informed the Steimers that construction costs exceeded the contract price due to many substantial changes in design during construction, they refused to comply with the oral agreement, resulting in Kassinger’s bankruptcy. Kassinger alleged that the actions of the Steimers constituted fraud, and it sought punitive and exemplary damages against the Steimers and against ReMax for the acts of its agent, Norma Steimer. Kassinger also sought a recovery against the Steimers for sums due under the cost-plus contract on theories of unjust enrichment and quantum meruit. By amendment it alleged that Norma Steimer was Kassinger’s agent and breached a fiduciary duty to it.

The trial court granted the Steimers’ motion for partial summary judgment on Kassinger’s cross-claim as amended, ruling that they were entitled to judgment as to all issues except Kassinger’s cross-claim for contribution and indemnity on the main claim. The court dismissed ReMax sua sponte.

1. The Steimers argue that Kassinger is barred from maintaining this action by Paragraph 14 of the November 1987 contract, which provides: “Entire Agreement. This Contract constitutes the sole and entire agreement between the parties hereto and no modification of this contract shall be binding unless attached hereto and signed by all parties to this contract. No representation, promise, or inducement not included in this contract shall be binding upon any party hereto.” The effect of this provision is dispositive.

Although one who fraudulently induces another to enter into a contract through oral misrepresentations “cannot protect himself from answering for his fraud by placing a limitation in the contract itself, . . . yet, before such a rule comes into play, it must appear that the perpetrator of the fraud procured the defrauded party’s signature to the contract itself by the perpetration of some fraudulent artifice which prevented the allegedly defrauded party from knowing the contents of the instrument itself. . . .” Holbrook v. Capital Auto. Co., 111 Ga. App. 601, 603 (142 SE2d 288) (1965).

Kassinger has not alleged that through some fraudulent artifice its president was prevented from reading the contract. Kassinger has not alleged any fraud on the part of the Steimers except that their entry into the alleged oral agreement was part of a conspiracy to deprive Kassinger of cost-plus compensation. Kassinger’s allegations concerning the oral agreement are contrary to a sworn statement signed by its president at the closing of the November 1987 contract in June 1988 that the purchase price for the house and lot was as stated in that agreement.

This case is similar to Mitchell v. Head, 195 Ga. App. 427 (394 SE2d 114) (1990), wherein the plaintiff’s claim of fraud was also disposed of through the grant of the defendants’ motion for summary judgment. Kassinger distinguishes it by saying that there is evidence of its detrimental reliance on the oral agreement so as to avoid the Statute of Frauds defense (OCGA § 13-5-30). The reliance is allegedly its president’s purchase of the lot for the Steimers in his own name and permitting many changes in the original design to be made during construction without cost control, allowance, or specification.

Decided September 8, 1992.

Even if that contract were enforceable albeit oral, it runs headlong into not one, but two subsequent written fixed price contracts containing merger clauses. The oral agreement, if there was one, was eliminated. Kassinger acknowledges that the first written contract, the one of March 3, 1987, was the basis for the Steimers’ paying him $10,000 earnest money. The second, which was used at closing, adjusted the, price by less than $200. In neither instance is there any evidence that Kassinger’s president was prevented from reading the agreements by fraud on the part of either defendant. Accordingly, the trial court did not err in granting judgment to the Steimers on this claim.

If the “detrimental reliance” is on the representation of Norma Steimer that the written document dated November 1 was merely for the purpose of obtaining the long-term loan and that it would not supersede the oral agreement, there is no evidence that such representation, if made, was relied upon due to a fiduciary relationship. Such a statement, if made, relates to her capacity as a buyer and for her benefit as a buyer. Her other signature on the document, as the selling broker’s associated salesperson, did not create a principal-agent relationship which would give rise to avoidance of the merger clause.

'2. Citing Stevens v. Fort Indus., 88 Ga. App. 584 (1) (77 SE2d 273) (1953), the Steimers point out that where there is an express contract, there can be no recovery based upon quantum meruit or unjust enrichment theories. Kassinger agrees with this position, except that it argues that the November 1987 contract was no contract at all since it was the product of fraud. For reasons given in Division 1, this argument is without merit.

The trial court did not err in dismissing ReMax, since it properly ruled that there is no direct liability from the Steimers to Kassinger on Kassinger’s fraud claim, but only potential secondary liability on the claim asserted by plaintiff Seitz, and plaintiff’s claim does not relate to any action taken by Norma Steimer in a representative capacity in the scope of her employment by ReMax. “[T]he court may exercise its inherent power to dismiss sua sponte. [Cits.]” Cramer v. Southeastern Office &c. Co., 171 Ga. App. 514, 515 (1) (320 SE2d 223) (1984).

Judgment affirmed.

Andrews, J., concurs. Birdsong, P. J., concurs in judgment only.

Rafe Banks III, for appellant.

Allman & Griffin, David E. Allman, for appellees.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A92A0921.
    KENNERLY v. FIRST COLONY BANK.
    (422 SE2d 243)
   Johnson, Judge.

White River Development, Ltd., executed a promissory note in favor of First Colony Bank (FCB) in the amount of $25,050. Dantzler Kennerly executed a personal guaranty of the note. White River defaulted on the note. FCB filed a complaint for damages against Kennerly and others. The trial court granted summary judgment in favor of FCB and against Kennerly in the principal amount of $25,050, interest in the amount of $2,546.16, attorney fees of $2,784.62 and costs. Kennerly appeals. FCB has filed a motion to impose frivolous appeal damages.

1. Kennerly argues that the trial court erroneously granted summary judgment to FCB because there is a genuine issue of material fact as to the consideration supporting his personal guaranty. Kennerly claims that FCB orally agreed to satisfy White River’s debt from sales commission assignments before seeking to enforce Kennedy’s guaranty. Kennerly contends that this oral promise constituted the consideration for his personal guaranty and that FCB breached the promise. Kennerly’s argument is without merit.

“ ‘Parol evidence is not admissible to vary or contradict the unconditioned promise to pay provided in a note or a guaranty agreement. “The cases are legion that a complete and unambiguous instrument cannot be varied or contradicted by reliance upon inconsistent parol statements.” ’ [Cit.]” Hendricks v. Enterprise Fin. Corp., 199 Ga. App. 577, 579 (2) (405 SE2d 566) (1991). Here, the guaranty agreement is clear and unambiguous. Kennerly unconditionally guaranteed full and prompt payment of White River’s obligations to FCB. The guaranty states it was given “[f]or value received, the sufficiency of which is hereby acknowledged, and in consideration of any loan or other financial accommodation heretofore or hereafter at any time made or granted to White River Development, Ltd. ... by First Colony.” The guaranty also states that it “shall be continuing, absolute and unconditional.” Kennerly cannot now vary the terms of this clear and unambiguous instrument by reliance upon inconsistent parol statements.

2. This case presents no genuine issues of material fact or law and is wholly without merit. We find that the case was taken up solely for delay and the appeal is frivolous. Accordingly, pursuant to OCGA § 5-6-6, we award damages of ten percent of the judgment to the appellee. Damages are awarded in the amount of $3,038.08.

Decided September 8, 1992.

Blandford & Werbin, John L. Blandford, for appellant.

John C. Bach, Robert J. Hulsey, for appellee.

Judgment affirmed with direction.

Carley, P. J., and Pope, J., concur.


author: Carley, Presiding Judge.

text:
    A92A0922.
    FULTON v. THE STATE.
    (422 SE2d 257)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of three counts of child molestation. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. Over appellant’s objection, the trial court ruled that out-of-court statements attributed to the victim were admissible pursuant to OCGA § 24-3-16. This evidentiary ruling is enumerated as error.

“The record shows . . . that as to each of the State witnesses who related statements made to them by the child, the trial court conducted a hearing outside the presence of the jury and determined that the circumstances provided sufficient indicia of reliability.” Hutton v. State, 192 Ga. App. 239, 240 (2) (384 SE2d 446) (1989). “Examination of the transcript of the hearing and trial establishes a sufficient showing of indicia of reliability, within the meaning of OCGA § 24-3-16, as to all out-of-court statements made by the victim, which were testified to by witnesses in the presence of the jury.” Gregg v. State, 201 Ga. App. 238, 241 (3b) (411 SE2d 65) (1991). Accordingly, this enumeration is without merit.

2. The trial court’s refusal to allow appellant’s character witnesses to answer a certain question is enumerated as error. However, as in Hess v. State, 132 Ga. App. 26, 31 (5) (207 SE2d 580) (1974), the record demonstrates that no proffer was made as to what the character witnesses’ answers would have been. “Not having done so, [appellant] has failed to show that the testimony would have benefited [him] or that its rejection was sufficiently prejudicial to warrant a reversal of the conviction[s]. [Cits.]” Miller v. State, 162 Ga. App. 759, 760 (1) (292 SE2d 481) (1982).

Judgments affirmed.

Pope and Johnson, JJ., concur.

Decided September 8, 1992.

J. Stanley Rhymer, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.


author: Sognier, Chief Judge.

text:
    A92A0923.
    WOOD et al. v. SHEPHERD CONSTRUCTION COMPANY, INC.
    (422 SE2d 59)
   Sognier, Chief Judge.

Sherri Lynn Wood (hereinafter “Wood”) and her parents brought suit against Shepherd Construction Company, Inc. and Gwinnett County to recover damages for injuries incurred by Wood when her car was forced off a Gwinnett County road recently repaved by Shepherd. Gwinnett County was subsequently dismissed from the action. The trial court granted Shepherd’s motion for partial summary judgment on the issue of liability for punitive damages, and the Woods brought this appeal.

Appellants’ claims against appellee, as established in their complaint, sound in negligence and are based upon allegations that during its repaving work, appellee negligently piled debris on the shoulder and failed to erect signs warning motorists of the drop-off. This case is controlled by Shepherd Constr. Co. v. Jarrett, 202 Ga. App. 152 (413 SE2d 742) (1991). In Jarrett, a passenger in an automobile was severely injured when the car in which she was riding collided with a construction vehicle parked on Interstate 75 during ongoing repaving work. Despite uncontroverted evidence of the paving contractor’s failure to comply with contract provisions regarding warning signs and the use of lighted barricades to reroute traffic around the hazard, this court found no reasonable basis for a conclusion that the construction company “acted with malicious intent or with ‘conscious indifference to consequences,’ ” id. at 154 (1), in failing to anticipate the driver’s actions that led to the collision, and consequently reversed the trial court’s denial of the contractor’s motions for directed verdict and judgment notwithstanding the verdict on the issue of punitive damages. Id.

In the case at bar, the evidence showed that on the morning of October 12, 1987, Wood, then 16 years old, drove her car to school with two friends on a two-lane road that had recently been repaved by Shepherd in accordance with its contractual obligations. All three occupants of the car testified at deposition that it was still dark as they drove east. Approaching a curve, they suddenly observed a light-colored car coming toward them, heading west in their lane. In order to avoid a head-on collision with the other car, Wood swerved the car off the road to her right and, in attempting to return to the road after the approaching car had passed, apparently lost control. Her car crossed the road, hit an embankment on the opposite side, and turned over, throwing clear its occupants.

Decided September 8, 1992.

Murray & Nabors, Jeffrey R. Nabors, for appellants.

Tittsworth & Grabbe, John C. Grabbe IV, for appellee.

Even construing the evidence in favor of appellants and assuming, without deciding, that appellee acted negligently in some regard, we see no reasonable basis for concluding that appellee acted with any malicious intent or conscious indifference to consequences in failing to anticipate that Wood’s car would be forced off the road by a car traveling directly toward her in the wrong lane. Consequently, we affirm the trial court’s grant of partial summary judgment to appellee on the issue of punitive damages. Jarrett, supra.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


author: Pope, Judge.

text:
    A92A0928, A92A0929.
    DOUGLAS et al. v. WOON et al. (two cases).
    (422 SE2d 61)
   Pope, Judge.

These two actions arise out of the same automobile collision which occurred on October 2, 1988. The plaintiffs, both occupants of the same vehicle, brought separate identical actions against defendant 0. Sang Woon and defendant John Doe, an unknown “phantom” motorist, alleging the negligence of both defendants combined to cause the collision in which they were injured. At the time the actions were filed on September 27, 1990, plaintiffs filed the affidavit of their attorney attesting that efforts had been made to locate defendant Woon at the address listed in the accident report, through the telephone book and through the insurer listed on the accident report, but he could not be found. In each case, the trial court issued an order concluding the defendant could not be located in Georgia and granting plaintiffs’ motion for service by publication. The record shows a notice of publication was issued by the clerk of the trial court for each case on the day the actions were filed. Plaintiffs also served their uninsured motorist insurer.

Plaintiffs’ uninsured motorist insurer filed an answer in both actions on behalf of defendant John Doe as well as a motion for summary judgment on the ground that the record showed no physical impact with the vehicle driven by defendant John Doe and the plaintiffs failed to produce corroborating testimony as to the existence of John Doe, as required by OCGA § 33-7-11 (b) (2). The trial court granted these motions. Defendant Woon’s insurer filed an answer in both actions on his behalf as well as a motion to dismiss for insufficiency of service upon Woon. The trial court also granted these motions. Plaintiffs appeal.

1. We agree that the trial court erred in granting defendant Woon’s motion to dismiss. It is true that because Woon has not been personally served, in personam jurisdiction may not be obtained against Woon and therefore no judgment may be recovered from him personally or his insurer. See Smith v. Commercial Union Assur. Co., 246 Ga. 50 (268 SE2d 632) (1980). Nevertheless, a judgment against Woon may be recovered from plaintiffs’ uninsured motorist insurer because he is, in essence, an uninsured motorist. Id. See also Bell v. Bennett, 189 Ga. App. 423 (375 SE2d 884) (1988); Wentworth v. Fireman’s Fund &c. Cos., 147 Ga. App. 854 (250 SE2d 543) (1978); Norman v. Daniels, 142 Ga. App. 456 (236 SE2d 121) (1977).

We reject defendant’s argument that plaintiffs failed to show due diligence in attempting to locate defendant because they did not show they had attempted to serve the defendant. The statute permitting service by publication does not require a showing that service has been attempted but only that the party to be served “has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself to avoid the service of the summons . . . .” OCGA § 9-11-4 (e) (1) (A). Moreover, by granting the order permitting service by publication the trial court, in effect, made a finding of due diligence. See Starr v. Wimbush, 201 Ga. App. 280 (2) (410 SE2d 776) (1991).

Once it is shown that, after diligent inquiry, the tortfeasor cannot be served, the action against the uninsured motorist insurer may proceed if the insurer was timely served. Norman v. Daniels, supra. The insurer does not argue that it was not properly served. The record shows that service copies of plaintiffs’ complaints were received in the sheriff’s office on October 1, before the expiration of the two-year period of limitation, and the sheriff’s return of service shows the complaints were served on the uninsured motorist insurer on October 3, 1990, two days after the period of limitation had expired and six days after the complaints were timely filed. Even though the complaints were not automatically timely because they were not served within five days as set forth by OCGA § 9-11-4 (c), the record shows plaintiffs provided the sheriff’s office with the proper address for service upon the uninsured motorist insurer within the period of limitation and the complaints were served within a matter of days. Under these facts, the insurer was timely served. See Bennett v. Matt Gay Chev rolet &c., 200 Ga. App. 348 (1) (408 SE2d 111) (1991). Even though the uninsured motorist insurer chose to answer only on behalf of the John Doe defendant, because defendant Woon’s insurer is not obligated to defend him, plaintiffs’ uninsured motorist insurer is now under an obligation to assume his defense as an uninsured motorist. Thus, we reverse the dismissal of defendant Woon and direct the trial court to issue an order consistent with our ruling that although a judgment may not be recovered from defendant Woon or his insurer, the defendant remains a party to the action as an uninsured motorist.

Decided September 8, 1992.

Zachary & Segraves, J. Ed Segraves, for appellants.

Drew, Eckl & Farnham, John P. Reale, L. Lee Bennett, Jr., Sullivan, Hall, Booth & Smith, John E. Hall, Jr., Roger S. Sumrall, for appellees.

2. We agree, however, that the trial court properly granted summary judgment to defendant John Doe. Plaintiffs admit that no corroborating evidence was submitted to support their claim against the “phantom” John Doe defendant. Plaintiffs argue, however, that the grant of summary judgment improperly permits their uninsured motorist insurer to avoid liability for the alleged negligence of the other uninsured motorist, defendant Woon. Our holding in Division 1 of this opinion settles this issue.

Judgments affirmed in part and reversed in part with direction.

Carley, P. J., and Johnson, J., concur.


author: Beasley, Judge.

text:
    A92A0930, A92A0931, A92A0933.
    A92A0932, A92A0934.
    YOUNG v. THE STATE (three cases). JACKSON v. THE STATE (two cases).
    (422 SE2d 244)
   Beasley, Judge.

Young was charged in one indictment with seven counts of sale of personal property to a political subdivision by a local officer or employee, OCGA § 16-10-6 (b). Five counts were dismissed because of the statute of limitation, and he was convicted of two counts. The appeal is Case No. A92A0930.

Both Young and Jackson were charged in a second indictment with 16 counts of violating the same statute, jointly tried, and convicted of all counts. Young’s appeal is Case No. A92A0931, and Jackson’s is Case No. A92A0932.

In a third indictment both Young and Jackson were charged with one count of conspiracy to defraud a political subdivision, OCGA § 16-10-21, of which they were convicted. Young’s appeal is Case No. A92A0933; Jackson’s is Case No. A92A0934.

Motions for new trial were denied as to each judgment.

Case No. A92A0930

In the two counts tried on the first indictment, Young was charged as an employee of Carroll County, with unlawfully selling creek sand and gravel for himself and in behalf of Creek Sands, Inc., to Carroll County on May 1, 1987, for $31,770, and on June 2, 1987, for $47,296.

During the relevant time period, Young was employed by Carroll County as a grade foreman and William Cooke (who previously pled guilty to similar charges) was employed by the county roads department' and later as deputy warden of the prison. In early fall of 1986, Cooke and Young learned that the county was seeking to purchase a less costly base material than that used previously in road construction. They discussed the formation of a business for the purpose of acquiring creek sand and selling it to the county as an alternative road base material. During 1986, they sought to buy creek sand from John Palk and told him they were interested in getting into the sand and gravel business in their individual capacities.

In early November, Cooke and Young approached Walt Hollingsworth (a non-county employee) with an offer to form a business for the purpose of “min[ing] creek sand and gravel from the creeks around the community [and] selling it] to the county.” It was “public knowledge” that the three were in business together. Hollingsworth was to be a 40 percent partner and would manage the day-to-day operations. Cooke and Young each retained 30 percent. “Creek Sands, Inc.” was formed in February 1987. Hollingsworth was the sole shareholder, but Young invested $4,500 and assumed the task of locating sources of creek sand or gravel. Hollingsworth testified that he submitted sealed bids to the county to acquire its work, but the county road superintendent testified that the county “had no formal bid procedures” and instead accepted price “quotes.”

In about February 1987, when Cooke and Young learned of an ongoing investigation into their activities by the Georgia Bureau of Investigation, they decided to treat their investment in the corporation as a loan to Hollingsworth to allow him to carry on the business. Both continued to be employed by the county, and in April 1987, Young delivered a $3,000 cash payment to Cooke from the corporation.

Back in December 1986, Hollingsworth informed Young and Cooke that he had received legal advice that their business endeavor was unlawful. When asked whether the three thereafter remained in business, Hollingsworth responded, “I can’t say that we were, and I can’t say we weren’t. I relayed the messages on. It never really materialized any further. Nobody was paid out, if that’s what you mean. Everybody was still intact.” He testified that Creek Sands continued to do business with the county.

On May 1, 1987, Hollingsworth submitted a bill for $31,770 to the county, for which the corporation received payment on May 15. On June 2, 1987, the corporation billed the county for $47,296 and received payment on June 6.

Although Young denied having any interest in the corporation after February 1987, there was evidence that deliveries of equipment for Creek Sands, Inc. were made to Young’s residence and that he paid Creek Sands’ bills through June 1987. Hollingsworth terminated his interest in Creek Sands that month. A private hauling contractor who did work for Creek Sands testified that Young was “running the business” and that Young told him he intended to continue to do so after Hollingsworth left in June.

1. Young contends that the evidence was insufficient to support the verdict.

OCGA § 16-10-6 is violated when: “(a) Any employee, appointive officer, or elective officer of a political subdivision, hereafter referred to as ‘employing political subdivision,’ or agency thereof who for himself or in behalf of any business entity sells any real or personal property to: (1) The employing political subdivision; . . .” Subsection (b) (2) excepts “Sales of personal property made pursuant to sealed competitive bids made by the employee, . . . either for himself or on behalf of any business entity; ...”

Young points to evidence that his interest in Creek Sands terminated prior to its incorporation in February 1987, and that sales of personal property to the county by the corporation were made pursuant to sealed competitive bids. As previously noted, evidence as to both issues was in conflict. “ ‘It is the function of the jury to determine the credibility of the witnesses, including that of the defendant. The jurors must weigh and resolve any conflicts presented by the evidence. The appellate court must view the evidence in the light most favorable to the jury’s verdict. (Cit.)’ [Cit.]” Rayburn v. State, 194 Ga. App. 676 (1) (391 SE2d 780) (1990). The evidence presented at trial was sufficient to enable any rational trier of fact to find appellant guilty beyond a reasonable doubt of the acts charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Young asserts that the trial court erred in denying his motion for a directed verdict of acquittal on the ground that there existed a fatal variance between the allegata and probata, in that the indictment charged the sale of “creek sand and gravel,” while the proof demonstrated that the substance sold was “chert.”

“Under DePalma v. State, 225 Ga. 465, 469 (169 SE2d 801) (1969), and Dobbs v. State, 235 Ga. 800 (3) (221 SE2d 576) (1976), ‘(n)ot every variance in proof from that alleged in the indictment is fatal.’ Givens v. State, 149 Ga. App. 83, 86 (253 SE2d 447) (1979). The crucial requirements are (1) that the accused be definitely informed as to the charges against him, so that he is able to present his defense, and (2) that he may be protected against another prosecution for the same offense. DePalma, supra. Unless the variance subjects defendant to one of these dangers it is not fatal. See Dobbs, supra at 802, which noted that the fatal variance doctrine had previously been applied too restrictively. . . . The true inquiry is whether there has been such a variance as to ‘affect the substantial rights’ of the accused. [Cits.]” Glass v. State, 199 Ga. App. 530, 531 (1) (405 SE2d 522) (1991).

Whether the substance supplied to the county was creek sand, gravel or chert, it was invoiced as chert, defined in Webster’s New International Dictionary as “any impure flintlike rock.” Gravel is “loose or unconsolidated material consisting of rounded fragments of rock ranging in size. . . . Material of finer particles is classed as sand.” Ibid. As in Glass, supra at 532, Young “had notice of the charges against him and was not surprised nor prevented from preparing his defense. There was no danger that he would be placed in jeopardy twice for the same offense. Fatal variance is absent.”

Case Nos. A92A0931, A92A0932

The indictment charged Young and Jackson, employees of Carroll County, with selling to Carroll County, for themselves and in behalf of Terre Tote, Inc., road base material described as chert on 16 occasions beginning September 2, 1987, and ending July 25, 1988, totaling sales of $535,519.20.

Chronologically, the evidence offered in the second trial continues near where the scenario in the first concluded.

In April 1987, Young, an employee of Carroll County, asked Hollingsworth, doing business as Creek Sands, Inc., to supply chert for an ongoing county road construction project. Based solely on Young’s request and in the absence of competitive bidding, a contract between Creek Sands, Inc. and the county resulted.

In June, Hollingsworth advised Young that he no longer wanted to be involved with Creek Sands, Inc. One week later Hollingsworth was approached by Jackson, who inquired about purchasing the assets of the corporation. The two agreed upon terms by which Jackson, operating as a new corporation, Terre Tote, Inc., would purchase Creek Sands’ assets, i.e., certain equipment and the contract to supply chert to Carroll County. Jackson, operating as Terre Tote, Inc., acquired the business on July 20.

A hauling contractor, who had been hired by Young to do work for Creek Sands, Inc. testified that in June or July, Young told him “he had to have a man up front . . . [and that] he was going to get [appellant] Jackson” to run the business. He further testified, “After they named it Terre Tote, ... I knew whose it was . . . Joe Young’s.” The contractor continued to work for Terre Tote, Inc., receiving his instructions from either Young or Young’s son Keith. He was paid by Jackson.

Paul Ballard was a traffic engineer for the county in 1986 and became road superintendent in March 1987. He and Young, co-workers at that time, jointly purchased a loader which they rented to the county. In late May 1987, Young told Ballard that Jackson would be “the man who would handle the business for us . . . [because they] needed someone who was separate from the county . . . who could sign contracts and borrow money and basically run the company.” Young, Jackson and Ballard were operating Terre Tote, Inc., “the company [which] was selling chert to the county.” Jackson would bring Terre Tote’s invoices to Ballard who would approve them on behalf of the county and forward them to the commissioner’s office for payment. Sealed competitive bids were not used; instead, Ballard and Young jointly arrived at the price to be quoted. Ballard was paid in cash by Jackson on behalf of Terre Tote, Inc. He later pled guilty to violations of OCGA § 16-10-6 (b).

Young’s involvement in Terre Tote’s business was confirmed by Jerry Wiggins, when Young approached in 1987 with an offer to purchase chert for county road construction. Young told him he would be dealing through Terre Tote, Inc. or Jackson. Wiggins and Young worked out the details of a contract. Wiggins and Jackson, acting on behalf of Terre Tote, Inc., executed it. Although Young did not represent that he was part of the corporation, “any time [Wiggins] had a problem with Terre Tote or Jackson, [he] had to deal with [Young] to get it resolved.”

Witnesses for the State testified that Young and Jackson together operated Terre Tote, Inc. The record reveals that invoices were introduced reflecting charges to the county by Terre Tote, Inc. and payment received by the corporation only with respect to 13 of the 16 transactions specified in the indictment. Counts 13, 14, and 15 of the indictment are not supported by the evidence. Accordingly, the judgments of conviction and sentences as to Counts 13, 14, and 15 are reversed. The case is remanded to the trial court for resentencing as to Counts 1 through 12 and Count 16.

3. Appellants allege they were improperly convicted on the uncorroborated testimony of accomplice Paul Ballard, in violation of OCGA § 24-4-8.

“In Georgia, a defendant may not be convicted on the uncorroborated testimony of an accomplice. OCGA § 24-4-8. . . . The corroboration must be independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty. [Cit.] ‘However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. (Cit.) Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict. (Cit.)’ [Cit.]” Castell v. State, 250 Ga. 776, 780 (1) (c) (301 SE2d 234) (1983). The evidence was sufficient to corroborate Ballard’s testimony as to appellants’ involvement in the corporation which sold chert to the county.

Case Nos. A92A0933, A92A0934

The indictment charged Young, Jackson and others with one count of conspiracy to defraud a political subdivision, OCGA § 16-10-21, by unlawfully conspiring to commit theft of tax money belonging to Carroll County. Seventeen overt acts were specified in furtherance of the alleged conspiracy, occurring between October 1, 1986 and December 1, 1988.

The evidence was for the most part duplicative of the two prior trials. Hollingsworth, Cooke and Ballard were the primary witnesses for the State. .The transactions alleged in the two previous indictments provided the bases for the seventeen overt acts.

4. Appellants challenge the sufficiency of the evidence in connection with the conspiracy conviction, claiming there was no proof of their intent to defraud the county.

“A person commits the offense of conspiracy to defraud a political subdivision when he conspires or agrees with another to commit theft of any property which belongs to a political subdivision or to any agency thereof or which is under the control of possession of an officer or employee of a political subdivision in his official capacity. The crime shall be complete when the conspiracy or agreement is effected and an overt act in furtherance thereof has been committed, regardless of whether the theft is consummated.” OCGA § 16-10-21 (b).

Assuming without deciding that appellants were initially misinformed about the unlawfulness of their business ventures, they later learned that what they proposed to do was in violation of the criminal code. The jury was instructed that essential elements of conspiracy are knowledge and intent to agree to a wrongful act. There was substantial evidence from which the jury could conclude that with that knowledge, appellants conspired to transact the business of the two corporations.

5. Appellants contend that the trial court erred in denying their plea in bar to the conspiracy indictment.

First, they argue that because ten of the seventeen alleged overt acts took place more than four years prior to the return of the indictment and are outside the statute of limitation, the entire indictment is invalid. The crime is complete when the agreement is effected and an overt act in furtherance thereof has been committed. Even if an overt act occurring outside the statute of limitation would not support the conspiracy charge, there was substantial evidence of acts having occurred within that period. “One or more of the overt acts being proven to the jury beyond a reasonable doubt satisfies the state’s burden. . . .” Moser v. State, 178 Ga. App. 526, 531 (343 SE2d 703) (1986). Indeed, the jury was instructed, without objection by appellants, that: “It is not necessary for the State prove all the overt acts alleged in the indictment. The crime shall be complete when the . . . agreement is effected and one or more of the overt acts alleged in the indictment in furtherance thereof has been committed. . . . This overt act must be proved beyond a reasonable doubt and must have occurred on or after April 5, 1987 (the expiration of the statute of limitation) and must have been in furtherance of the conspiracy.” The additional acts set out in the indictment could be considered mere surplusage. The plea in bar was properly overruled on this ground.

In State v. Shepherd Constr. Co., 248 Ga. 1 (281 SE2d 151) (1981), dismissal of a conspiracy count of an indictment was authorized where the four-year period of limitation had expired. In the present case, the period of limitation had run only with respect to some, but not all, of the alleged overt acts. The alleged conspiracy endured within the statute of limitation.

Appellants also assert that the conspiracy indictment is barred by the statute of limitation because the first overt act in furtherance thereof was allegedly committed outside the limitation period. Since OCGA § 16-10-21 provides that the crime is completed when the agreement is effected and an overt act in furtherance thereof committed, they contend that the entire indictment is defective. That is too narrow an interpretation of the statute. The conspiracy is complete if the agreement and “an overt act” in furtherance thereof occur within the limitation period. Appellants’ reading of the statute would allow a conspiracy to continue, but bar prosecution, if the conspiracy was not discovered until four years after the first overt act “completed the crime.”

6. The trial court did not err in denying appellants’ special demurrer to the indictment on the ground that it lacked the requisite specificity. The indictment satisfied the requirements set out in Wright v. State, 216 Ga. 228 (115 SE2d 331) (1960), that it state with particularity the nature of the agreement, the exact end to be accomplished thereby and the property of the State at which the conspiracy is aimed. The statute at issue in Wright was the predecessor to OCGA § 16-10-21 (Ga. Code Ann. § 26-4201), which did not require the commission of an overt act. The court opined that “[w]ere an overt act necessary to complete the offense, a different rule might obtain.” Wright, supra at 232.

Decided September 8, 1992.

Word & Flinn, Gerald P. Word, for appellants.

Peter J. Skandalakis, District Attorney, Mark A. Gomez, Assistant District Attorney, William G. Hamrick, Jr., Special Assistant District Attorney, for appellee.

7. For the reasons set forth in Division 5, the trial court properly permitted witnesses Cooke and Hollingsworth to testify to events which allegedly occurred outside the statute of limitation. To the extent that appellants assert the testimony improperly introduced their characters into evidence in violation of Uniform Superior Court Rule 31.3 (B), no such objection was made at trial. It will not be considered for the first time on appeal. Hunter v. State, 202 Ga. App. 195 (3) (413 SE2d 526) (1991).

Judgments affirmed in Case Nos. A92A0930, A92A0933, and A92A0934. Judgments affirmed in part, reversed in part, and remanded for resentencing in Case Nos. A92A0931 and A92A0932.

Birdsong, P. J., and Andrews, J., concur.


text:
    A92A0946.
    MESSER v. MARCHMAN et al.
    (422 SE2d 250)
   Carley, Presiding Judge.

Appellant, as the natural mother of a minor child, surrendered her parental rights to appellees and acknowledged her surrender in accordance with OCGA § 19-8-5. After expiration of the requisite ten-day period and an alleged seven-day extension thereof, appellees petitioned for adoption of the child. Appellant filed an objection to the adoption. The trial court, after conducting an evidentiary hearing, granted appellees’ petition for adoption, finding that appellant’s surrender of her parental rights had been freely and voluntarily given and that the adoption by appellees was in the best interest of the minor child. Appellant appeals directly from the trial court’s order of adoption. See Moore v. Butler, 192 Ga. App. 882, 883 (1) (386 SE2d 678) (1989); In re J. S. J., 180 Ga. App. 873 (350 SE2d 843) (1986).

1. Appellant urges that her consent was not freely and voluntarily given or, in the alternative, that there was good and sufficient cause to void her consent.

Appellant’s contentions were strongly “denied by both adoptive parents, by [other witnesses], and by the appellees’ attorney.” Cloud v. Gossett, 143 Ga. App. 444 (2) (238 SE2d 578) (1977). Thus, “the evidence upon which these contentions are predicated is not uncontroverted. The question of the weight to be attributed to the conflicting evidence was a matter for the superior court. As an appellate court, we may examine only the sufficiency of the evidence and having done so, we find that there is sufficient evidence to authorize the superior court’s resolution of the factual conflict in favor of [appellees]. [Cit.]” (Emphasis in original.) Motes v. Love, 202 Ga. App. 749 (1) (415 SE2d 334) (1992). “The trial court had the opportunity to question and observe the parties, and possesses a wide discretion in determining the issues before [it], and if the judgment is supported by any evidence, and is not clearly erroneous, an appellate court is not authorized to set it aside. [Cits.]” Boatman v. Chapman, 174 Ga. App. 77, 78 (329 SE2d 185) (1985). Considering all the evidence, “we cannot say that the trial [court] abused [its] discretion in finding that the appellant had freely and voluntarily consented to the adoption. [Cits.]. . . . [Moreover, in] the absence of additional circumstances, the trial [court] did not err in refusing to release the appellant from her consent. [Cits.]” McGowan v. Wilkinson, 145 Ga. App. 691, 692 (1, 2) (244 SE2d 626) (1978). See also Ridgley v. Helms, 168 Ga. App. 435, 437-439 (1, 2) (309 SE2d 375) (1983).

2. Appellant also contends that appellees failed to file with their petition, “in a manner acceptable to the court, a report fully accounting for all disbursements ... in connection with the adoption. . . .” OCGA § 19-8-13 (c).

The record contains affidavits disclosing that appellant had received nothing from appellees in connection with the adoption and that a certain amount of attorney’s fees was paid by appellees. “We read the phrase ‘in a manner acceptable to the court’ in [OCGA § 19-8-13 (c)] as a grant of broad discretion to the trial court in determining whether there have been improper financial transactions associated with the adoption. It was clear to the trial [court] in this case that there had been no such payments in this case. We find it to be within the trial court’s discretion to determine from the . . . documentation supplied [and the testimony heard] in this case that there were no financial improprieties . . . : appellant[’s] complaint in this regard is one of form, not substance. We see no abuse of the trial court’s discretion.” Owens v. Worley, 163 Ga. App. 488, 490 (3) (295 SE2d 199) (1982).

Judgment affirmed.

Pope and Johnson, JJ., concur.

Decided September 8, 1992.

Little & Adams, Robert B. Adams, for appellant.

Waycaster, Corn & Morris, Robert L. Waycaster, Jr., Cynthia N. Johnson, for appellees.


text:
    A92A0947.
    SOUTHERTON v. THE STATE.
    (422 SE2d 251)
   Carley, Presiding Judge.

After a jury trial, appellant was found guilty of driving under the influence and failure to dim headlights. A motion for new trial on the ground that appellant had been denied effective assistance of trial counsel was denied. Appellant appeals, enumerating as error only the denial of his motion for new trial.

Appellant’s primary contention is that his trial counsel was ineffective because he refused to call one witness and failed to secure the testimony of another. However, his trial counsel addressed this issue at the hearing on the motion for new trial and his testimony “reflects a tactical decision by trial counsel made in the exercise of his professional judgment. As such, it affords no basis for reversal. [Cit.]” Ivory v. State, 199 Ga. App. 283, 284 (2) (405 SE2d 90) (1991).

Appellant also urges that his trial counsel failed to prepare sufficiently for trial and that appellant was not adequately prepared for direct and cross-examination. These contentions were directly rebutted by the testimony given by appellant’s trial counsel at the hearing. “This conflict in the testimony properly could have been resolved by the trial court in counsel’s favor.” Richardson v. State, 194 Ga. App. 358, 359 (1b) (390 SE2d 442) (1990). Moreover, appellant’s “counsel on appeal has failed to suggest what additional facts might have been revealed by further investigation or what additional defenses might have become apparent as the result of further research and preparation.” Askin v. State, 178 Ga. App. 810, 811 (1) (344 SE2d 699) (1986).

Appellant urges that trial counsel failed to file pretrial motions and to consider obtaining an independent expert witness. However, trial counsel was provided with a list of witnesses and he determined that there were no custodial inculpatory statements. Appellant has not shown what, if any, scientific reports or exculpatory material could have been obtained. Trial counsel also testified that, considering the limitations appellant placed on the expenditure of funds, an economical but effective defense was provided. Accordingly, appellant’s complaints “failed to evoke prejudice. . . . [Moreover,] ‘(g)iven the finite resources of time and money that face a defense attorney, it simply is not realistic to expect counsel to investigate substantially all plausible lines of defense. Á reasonably competent attorney often must rely on his own experience and judgment, without the benefit of a substantial investigation, when deciding whether or not to forgo a particular line of defense.’ ” (Emphasis in original.) Baines v. State, 201 Ga. App. 354, 356 (1c) (411 SE2d 95) (1991).

Decided September 8, 1992.

R.' Andrew Fernandez, for appellant.

Richard H. Taylor, Solicitor, for appellee.

Although trial counsel may have failed to inform appellant of the right to have the trial and proceedings transcribed, appellant, through his appellate counsel, has not attempted to file a transcript or stipulation of the case pursuant to OCGA § 5-6-41 (g) or (i). Accordingly, we presume that the lack of actual transcription was not prejudicial to appellant. See Sleeth v. State, 201 Ga. App. 324, 326 (c) (411 SE2d 79) (1991); Hasty v. State, 195 Ga. App. 427 (394 SE2d 800) (1990).

The contention that trial counsel jeopardized appellant’s right to appeal his convictions is obviously without merit. We have “reached the merits of [this appeal]. . . . Under these facts, there is no way in which the appellant could show deficiency and prejudice.” French v. State, 261 Ga. 424 (405 SE2d 35) (1991).

It follows that the trial court did not err in denying appellant’s motion for new trial.

Judgment affirmed.

Pope and Johnson, JJ., concur.


text:
    A92A0970.
    SHELL OIL COMPANY et al. v. DIEHL.
    (422 SE2d 63)
   Carley, Presiding Judge.

While an invitee on appellant-defendants’ business premises, appellee-plaintiff was the victim of a criminal attack. As the result of injuries suffered in that attack, appellee filed suit against appellants. After discovery, appellants moved for summary judgment. The trial court denied appellants’ motion, but certified its order for immediate review. The instant appeal results from the grant of appellants’ application for an interlocutory appeal.

1. The evidence of record establishes that appellants have no liability to appellee under the theory that they knew or should have known that their business premises subjected invitees to the unreasonable risk of criminal attacks. Although there is evidence of prior criminal activity on appellants’ business premises, it is undisputed that no similar criminal attack on a customer had ever occurred. Sa vannah College of Art & Design v. Roe, 261 Ga. 764, 765 (2) (409 SE2d 848) (1991); Nalle v. Quality Inn, 183 Ga. App. 119, 120 (358 SE2d 281) (1987). Compare Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (1) (405 SE2d 474) (1991); Lay v. Munford, Inc., 235 Ga. 340 (219 SE2d 416) (1975).

Moreover, in opposition to the motion for summary judgment, appellee introduced no evidence that the security precautions which were being employed on appellants’ business premises did not comply with the applicable standard of care. “To avoid entry of summary judgment in a premises liability case, plaintiffs may not simply point to their injuries as evidence that the landowner failed to take reasonable precautions to protect them. [Cit.] Instead, plaintiffs must come forward with facts from which a reasonable jury could conclude that the owner or occupier failed to take reasonable steps to protect them against injury. [Cit.]” Lau’s Corp. v. Haskins, supra at 493-494 (2). It is immaterial that additional security measures might have been undertaken by appellants. What is material is that there is no evidence that the security measures which had been undertaken by appellants were not reasonable. Appellee presented no “evidence that the condition of the parking lot fell below reasonable security standards, e.g., that the lights were not working, or that deep shadows provided places for criminals to lurk, or that other local proprietors had found it necessary to hire security guards, etc. In sum, there is no evidence that [appellants’] conduct failed to conform to the standard of care required.” Lau’s Corp. v. Haskins, supra at 494 (2).

2. There is, however, evidence that the attack, which apparently lasted several minutes, occurred in full view of one of appellants’ employees, who did nothing.

“The proprietor of a business has a duty, when he can reasonably apprehend danger to a customer from the misconduct of other customers or persons on the premises, to exercise ordinary care to protect the customer from injury caused by such misconduct. ‘The duty is defined by the law; the breach of that duty is determined by the particular facts. . . . This is usually a question to be referred to the jury, and should always be so referred, unless the allegations (or evidence) show beyond controversy that there was no such breach of duty. . . .’ [Cits.] When the conduct of persons on the premises is such that the proprietor from known facts or circumstances should reasonably apprehend danger to other customers, it is his duty to interfere to prevent injury, and the failure to interfere when the proprietor has an opportunity to foresee and prevent injury may constitute negligence. [Cits.]” Shockley v. Zayre of Atlanta, 118 Ga. App. 672, 673-674 (1) (165 SE2d 179) (1968).

There is no evidence as to what could have been done to protect appellee from injury once appellants’ employee observed that the attack had begun. However, it cannot be inferred, from the failure of appellants’ employee to act, that nothing could have been done. On summary judgment, all inferences are to be resolved against appellants and in favor of appellee. Summers v. Milcon Corp., 134 Ga. App. 182, 183 (4) (213 SE2d 515) (1975). Accordingly, construing the evidence most favorably for appellee, appellants have not met their burden of showing that “[t]his is not a case where [their employee] was aware of a ‘dangerous condition’ created by [third parties] and chose to do nothing about it. [Cits.]” (Emphasis supplied.) Bowling v. Janmar, Inc., 142 Ga. App. 53, 54 (234 SE2d 849) (1977). According to appellee, appellants’ employee made no “effort to quell the [attack] by personal interference or by calling on the police. ... [If appellants’ employee] had ample notice and opportunity to interfere and prevent the continuance and culmination of the [attack], but wholly neglected and failed to do so[,]” appellants would be liable. Adamson v. Hand, 93 Ga. App. 5, 9 (90 SE2d 669) (1955). “If[, on the other hand,] the [attack] and resulting injury happened suddenly and without warning and [appellants’ employee] could not, by the exercise of reasonable care, have discovered or prevented it, there could be no recovery.” Georgia Bowling Enterprises v. Robbins, 103 Ga. App. 286, 288 (119 SE2d 52) (1961).

Decided September 8, 1992.

Long, Weinberg, Ansley & Wheeler, K. Marc Barre, Stephen H. Sparwath, for appellants.

Michael E. Bergin, Fredric W. Tokars, for appellee.

Under the existing state of the record, “ [t]his is a case where a jury must rule on the question of negligence and diligence. . . . What a reasonable and prudent man under similar circumstances [could and] would have done in the exercise of ordinary care [for the protection of appellee] is for a jury to answer.” Adamson v. H and, supra at 9. It follows that the trial court correctly denied appellants’ motion for summary judgment.

Judgment affirmed.

Pope and Johnson, JJ., concur.


text:
    A92A0984.
    CENTURY HEALTH CARE, LTD. v. WILLIS.
    (422 SE2d 65)
   Beasley, Judge.

Appellant Century Health Care, Ltd. sued Willis Chiropractic Clinic, Inc. and appellee William Willis individually as guarantor, to recover damages for the alleged breach of an agreement for Century to provide consulting services for the clinic. Default judgment was entered against the clinic. Appellee’s motion to dismiss for failure to state a claim under OCGA § 9-11-12 (b) (6) was granted and final judgment was entered pursuant to OCGA § 9-11-54 (b). This appeal followed. Although two enumerations of error are cited, they are comprised of a common issue.

“When the sufficiency of the complaint is questioned by a motion to dismiss for failure to state a claim for which relief may be granted, ‘the . . . rules require that it be construed in the light most favorable to the plaintiff with all doubts resolved in his favor even though unfavorable constructions are possible. Not unless the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts should the complaint be dismissed. [Cit.]’ [Cits.]” Tri-City Sanitation v. Action Sanitation Svc., 227 Ga. 489 (181 SE2d 377) (1971); OCGA § 9-11-12 (b) (6). See Bourn v. Herring, 225 Ga. 67, 70 (3) (166 SE2d 89) (1969); Morgan v. Ga. Vitrified Brick &c., 196 Ga. App. 779, 780 (1) (397 SE2d 49) (1990).

The trial court’s ruling was predicated on a finding that a paragraph of the consulting agreement, which was incorporated in the complaint, “reserv[ed] performance to the sole discretion of the plaintiff making it unilateral and unenforceable at the instance of any other party.” That paragraph provided: “Services. Consultant [Century] shall, during the term of this Agreement, consult Clinic in the operation of Clinic as a chiropractic clinic, including but not limited to, training of and assistance to employees of the Clinic in the operation thereof. Consultant shall perform such services as reasonably requested by the Clinic, or at such times as Consultant deems necessary and proper, in its sole discretion.”

The disputed paragraph does not render the contact unenforceable for lack of mutuality. It provides for specific services to be rendered either as requested by the clinic or when consultant Century itself deemed it necessary and proper. “ ‘A contract will not be held unenforceable for indefiniteness because its performance is, as to particular details, left open to subsequent agreement of the parties. . . .’ [Cit.]” Knoxville Med. Investors v. Nat. Healthcorp, 192 Ga. App. 460, 462-463 (3) (385 SE2d 110) (1989).

“Contracts in which the promise of one party to render performance is conditional on his own judgment and sensibilities have been almost universally upheld, being generally considered as requiring a performance which should be satisfactory to him in the exercise of an honest judgment, and in construing such contracts it is correct to take into consideration the nature of the subject matter of the contract, allowing a more subjective test where there are involved the services of a professional or specialist, who is better qualified to make such decisions.” Martell v. Atlanta Biltmore Hotel Corp., 114 Ga. App. 646, 648 (152 SE2d 579) (1966).

Decided September 8, 1992.

James T. Perry, for appellant.

Michael P. Katz, for appellee.

The complaint sufficiently alleges a contract and a breach. The trial court acknowledged, “if plaintiff had succeeded in establishing a valid and binding contract, the court would have found that its complaint stated a claim upon which relief could be granted, as against defendant Willis.” As it does not appear that appellant could not recover under any conceivable state of facts which it could prove, the complaint was not subject to dismissal for failure to state a claim against appellee.

Judgment reversed.

Birdsong, P. J., and Andrews, J., concur.

       A previous order of the trial court dismissing the complaint was appealed to this court but was dismissed by order dated September 18, 1991, for failure to follow the interlocutory appeal procedure of OCGA § 5-6-34 (b). Century Health Care, Ltd. v. Willis (Case No. A91A1826).


text:
    A92A0992.
    ROBERTS v. ROBERTS.
    (422 SE2d 253)
   Sognier, Chief Judge.

Horace W. (“Bob”) Roberts brought a dispossessory action against his nephew, Randolph (“Randy”) Roberts, in the Magistrate Court of Clayton County, seeking possession of a house he had rented to Randy. Randy answered and counterclaimed for damages under several theories, and the action was transferred to the State Court of Clayton County. Before the case came to trial, Randy vacated the premises, rendering moot the action for possession. At the trial on the counterclaim, at the close of Randy’s evidence the trial court granted Bob’s motion for directed verdict, and Randy appeals.

A directed verdict is proper “[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.” OCGA § 9-11-50 (a). Appellant contends the trial court erred by directing a verdict for appellee because the evidence conflicted on several issues material to at least two of his theories of recovery, and consequently a verdict for appellee was not demanded.

The trial judge based his grant of the directed verdict on his conclusion that no contract to buy or sell real property existed between the parties to this action, and thus as a matter of law appellant could not assert any claims against appellee stemming from any alleged breach of such a contract. Because we agree with appellant that his counterclaim, as amended, presented several claims based on theories of recovery independent of the existence of a contract between these parties for the sale of realty, regarding which questions of fact remained for jury determination, we reverse.

1. Appellant sought to recover the value of substantial improvements he and his father had made to the rented premises, and testified that appellee had agreed that the value of these improvements was to be deducted from the purchase price if and when appellant exercised his option to purchase the property. Appellant’s status as appellee’s tenant was established both by appellee’s admission of that fact at trial and by uncontroverted evidence that it was appellant who had the right “to possess and enjoy the use of” the premises. OCGA § 44-7-1 (a). Regardless of the existence of any oral option agreement for the purchase of the property or the enforceability or lack of enforceability thereof, as appellant’s landlord, appellee was statutorily “liable for all substantial improvements placed upon the premises by his consent.” OCGA § 44-7-13. Since the evidence conflicted sharply regarding whether appellee approved the improvements made by appellant, a fact issue material to ■ appellant’s recovery on the counterclaim, see West View Corp. v. Thunderbolt Yacht Basin, 208 Ga. 93, 96 (1) (b) (65 SE2d 167) (1951); compare May v. May, 165 Ga. App. 461, 462-463 (3) (300 SE2d 215) (1983), jury resolution of this fact issue was required, and a directed verdict was inappropriate as to this claim. See generally Read v. Benedict, 200 Ga. App. 4, 7-8 (2) (406 SE2d 488) (1991).

2. In his counterclaim appellant also asserted entitlement to damages based on a constructive eviction from the rented premises when appellee twice had the water supply turned off in an effort to force appellant to leave. Unlike the situation that existed at common law, the exclusive method available today whereby a landlord may evict a tenant is the legal process set forth in OCGA § 44-7-50, and a landlord who seeks forcibly to evict a tenant by extralegal means may be liable to the tenant in damages, notwithstanding that the tenant is behind in rental payments. Teston v. Teston, 135 Ga. App. 321, 322 (2) (217 SE2d 498) (1975); Entelman v. Hagood, 95 Ga. 390 (1) (22 SE 545) (1894). The evidence at trial conflicted regarding appellee’s purpose in having appellant’s water turned off; when this was done; and with what effect. Because these issues of fact must be resolved in order to determine whether appellant is entitled to damages stemming from the water cutoff, a directed verdict was inappropriate as to this claim as well. See generally Read, supra.

Judgment reversed.

McMurray, P. J., and Cooper, J., concur.

Decided September 8, 1992.

Sexton, Moody & Renehan, Lee Sexton, for appellant.

Horace W. Roberts, pro se.

W. Henry Toler III, for appellee.


text:
    A92A1010.
    SHEPPARD v. THE STATE.
    (422 SE2d 66)
   Sognier, Chief Judge.

Kenneth Sheppard was convicted by a jury of seven counts of theft by receiving, and he appeals.

The evidence adduced at trial showed that, at the instigation of the National Auto Theft Bureau, a group funded by insurance companies, the Gwinnett Police Department set up an undercover operation designed to target auto thieves. They operated a garage and purchased stolen automobiles, recording the sales on videotape. Appellant was taped driving three stolen cars into the garage for delivery, and admitted his guilt as to these. He testified that he was brought into the criminal enterprise by two friends he claimed had been recruited by a police informant. Appellant’s two friends were also charged and were tried jointly in a separate trial. The evidence showed that appellant was present at the garage when four other vehicles were delivered as well, and he was also charged with theft by receiving these vehicles.

Appellant testified that after delivering the first three cars he wanted to leave the operation but continued delivering stolen cars because he feared for his safety, and that after he made the first delivery the police informant repeatedly called him, seeking more cars and other drivers.

1. Appellant contends the trial court erred by denying his motion for a joint trial with his codefendants, arguing that the testimony of his codefendants was necessary to appellant’s defense of entrapment. However, appellant cites no authority for his contention that he had a right to a joint trial, and it is well established that such joinder is within the discretion of the trial court. OCGA § 17-8-4; Kirby v. State, 174 Ga. App. 58, 59 (1) (329 SE2d 228) (1985). Moreover, appellant has failed to show harm, offering no reason why he could not have subpoenaed his codefendants at his separate trial, nor any showing that they would have testified at a joint trial. See Kirby, supra at 59-60 (2). As we find no abuse of the trial court’s discretion, this enumeration is without merit.

2. Appellant also challenges the trial court’s ruling allowing the admission of evidence of a prior burglary and auto theft by appellant and certain statements made by appellant indicating commission of other robberies or motor vehicle thefts, arguing the admission of this evidence improperly placed his character into evidence.

Decided September 8, 1992.

J. Stanley Rhymer, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

We note that the three affirmative showings required of the State pursuant to Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991), were complied with at a hearing outside the presence of the jury. The record shows that there was sufficient evidence to establish that appellant committed the independent acts, which were strikingly similar to the charged offenses. The trial court determined that the State did not seek to have this evidence admitted “to raise an improper inference as to [appellant’s] character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility.” Id.

The trial court permitted the State to introduce this evidence of appellant’s prior burglaries and auto thefts for the purpose of rebutting appellant’s defense of entrapment. In general, in the trial of a crime, evidence of other criminal acts by the defendant is inadmissible as it tends to place the defendant’s character into evidence. State v. Johnson, 246 Ga. 654 (1) (272 SE2d 321) (1980). However, “[o]nce appellant raised an entrapment defense with his testimony that he was induced to [continue delivering stolen cars] by [the police informant,] the State had the burden to prove predisposition beyond a reasonable doubt. [Cit.] Accordingly, evidence that during the same time frame appellant was [delivering stolen cars he was acknowledging having stolen other cars, and had previously committed auto theft and burglary] was admissible to prove bent of mind even though the evidence incidentally placed appellant’s character into issue. [Cit.]” Beauchene v. State, 194 Ga. App. 222, 224 (2) (b) (390 SE2d 116) (1990). We hold that this was an “appropriate purpose . . . deemed to be an exception to the general rule of inadmissibility,” Williams, supra, and thus the trial court properly allowed the introduction of this evidence.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


text:
    A92A1012.
    COX v. THE STATE.
    (422 SE2d 68)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of aggravated assault. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilt.

1. “On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cit.]” Alexander v. State, 200 Ga. App. 411 (1) (408 SE2d 485) (1991).

The victim’s trial testimony was somewhat equivocal and ambiguous. However, his pre-trial oral and written statements showed that he had been assaulted by appellant with a knife. The victim’s statements were properly admitted into evidence. See Horn v. State, 140 Ga. App. 592, 596 (7) (231 SE2d 414) (1976). The victim’s statements, along with the other evidence, were sufficient to authorize any rational trior of fact to find appellant guilty of aggravated assault beyond a reasonable doubt. See Peterson v. State, 204 Ga. App. 532 (1) (419 SE2d 757) (1992); Davis v. State, 184 Ga. App. 230, 231 (1) (361 SE2d 229) (1987). Compare Moss v. State, 160 Ga. App. 42, 43 (285 SE2d 776) (1981). “Accordingly, it was not error to deny appellant’s motion for a directed verdict of acquittal. [Cit.]” Moss v. State, 175 Ga. App. 754, 755 (1) (334 SE2d 355) (1985).

2. Appellant urges that the trial court erroneously failed to exercise its discretion to probate or suspend a portion of the recidivist sentence which was imposed.

As a recidivist, appellant was required to be sentenced “to undergo the longest period of time prescribed for the punishment of [aggravated assault, that being] the subsequent offense of which he [stood] convicted. . . OCGA § 17-10-7 (a). Nevertheless, the trial court had discretion to probate or suspend a portion of that maximum sentence. State v. Carter, 175 Ga. App. 38 (332 SE2d 349) (1985). However, nothing in the record in the instant case indicates that the trial court erroneously failed to exercise its discretion to consider probation or suspension of a portion of appellant’s recidivist sentence. To the contrary, the record demonstrates that, although the trial court was well aware that it was required to impose the maximum sentence, the trial court nevertheless asked if appellant had any evidence to offer in mitigation of that sentence. Knowing that it was required to impose the maximum sentence, the trial court obviously would not have inquired about mitigating evidence unless it was prepared to consider that evidence in connection with probation or suspension of the maximum sentence. It is only “where the trial court has a legal discretion to exercise but fails to do [so], instead resting the decision upon an erroneous point of law, [that] reversal must follow. [Cits.]” (Emphasis supplied.) Flagg v. State, 187 Ga. App. 297, 299 (2) (370 SE2d 46) (1988). In the absence of any affirmative showing to the contrary, the trial court is presumed to have exercised its discretion in imposing appellant’s sentence. Appellant had no viable cause for complaint that, in the exercise of its discretion, the trial court declined to probate or suspend a portion of the recidivist sentence.

Decided September 8, 1992.

David J. Walker, Sr., for appellant.

Robert E. Keller, District Attorney, Deborah N. Marón, Assistant District Attorney, for appellee.

3. An assertion “of a violation of appellant’s constitutional rights of . . . equal protection [was] not timely raised and ruled upon by the trial court. Constitutional issues not raised below are not preserved for appeal. [Cits.]” Norman v. State, 197 Ga. App. 333, 334 (3) (398 SE2d 395) (1990). See also Grice v. State, 199 Ga. App. 829 (1) (406 SE2d 262) (1991).

4. On appeal, appellant urges that the victim’s written statement was erroneously admitted into evidence because it had been altered. However, it appears that appellant waived the right to enumerate error as to the admission of the victim’s statement on this ground by his failure to object in the trial court. See Stokely v. State, 188 Ga. App. 489 (2) (373 SE2d 230) (1988). In any event, the authenticating witness testified that the victim himself had altered and initialed the statement at the scene of the crime. Thus, the State offered an explanation of the alteration, and the statement was properly admitted. See OCGA § 24-7-2.

Judgment affirmed.

Pope and Johnson, JJ., concur.


text:
    A92A1021.
    MOODY v. THE STATE.
    (422 SE2d 70)
   Carley, Presiding Judge.

After a jury trial, appellant was found guilty, but mentally retarded on five counts of child molestation and two counts of aggravated child molestation. See OCGA § 17-7-131 (b) (1) (E). He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. Appellant enumerates as error the admission into evidence of an inculpatory statement which he gave to investigating officers.

It does not appear that, at the time the statement was given, appellant was in custody. See Vaughn v. State, 261 Ga. 686, 687 (2) (410 SE2d 108) (1991). “For Miranda to apply a person must be taken into custody or otherwise deprived of his freedom of action in any significant way. [Cits.] Miranda warnings are not required simply because questioning takes place in a building containing jail cells. [Cits.]” Hardeman v. State, 252 Ga. 286, 288 (1) (313 SE2d 95) (1984).

In any event, a Jackson v. Denno hearing was held and, based upon the evidence adduced therein, the trial court was authorized to find that appellant had been given the Miranda warnings and that he understood those rights. “The fact that [appellant] may have been suffering from some mental condition was not alone sufficient to exclude the [inculpatory statement]. [Cit.] A trial court may be authorized to find that an individual is capable of waiving his rights even though there is evidence to the effect that he is moderately retarded. [Cit.] Retardation, and the extent of the same as presented by the ambit of the evidence in this case, is one of the facts that had to be determined by the trial court at the Jackson v. Denno hearing. Once the determination is made it will be approved by this court unless we find that it is clearly erroneous. [Cit.] .... The [trial] court’s determination was not clearly erroneous in this instance.” Moses v. State, 245 Ga. 180, 186 (5) (263 SE2d 916) (1980).

Based upon the evidence adduced at the Jackson v. Denno hearing, the trial court was likewise authorized to find that appellant had given his inculpatory statement freely and voluntarily and without hope of benefit or fear of injury. Accordingly, the trial court correctly found that it was for the jury to determine the weight to be given to appellant’s inculpatory statement.

2. Pursuant to OCGA § 24-3-16, the trial court admitted evidence of out-of-court statements attributed to the victims. There was no error in the admission of this evidence. See Young v. State, 199 Ga. App. 520, 521 (2) (405 SE2d 338) (1991).

3. On cross-examination, one of the victims denied the occurrence of an incident wherein he had allegedly exposed himself. Thereafter, appellant called a witness who was prepared to testify that the victim had in fact committed the act of exposure. The trial court’s refusal to allow this witness to testify is enumerated as error.

In a molestation case, evidence of the child’s prior victimization may be admissible to rebut the State’s child abuse accommodation syndrome evidence and to elucidate the credibility of the child’s testimony. Hall v. State, 196 Ga. App. 523, 524 (2) (396 SE2d 271) (1990). However, the excluded evidence in the instant case did not relate to any prior improper conduct committed against the victim, but to alleged improper conduct committed by the victim. Accordingly, the ex-eluded evidence did not relate to prior victimization of the child, but to the prior sexual experiences of the child himself. The prior sexual experiences of the alleged victim of child molestation “is irrelevant to the issue of whether molestation was committed by the defendant on trial. [Cit.]” Chastain v. State, 180 Ga. App. 312, 313 (349 SE2d 6) (1986), aff’d 257 Ga. 54 (354 SE2d 421) (1987). “[Previous sexual activity on the part of the victim is not relevant in a child molestation case to show either the victim’s reputation for nonchastity or [a] preoccupation with sex. [Cit.]” Hall v. State, supra at 525 (2). It is immaterial that, on cross-examination, the victim denied the occurrence of the incident. “A witness can not be impeached by proof of inadmissible matters simply because the witness has denied these matters.” Clarke v. State, 41 Ga. App. 556 (2a) (153 SE 616) (1930).

Decided September 8, 1992.

Walters, Davis, Smith, Meeks & Pittman, C. Paul Bowden, for appellant.

David E. Perry, District Attorney, Ronnie A. Wheeler, Assistant District Attorney, for appellee.

Judgments affirmed.

Pope and Johnson, JJ., concur.


text:
    A92A1024.
    HARRELL v. THE STATE.
    (422 SE2d 71)
   Pope, Judge.

Defendant Benjamin F. Harrell III was convicted of the offense of simple battery and appeals.

1. Defendant argues that the trial court erred in refusing to consider his defense of justification. The record shows that defendant was convicted following a bench trial. The charges against defendant arose out of an altercation which occurred during a domestic dispute. The defendant testified at trial and admitted pushing the victim (his wife at the time of the altercation), but testified that he did so “because he didn’t want to get hit again” by the victim, who, according to defendant, appeared to be preparing to strike him again after she struck him once in the face. The victim admitted slapping defendant on the date in question but testified she did so after he pushed her by placing his hands on her chest.

The trial court, sitting as the trier of fact, rejected defendant’s self-defense/justification argument, stating that “[t]he defense is that the victim slapped the Defendant and the Defendant then responded by touching. That is not a defense to simple battery in Georgia.” Thus it appears that the trial court held as a matter of law that defendant could not assert self-defense as justification for pushing the victim after she slapped him. Moreover, it is apparent from the court’s remarks that it did not, as it was authorized to do as the trier of fact and as the State suggests, merely reject defendant’s version of events in favor of the victim’s testimony; rather it appears from the transcript that the trial court held that even accepting defendant’s version of events as true, he was not entitled to assert the defense of self-defense/justification. Cf. Jones v. State, 164 Ga. App. 843 (298 SE2d 324) (1982); Townsend v. State, 155 Ga. App. 422 (1) (271 SE2d 7) (1980).

Decided September 8, 1992.

Kupferman & Ransopher, Drew Findling, for appellant.

Gerald N. Blaney, Jr., Solicitor, Deborah M. Perlis, David M. Fuller, Assistant Solicitors, for appellee. ;

We agree with the defendant that this was error requiring reversal of his conviction. OCGA § 16-3-20 provides that “[t]he fact that a person’s conduct is justified is a defense to prosecution for any crime based on that conduct.” (Emphasis supplied.) See also Townsend v. State, 155 Ga. App., supra at 423 (3). We have uncovered no authority for the proposition that this defense is unavailable, where the facts otherwise warrant the submission of the defense for consideration by the trier of fact, in a case in which the defendant is charged with the crime of simple battery. Moreover, and contrary to the findings of the trial coúrt, we have uncovered no authority for the proposition that the only defenses available to a person on trial for the offense of simple battery are 1) that the touching occurred during a lawful arrest by a law enforcement official; 2) that the victim consented; 3) or that the touching was justified because the victim used opprobrious or abusive language. Inasmuch as the trial court refused to consider defendant’s sole defense of justification, and inasmuch as there was some evidence presented which would authorize the consideration of this defense, the conviction must be reversed.

2. Our holding in Division 1 makes it unnecessary for us to consider defendant’s contentions concerning trial counsel’s ineffectiveness.

Judgment reversed.

Carley, P. J., and Johnson, J., concur.


text:
    A92A1027.
    RADFORD v. THE STATE.
    (422 SE2d 72)
   Johnson, Judge.

Arthur Radford appeals from his conviction for use of a license plate to conceal or misrepresent the identity of a vehicle and no proof of insurance.

1. Radford asserts 15 enumerations of error. The record on appeal discloses no motions or objections below preserving the issues now raised by Radford’s first, second, third, eleventh, twelfth and thirteenth enumerations of error. “We may not decide issues raised for the first time on appeal. [Cits.]” Weaver v. State, 200 Ga. App. 82 (1) (406 SE2d 574) (1991).

2. Radford contends in his fourth enumeration that the trial court erred in refusing to admit into evidence two purported photographs of his automobile taken after it was impounded. This contention is without merit.

“Before a photograph may be introduced in evidence, it must be authenticated by a showing that it is a fair and truthful representation of what it purports to depict. The quantum of evidence required to sufficiently identify photographs as true and accurate representations of what they purport to depict is a matter to be left within the discretion of the trial court.” (Citations and punctuation omitted.) Mattarochia v. State, 200 Ga. App. 681, 683 (4) (409 SE2d 546) (1991). Here, Radford attempted to authenticate the purported photographs of his automobile, taken after it was impounded, through the testimony of the arresting officer. The officer testified that he never saw the vehicle after it was impounded. Consequently, this officer could not testify that the photographs were true and accurate representations of what they purported to depict. Accordingly, the trial court did not abuse its discretion in refusing to admit the photographs into evidence.

3. Radford’s fourteenth enumeration of error is that there was insufficient evidence at trial to support the jury’s verdict. Reviewing the evidence in the light most favorable to the jury’s verdict, we conclude that a rational trier of fact could have found Radford guilty beyond a reasonable doubt of use of a license plate to conceal or misrepresent the identity of a vehicle and no proof of insurance. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

4. Radford argues in his fifteenth enumeration of error that his sentence is excessive. As to each count, Radford was sentenced to serve 12 months concurrent probation and to pay a $500 fine. The court ordered the probation to be terminated upon payment of the fines. “This court is not empowered to modify a sentence which is within the statutory limits for the offense. Any question as to the ex-cessiveness of a sentence, which in this case was within the legal limits, should be addressed to the appropriate sentence review panel.” (Citations and punctuation omitted.) Thomas v. State, 199 Ga. App. 818 (406 SE2d 811) (1991).

5. Radford’s remaining enumerations of error are without merit.

Decided September 8, 1992.

Arthur A. Radford, pro se.

Gerald N. Blaney, Jr., Solicitor, David M. Fuller, Assistant Solicitor, for appellee.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


text:
    A92A1032.
    BARMORE et al. v. HIMEBAUGH.
    (422 SE2d 255)
   Beasley, Judge.

This is a continuation of Barmore v. Himebaugh, 200 Ga. App. 868 (410 SE2d 46) (1991).

Melissa Barmore and, but for appellee Himebaugh, all other adult relatives of Jolinda Jane Rogers, an incapacitated adult, petitioned to remove Himebaugh as her guardian. In the earlier appeal, the trial court’s grant of appellee’s motion for summary judgment was reversed. On remand, the case was tried before a jury. On November 21, 1991, the jury returned a verdict granting appellants’ petition to remove appellee as guardian, and judgment on the verdict was entered. The next day, November 22, appellee filed a notice of appeal. On January 2, 1992, appellants moved to dismiss the appeal for failure to file a transcript or request an extension of time for doing so within 30 days after filing the notice of appeal, as required by law.

Appellee responded on January 6 and requested an additional 60 days to file the transcript. His attorney’s affidavit gave the following reasons for not having requested a transcript: About December 12, he told the court clerk he was not ordering the transcript because he was hopeful the case could be settled and the appeal dismissed, either by agreement or by a hearing during the first week of January 1992 in federal district court; he delayed his request for transcript preparation to save the estate approximately $2,000 in transcription costs in the event the case was settled; after talking with the clerk, he believed this would not delay the appeal because the clerk had other work anyway; he inadvertently did not seek a time extension within 30 days after filing the notice of appeal; when he received a bill for court costs, he was informed by the clerk’s personnel that payment was not necessary until the transcript was received; as a result, he intentionally did not pay court costs in excess of $2,000, to further preserve the estate in case of settlement; he did not believe this would delay the appeal, in that during his years of practice in Hall County he never knew of a transcript’s being prepared within 30 days after the filing of a notice of appeal. Appellee’s offer to settle this case was ultimately rejected by appellants.

Appellee paid the transcription costs about two weeks before the hearing on the motion, at which the reporter testified she could have prepared the transcript within 30 days if she had been asked to do 'so. She had not finished the transcript as of the hearing and did not know when she would do so.

The trial court’s order recognizes that although OCGA § 5-6-42 requires the appellant to file a transcript within 30 days after the filing of the notice of appeal unless the time is extended, OCGA § 5-6-48 (c) authorizes dismissal for untimely transcript only if the delay was (1) unreasonable, (2) inexcusable, and (3) caused by such party. Baker v. Southern R. Co., 260 Ga. 115 (390 SE2d 576) (1990).

For the reasons given by appellee’s counsel, the trial court found that any delay for failure to file the transcript or request a timely extension was not unreasonable and was excusable. The trial court also noted that appellee could have waited until December 23 to file a notice of appeal, in which case he would not have been required to file the transcript or move for an extension until January 22, twenty days after appellants moved to dismiss the appeal. Being unable to find all three criteria for dismissal, the court denied appellants’ motion to dismiss and granted appellee’s motion for the 60-day extension.

1. Appellee’s motion to dismiss this appeal because of appellants’ failure to file an application for interlocutory appeal is denied. There is a right to an independent, direct appeal from the order as a final judgment. See Gilman Paper Co. v. James, 235 Ga. 348, 349 (219 SE2d 447) (1975), overruling McDonald v. Rogers, 229 Ga. 369, 375 (2) (191 SE2d 844) (1972).

2. Thomas v. Satterfield, 169 Ga. App. 432 (313 SE2d 134) (1984), cited by appellants, does not require dismissal. The Supreme Court held in Baker that “[t]he failure to apply for an extension does not automatically convert the delay into one which fits all of the conditions necessary to vest the trial court with the discretion to dismiss the appeal.” Id. at 116; Boulden v. Fowler, 202 Ga. App. 237, 238 (414 SE2d 263) (1991). Conflicting cases were expressly overruled. Baker, supra at 116.

“[T]he cause for delay in the processing of the appeal is a fact issue for determination in the trial court.” Southeastern Plumbing Supply Co. v. Lee, 232 Ga. 626, 629 (4) (208 SE2d 449) (1974). The trial court has a very broad discretion in deciding whether or not to dismiss for delay. Gay v. City of Rome, 157 Ga. App. 368, 369 (1a) (277 SE2d 741) (1981); Brookshire v. J. P. Stevens Co., 133 Ga. App. 97, 100 (1) (210 SE2d 46) (1974). But see Sellers v. Nodvin, 262 Ga. 205 (2) (415 SE2d 908) (1992) (holding that the trial court is not authorized to find the delay in filing the transcript to be unreasonable if it did not delay transmission of the record to the appellate court).

Decided September 8, 1992.

Joseph A. Griggs, Tyron C. Elliott, Taylor & Harp, John S. Taylor, for appellants.

Whitmer & Law, James H. Whitmer, G. Hammond Law III, J. Richardson Brannon, for appellee.

Abuse of discretion is not shown.

3. Since appellee’s failure to pay court costs was not a ground of appellants’ motion to dismiss and was not ruled on by the trial court, that issue is improperly presented. Scocca v. Wilt, 241 Ga. 334 (245 SE2d 295) (1978); Jones v. Monroe Nursing Home, 149 Ga. App. 582, 583 (1) (254 SE2d 902) (1979).

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A92A1033.
    BRADFORD v. THE STATE.
    (422 SE2d 74)
   Carley, Presiding Judge.

After a jury trial, appellant was found guilty of armed robbery and possession of a firearm during the commission of a felony. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

In his sole enumeration, appellant urges that “[t]he trial court erred in failing to review the State’s file prior to trial for any exculpatory evidence requested by [his] Brady motion after the State did not produce exculpatory evidence.”

The record shows that appellant filed only a general Brady motion. “[A] trial court is not required to conduct an in camera inspection of the [S]tate’s file in connection with a ‘general’ Brady motion unless, after the [S]tate has made its response to the motion, the defense makes a request for such an inspection. [Cits.]” Tribble v. State, 248 Ga. 274, 275 (1) (280 SE2d 352) (1981). Appellant did not request an in camera inspection. Indeed, the record shows that appellant declined the trial court’s offer to conduct a pre-trial in camera inspection.

Moreover, nothing in the record suggests a Brady violation. Appellant urges that the State failed to disclose a statement which had been given to officers by an accomplice who testified for the State. However, the record shows that appellant was fully aware of the existence of this statement and cross-examined the accomplice about its contents. Accordingly, either the statement had been disclosed to appellant by the State before the accomplice testified or appellant was otherwise aware of the existence of the accomplice’s statement. In either event, there would be no violation of Brady. Brady does not require a pre-trial disclosure of material (Brantley v. State, 199 Ga. App. 623, 624 (2) (405 SE2d 533) (1991)) and applies only “to exculpatory material unknown to the defendant. [Cit.]” (Emphasis supplied.) Gilreath v. State, 247 Ga. 814, 827 (6) (279 SE2d 650) (1981).

Decided September 8, 1992.

Howard J. Stiller, for appellant.

Britt R. Priddy, District Attorney, for appellee.

After the trial, the trial court did conduct an in camera inspection and entered an order finding that no exculpatory material had been found in the State’s file. On appeal, appellant makes no contention that, contrary to the trial court’s finding, the State’s file does contain exculpatory material. Accordingly, we will not assume the burden of reviewing the State’s file. Byrd v. State, 171 Ga. App. 344, 345 (3) (319 SE2d 460) (1984).

Judgments affirmed.

Pope and Johnson, JJ., concur.


text:
    A92A1052.
    COOK v. THE STATE.
    (422 SE2d 289)
   Johnson, Judge.

Ann Iris Cook appeals from her conviction of one count of felony theft by shoplifting and one count of misdemeanor theft by shoplifting. Cook contends that the evidence at trial was insufficient to support the verdict. This contention is without merit.

The State’s evidence shows that the manager of an Eddie Bauer store in a shopping mall saw Cook enter the store carrying three bags from a J. C. Penney store. Cook appeared to be hiding something as she left Eddie Bauer without making a purchase. The manager called a security officer. The officer followed Cook into Victoria’s Secret, another retail establishment, where she saw Cook kneeling down “in a suspicious manner.” Cook left the mall and placed the J. C. Penney bags into the back of an unoccupied pickup truck improperly parked in a service area reserved for deliveries to the mall. In the bags, the officer found merchandise from Eddie Bauer and Victoria’s Secret that had not been purchased. The value of the merchandise taken from Eddie Bauer was $190 and the value of the merchandise from Victoria’s Secret was $50. Reviewing the evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found Cook guilty beyond a reasonable doubt of felony theft by shoplifting and misdemeanor theft by shoplifting. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided September 8, 1992.

Arnall, Golden & Gregory, James A. Gelin, for appellant.

Robert E. Wilson, District Attorney, J. Thomas Morgan, J. George Guise, Assistant District Attorneys, for appellee.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


text:
    A92A1057.
    COONEY v. THE STATE.
    (422 SE2d 286)
   Sognier, Chief Judge.

Sandra Cooney was charged with DUI by violating OCGA § 40-6-391 (a) (2) and convicted in a bench trial of reckless driving under OCGA § 40-6-390 (a). She appeals.

The evidence adduced at trial showed that at approximately 6:00 p.m. on January 27, 1991, off-duty state trooper Woodrow Glisson observed a car driven by appellant drift from the right lane into the emergency lane on Interstate 16 several times. Glisson testified that appellant “wasn’t traveling very fast.” He stopped appellant, who informed him that she had a headache and had taken one tablet of Fiorinal with codeine #3 prescribed by her physician. Trooper Matt Gaskin testified that no field sobriety tests were conducted.

Appellant testified that before leaving Statesboro to return to her home in Savannah she felt that she was getting a migraine headache. She had experienced migraine headaches for many years, and hoped to get home so she could lie down in a darkened room, which was the only way to relieve the migraine. She took one Fiorinal tablet, as she had done many times before. Her doctor had not told her she should not drive when she took the medication. The prescription bottle had a label cautioning the user to “[u]se care . . . when operating a vehicle,” and appellant testified that she believed she was doing so by driving between 40 and 45 miles per hour in the right lane. Appellant opined that if her driving was affected, any impairment had been caused by the migraine, and not by the medication, because she had taken the medication before and she could “take one and go to [her] job.”

The trial judge found that the State had not carried its burden of proving the charged offense of driving while under the influence of drugs. He found, however, that reckless driving was a lesser included offense of DUI, and that the evidence showed that appellant was guilty of that offense. Appellant contends the trial court erred by finding that reckless driving is a lesser included offense of DUI. We agree and reverse.

Decided September 8, 1992.

Jack E. Carney, Jr., for appellant.

A. G. Wells, Jr., Solicitor, for appellee.

This case is controlled by our holding in Whiteley v. State, 188 Ga. App. 129, 132-133 (5) (372 SE2d 296) (1988) that “[s]ince reckless conduct requires harm or danger to ‘another person,’ an element not required by OCGA § 40-6-391 to be alleged and proven, it is not a lesser included offense [of DUI] as a matter of law. [Cits.] It also was not a lesser included crime as a matter of fact, because the accusation includes no allegation of harm or danger to another person and there was no proof of such at trial.” Although in Whiteley the accused was charged with violating OCGA § 40-6-391 (a) (1), we hold that the rationale in Whiteley applies equally to a charge of violation of OCGA § 40-6-391 (a) (2). Accordingly, the trial court erred by adjudicating appellant guilty of reckless conduct.

Judgment reversed.

McMurray, P. J., and Cooper, J., concur.