text:
    A99A1120.
    DUNN v. THE STATE.
    (519 SE2d 503)
   Blackburn, Presiding Judge.

Lamont Dunn appeals, following a jury trial, the denial of his motion for new trial, contending that the evidence does not support his convictions of burglary and armed robbery and that the trial court erred by admitting his custodial statement into evidence. For the reasons which follow, we affirm.

1. In separate enumerations of error, Dunn contends that the evidence at trial failed to establish all of the elements of burglary or armed robbery. One commits the offense of burglary when “without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another or any building, . . . designed for use as the dwelling of another.” OCGA § 16-7-1 (a). “A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” OCGA § 16-8-41 (a). Dunn argues that the evidence does not show the element of his intent to commit theft. We disagree.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Dunn] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Moreover, the test established in Jackson is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.

(Citations and punctuation omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

Viewed in this light, the evidence shows that in the early morning hours of August 11, 1997, Dunn and another man broke into an apartment at 430 Fairhope Street in Augusta where Tameka Pollard and Christopher Dunbar lived. Dunn and his co-assailant awoke Pollard and Dunbar and drove them from their beds at gunpoint. Dunn repeatedly demanded money from the victims. While Dunn and his co-assailant ransacked the apartment, Pollard and Dunbar were held at gunpoint. Then Dunn and his co-assailant forced the victims, at gunpoint, outside to Dunbar’s car, and the car was loaded with the items taken from the apartment. As his co-assailant drove off in Dunbar’s car, Dunn left the scene in another car.

Dunn argues that this evidence shows he was merely present at the time of the crime. We disagree. Although,

[p]resence at the scene of a crime, even when coupled with knowledge and approval, not amounting to encouragement, is not sufficient to show that defendant is a party . . ., criminal intent may be found by the jury upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.

(Citations and punctuation omitted.) Norris v. State, 220 Ga. App. 87, 89 (2) (469 SE2d 214) (1996). The evidence here was sufficient to support the jury’s finding of intent and, consequently, sufficient to support the jury’s finding that Dunn was guilty, beyond a reasonable doubt, of burglary and armed robbery. See Jackson, supra.

Dunn erroneously contends that because he had broken into the apartment in the early morning hours to recover money he believed was owed to him, he did not have the requisite intent. Even assuming this was his purpose, the convictions of burglary and armed robbery are supported by the evidence. See Hamby v. State, 206 Ga. App. 791 (1) (426 SE2d 670) (1992) (violent taking of property not excused by claim of debt).

Decided June 16, 1999.

Samuel W. Cruse, for appellant.

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

2. Dunn contends the trial court erred by admitting into evidence his incriminating custodial statement. Dunn argues that his statement was not voluntary because he contends that the investigator testified for the first time at trial that he had prompted Dunn by telling him what the victims had reported. However, at the voluntariness hearing conducted pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), the trial court considered Dunn’s statement in light of the investigator’s prompting and determined that Dunn’s statement was voluntary.

The burden is on the prosecution to show the voluntariness of a custodial statement by a preponderance of the evidence. Factual and credibility determinations of this sort made by a trial judge after a voluntariness hearing must be accepted by appellate courts unless such determinations are clearly erroneous.

(Citations and punctuation omitted.) Tucker v. State, 231 Ga. App. 210, 212 (1) (a) (498 SE2d 774) (1998). We find no error in the trial court’s determination.

Judgment affirmed.

Barnes, J., and Senior Appellate Judge Harold R. Banke concur.


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    A99A1249.
    WILLIAMS v. MAYFLOWER INSURANCE COMPANY, LTD.
    (519 SE2d 506)
   Johnson, Chief Judge.

This case involves a suit to recover on an insurance policy. Larry Williams was injured when an oven exploded in a house owned by Clinton Williams, his brother. At the time of the injury, Clinton Williams had a homeowner’s insurance policy with Mayflower Insurance Company, Ltd. Larry Williams submitted a claim for benefits under his brother’s insurance contract. Since the policy excluded coverage for “bodily injury to you or a relative,” Mayflower denied benefit payments.

Subsequently, Larry Williams sued his brother, and a jury awarded him $250,000. The brothers then executed a covenant not to enforce judgment, in which Larry Williams promised not to pursue the judgment against his brother and his brother purported to assign all rights in his insurance contract to Larry Williams. The assignment gives Larry Williams “all claims and/or causes of action [the policyholder has] against any entity providing liability insurance to [him] arising out of such coverage and any denial of coverage.” However, the insurance policy states that “you cannot transfer your interest under your policy to anyone else unless we agree to the transfer. Our agreement must be in writing.” It is undisputed that Clinton Williams never requested consent from Mayflower to transfer his rights under the policy to his brother and that Mayflower did not consent to the assignment.

Larry Williams sued Mayflower for an alleged breach of contract and bad faith refusal to pay benefits, relying upon the purported assignment to provide the requisite standing needed to pursue Mayflower directly. The breach of contract claim is premised on the allegation that Mayflower breached its contract by refusing to pay benefits to Larry Williams for personal injuries suffered on the insured property. Mayflower moved for summary judgment based on the non-assignability clause of the insurance contract and Larry Williams’ lack of standing. The trial court granted Mayflower’s motion. For reasons which follow, we affirm.

On appeal of the grant of summary judgment, this court applies a de novo review of the evidence to determine whether any question of material fact exists. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993). Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A defendant meets this burden by “showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. . . . All of the other disputes of fact are rendered immaterial. [Cit.]” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Larry Williams contends the trial court erred in determining that the contract claim was not a transferable property right. However, a review of the record reveals that the trial court did not rule that the underlying contract claim was non-transferable. The trial court merely upheld the policy’s non-assignability clause in which the insured contracted away his right to transfer an otherwise transferable property right unless he obtained the insurer’s written consent to the transfer.

It is axiomatic that parties are bound by the terms of their insurance contracts. See Sapp v. State Farm Fire &c. Co., 226 Ga. App. 200, 201 (1) (a) (486 SE2d 71) (1997). Contractual limitations are valid and will be enforced by the courts. Dailey v. Cotton States Mut. Ins. Co., 207 Ga. App. 139, 140 (427 SE2d 109) (1993). Most significantly, Georgia law expressly provides that insurers may limit the assignability of rights under policies through the use of nonassignability clauses. OCGA § 33-24-17.

In the present case, Mayflower introduced the contract at issue, which specifically and unambiguously stated that any assignment must be consented to in writing. There is no dispute that Mayflower was not informed of the assignment and did not consent to the assignment. Once this evidence was presented to the trial court, Larry Williams could not rest on his pleadings, but rather was required to point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e). Larry Williams failed to do this.

According to Larry Williams, the non-assignability clause has been rendered nugatory since his brother had paid his premiums and, therefore, performed his obligations under the contract. See Mail Concepts v. Foote & Davies, Inc., 200 Ga. App. 778, 781 (3) (409 SE2d 567) (1991) (once a party to the contract performs its obligations so that the contract is no longer executory, its right to enforce the other party’s liability under the contract may be assigned without the other party’s consent even if the contract contains a non-assignment clause). However, pretermitting the merits of this issue, our review of the record indicates that it was not raised or decided in the trial court. Thus, we will not consider this issue for the first time on appeal. See Vickers v. Coffee County, 255 Ga. 659, 661 (340 SE2d 585) (1986) (addendum).

Moreover, even if the issue was preserved and the holding in Mail Concepts applies to the present situation, the record is devoid of any evidence regarding Clinton Williams’ payment of premiums. It was incumbent upon Larry Williams, not Mayflower, to establish that Clinton Williams had fully performed under the contract and to provide the trial court with any evidence showing why the non-assignment clause may be nugatory. See Hill Aircraft &c. Corp. v. Planes, Inc., 169 Ga. App. 161, 165 (2) (312 SE2d 119) (1983). The trial court did not err in granting summary judgment to Mayflower.

Judgment affirmed.

Pope, P. J, and Eldridge, J, concur.

Decided June 16, 1999.

Lee, Black, Scheer & Hart, Steven E. Scheer, Christopher L. Rouse, for appellant.

Brannen, Searcy & Smith, Beverly G. O’Hearn, for appellee.

       Larry Williams conceded that he lacked standing to pursue the bad faith refusal to pay benefits claim and abandoned this claim.


author: Barnes, Judge.

text:
    A99A0288.
    DRAKE v. THE STATE.
    (519 SE2d 692)
   Barnes, Judge.

Following his indictment for rape, incest, and child molestation, Tivoli Drake was tried before a jury and found guilty of incest and child molestation. The State withdrew the rape charge before trial because the victim would not cooperate. Drake appeals, asserting the trial court made erroneous evidentiary rulings, improperly failed to excuse one juror for cause, and excused another for cause unnecessarily. Drake also contends there was insufficient evidence of venue, incest, and child molestation to support his convictions. For reasons that follow, we affirm.

The evidence at trial showed that the 13-year-old victim became pregnant sometime before July 1994. When her mother, Gloria Drake, noticed signs that she was pregnant and inquired, the victim told her mother she had been raped at knife point. On March 1, 1995, Gloria Drake saw the appellant, who was her husband and the victim’s stepfather, leaving the victim’s bedroom around 1:00 a.m. When she asked Drake why he was in her daughter’s bedroom, he confessed he was the father of the victim’s baby and told her that it had happened when she got in bed with him. He did not tell her when or where this happened.

Later that afternoon, Gloria Drake met with a City of Decatur Police Department investigator, Kim Tesalona, and told her what she had learned in an audio-taped statement. Gloria Drake also told Tesalona that her daughter was eight months pregnant. The victim gave birth to a son on March 13, 1995, 12 days after her mother’s meeting with Tesalona.

After the interview, Gloria Drake asked Tesalona to drive her home because she was afraid of Drake. After determining Drake was not at the home, Tesalona asked for and received permission to talk with the victim alone. The victim explained to Tesalona “that she had told her mother that the father of her baby was her stepdad, Tivoli Drake.” After learning this information, Tesalona obtained warrants for the appellant’s arrest from the DeKalb County Magistrate Court.

Five days after her interview with Tesalona, Gloria Drake called Tesalona and told her she wanted to drop all of the charges against Drake because there had been a misunderstanding. Gloria Drake explained the victim had meant to say that Drake would be like a father to her child. In response to this information, Tesalona interviewed the victim again and the victim told her that she was raped at Glen Lake Park during an end-of-the-year picnic organized by Renfroe Middle School.

When the appellant was located and arrested two years later, the victim refused to voluntarily provide blood samples from herself and her child for DNA testing. Tesalona subsequently obtained a search warrant to obtain blood samples from the victim, her child, and the appellant. A paternity expert testified that laboratory testing showed a 99.92 percent probability that the appellant was the father of the victim’s child.

At trial, the victim testified that she became pregnant in Fulton County at the home of Drake’s grandmother. She admitted she was not raped and that the appellant was the father of her child, but denied he had sexual intercourse with her. According to the victim, she asked the appellant to ejaculate into a turkey baster when she was helping him straighten up his grandmother’s home. The appellant went into the bathroom alone and returned the turkey baster to her with semen inside of it. The victim testified she then went into the bathroom alone and inserted it into her body.

The victim further testified that she became pregnant before July 1994 and that she lived on Third Avenue in Decatur, Georgia in July 1994 with her mother and stepsister. She denied that Drake lived with them at that time, but acknowledged that he would visit “every now and then.”

Drake testified that he never lived with the victim and her mother on Third Avenue in Decatur, but admitted he would stay there occasionally in 1994 and 1995. He testified that his permanent residence was his grandmother’s home in Fulton County and this is the address on his driver’s license.. He admitted that he was the father of the victim’s child, but denied having sexual relations with her. Like the victim, he claimed she became pregnant in June 1994 through artificial insemination with a turkey baster at the home he shared with his grandmother.

The victim’s mother testified and denied telling Tesalona that she had learned Drake was the father of the victim’s baby. She further testified that she separated from Drake in 1993 and that their relationship was “kind of off and on” after that time. She admitted Drake would sometimes spend the night at her home in DeKalb County, but denied ever seeing him near the victim’s bedroom in the middle of the night other than on March 1, 1995. She testified that when Drake spent the night, he stayed in her bedroom, not a separate bedroom. Finally, she stated that Drake and the victim were alone together while painting his grandmother’s home in Fulton County during a two-week period beginning in the last week of May 1994.

The indictment against Drake alleges that he committed incest and child molestation in DeKalb County by having “sexual intercourse” with the victim. He was tried in DeKalb County.

1. We reject Drake’s contention that the evidence was insufficient to support the verdict against him.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Drake] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The jury verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Kovacs v. State, 227 Ga. App. 870 (1) (490 SE2d 539) (1997). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

“The jury is the sole and exclusive judge of the credibility of witnesses, and after verdict, a reviewing court must construe the evidence in favor of the judgment rendered.” Harris v. State, 155 Ga. App. 530 (1) (271 SE2d 668) (1980). A jury is authorized to believe or disbelieve all or any part of the testimony of witnesses, and it serves as the arbiter of conflicts in the evidence before it. Storey v. State, 205 Ga. App. 610, 611 (1) (422 SE2d 879) (1992). Such conflicts include situations where a witness testifies as to facts that are “inherently at variance with the common knowledge and experience of mankind.” Watson v. State, 13 Ga. App. 181, 182 (2) (78 SE 1014) (1913).

In this case, it was undisputed that the victim gave birth to Drake’s child. There was also evidence that Drake admitted this happened when the victim got into bed with him. Common sense authorizes a jury to conclude from this circumstantial evidence that the victim’s child was conceived by an act of sexual intercourse between Drake and his stepdaughter. The jury was also entitled to disbelieve Drake’s implausible “turkey baster” defense.

2. Drake contends the State presented insufficient evidence of venue in DeKalb County. The State asserts that OCGA § 17-2-2 (h) provides a basis for venue to lie in DeKalb County. This section provides: “Crime in more than one county. If in any case it cannot be determined in what county a crime was committed, it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed.”

It is clear from the language of this statute that it applies only when “it cannot be determined in what county a crime was committed.” Thus, we must first determine whether this case fulfills this prerequisite. Although no Georgia court has previously defined the scope of this language, the Supreme Court has held that the statute’s purpose “is to provide for establishment of venue in situations in which there is either some doubt as to which county was the scene of the crime or where the crime in fact occurred in more than one county.” Bundren v. State, 247 Ga. 180 (1) (274 SE2d 455) (1981).

Accordingly, we have previously applied OCGA § 17-2-2 (h) in cases where the victim cannot identify in which county a crime was committed. For example, in Moss v. State, 160 Ga. App. 42 (285 SE2d 776) (1981), the rape victim testified she did not know in which county she was raped because her attacker drove her in an automobile through more than one county. Another typical example is a murder case in which the victim disappears in one county and the body is discovered in another county. See, e.g., Nelson v. State, 262 Ga. 763, 764-765 (2) (426 SE2d 357) (1993).

Georgia courts have also applied this statute in cases involving so-called “victimless” crimes, such as drug possession. See Dennis v. State, 263 Ga. 257, 259 (4) (430 SE2d 742) (1993); Green v. State, 260 Ga. 625, 626 (1) (398 SE2d 360) (1990). In these cases, cocaine possession charges resulted from a test showing cocaine metabolites in the defendant’s urine, which is circumstantial evidence of cocaine possession. However, the State presented no direct evidence of where the defendant possessed the cocaine which resulted in these cocaine metabolites. The Supreme Court applied OCGA § 17-2-2 (h) and found that venue was appropriate in the county where the defendant was present immediately before being asked to provide a urine sample.

The evidence in this case is comparable to the evidence in the cocaine possession cases. The DNA testing and Drake’s admission of fatherhood are circumstantial evidence that he had sexual intercourse with the victim. There is also no direct evidence showing where the alleged criminal conduct — intercourse — took place. Based upon the Supreme Court’s application of OCGA § 17-2-2 (h) in the analogous cocaine possession cases, we find it can also be applied in this case to support venue in DeKalb County. In order to do so, however, the evidence must show “beyond a reasonable doubt” that the crimes with which Drake was charged “might have been committed” in DeKalb County.

Our opinion in McGarity v. State, 212 Ga. App. 17, 21-22 (6) (440 SE2d 695) (1994) is instructive on this issue. In McGarity, another child molestation case, we found sufficient circumstantial proof of venue in the county where the victim lived and was accessible to the defendant. In this case, the victim lived in DeKalb County and the defendant, her stepfather, would stay overnight. This evidence supports an inference that the defendant had access to the victim in DeKalb County and shows beyond a reasonable doubt that he might have had intercourse with her there. Consequently, we find sufficient evidence to support venue in DeKalb County pursuant to OCGA § 17-2-2 (h).

3. Drake asserts the trial court erred in granting the State’s motion to strike a juror for cause and failing to grant his motion to strike another juror for cause. However, Drake specifically requested in his notice of appeal that the transcript of the voir dire of the jury be omitted from the record. Without this portion of the transcript, the record is incomplete, and we cannot properly consider Drake’s complaints regarding the composition of the jury. See Hines v. State, 208 Ga. App. 470 (1) (431 SE2d 137) (1993). Moreover, based upon the colloquy between the judge and the attorneys included in the record, it appears that the judge did not abuse his discretion. See Holmes v. State, 269 Ga. 124, 126 (2) (498 SE2d 732) (1998).

4. Drake contends that the trial court erred by preventing him from introducing evidence that Investigator Tesalona failed to transport the victim’s child in a child safety seat when he was taken for paternity testing. Drake argues that this evidence was relevant to show why the victim and her mother did not cooperate with the police and the district attorneys during their investigation.

“[T]he admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” O’Neal v. State, 254 Ga. 1, 3 (3) (325 SE2d 759) (1985).

Pretermitting the issue of whether Drake made a sufficient proffer that Tesalona would have testified, if asked, that a safety seat was not used, the trial court did not abuse its discretion when it excluded this evidence. The record shows that the victim and her mother became uncooperative with the State as early as March 1995, long before paternity testing was commenced in January 1997. Thus, the record does not support Drake’s claim that they became hostile after this alleged incident.

Decided June 21, 1999.

William T. Hankins III, for appellant.

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

5. Drake contends the trial court erred when it allowed the State to cross-examine him about his feelings when he discovered the victim was pregnant with his child. Specifically, Drake contends the probative value of this evidence was outweighed by its prejudicial nature. In order to obtain a reversal, an appellant must demonstrate harm as well as error. Davis v. State, 266 Ga. 801, 804 (9) (471 SE2d 191) (1996). Since it is highly probable this evidence did not contribute to the jury’s determination of Drake’s guilt, no harm resulted from its admission. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).

6. In his remaining enumeration of error, Drake asserts the trial court erred by allowing the jury to hear Gloria Drake’s testimony that, on the morning after she found Drake leaving the victim’s bedroom, Drake pushed her out of her chair onto the floor while she was looking up telephone numbers to report the molestation. Drake argues that this incident constituted a separate bad act that impermissibly placed his character into evidence. The State argues this evidence was properly admitted to explain why the victim and her mother were uncooperative with the State. We agree. See Newberry v. State, 260 Ga. App. 416, 418-419 (3) (395 SE2d 813) (1990); Price v. State, 269 Ga. 373, 374-375 (2) (497 SE2d 797) (1998).

Judgment affirmed.

Blackburn, P. J., and Senior Appellate Judge Harold R. Banke concur.

       At the time of Gloria Drake’s phone call, the police had not yet arrested Drake because they were unable to locate him.

       Testimony by Drake and the victim that she was artificially inseminated with a turkey baster in Fulton County does not show where the criminal conduct, intercourse, was committed.


text:
    A99A0623.
    MADISON v. THE STATE.
    (519 SE2d 698)
   Barnes, Judge.

A jury convicted Alan Madison of armed robbery and burglary. The trial court denied his motion for new trial, and he appeals, alleging the trial court erred in admitting evidence of two similar transactions, in denying three motions for mistrial, in allowing certain testimony regarding a statement he made to a detective after his arrest, and in denying his motion for directed verdict based on insufficiency of evidence. We affirm.

1. Madison contends the evidence was insufficient for a rational trier of fact to find him guilty of armed robbery and burglary beyond a reasonable doubt. On appeal, we do not weigh the evidence or decide witness credibility, but view the evidence in a light most favorable to the verdict. Taylor v. State, 226 Ga. App. 254, 255 (485 SE2d 830) (1997).

Viewed in that light, the evidence showed that, around 5:30 a.m. in December 1995, the manager heard a loud noise while preparing to open the McDonald’s restaurant on Franklin Road in Cobb County. A rock crashed through the drive-in window and a man stepped through the window frame brandishing a gun. Employee Eli Miller, who had been walking back and forth near the drive-in window instead of performing his assigned tasks, ran out of the restaurant immediately. Another McDonald’s employee hid near the counter and watched as the robber screamed at the manager, stuck the gun in her face, and took $7,000 from the store safe. The robber, who was wearing a hood around his face and wore black gloves, left through the broken window.

Subsequently, on February 2, 1996, a Marietta police officer answered a call at the EZ Serve service station on Franklin Road. The attendant told him two men came in the store; one put a gun to his face, and the other took money from the cash register. The gunman wore a dark jacket and a mask on his face. The officer took possession of a videotape showing the robbery.

A week later, a man jumped over the counter and pulled a gun on the clerk at a Speedy Saver convenience store on Franklin Road. The robber, wearing a kind of “open face mask” and dark jacket, incapacitated the clerk by elbowing him in the face. The gunman and his companion left without obtaining any money, but the gunman dropped his pager on the way out.

A Marietta police detective contacted the pager company, then called Madison and said he found his pager and would return it for a small fee. Madison met the detective at the EZ Serve on Franklin Road. The McDonald’s employee who hid behind the counter during the robbery identified Madison from a photo lineup and in court as the gunman. The McDonald’s manager could not identify Madison from a photo lineup because, she said, the pictures were poor quality, but unequivocally identified him in court.

The detective obtained and executed a search warrant on the apartment where Madison was staying with McDonald’s employee Eli Miller. He recovered a black Chicago Bulls jacket, a Guess sweatshirt with a hood, a pair of Nike tennis shoes, and two pairs of black gloves. The shoes, which Madison admitted were his, matched a shoe print lifted from the counter at the Speedy Saver. The jacket and sweat shirt matched apparel worn by the suspects in the EZ Serve robbery, as captured on video.

After his arrest, Madison waived his Miranda rights and told the detective he had been the lookout for Eli Miller and another man during the Speedy Saver robbery. He denied participating in the McDonald’s robbery, but said “Eli Miller was not all that innocent” regarding that crime. At trial, Madison asserted that he signed the waiver under duress and denied participating in the Speedy Saver robbery, although he admitted the pager found inside the store after the robbery belonged to him.

We find the evidence sufficient for a rational trier of fact to conclude that Madison committed the burglary and armed robbery of the McDonald’s on Franklin Road in December 1995. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Madison asserts the trial court erred in admitting evidence of the EZ Serve and Speedy Saver robberies as similar transactions, because the State failed to show sufficient similarities among the crimes, failed to establish sufficiently that Madison committed the similar crimes, and did not introduce the similar crimes for a permissible purpose.

In order to introduce evidence of a similar transaction, the state must show three things: first, that it seeks to introduce evidence of the independent offense to show identity, motive, or bent of mind, and not just to malign the defendant’s character; second, that sufficient evidence exists to establish that the accused committed the independent offense; and third, that a sufficient similarity exists between the independent offense and the crime charged, so that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

(a) The transactions were sufficiently similar. All three crimes took place on the same road within two months of each other, and were committed against “quick-serve” establishments. The gunman wore a mask and robbed or attempted to rob a store employee in each case.

- The similar transaction does not have to be identical to the crime for which the defendant stands accused. In fact, the admissibility of a similar transaction is not dependent on the number of similarities between the prior act and the crime charged. Rather, admissibility turns on whether the similarities tend to show that the prior act is relevant to a proper issue at trial. [Cits.]

Callaway v. State, 230 Ga. App. 369 (1) (496 SE2d 349) (1998). We find no error in the trial court’s finding that the EZ Serve and Speedy Saver transactions were sufficiently similar to be introduced at trial.

(b) The trial court similarly committed no error in concluding the state submitted sufficient evidence to establish that the accused committed the independent offenses. Madison confessed his participation in the similar transactions. Further, a detective found Madison’s pager at the Speedy Saver just after the attempted robbery took place, and his shoes matched the print made on the Speedy Saver counter during the attempted robbery. Finally, in Madison’s apartment the detective uncovered clothing matching that worn by the gunman in the EZ Serve robbery.

“The standard of proof of reasonable doubt is not applicable to the proof that the defendant was the perpetrator of the independent crime. (Cit.)” Hall v. State, 198 Ga. App. 434, 435 (1) (401 SE2d 623) (1991). Here, both direct and circumstantial evidence established that Madison committed the similar transactions.

(c) Finally, the trial court did not err in finding the two similar transactions took place within the same area and showed similar bent of mind, pattern of conduct, and identity. As noted earlier, all three crimes took place on the same road within a short period of time, against similar businesses, by a masked gunman against a store employee. These circumstances authorize the trial court’s finding that proof of defendant’s actions during the February 1996 incidents is relevant to show defendant’s motive, scheme, plan, bent of mind, and course of conduct during the December 1995 armed robbery. Cole v. State, 216 Ga. App. 68, 69-70 (1) (453 SE2d 495) (1994).

3. Madison argues the trial court erred three times in denying motions for mistrial.

(a) The trial court denied a motion for mistrial made after a detective testified that a picture seized from Madison’s apartment showed his roommate, Eli Miller, with a pile of cash around him. The trial court sustained Madison’s objection to the picture’s admission into evidence, and instructed the jury to disregard any testimony about it. A trial court has broad discretion in ruling on a motion for mistrial, and such a ruling will not be overturned on appeal absent a manifest abuse of discretion. Eagle v. State, 264 Ga. 1, 2-3 (2) (440 SE2d 2) (1994). We find no such abuse here.

(b) Madison objected at trial when the prosecutor asked a detective whom he contacted after talking to the company that served the pager, and moved for a mistrial. The trial court ruled that, under OCGA § 24-3-2, the detective was entitled to explain his conduct and ascertain motives, and the detective subsequently testified that after contacting the paging service, he contacted Madison. As this testimony went to explain the subsequent conduct of the witness, it was admissible for that purpose. Moore v. State, 155 Ga. App. 721, 723 (2) (272 SE2d 575) (1980). Further, Madison admitted during his testimony that the pager was his. The trial court did not err in denying this motion for mistrial.

Decided June 21, 1999.

Clarke & Anderson, Alan S. Clarke, James S. Anderson, for appellant.

Patrick H. Head, District Attorney, Rose L. Wing, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

(c) Madison asserts the trial court erred in denying his motion for mistrial after the prosecutor asked him whether he had been in “the same room together” with his lawyer and a defense witness, arguing that the question implied he was being held in custody and thus improperly placed his character in issue. If asking a defendant about being in jail does not place his character into issue, Matthews v. State, 258 Ga. 144, 145 (2) (366 SE2d 280) (1988), asking him if he had been in “the same room” as a witness clearly does not do so. The trial court did not err in denying this motion for mistrial.

4. Finally, Madison contends the trial court erred in allowing a detective to testify that Madison told him Eli Miller “was not all that innocent” regarding the McDonald’s robbery, arguing the evidence was not probative or relevant.

The issue as to the relevancy and materiality of evidence is for the trial court. Indeed, any evidence is relevant which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant. Ultimately, the relevance of evidence is addressed to the jury’s determination.

(Citation and punctuation omitted.) Wright v. State, 186 Ga. App. 231, 233 (2) (c) (366 SE2d 834) (1988). The state argued that Madison’s statement implicating his roommate in the McDonald’s robbery was relevant to the material issue of whether Madison knew anything about the robbery. The trial court did not err in admitting the detective’s testimony regarding Madison’s statement.

Judgment affirmed.

Blackburn, P. J, and Senior Appellate Judge Harold R. Banke concur.


author: Judge Harold R. Banke.

text:
    A99A1153.
    SCHAEFER v. THE STATE.
    (519 SE2d 248)
   Judge Harold R. Banke.

George Schaefer appeals the denial of his motion for discharge and acquittal. He asserts that the trial court erred in denying his motion because he filed a speedy trial demand and was not tried within the time required by OCGA § 17-7-170.

Schaefer was arrested for trafficking in cocaine on August 25, 1997. Attorney Greenwald was appointed to represent him the next day. Schaefer was indicted on December 18.

On January 22, 1998, he filed a pro se motion to dismiss Greenwald and replace him with a more experienced attorney. On January 27, Greenwald filed discovery motions on Schaefer’s behalf, and Schaefer filed a pro se pleading styled “Demand.” The body of this multi-page document is comprised of a series of discovery requests. The introductory paragraph contains a citation of the authorities relied on, such as Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). OCGA § 17-7-170 is cited in the middle of the paragraph.

As a result of a hearing on January 29, the trial court released Greenwald from representing Schaefer and appointed attorney White in his stead. On December 1, attorney Shafer entered an appearance as defendant’s attorney of record. On January 20, 1999, Shafer filed the motion for discharge and acquittal. Held:

1. As recognized in Goodwin v. State, 202 Ga. App. 655, 656 (415 SE2d 472) (1992), a demand for speedy trial has no legal effect whatsoever if filed by a defendant acting pro se at a time when he is represented by counsel.

Schaefer argues that he was not represented by Greenwald when he filed his pro se demand, because he had discharged him before the January 29 hearing. But even if Schaefer informed Greenwald and the court that he no longer desired counsel’s services, Greenwald continued to represent him as counsel of record until released by the judge. See Parham v. State, 218 Ga. App. 42, 44 (4) (460 SE2d 78) (1995); see also Uniform Superior Court Rule 30.2. It necessarily follows that a pro se demand for speedy trial filed by Schaefer before the release was without legal force.

2. Moreover, we do not interpret Schaefer’s “demand” as being one for speedy trial. Rather, it was a demand for discovery, which cited OCGA § 17-7-170 either inaptly or in such manner as to obfuscate the true nature of the motion. In either event, it was insufficient to invoke the extreme sanction of dismissal for failure to hold a speedy trial. See Baker v. State, 212 Ga. App. 731, 732 (442 SE2d 815) (1994); Merrill v. State, 192 Ga. App. 890, 891 (386 SE2d 684) (1989).

Decided June 7, 1999

Reconsideration denied June 22, 1999 — Cert. applied for.

Herbert Shafer, for appellant.

Daniel J. Porter, District Attorney, Donald P. Geary, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A99A0528.
    ROYAL INSURANCE COMPANY OF AMERICA et al. v. FISHER et al.
    (519 SE2d 713)
   Judge Harold R. Banke.

This case is a continuation of Barfield v. Royal Ins. Co. of America, 228 Ga. App. 841 (492 SE2d 688) (1997).

It is a declaratory judgment action by Royal Insurance Company of America and its insured, Single Source Roofing Corporation, to determine their liability for damages arising from an automobile collision involving Single Source’s employee Fisher. Fisher and the occupants of other vehicles involved in the collision were named as defendants.

At the time of the collision, Fisher was driving a company-owned pickup truck while he was under the influence of alcohol. As a result, he was charged with and later pleaded guilty to DUI and serious injury by vehicle. Because Fisher violated a company rule against drinking and driving, Royal and Single Source argued (1) he was not a covered driver under the Royal policy, and (2) he was not acting within the scope of his employment when the collision occurred.

The prior appeal was from the trial court’s grant of summary judgment to Royal and Single Source on both issues. In Division 1 of our opinion we affirmed the trial court’s finding on the first. In Division 2 we reversed its ruling on the second. We held that the trial court erred when it found that Fisher was outside the scope of employment merely because he violated Single Source’s rule against driving and drinking. We then had to decide whether, for any other reason, Royal was entitled to summary judgment on the scope-of-employment issue.

In answering this question in the negative, we noted that a presumption arose that Fisher was acting within the scope of his employment since he was driving Single Source’s truck at the time of the collision. We recognized that the burden then shifted to the employer to rebut the presumption by clear, positive and uncontradieted evidence showing that the servant was not in the scope of his employment. From Fisher’s testimony, it was unclear whether at the time of the collision he had aborted an errand required by his employer or was continuing in its pursuit. We thus concluded that a jury could determine that Fisher was engaged in the errand and was acting within the scope of his employment.

At the trial held on remand, the jury found that Fisher was acting within the scope of his employment when the collision occurred. Held:

1. Royal and Single Source contend that the court erred in charging the jury that the presumption Fisher was in the scope of his employment could be rebutted only by evidence which was clear, positive and uncontradicted to the contrary. They argue that this is a summary judgment burden which does not apply at the trial of the case.

When an employee is involved in a collision, Georgia law raises a presumption that he is acting within the scope of his employment. Gordy Constr. Co. v. Stewart, 216 Ga. App. 882-883 (456 SE2d 245) (1995). Once this presumption arises, the burden then shifts to the employer to rebut it by evidence that is “ ‘clear, positive and uncontradicted and that shows that the servant was not in the scope of his employment.’ ” Id. If the employer shoulders this burden, then the opposite party must show some other fact, in addition to the fact which gave rise to the presumption, that the employee was acting within the scope of his employment. See id. If this other fact is direct evidence, that is sufficient for the case to go to a jury; if it is circumstantial evidence, it must be evidence sufficient to support a verdict in order to withstand the employer’s motion for summary judgment. See id.

Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 777 (257 SE2d 186) (1979), holds that in order to overcome the subject presumption, the employer “must” submit clear, positive and uncontradicted evidence. Massey v. Henderson, 138 Ga. App. 565 (1) (226 SE2d 750) (1976), cited in Allen Kane’s, holds that even though the master and servant positively testify that what the servant was doing was without the scope of his employment, the presumption is not overcome as a matter of law “ ‘[w]here there are circumstances developed by the evidence other than those which gave rise to the presumption from which the jury might legitimately infer that the servant was acting within the scope of his employment. . . .’ [Cit.]” (Emphasis omitted.) 138 Ga. App. at 566. It would seem to follow that where the employer does not present uncontradicted testimony that the employee was acting outside the scope of his employment, the employer has not overcome the presumption in the way the law mandates and the opposite party becomes entitled to summary judgment or a directed verdict (issues not raised in Barfield).

Decided June 22, 1999.

Brennan & Wasden, Marvin W. McGahee, for appellants.

Hunter, Maclean, Exley & Dunn, Lee C. Mundell, for appellees.

However, the court in Allen Kane’s does state in footnote 3 of its opinion that where the employer fails to rebut the presumption that the driver was acting within the scope of his employment, a jury trial is necessary. Id. at 783. Dawson Motor Co. v. Petty, 53 Ga. App. 746 (186 SE 877) (1936), is cited.

In Dawson, the action was against the employer, and the plaintiff’s own testimony was conflicting on whether the employee was acting within the scope of his employment. The court did hold that the question was one for the jury, but no burden of submitting “clear, positive, and uncontradicted” evidence was placed on the employer. Id. at 748-750 (2). This burden was created in Abelman v. Ormand, 53 Ga. App. 753, 761 (6) (187 SE 393) (1936), decided approximately three months after Dawson. Nonetheless, Abelman and cases following it are authority for the proposition that by submitting clear, positive and uncontradicted evidence, the employer overcomes the presumption as a matter of law, thereby becoming entitled to summary judgment (or a directed verdict); but if the evidence submitted by the employer would merely authorize though not demand a finding that the employee was not acting within the scope of his employment, it is a jury question as to whether the presumption has been overcome. See Thomason v. Harper, 162 Ga. App. 441, 451 (5) (289 SE2d 773) (1982); Veal v. Paulk, 121 Ga. App. 575, 578 (6) (174 SE2d 465) (1970).

Therefore, the trial court’s charge to the jury in this case was legally erroneous. It in effect directed the jury to enter a verdict in defendants’ favor because Royal failed to submit clear, positive and uncontradicted evidence that Fisher was not acting within the scope of his employment at the time of his collision. This precluded the jury from returning a verdict in favor of Royal and Single Source even though they introduced evidence authorizing a finding that Fisher was not acting within the scope of his employment at the time. A new trial is therefore required.

2. We need not address the remaining enumerations because they either were not preserved by objection at trial or involve matters not likely to recur on retrial.

Judgment reversed.

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


text:
    A99A0995.
    MADDOX v. THE STATE.
    (521 SE2d 581)
   Judge Harold R. Banke.

Charles Maddox was convicted of two counts of armed robbery-arising out of his assisting a gunman take purses from L. Y. and L. E. He asserts four grounds for appeal: (i) insufficiency of the evidence; (ii) admission of his prior convictions; (iii) improper impeachment of his alibi witnesses; and (iv) ineffective assistance of counsel.

1. Viewing the evidence favorable to the verdict, could any rational trier of fact have found the elements of two armed robberies beyond a reasonable doubt? See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Two males approached the two women as they exited a club early one morning. With his left hand in his pocket, the first male ordered them to stop or he would shoot. Repeating his threat to shoot, he commanded L. E. to hand her purse to him and L. Y. to hand her purse to the second male, which they did. As the two males escaped, the first male pulled a gun from his pocket and directed the victims to leave or he would shoot them.

The victims phoned police, who arrived about an hour later and interviewed them for a description of the males. While the victims drove briefly around the vicinity in the hopes of recovering the purses, they spotted Maddox walking on the sidewalk and immediately recognized him as the second male. They returned and informed the police, who quickly tracked down and apprehended Maddox. Police brought the victims to the site of apprehension and asked if Maddox assisted in the robbery. Both victims positively identified him then and at trial. A cigarette lighter belonging to L. E. was found on Maddox. The evidence sufficed to sustain the convictions.

• Maddox contends there was no evidence of a weapon. This is specious in light of the testimony the victims saw the first male, as he escaped, remove a gun from his pocket and threaten them. Moreover, during the robbery the first male kept his hand in his pocket and repeatedly threatened to shoot the victims. Circumstantial evidence may establish the presence of a weapon during a robbery even though the weapon is unseen. Hughes v. State, 185 Ga. App. 40, 41 (363 SE2d 336) (1987). Threatening to shoot a victim while keeping a hand concealed shows the weapon element of armed robbery. McCluskey v. State, 211 Ga. App. 205, 207 (2) (438 SE2d 679) (1993); Johnson v. State, 195 Ga. App. 56, 57 (1) (a) (392 SE2d 280) (1990).

2. During cross-examination of Maddox, the State introduced his prior convictions for robbery. Maddox raised no objection, which waived the issue. McClarity v. State, 234 Ga. App. 348, 349-350 (2) (506 SE2d 392) (1998).

3. Maddox contends the State improperly impeached his alibi witnesses by asking them about prior convictions. A witness may be impeached by evidence of convictions of crimes involving moral turpitude. OCGA § 24-9-84; Hawes v. State, 266 Ga. 731, 733 (3) (470 SE2d 664) (1996).

With regard to the first alibi witness, the State queried him, without objection, whether he had pleaded guilty to various convictions, which he denied. When the State tendered the certified convictions, Maddox did object, and the State withdrew the tender. We discern no error.

With regard to the second alibi witness, the State tendered, without objection, his guilty plea on first offender drug offenses. Failure to object waived appellate review of the matter. Foster v. State, 226 Ga. App. 334, 335 (1) (486 SE2d 635) (1997).

4. After an evidentiary hearing on Maddox’s motion for new trial, the trial court found against him on his claim of ineffective assistance. To establish ineffective assistance a defendant must show that his counsel’s performance was deficient and that the deficiency resulted in prejudice to him. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). “The trial court’s determination on this issue will be affirmed unless that determination is clearly erroneous.” Pickstock v. State, 235 Ga. App. 451, 453 (2) (509 SE2d 717) (1998).

(a) Maddox first contends counsel should have moved to suppress the in-court identification evidence on the ground it was tainted by the one-on-one showup at the site of apprehension. Such a motion would have failed, however, for in-court identification is proper when the prior one-on-one showup was reasonably and fairly conducted at or near the time of the offense. Banks v. State, 216 Ga. App. 326, 329 (3) (454 SE2d 784) (1995). Prompt on-the-scene confrontations and identifications are encouraged because they promote fairness, enhance the accuracy and reliability of identification, and result in the speedy release of innocent persons. Smith v. State, 235 Ga. App. 134, 137 (1) (508 SE2d 490) (1998).

The victims, who had viewed Maddox during the robbery under bright lights, spotted and identified Maddox in the vicinity shortly after the robbery, a fact conceded by Maddox in his testimony. He fit their description to police. Only after the police immediately apprehended Maddox did the one-on-one showup occur. This was reasonable and fair. See Neil v. Biggers, 409 U. S. 188, 199 (93 SC 375, 34 LE2d 401) (1972). As the motion to suppress would have failed, Maddox showed no grounds for ineffective assistance. Sewell v. State, 229 Ga. App. 685, 687 (1) (a) (494 SE2d 512) (1997).

(b) Maddox asserts counsel erred in not objecting to the admission of his prior convictions. Counsel testified she believed Maddox had opened the door to these during cross-examination.

When a defendant testifies, evidence of prior convictions as impeachment is not admissible unless he first puts his character in issue. OCGA § 24-9-20 (b). Once he “opens the door” for character evidence, specific events may be used to test the extent and foundation of his knowledge and the correctness of his testimony. Brown v. State, 237 Ga. 467, 468 (2) (228 SE2d 853) (1976); Morrison v. State, 232 Ga. App. 846, 847 (502 SE2d 470) (1998). As in Brown and Morrison, Maddox testified that he would not rob, which allowed the State to bring in his prior convictions for robbery.

Citing Arnold v. State, 193 Ga. App. 206, 207 (2) (387 SE2d 417) (1989), Maddox contends that the State asked improper questions which compelled him to put his character in issue. The record belies this contention. On direct examination, Maddox admitted to using illegal drugs. The State was entitled to fully explore this issue on cross-examination. Jones v. State, 257 Ga. 753, 759 (1) (b) (363 SE2d 529) (1988). Moreover, the State was entitled to explore the possibility of Maddox’s desire for drugs as a motive for the robbery, even if it incidentally put his character in issue. Brady v. State, 270 Ga. 574, 578-579 (5) (a) (513 SE2d 199) (1999).

On cross-examination the State asked Maddox how bad his drug habit was. Maddox responded that it was not that bad and that he had principles and morals. His latter statement was not called for by the question; he chose to place his character in issue by volunteering he had principles and morals. Following up, the State asked him to identify those principles. Maddox responded that he would not steal a purse to get money for drugs because he felt strongly about his mother and did not want someone stealing her purse. The State inquired whether this meant he would not rob, to which he responded, “No, I would not rob.”

The State’s limited questions simply followed up on issues voluntarily raised by Maddox on direct and on cross. His counsel properly chose not to object to the introduction of his robbery convictions, which at that juncture had become admissible to show the correctness of his testimony.

(c) Counsel failed to object to the introduction of the first offender sentence of the second alibi witness, which is not surprising since it was admissible for general impeachment purposes when the trial took place in 1996. See Favors v. State, 234 Ga. 80, 86 (3) (214 SE2d 645) (1975). Not until November 1997 did Matthews v. State, 268 Ga. 798, 803 (4) (493 SE2d 136) (1997), overrule Favors and hold first offender sentences were not so admissible. It can hardly be deficient performance for counsel to not object to evidence that at the time of trial was admissible; even Maddox’s post-judgment counsel failed to claim the evidence was inadmissible in his pr e-Matthews motion for new trial or at the hearing thereon. Trial counsel cannot be expected to be clairvoyant.

Decided June 22, 1999.

Johnson, Prioleau & Kenison, Theodore Johnson, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.

(d) Finally, Maddox’s counsel cannot be faulted for not interviewing a witness whose name Maddox purposely withheld from her until the day of trial. Maddox gave her no address or phone number, and her motion for continuance was denied. Maddox also chose to testify after being fully advised by counsel.

The trial court did not clearly err in finding against Maddox on the ineffective assistance claim.

Judgment affirmed.

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


text:
    A99A1287.
    FOWLER v. CITY OF WARM SPRINGS.
    (519 SE2d 703)
   Judge Harold R. Banke.

Even though it claimed to hold fee simple title to certain property, the City of Warm Springs petitioned to condemn the property for public purposes and named Timothy Fowler as a party claiming interest in the property. The City elected to pursue the matter through a special master. See OCGA § 22-2-100 et seq. (“Special Master’s Act”). The special master decreed that title was in the City and thus no monies were to be awarded for the property. One day after the special master’s award was filed, the superior court judge signed a judgment thereon, which judgment was filed six days later. Fowler appeals, claiming three errors.

1. First, Fowler contends that the judgment is void based on claims that service was untimely and the special master’s hearing was improperly continued. But such claims could have formed the basis of exceptions to the special master’s award and must first have been raised and ruled on by the special master himself and preserved on a record which the trial court could have examined. Simmons v. Webster County, 225 Ga. App. 830, 833 (1) (485 SE2d 501) (1997); see Black v. Fayette County, 268 Ga. 570, 571 (1) (492 SE2d 517) (1997). There is nothing in the skeletal record reflecting that Fowler presented these issues to the special master, nor is there a transcript of the proceedings before the special master, nor is there any mention of these issues in the findings of the special master’s award. See Simmons, supra, 225 Ga. App. at 833 (1); Ward v. Housing Auth. of Atlanta, 157 Ga. App. 825, 826-827 (278 SE2d 715) (1981). Compare Black, supra, and Wrege v. Cobb County, 186 Ga. App. 512 (367 SE2d 817) (1988).

Because Fowler failed either to raise these matters before the special master or to preserve a record of such, he has waived appellate review of them.

2. Second, Fowler contends that in a condemnation action the special master and the trial court lack the power to determine the title to the property to be condemned. This contention is without merit. “[A]lthough the special master’s primary responsibility is to ascertain the value of the condemned property, he is authorized to hear and determine any relevant legal issue raised by the parties.” (Citation omitted; emphasis in original.) Stephens v. Dept. of Transp., 170 Ga. App. 784, 786 (1) (318 SE2d 167) (1984). Even if the evidence shows the condemnor holds title to the property or easement, the special master and the court have the power to determine who has an interest in the property and what that interest is. Hart v. City of Hamilton, 173 Ga. App. 135, 136-137 (325 SE2d 791) (1984); see Shoemaker v. Dept. of Transp., 240 Ga. 573, 577 (3) (241 SE2d 820) (1978); Big-Bin Dispos-All v. City of Valdosta, 172 Ga. App. 746 (1) (324 SE2d 501) (1984), overruled on other grounds, Dept. of Transp. v. Hillside Motors, 192 Ga. App. 637, 642 (5) (385 SE2d 746) (1989).

3. Third, Fowler contends the trial court erred in entering judgment on the special master’s award less than ten days after the award was filed. OCGA § 22-2-112 allows a dissatisfied party to appeal the amount of the award to the superior court within ten days after the award is filed, which time period also applies to filing exceptions to non-value issues. Sims v. City of Toccoa, 256 Ga. 368, 370 (349 SE2d 385) (1986).

Because all conditions and limitations provided by the Special Master’s Act must be strictly followed, a superior court’s entry of judgment on an award prior to the expiration of the ten-day period is reversible error absent an acquiescence or waiver. Stafford v. Bryan County Bd. of Ed., 267 Ga. 274 (476 SE2d 727) (1996); Sims, supra. Since the judgment is premature but not void (Styers v. Atlanta Gas Light Co., 263 Ga. 856, 858, n. 1 (439 SE2d 640) (1994)), a court can abrogate the judgment and, after considering objections to the award asserted by a party, enter a new judgment. See Simmons, supra, 225 Ga. App. at 831-832. Absent the opportunity to have such objections heard, serious issues of due process arise. Earth Mgmt. v. Heard County, 248 Ga. 442, 445 (3) (283 SE2d 455) (1981); see Brown v. Ga. Power Co., 371 FSupp. 543 (S.D. Ga. 1973), aff’d, 491 F2d 117 (5th Cir. 1974).

The City contends Fowler waived the opportunity to be heard on any exceptions to the award when he failed to move to have the judgment vacated, set aside or reconsidered. No case or statutory law requires such post-judgment motions to preserve the issue for appeal. The City also claims Fowler should have filed exceptions to or otherwise appealed the award to the superior court within ten days of the filing of the award, despite the entry of the premature judgment. Although this has been done in previous cases (see, e.g., Stafford, supra, 267 Ga. at 274; Sims, supra, 256 Ga. at 369), no authority requires this act as a prerequisite to appealing a premature judgment. Nevertheless, we encourage parties to do so, so as to influence the trial court to abrogate a premature judgment and to consider the raised issues.

Decided June 22, 1999.

William A. Adams, Jr., Owen J. Adams, for appellant.

Tyron C. Elliott, for appellee.

Accordingly, the judgment is reversed and the case remanded with the instruction to allow the parties to file exceptions to the award within ten days of the superior court’s receipt of remittitur from this court. Any exceptions should be considered in due course under the Special Master’s Act.

Judgment reversed and case remanded with instruction.

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


text:
    A99A1429.
    VANDEGRIFF et al. v. HAMILTON.
    (519 SE2d 702)
   Johnson, Chief Judge.

Robert Hamilton sued Joseph Vandegriff and Janet Vandegriff on a promissory note. The record shows that Hamilton advanced $102,500 to the Vandegriffs. To insure payment of the debt, Hamilton took a security interest in the Vandegriffs’ share in a tract of property owned jointly by Hamilton and the Vandegriffs. In addition, the Vandegriffs executed a promissory note to Hamilton in the amount of $102,500, due on or before September 18, 1994.

The Vandegriffs admit that the principal amount of the promissory note is $102,500 and that interest accrues at the rate of ten percent per annum. They further admit that no payments have been made on the promissory note and that they were notified of default, the intention to demand attorney fees, and the fact that they had ten days to pay the debt without incurring attorney fees. The Vandegriffs also admit there have been no modifications, extensions or waivers of the promissory note or any terms contained therein.

Decided June 22, 1999.

Kimzey, Kimzey & York, M. Keith York, for appellants.

Joy R. Parks, for appellee.

The trial court granted Hamilton’s motion for summary judgment and entered judgment based on the promissory note. The Vandegriffs contend Hamilton orally agreed to accept a deed to their one-third interest in the property as full payment of the note and that the trial court, therefore, erred in failing to require Hamilton to accept the property as payment of the note in full. We disagree and affirm the trial court.

In an action on a promissory note, a movant may establish a prima facie right to judgment as a matter of law by producing the promissory note and showing that it was executed. See OCGA § 11-3-308; McLemore v. Southwest Ga. Farm Credit, 230 Ga. App. 85, 87 (1) (495 SE2d 335) (1998); Braswell v. Bank of Early, 229 Ga. App. 445, 447 (494 SE2d 277) (1997). The Vandegriffs’ admission that they borrowed the money, signed the note, and defaulted established Hamilton’s prima facie case. Having established this, Hamilton was entitled to judgment unless the Vandegriffs established a valid defense. See McLemore, supra.

The Vandegriffs’ contention regarding Hamilton’s oral representations does not establish such a defense. A creditor who holds a promissory note secured by a deed may sue upon the note, demand a deed to the secured property, or pursue both remedies until the debt is satisfied. See Vaughan v. Moore, 202 Ga. App. 592 (415 SE2d 47) (1992). Thus, Hamilton was entitled to elect his remedy to cure the default. Moreover, it is well established that in the absence of fraud, accident or mistake, none of which has been alleged or proven in the present case, parol evidence cannot be considered to alter or vary the terms of a promissory note. Hovendick v. Presidential Financial Corp., 230 Ga. App. 502, 504 (1) (497 SE2d 269) (1998); McLemore, supra; Braswell, supra. Because the Vandegriffs failed to raise a valid defense, Hamilton was entitled to judgment on the note, and the trial court properly entered summary judgment in favor of Hamilton.

Judgment affirmed.

Smith and Eldridge, JJ., concur.


text:
    A99A1537.
    SMITH v. THE STATE.
    (520 SE2d 13)
   Johnson, Chief Judge.

A jury found Donald Smith guilty of being a “peeping Tom.” OCGA § 16-11-61. His motion for new trial was denied by the trial court, and this appeal followed. We affirm.

1. Smith contends the evidence was insufficient to support the jury’s verdict. We disagree. The term “peeping Tom” is defined as “a person who peeps through windows or doors ... for the purpose of spying upon or invading the privacy of the persons spied upon and the doing of any other acts of a similar nature which invade the privacy of such persons.” OCGA § 16-11-61 (b).

In the present case, the record shows that an officer was dispatched to an apartment complex due to a “suspicious person call.” After the officer arrived at the complex and began his search for the suspicious person, he observed Smith standing approximately three inches from a patio window to an apartment, looking in. Smith was startled and turned to walk away from the officer. The officer spoke with the occupants of the apartment, and neither knew Smith or knew of any reason he would have stared into their window.

Similar transaction evidence was also presented at trial to prove Smith’s intent, motive, course of conduct and state of mind. This evidence included Smith’s guilty plea to two counts of peeping Tom and testimony from two witnesses which proved that Smith had committed the two prior peeping Tom offenses.

Smith asserts that conflicts in the testimony of the officer and the individual who phoned the officer, specifically conflicts regarding where Smith was standing on the patio and whether he was facing the patio window, render the evidence insufficient to support the jury’s verdict. However, it is well settled that it is the jury’s function, not the appellate court’s, to resolve conflicts in the testimony and determine the credibility of the witnesses. Mathis v. State, 224 Ga. App. 521, 522 (1) (481 SE2d 256) (1997).

Smith further contends that the state failed to prove his specific intent to spy upon or invade the privacy of another person. However, the record shows that Smith was caught standing in a secluded, dark patio, looking into the lighted window of an apartment of two individuals with whom he had no business. When he saw the officer, he attempted to leave the scene. Further, the state presented evidence of prior peeping Tom convictions to prove his intent. Given the fact that Smith did not present any evidence to show any other intent, the jury was authorized to infer Smith’s intent when he looked in the window. See In the Interest of J. G., 188 Ga. App. 856, 857 (374 SE2d 796) (1988).

Construed in a light most favorable to support the jury’s verdict, the evidence was sufficient to authorize a rational trier of fact to find Smith guilty beyond a reasonable doubt of peeping Tom. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Mathis, supra; In the Interest of J. G., supra; OCGA § 16-11-61.

Decided June 22, 1999.

Joel N. Shiver, for appellant:

Harry N. Gordon, District Attorney, William W. Tanner, Assistant District Attorney, for appellee.

2. Smith’s contention that he was denied effective assistance of counsel lacks merit. To establish ineffective assistance of counsel, a defendant must show that his trial counsel’s performance was deficient and that the deficient performance prejudiced his defense. The test is whether there is a reasonable probability the jury would have reached a different verdict absent the trial counsel’s error. McClarity v. State, 234 Ga. App. 348, 350 (3) (506 SE2d 392) (1998).

The record shows that during cross-examination of the officer, Smith’s trial counsel asked the officer where he had seen Smith before, purportedly to establish that Smith regularly walks through the neighborhood. However, the officer responded that he had seen Smith “[w]hen he got locked up for an entering auto.” Trial counsel immediately moved for a mistrial, stating that it was not his understanding that such a response would be given. The trial court denied the motion, but instructed the jury to disregard-the testimony. The jurors unanimously indicated that they could follow the trial court’s instruction.

Smith contends his trial counsel inadequately prepared for trial. However, trial counsel did not testify at the hearing on Smith’s motion for new trial, nor was he subpoenaed to appear. Absent an affirmative showing that trial counsel’s purported deficiency was indicative of ineffectiveness, Smith has not met his burden of overcoming the strong presumption that trial counsel’s conduct fell within the broad range of reasonable professional conduct. McClarity, supra at 350-351. It is well established that the burden is on the party alleging error to show it affirmatively by the record, and when he does not do so, the judgment is assumed to be correct and must be affirmed. Id.; Foreman v. State, 200 Ga. App. 400, 401 (3) (408 SE2d 178) (1991). The trial court’s finding that Smith was not denied effective assistance of counsel is not clearly erroneous.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.


text:
    A99A0420, A99A0421.
    KENT v. BROWN; and vice versa.
    (518 SE2d 737)
   Barnes, Judge.

Attorney L. B. Kent appeals a jury verdict against him for expert witness fees, attorney fees, and expenses of litigation. He asserted in 13 enumerations that the trial court erred in striking his counterclaim, giving certain jury charges, making certain evidentiary rulings, trying the case without proper jurisdiction, and denying a motion for directed verdict. David G. Brown, RE., Inc. (“Brown”) cross-appeals the trial court’s denial of his demand for pre-judgment interest. For the reasons that follow, we affirm in both cases.

Brown sued Kent in magistrate’s court for $5,000 in expert witness fees. Kent counterclaimed for damages in the amount of four times the fees sought, which exceeded the court’s jurisdictional limit. The case was then transferred to state court, and Brown recast his complaint to allege stubborn litigiousness and bad faith. Brown moved to dismiss Kent’s counterclaim, and the state court granted the motion, concluding the statute under which Kent proceeded did not apply. This Court denied Kent’s motion for an interlocutory appeal and dismissed his direct appeal of the same issue. A state court jury heard the case and awarded Brown $5,200 for his witness fees along with $15,150 for his attorney fees and $400 for expenses of litigation.

This controversy arose out of a disputed bill for expert witness fees. The evidence presented at trial established that Kent contacted Brown first and asked him to make a preliminary review of another expert’s assessment of an automobile collision that resulted in two personal injury suits. The parties agreed on a $300 fee, and Brown-conducted the preliminary review. From that point on, the parties disagree about many details of the subsequent transactions. They do agree that Brown testified at a deposition in the underlying personal injury suit, was paid for his deposition time by opposing counsel, and then testified at trial on behalf of Kent’s client.

Brown testified that, in the initial telephone call with Kent, he told the lawyer his rate was $150 an hour. He stated that Kent explained to him that another expert witness had testified at trial in a companion case that resulted in a defense verdict, and he wanted Brown to look at the other expert’s conclusions. He agreed to review Kent’s documents and to hold the cost to $300 for that initial review.

After receiving and reviewing the documents, Brown said he called Kent and told him that from this brief analysis, he thought he basically agreed with the other expert’s conclusions, but if Kent wanted him to proceed, he would have to do more work. Kent told him to “go ahead” with a detailed analysis, Brown testified, and told him opposing counsel would want to take his deposition. Brown then outlined the numerous tasks involved in the detailed analysis he performed of the automobile collision in Kent’s personal injury case, including visiting the scene of the wreck to measure the roadway, making a scaled diagram of the scene, performing computer simulations to determine how the vehicles ended up in their final positions, and enlarging his diagrams for Kent to use for trial exhibits.

After Brown completed his analysis, he said he called Kent to tell him the results and then prepared for the deposition. Opposing counsel took his deposition, and Kent followed up with at least an hour of questioning. All the deposition time was billed to opposing counsel, including the time spent answering Kent’s questions, and opposing counsel paid that bill. Brown then billed Kent for the time spent analyzing the collision, along with various expenses, after which he and Kent exchanged calls and letters about Brown’s appearance at the upcoming trial in Columbus and further preparation for that trial.

During this time, Kent never disputed his first bill for $3,009, Brown testified. Brown prepared for trial and met with Kent in person on the morning of trial to review his exhibits and proposed testimony. He waited as the trial got underway, testified for several hours, then returned to Atlanta from Columbus. The next day he sent Kent his final bill, and a week later received a letter from Kent in response advising him the jury returned a defense verdict. Brown testified that he followed up with two more letters seeking payment, then talked to Kent by phone more than three months after trial. He said Kent told him he did not win any money, he was broke, and either could not or would not pay the bill. Brown sent two more letters seeking payment, then filed suit in magistrate’s court.

Kent’s version of events is that he agreed to pay Brown only $300 to review material, that he had not agreed to pay for time Brown spent preparing for a deposition called by opposing counsel, and that Brown asked him at the deposition if he could come to trial and testify against the other side’s expert witness, because he disagreed so strenuously with the expert’s conclusions. Kent subpoenaed Brown after he asked to come to trial, “because [he] didn’t want any question about charging [his] poor client any of his fees.” Brown denied he was served with the subpoena and denied volunteering to testify as Kent described.

Case No. A99A0420

1. In his first enumeration, Kent argues the trial court erred in dismissing his counterclaim for quadruple fees pursuant to OCGA § 24-10-4. This statute provides that “[a] witness who claims more than is due to him shall forfeit all his fees and shall pay to the injured party, in addition thereto, four times the amount so unjustly claimed.” Kent claimed that, because he subpoenaed Brown after Brown asked to testify at trial, he did not owe Brown’s expert witness fees; thus, Brown was claiming “more than is due to him.”

In a well-reasoned opinion, the trial court traced the statute’s history and analyzed the single appellate court decision addressing OCGA § 24-10-4. In Nationwide Mut. Ins. Co. v. Glaccum, 186 Ga. App. 148, 150 (1) (366 SE2d 772) (1988), Nationwide Mutual Insurance Company subpoenaed the plaintiff’s treating chiropractor to testify at trial, tendering to him the statutory witness fee and mileage. After trial, the chiropractor billed the company for $2,000 in expert witness fees. Nationwide moved for an order under OCGA § 24-10-4 requiring the doctor to pay $8,000, or four times the amount claimed. The trial court denied Nationwide’s motion, ruling the doctor appeared at trial as an expert and was entitled to the fee he claimed. This Court reversed, holding that “in view of the fact Dr. Glaccum was not asked to conduct any preliminary examination or review of his records in order to better give his opinion as an expert, he was not entitled to demand extra compensation for attendance in court pursuant to the subpoena.” Id. at 150. We remanded the case for consideration of Nationwide’s motion under OCGA § 24-10-4.

In this case, however, Brown was asked to conduct a preliminary review of evidence in order to better give his opinion as an expert. Thus he was entitled to demand extra compensation for attendance in court pursuant to the subpoena, and the trial court did not err in dismissing Kent’s counterclaim.

2. Kent contends the trial court erred in seven of its charges to the jury. “[I]t is a fundamental rule that jury instructions must be considered as a whole in determining whether there was error in the charge.” (Citations and punctuation omitted.) Leslie v. Williams, 235 Ga. App. 657, 659 (2) (510 SE2d 130) (1998). It is the trial court’s duty

to charge the jury on the law applicable to the issues where there is any evidence on which to predicate the instructions. Further, it is well established an instruction is not abstract or inapplicable where there is any evidence, however slight, on which to predicate it.

(Citations and punctuation omitted.) Southern Bell Tel. &c. Co. v. Don Hammond, Inc., 198 Ga. App. 517, 518 (402 SE2d 112) (1991).

(a) Kent alleges the trial court erred in charging the jury based on OCGA § 24-10-24 as follows:

[W]hen a witness resides outside the county where the testimony is to be given, service of the subpoena, to be valid, must be accompanied by tender of to [sic] fee for one day’s attendance plus mileage of 20 cents per mile for traveling expenses for going from and returning to his place of residence by the nearest practical route.

Kent claimed at trial that, because he subpoenaed Brown to appear and testify, he did not owe him expert witness fees. Brown’s attorney asked Kent at trial whether he had tendered to Brown a witness fee and mileage so the subpoena would be valid, and Kent responded he did not have to tender that money because Brown “wanted to come.” The trial court on its own motion charged the jury on the law regarding the validity of a subpoena served on a witness who lives outside the county where the trial is held.

Whether the subpoena was served properly on Brown was an issue at trial, and the trial court did not err in charging the jury on the law as written. Southern Bell Tel. &c. Co. v. Don Hammond, Inc., supra, 198 Ga. App. at 518.

(b) Kent enumerates as error the following charge: “If one engages another to do work and you find it has been done or performed and you find that the parties agreed to consideration or compensation for that work, then the party engaging the work is, in all [sic], liable for the agreed consideration or compensation.” He asserts the charge “was objected to as argumentative, no agreement, no consideration and not adjusted to the evidence,” and proceeds to argue evidentiary matters and inapplicable case law. The charge is a correct proposition of law. Jenks v. Liepman Contracting Co., 99 Ga. App. 823, 825 (1) (109 SE2d 610) (1959). A central issue before the jury in this case was whether Kent and Brown had entered into an oral agreement. Viewing the charge as a whole, we conclude the trial court did not err in giving this particular charge.

(c) Kent contends the trial court erred in charging the jury that “[d]amages are given as a pay or compensation for injury done,” arguing this measure of damages is not applicable here. The trial court charged almost the exact language of OCGA § 13-6-1, which provides that “[d]amages are given as compensation for the injury sustained as a result of the breach of a contract” (Emphasis supplied.) While the trial court left out the italicized portion of the statute indicated above, it immediately charged the jury that “damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from the breach, and such as the parties contemplated when the contract was made, as the probable result of the breach.”

“We find no error in giving instructions as to the general principles regarding the recovery of damages in a contract case where, as here, there is no contention that the proper measure of those damages was not also given.” Canal Ins. Co. v. Bryant, 173 Ga. App. 173, 175 (3) (325 SE2d 839) (1984). Here the trial court charged the general principles and also charged specifically that damages are “such as arise naturally from the breach.” Again viewing the charge as a whole, we cannot say the charge as given was incorrect or misleading. Leslie v. Williams, supra, 235 Ga. App. at 659.

(d) Kent argues the -trial court erred in giving the following charge because no evidence supported it: “If an account is rendered to the debtor on a valid contract and he fails to object to it, a jury may be authorized to infer that the failure of the debtor to raise an objection was an implied agreement that the account was correct.” To the contrary, Brown presented evidence at trial that he billed Kent for $3,009 after attending a deposition and for another $2,178.40 after he testified at trial. Brown testified that Kent not only never objected to the bills, but exchanged numerous letters and phone calls with Brown regarding the upcoming trial after receiving the first bill for $3,009. We conclude the trial court did not err in giving this charge.

(e) Kent further asserts that the trial court erred in a charge based on OCGA § 9-2-7 as follows: “Ordinarily, when one renders service or transfers property which is valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof.” Kent objected to the charge on the grounds that no evidence showed “that any service that was rendered to another was valuable to another and there has certainly been no evidence that those disputed services were accepted.”

Contrary to Kent’s argument that no evidence supports the charge, Brown testified that he analyzed the collision in depth after his preliminary analysis, both to be prepared to give a deposition and to assist Kent in cross-examining the other side’s expert witness. Kent, as well as opposing counsel, questioned him at the deposition. Brown further testified that Kent never commented on his post-deposition bill, but instead conferred with him at length regarding his upcoming trial testimony.

This Court has held that OCGA § 9-2-7 embodies “a fundamental principle in determining liability under an implied contract.” Delta Corp. v. Knight, 109 Ga. App. 3, 6 (3) (135 SE2d 56) (1964) (reversing trial court for failing to give required charge on this “fundamental principle”). The issue of implied contract was before the jury, and we find the trial court did not err in giving the charge.

(f) Kent argues that the trial court erred in charging the jury on estoppel as follows:

An estoppel arises where a party has so acted that he has by his conduct either gained some advantage for himself or caused some disadvantage to accrue to another, by reason of which it would be contrary to equity and good conscience to permit him thereafter to deny an obligation based upon such conduct. If a party to a valid contract seeks to avoid it on any grounds, he must, upon discovery of the facts, at once announce his purpose and adhere to it. Otherwise he cannot avoid or rescind such contract.

Kent argues “there is no evidence of a contract and no evidence of anybody trying to avoid a contract,” and further argues that the case presented no issue of estoppel. To the contrary, Brown presented substantial evidence of a contract for expert witness analysis at $150 an hour, as outlined earlier, and presented evidence that Kent tried to avoid the contract for services by claiming that he did not owe Brown for his time because Brown volunteered to testify at trial.

“[P]romissory estoppel claims are extremely fact-specific and are not susceptible to the application of generalized rules.” Doll v. Grand Union Co., 925 F2d 1363 (11th Cir. 1991). In Kamat v. Allatoona Fed. Sav. Bank, 231 Ga. App. 259 (498 SE2d 152) (1998), we reversed a summary judgment grant to a defendant on a promissory estoppel count, noting that

[t]o prevail on a promissory estoppel claim, plaintiffs must show that (1) defendant made certain promises, (2) defendant should have expected that plaintiffs would rely on such promises, (3) the plaintiffs did in fact rely on such promises to their detriment, and (4) injustice can be avoided only by enforcement of the promise. [Cits.]

Id. at 263 (3).

Brown testified that Kent promised to pay him; Kent should have expected Brown to rely on that promise to pay; and Brown testified for Kent’s client at deposition and at trial based on that promise to pay. Compare Gainesville Glass Co. v. Don Hammond, Inc., 157 Ga. App. 640, 645 (2) (278 SE2d 182) (1981) (estoppel charge error because no evidence appellant remained silent after appellee insisted that work be completed pursuant to the alleged oral contract). Since the evidence authorized an estoppel charge, we find the trial court did not err in giving it.

(g) Kent objects to the trial court’s charge on litigation expenses, bad faith, stubborn litigiousness, trouble and expense, and attorney fees, asserting that Brown laid no foundation for the charge. He further asserts the charge was argumentative and did not define the terms contained within it. The charge as given, which paraphrases OCGA § 13-6-11, reads:

The expenses of litigation are not generally allowed as a part of the damages. But, if the Defendant has acted in bad faith or has been stubbornly litigious, or has caused the Plaintiff unnecessary trouble and expense, you may allow them. You should determine from the evidence the attorney’s fees or other expense, if any, as will be allowed.

While it is true, as Kent argues, that the evidence must show “more than a mere breach of contract” to warrant attorney fees, Pulte Home Corp. v. Woodland Nursery &c., 230 Ga. App. 455, 458 (4) (496 SE2d 546) (1998), “[q]uestions concerning bad faith, stubborn litigiousness, and unnecessary trouble and expense, under OCGA § 13-6-11, are generally questions for the jury to decide.” (Citations and punctuation omitted.) American Med. Transport Group v. Glo-An, 235 Ga. App. 464, 467 (3) (509 SE2d 738) (1998).

Here, Brown laid a foundation for the charge, introducing evidence that showed more than mere breach. He outlined his attempts to collect his fee and placed into evidence numerous letters and invoices he sent to Kent. Brown testified that, when he called Kent to inquire about payment several months after submitting his bills, Kent said “I didn’t win any money. It was a defense verdict and he said I’m broke . . . and then he said I can’t or I won’t pay your bill. It was either can’t or won’t.” After further attempts to collect, Brown said he finally sued Kent in magistrate’s court for $5,000, being willing to forgive $180 out of his total bill so he would not exceed the court’s jurisdiction. Shortly thereafter, Kent counterclaimed for four times the amount of the fees, and the case was transferred from magistrate’s court to state court. Brown testified that, at that point, he hired a lawyer to represent him.

After Brown laid a proper foundation, the trial court admitted the invoices of Brown’s lawyer into evidence. Those invoices covered, among other things, the transfer of the case from magistrate to state court, the amendment to the complaint seeking attorney fees, the motion to dismiss Kent’s counterclaim, the interim appeals to this Court, and the trial.

We find the charge was warranted by the evidence. Scriver v. Lister, 235 Ga. App. 487, 490 (3) (510 SE2d 59) (1998). We further conclude that the charge, which closely tracks the language of the statute, is not argumentative. Dept. of Transp. v. Edwards, 267 Ga. 733, 738 (2) (482 SE2d 260) (1997). The trial court committed no error in charging the jury as set out above.

3. Kent contends the trial court did not have jurisdiction to try the case, arguing that this Court’s remittitur had not been filed in the trial court when the trial began. We find no error.

Kent had filed an application for discretionary appeal in this Court, seeking review of the trial court’s dismissal of his counterclaim. That application was denied on December 3, 1997, and the remittitur was filed in the Muscogee County clerk’s office on December 5, 1997. He also filed a direct appeal, which this Court dismissed on January 7, 1998. That remittitur was filed in the Muscogee County clerk’s office on February 19, 1998. Since the denial of the interlocutory appeal was filed well before trial began on February 18, 1998, Kent’s argument that the trial court lacked jurisdiction must be based on his direct appeal. However, the dismissal of a counterclaim is not directly appealable, and this Court never obtained jurisdiction over the case as a result of Kent’s direct appeal. Kilgore v. Kennesaw Finance, 128 Ga. App. 120 (195 SE2d 799) (1973). Therefore, the trial court retained jurisdiction and did not err in proceeding with the case. Gillis v. Goodgame, 199 Ga. App. 413, 414 (1) (404 SE2d 815) (1991), rev’d on other grounds, 262 Ga. 117 (414 SE2d 197) (1992).

4. Kent enumerates as error the trial court’s denial of his motion for directed verdict on Brown’s claim of express contract. He argues that he never testified that he had an express contract or agreement, and that Brown merely claimed he said he would have to do more work at $150 an hour.

We affirm a trial court’s denial of a directed verdict motion if any evidence exists to support the non-moving party’s claim. Candler v. Davis & Upchurch, 204 Ga. App. 167, 170 (4) (b) (419 SE2d 69) (1992). Here, Brown testified regarding his conversations and exchanges of letters with Kent, evidence that supports his claim that the two had an express contract. We find that the trial court did not err in denying Kent’s motion for directed verdict.

5. Kent’s next enumeration is that the trial court erred in admitting similar transaction evidence. We disagree.

Similar acts are admissible in evidence, if committed or proposed at or about the same time, and when the same motive may reasonably be supposed to exist, with a view to establish the intent of the defendant in respect to matters charged against him in the petition. . . . Intent, good faith, motive, and other such matters relating to the state of a person’s mind are usually not easily susceptible of direct proof. But frequently the state of mind accompanying the doing of an act is illustrated by other acts of a similar nature, done or proposed by the defendant in such a way as to indicate a general practice or course of conduct, or as to display motive, knowledge, intent, good faith, bad faith, and a variety of other such things. . . .

(Citations and punctuation omitted.) Candler v. Davis & Upchurch, supra, 204 Ga. App. at 169.

The trial court in this case allowed testimony that Kent had hired another engineer for another case involving the same accident that Brown reconstructed and then also refused to pay him. “In light of the similarity of the transactions involved and the issue of bad faith, we cannot say that the trial court abused its discretion in finding that the evidence of similar transactions was relevant and should be heard by the jury.” Candler v. Davis & Upchurch, supra, 204 Ga. App. at 169. Accordingly, we find no error.

6. Kent asserts the trial court erred in reading case law to the jury and in denying his motion for mistrial. The alleged error arose just before a break in the trial. Kent told the court he “needed to put something on the record in front of the jury,” and moved to strike the other engineer’s testimony, arguing among other things it was irrelevant. In denying the motion, the trial court suggested he read a particular case. Kent continued with his motion, asserting the testimony should be struck because it impermissibly put his character into issue. At that point, the trial court read an excerpt from an appellate court opinion.

Where a party voluntarily adopts a certain form of procedure or agrees to the manner in which his rights shall be submitted for determination in the trial court, he will not be permitted to complain, on appeal or error, that proceedings had in conformity thereto were erroneous.

(Citation and punctuation omitted.) Le Twigge, Ltd. v. Wammock & Co., 187 Ga. App. 446, 448 (370 SE2d 631) (1988). Kent specifically said he wanted to make his motions before the jury and therefore will not now be heard to complain about the statements the trial court made in resolving this motion.

7. Finally, Kent contends the trial court erred in denying his motion for mistrial after an attorney testified that the number of hours and the rate charged by Brown’s lawyer were reasonable. More particularly, he objects to the witness’s response to a question regarding his review of the reasonableness of the itemized charges and file summary. The witness testified that, in order to determine the reasonableness of the fee, he had to analyze the background of the case, and concluded

[t]he time spent had to be spent and it shouldn’t have had to be spent. It’s ridiculous. It started out as a simple lawsuit to collect a bill and it’s turned out to be a Federal case, even though we’re not in Federal Court. . . . [Brown] has to go get a lawyer and then it just gets worser and worser. They then just jerk one another around in the Magistrate Court and then finally they get an appeal to the Georgia Court of Appeals on two different routes. . . . The time thát had to be spent shouldn’t have had to be spent is what I’m saying.

Decided May 28, 1999

Reconsideration denied June 23, 1999 — Cert. applied for.

L. B. Kent, pro se.

After the witness concluded, Kent objected to the response on the grounds that it was “totally irrelevant” and “extremely prejudicial to the jury,” and moved for a mistrial. The trial court overruled his objection and denied his motion.

“It is well-settled that an award of attorney fees is to be determined upon evidence of the reasonable value of the professional services which underlie the claim for attorney fees.” Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 403 (1) (433 SE2d 606) (1993). The expert witness here testified that the fees Brown incurred were reasonable and properly took into account “the litigation history of the case.” First Bank of Clayton County v. Dollar, 159 Ga. App. 815, 817 (4) (285 SE2d 203) (1981). We find no error in the trial court’s denial of Kent’s motion for a mistrial here.

Case No. A99A0421

Brown cross-appeals the trial court’s denial of his demand for interest on $5,200 awarded on his contract claim. The trial court found that the amount due to Brown under the contract was disputed and, therefore, the damages were not liquidated.

OCGA § 7-4-15 provides: “All liquidated demands . . .bear interest from the time the party shall become liable and bound to pay them.” “The word ‘liquidated’ as used in the statute means ‘settled, acknowledged, or agreed.’ ” (Citations and punctuation omitted.) Jennings Enterprises v. Carte, 224 Ga. App. 538, 541 (4) (481 SE2d 541) (1997). In the case before us, Kent did not agree that a certain amount was owed to Brown, and Brown introduced expert testimony to establish the reasonableness of his rate and hours. We find no error in the trial court’s denial of Brown’s request for pre-judgment interest.

Judgments affirmed.

Blackburn, P. J, and Senior Appellate Judge Harold R. Banke concur.

Hatcher, Stubbs, Land, Hollis & Rothschild, William B. Hardegree, Gregory S. Ellington, for appellee.