author: Deen, Presiding Judge.

text:
    A89A0767.
    THORNE v. PADGETT.
    (383 SE2d 160)
   Deen, Presiding Judge.

In August of 1983 appellant Thorne and his then wife Dana Lynette Thorne (now the wife of appellee David Padgett, Jr.), were divorced, and by mutual agreement Thorne received custody of their minor child, Jesse. In August 1984 the DeKalb County Juvenile Court removed custody from the father following a deprivation hearing occasioned by the father’s being arrested for DUI while the child was with him. In November of that year the DeKalb Superior Court awarded custody to the mother, Mrs. Padgett, the order stating that child support would be determined after the father’s release from prison.

In July 1987 appellee petitioned to adopt the child pursuant to OCGA § 19-8-6 (b), and Thorne, currently serving a term for armed robbery, received the required statutory notice. Thorne filed objections, and after a hearing the Meriwether County Superior Court held that the requirements of OCGA § 19-8-6 (b) had been met; that the surrender or termination of the natural father’s rights was not required in that Thorne had failed significantly for one year or more, immediately prior to the filing of the adoption petition, to provide for the child’s care and support; that appellee was “morally and financially capable” of supporting the child; and that “this court is of the opinion that the adoption is in the best interest of the child.” In its order the trial court reviewed Thorne’s history of alcoholism, his allegations of attempts to communicate with the child, and his contentions that the November 1984 court order relieved him of his statutory support duty, as did, a fortiori, the fact of his confinement. Thorne had sought to attend the hearing and then filed a petition for a writ of habeas corpus ad testificandum; this was denied, and his testimony was taken by deposition. He appeals the trial court’s order granting the adoption, enumerating as error the trial court’s alleged violation of his due process rights in denying the writ; the trial court’s ruling that his reliance on the order reserving determination of the child support issue as an excuse for his failure to provide child support was no legal excuse and was irrelevant; and the determination that the adoption was in the best interest of the child. Held:

1. The appellate court is obligated to give close scrutiny to any allegation of denial of such a fundamental right as that of confronting one’s adversaries in court. Review of the record shows that in the instant case, however, the testimony that appellant sought to give was not that he had indeed supported his child and therefore did not come under OCGA § 19-8-6 (b), but rather that he had “justifiable cause” for not providing support. Although Code Ann. § 74-403, the predecessor of OCGA § 19-8-6 (b), and case law interpreting this statute expressly required that the failure to support be expressly found to be “without justifiable cause,” the current statute omits this language. Case law has consistently interpreted this to mean that, al- • though the trial court in its discretion will consider any purported justification in making its determination as to the “best interest of the child,” an express finding of justifiable cause vel non is no longer required; a simple finding of “significant failure” to support is sufficient. See, e.g., Kirkland v. Lee, 160 Ga. App. 446 (287 SE2d 365) (1981) . See also Curtis v. Jones, 160 Ga. App. 904 (288 SE2d 615) (1982) ; Prescott v. Judy, 157 Ga. App. 735 (278 SE2d 493) (1981).

In Brand v. State, 154 Ga. App. 781 (270 SE2d 206) (1980), the court held at 784 that the writ of habeas corpus ad testificandum should issue when the person’s presence “is required ‘by the ends of justice’ . . . ‘Some showing of need is contemplated.’ ” In that case the sought-after testimony was clearly material, and the court held denial of the writ to be error. In the instant case, by contrast, there was obviously no need for appellant to be physically present to give live testimony on an issue which prior decisions had determined to be irrelevant except as one of many factors to be considered by the court in arriving at a determination as to the best interests of the child. The testimony Thorne sought to give viva voce (and which he did actually give by deposition and which, according to the record, the court did take into consideration) was thus irrelevant and immaterial to the issue to be determined by the court (namely, whether the adoption was in the child’s best interest). Therefore, there was no violation of due process in denying the writ. Appellant’s first and second enumerations are without merit.

Decided May 24, 1989

Rehearing denied June 6, 1989

Lillian- Moy, Vicky 0. Kimbrell, for appellant.

Bips & Bips, R. Andrew Bips, for appellee.

2. Review of the record shows that the court took into consideration the relevant considerations in making his determination of the best interests of the child, and that the proper standard was applied. We find no error.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A89A0776.
    LIGHT et al. v. EQUITABLE MORTGAGE RESOURCES, INC.
    (383 SE2d 142)
   Deen, Presiding Judge.

The appellants, Gary Light and James Cooley, entered an agreement with North River Builders, Inc. (North River), for North River to acquire certain real property and build two houses on it. In June 1985 North River, which had obtained financing for other projects from the appellee, executed a $975,000 real estate note in favor of the appellee, secured by a deed to secure debt. The appellants co-signed the note and the deed to secure debt as guarantors. North River and the appellee then executed a construction loan agreement delineating the terms of advancing the loan proceeds.

In the fall of 1986, North River requested that the loan be increased to $1,262,030, which the appellee agreed to do, and to which the appellants did not object. At that time the appellants submitted an affidavit stating that they had no legal or equitable title in the property. North River used some of these extended loan proceeds to pay other outstanding obligations it owed the appellee. In December 1986, the appellants requested that the appellee stop advancing funds to North River because North River had financial problems and had not been paying its subcontractors, and the appellee did so. Thereafter, North River defaulted on its obligation, and the appellee advertised the property for foreclosure.

The appellants then commenced this action against the appellee, alleging negligent administration of the loan to North River and misappropriation of funds. Following the expiration of a temporary restraining order, the appellee re-advertised and eventually foreclosed on the property. The appellants subsequently amended their complaint to allege negligent and intentional interference with their contractual rights, and conspiracy to divert and convert money. The trial court granted summary judgment for the appellee, and this appeal followed. Held:

1. Initially, the appellants contend that reversal is mandated because the trial court failed to consider four unsealed depositions filed with the court in opposition to the appellee’s motion for summary judgment. In its order granting summary judgment for the appellee, the trial court stated that “[t]he court has examined the affidavits and other materials submitted in support of and in opposition to the motion. . . .” In General Motors Corp. v. Walker, 244 Ga. 191, 193 (259 SE2d 449) (1979), the Supreme Court held that “[i]f a trial court indicates in his order granting a motion for summary judgment that the motion is being granted after a review of the record, this court will not hold that he failed to review the relevant portions of a deposition simply because the original of the deposition on file in the case remained sealed and was not opened until after the order granting the motion was entered.” The instant case falls within the ambit of Walker. Cf. Maddox v. Brown, 188 Ga. App. 728 (374 SE2d 222) (1988).

2. A construction lender has no duty “to protect the subcontractors from the risks of doing business with its borrower . . . [or] to supervise the borrower’s disbursement of the advances and control the funds for the benefit of the subcontractors.” Reid v. Saul, 146 Ga. App. 264, 265 (246 SE2d 121) (1978). Similarly, where the appellee lender undertook no duties for the benefit of the appellants here, the appellee owed the appellants no duty with regard to the disbursements of the construction loan proceeds. The contractual provision giving the appellee the right to inspect and withhold advances if it was not satisfied with the progress of construction inured to the benefit of the appellee, and any failure of the appellee to exercise that contractual right provided the appellants no basis for complaint. Accordingly, the appellants have no claim against the appellee for negligent disbursement of the loan funds.

We also reject the appellants’ contentions (1) that they were owed a duty as third-party beneficiaries of the contract between the appellee and North River; (2) that the appellee conspired with North River to misappropriate loan funds by allowing North River to use the loan funds to pay other obligations North River owed the appellee; and (3) that the appellee tortiously interfered with the appellants’ contract with North River. Nothing in the contract between the appellee and North River shows an intent by both the appellee and North River to benefit the appellants, a requisite for any claim as third-party beneficiaries. Southeast Grading v. City of Atlanta, 172 Ga. App. 798 (1) (324 SE2d 776) (1984). As noted above, in handling the loan the appellee did nothing that it was unauthorized to do under the note and deed to secure debt, both of which were also signed by the appellants, or under the construction loan itself. Under these circumstances there simply was no evidence to support the asserted claims for conspiracy or tortious interference with contract.

Decided May 17, 1989

Rehearings denied May 31 and June 6, 1989

Kessler & Parks, Michael A. Kessler, for appellants.

Hudspeth & Benedict, Dean A. Williams, Chambers, Chambers & Chambers, John W. Chambers, Sr., Hansell & Post, R. Dal Burton, for appellee.

The trial court properly granted summary judgment for the appellee.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A1089.
    STATE AUTO INSURANCE COMPANY v. REESE et al.
    (383 SE2d 157)
   Deen, Presiding Judge.

On February 12, 1986, Gallaher was involved in an automobile collision with a vehicle driven by Reese, who was uninsured. Reese sued Gallaher, who counterclaimed. State Auto Insurance Company (State Auto) insured Gallaher and represented her in defending against Reese’s claim, and was placed in the position of having also to represent Reese in defending against Gallaher’s counterclaim, when Gallaher had State Auto served as an uninsured motorist carrier. State Auto filed this declaratory judgment action and a motion for summary judgment on the basis that the uninsured motorist claim was barred by the applicable two-year statute of limitations. The trial court denied that motion, entered judgment against State Auto on the declaratory judgment petition, and awarded Gallaher $1,200 attorney fees pursuant to OCGA § 9-15-14. This appeal followed. Held’.

1. It was undisputed that although State Auto obviously was aware of the litigation between Reese and Gallaher, it was not served as an uninsured motorist until May 5,1988, more than two years from the date of the collision. Under OCGA § 33-7-11 (d), when a party asserts an uninsured motorist claim, “a copy of the action and all pleadings thereto shall be served as prescribed by law upon the insurance company issuing the policy as though the insurance company were actually named as a party defendant ... In any case arising under this Code section where service upon an insurance company is prescribed, the clerk of the court in which the action is brought shall have same accomplished by issuing a duplicate original copy for the sheriff or marshal to place his return of service in the same form and manner as prescribed by law for a party defendant.”

At the hearing on the motion for summary judgment the trial court suggested that State Auto’s having been provided notice of the action against Gallaher sufficed to put it on notice of Gallaher’s subsequent uninsured motorist claim. The trial court and counsel for appellant expressed their positions in the following exchange: Appellant: “I don’t think that that complies with the statute. . . . Whether or not the claim is being postured by the defendant in counterclaim, I think it’s still the same thing [;] a duck is a duck is a duck.” Court: “I know but once the duck quacks, doesn’t it quack[?]” Appellant: “Only if it quacks the way the statute says its supposed to quack, and that’s been notice as that requires that the clerk of court issue a duplicate original and have that served by sheriff or marshal.”

“[T]he issue here is neither notice nor harm, but timeliness of service. In Vaughn v. Collum, 236 Ga. 582 (224 SE2d 416) (1976), the Supreme Court held that an uninsured motorist carrier is entitled to service within the time allowed for service on the defendant in the tort action. This court has since applied that holding to affirm summary judgments granted to insurers on whom service was not made within the period of limitation. [Cit.]” Williams v. Thomas, 183 Ga. App. 51, 52 (357 SE2d 872) (1987); Johnson v. Shield Ins. Co., 189 Ga. App. 333 (375 SE2d 510) (1988). It is clear that State Auto was served neither timely nor in the manner required under the statute. Accordingly, State Auto was entitled to summary judgment. Bohannon v. J. C. Penney Cas. Ins. Co., 259 Ga. 162 (377 SE2d 853) (1989).

The relation back provisions of OCGA § 9-11-15 (c) do not apply to situations involving service of an uninsured motorist carrier, if for no other reason than simply because such service does not necessarily result in the insurer becoming a party to the action. OCGA § 33-7-11 (d). But see Bohannon v. Futrell, 189 Ga. App. 340 (2) (375 SE2d 637) (1988). Nevertheless, even if OCGA § 9-11-15 (c) were applicable, no leave of court was ever obtained to add the uninsured motorist carrier, and the “amendment” would thus be improper. See Horne v. Carswell, 167 Ga. App. 229 (306 SE2d 94) (1983).

Decided May 23, 1989

Rehearing denied June 6, 1989

Alembik, Fine & Callner, G. Michael Banick, Mark E. Bergeson, for appellant.

Novy & Jaymes, Eugene Novy, R. Craig Henderson, Saveli & Williams, Elmer L. Nash, Notte & Bianco, Theodore P. Bianco, for appellees.

2. In light of the holding in Division 1, it necessarily follows that the trial court erred in awarding the appellee attorney fees pursuant to OCGA .§ 9-15-14.

Judgment reversed.

Birdsong and Benham, JJ., concur.


author: Benham, Judge.

text:
    A89A0251.
    CARTER et al. v. EARLY AMERICAN INSURANCE COMPANY OF MONTGOMERY, ALABAMA et al.
    (383 SE2d 185)
   Benham, Judge.

Appellants seek review of the grant of summary judgment to their insurance company, appellee Early American Insurance Company of Montgomery, Alabama (Early American), in their suit based on Early American’s refusal to pay them benefits and to defend them in a prior suit. Appellants purchased business auto insurance for their tractor and “any non-owned trailers attached” to the tractor. While using their tractor, appellants damaged a trailer they had borrowed from a third party and attached to the tractor. Appellants sought insurance benefits for the damaged trailer, but Early American denied their claim. Early American took the position that appellants purchased collision (physical damage) coverage only for the tractor, not the trailer, and that the liability insurance they purchased for the trailer and tractor only covered damage to vehicles other than their own and excluded “property damage to property owned or transported by the insured or in the insured’s care, custody or control.” When the insurance company refused to pay appellants’ claim and to defend the lawsuit that the trailer owner had filed against appellants for damage to his trailer, appellants sued Early American, the Georgia Insurer’s Insolvency Pool, and the agent who sold them the policy, Gerald Foskey. See Foskey v. Carter, 186 Ga. App. 69 (366 SE2d 401) (1988). The trial court granted appellee Early American’s motion for summary judgment. We find no error in that decision.

Appellants contend that Early American did not meet its burden of proof on summary judgment. We disagree. In support of its motion, the insurance company produced a copy of the insurance application and the policy. The policy contained certain specific special endorsements, including Endorsement CA 99 28 that showed the tractor as the only covered automobile for collision and specified perils. The application and policy also showed that appellants paid a collision insurance premium only for the tractor. Appellee Early American’s evidence, uncontradicted by appellants, showed that the trailer was not covered under the collision portion of the policy. The evidence also showed that appellants did pay a liability insurance premium for the tractor and “any non-owned trailer attached.” Appellants contend that their claim should be satisfied under the liability insurance coverage for the vehicles, since the trailer they borrowed was damaged while it was attached to and operating with the tractor. Appellee contends that the general exclusion from liability coverage of “property damage to property owned or transported by the insured or in the insured’s care, custody or control” applies to the non-owned trailer. Early American showed that the exclusion was a part of the policy in question when appellants purchased the policy, and appellants did not prove otherwise.

Decided June 6, 1989.

Wilson R. Smith, for appellants.

Assuming, as appellants would have us do, that the trailer is a covered auto under the liability portion of the policy, appellants still cannot recover from their insurance company for the damage to the trailer, since the accident occurred while the trailer was “in the insured’s care, custody or control.” “[T]he intent of the parties was to exclude from coverage property owned by the named or additional insureds. . . . [Cit.] The purpose of the liability policy issued by [Early American] to [Carter] was to protect those operating the vehicles against claims from the public and not as against damages sustained among themselves.” Nationwide Mut. Ins. Co. v. Peek, 115 Ga. App. 678, 680 (155 SE2d 661) (1967). In other words, if the insured damages property that he owns or controls, he cannot recover for that damage under the liability portion of his insurance policy in the face of such an exclusion. Appellants were insured under the liability provisions of the policy. The property which was damaged, the trailer, was in appellants’ charge at the time the damage occurred. Therefore, under the exclusion clause no coverage was afforded for the damage to the trailer. Id. at 681. The trial court did not err in granting appellee Early American’s motion for summary judgment.

Judgment affirmed.

Deen, P. J., and, Birdsong, J., concur.

Joe W. Rowland, W. C. Brooks, James T. Budd, for appellees.


author: Carley, Chief Judge.

text:
    A89A0275.
    BURTON v. THE STATE.
    (383 SE2d 187)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of one count of rape, three counts of aggravated sodomy, and three counts of kidnapping. He appeals from the judgments of conviction and sentences that were entered by the trial court on the jury’s guilty verdicts.

1. Appellant enumerates the general grounds. The jury was authorized to believe the victims, who identified appellant as the perpetrator of the offenses, rather than appellant’s witnesses, who provided him with an alibi. “[T]he jury is not bound to accept the evidence introduced of alibi as true; the jury determines the credibility of the witnesses and weight to be given their testimony. [Cits.] On the basis of the evidence presented, a rational trier of fact could have found appellant guilty beyond a reasonable doubt. [Cits.]” Bragg v. State, 175 Ga. App. 640, 642 (1) (334 SE2d 184) (1985).

2. A so-called “similar” crime occurred after appellant’s arrest and during his incarceration. Appellant subpoenaed the victim of this subsequent crime and the detective who was investigating it. The State filed a motion in limine, seeking to exclude the witness’ testimony. The trial court granted the State’s motion and appellant enumerates this evidentiary ruling as error.

“ ‘In the trial of an accused, it is always proper and relevant for the accused to introduce evidence to show that someone else, and not the accused, is the guilty party.’ [Cit.]” Bell v. State, 227 Ga. 800, 806 (3) (183 SE2d 357) (1971). Nothing in the proffer that was made by appellant, however, would indicate that the perpetrator of the subsequent “similar” offense was also the perpetrator of those crimes for which appellant was being tried and that appellant had been misidentified by the victims. Compare Holt v. United States, 342 F2d 163 (5th Cir. 1965). The most that appellant’s proffer showed was that, subsequent to the commission of the crimes for which he was to be tried, someone, who bore no close physical resemblance to him, had employed a similar modus operandi in the commission of a crime. Evidence merely that a subsequent “copy cat” crime had been committed by someone else would not cast doubt upon the credibility of the identification of appellant that had been made by the victims of those crimes for which appellant was being tried. Since the excluded testimony was neither relevant nor material to appellant’s guilt or innocence, the trial court did not err in excluding it. It necessarily follows that the trial court did not err in holding that the two witnesses would not be required to honor appellant’s subpoenas.

3. Over appellant’s objection, the sheriff was allowed to remain in the courtroom throughout the trial. Appellant enumerates the overruling of his objection to the presence of the sheriff as error.

The sheriff is an officer of the court and, regardless of the absence of an asserted need by the State for the presence of the sheriff, the trial court may, on its own initiative, allow him to remain in the courtroom. See generally Childs v. State, 257 Ga. 243, 251 (11) (357 SE2d 48) (1987). See also Massey v. State, 220 Ga. 883, 895 (6) (142 SE2d 832) (1965) (officers allowed to remain in courtroom for reasons of security); Childers v. State, 130 Ga. App. 555, 556 (2) (203 SE2d 874) (1974) (sheriff permitted to stay in courtroom for reasons of security). If the trial court is authorized to allow the sheriff to remain in the courtroom and testify when the rule of sequestration is invoked, the trial court is certainly authorized to allow the sheriff to remain in the courtroom where, as here, the sheriff never takes the stand. There was no . error.

4. During direct examination, the State asked an officer whether he had spoken with appellant after arrest but before the Miranda warnings had been given. The witness responded: “I asked [appellant’s] attorney if he would allow me to speak to [appellant]. He said he would not.” Appellant objected to this testimony as an impermissible comment on his right to remain silent. The trial court’s overruling of this objection is enumerated as error.

There is considerable doubt whether the officer’s testimony constituted an impermissible comment on appellant’s right to remain silent. See Dixon v. State, 144 Ga. App. 27, 29 (5) (240 SE2d 302) (1977). However, even assuming that it was, the error was harmless. “The comment of the witness was not directed to any particular statement or defense offered by the appellant. . . . Furthermore, the comment on . . . remaining silent was made during a narrative on the part of the authorities of a course of events. The remark apparently was not intended to, nor did it have the effect of, being probative on the guilt or innocence of the defendant. [Cit.] To reverse a conviction, the evidence of the defendant’s election to remain silent must point directly at the substance of the defendant’s defense or otherwise substantially prejudice the defendant in the eyes of the jury. No such situation exists here. [Cits.]” Cape v. State, 246 Ga. 520, 523 (2) (272 SE2d 487) (1980).

5. Appellant cites two other instances wherein allegedly impermissible comments on the right to remain silent were made. Both occurred during appellant’s cross-examination. The record shows that, in one of the cited instances, appellant objected and moved for a mistrial. After a colloquy between the trial court and counsel, however, appellant withdrew his motion. Accordingly, nothing is presented for review as to this instance.

On the other occasion, appellant was asked whether, during the course of his preliminary hearing, he had related a certain exculpatory fact. Before appellant could answer, his counsel objected. Outside of the presence of the jury, a long colloquy ensued and the trial court did eventually overrule the objection. However, the State did not pursue the topic and the question was never answered by appellant. Because the question was never answered, it is unclear whether appellant had or had not actually testified at his preliminary hearing. However, as it was phrased, the unanswered question did not suggest that appellant had failed to testify at the preliminary hearing. To the contrary, it suggested that appellant had testified, but had not divulged the exculpatory fact at that time. If that were the case, the question concerning appellant’s silence would be an entirely permissible inquiry. See Brown v. State, 167 Ga. App. 61, 63 (4) (305 SE2d 870) (1983); Milline v. State, 172 Ga. App. 468 (323 SE2d 678) (1984). Had the State elicited testimony whereby the jury was unequivocally apprised that appellant had remained totally silent at the preliminary hearing, an entirely different question would be presented. Under the existing circumstances, however, the ambiguous unanswered question did not impermissibly “focus on [appellant’s] silence or suggest that [appellant] had asserted his right to remain silent [during the hearing].” Duck v. State, 250 Ga. 592, 595 (1) (300 SE2d 121) (1983). There was no reversible error in overruling the objection to the unanswered question. See generally Cape v. State, supra.

6. Appellant moved for a mistrial based upon the State’s asserted failure to comply with the discovery provisions of OCGA § 17-7-211. The denial of this motion is enumerated as error.

A mistrial is not the remedy for a violation of OCGA § 17-7-211. “Failure by the prosecution to furnish the defendant with a copy of any written scientific report, when a proper and timely written demand has been made by the defendant, shall result in such report being excluded and suppressed from evidence in the prosecution’s case-in-chief or in rebuttal.” (Emphasis supplied.) OCGA § 17-7-211 (c). The reports that are here in issue were those medical reports which were made by the physicians and nurses who examined the victims. These reports were never introduced into evidence and no testimony based upon those reports was ever admitted. Accordingly, even assuming that there was a violation of OCGA § 17-7-211, there was no reversible error because the reports were, in effect, excluded and suppressed from evidence.

Appellant also urges that the failure to provide him with the medical reports was a violation of his pre-trial Brady motion. When appellant first raised the issue of the medical report however, the State informed the trial court that the reports were not and had never been in its files. Accordingly, there was no violation of Brady. See Hines v. State, 249 Ga. 257, 258 (1) (290 SE2d 911) (1982); Gann v. State, 166 Ga. App. 172, 174 (1) (303 SE2d 510) (1983).

Decided June 6, 1989.

Hagler, Hyles & Badcock, Richard C. Hagler, for appellant.

William J. Smith, District Attorney, Douglas C. Pullen, Bradford R. Pierce, Assistant District Attorneys, for appellee.

7. Appellant enumerates as error the admission into evidence of a certain drawing. The record shows that an almost identical drawing was admitted into evidence without objection. Accordingly, there was no reversible error. “[E]ven erroneous admission of evidence will not be grounds for reversal if the same evidence was admitted elsewhere without objection. [Cit.]” Brown v. State, 129 Ga. App. 152, 153 (3) (198 SE2d 909) (1973).

8. Appellant urges that the verdicts are inconsistent. However, the inconsistent verdict rule in criminal cases has been abolished by our Supreme Court. See Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986). If that rule is to be readopted as a viable principle of law, it is the Supreme Court, not this court, that must act.

Judgments affirmed.

McMurray, P. J., and Beasley, J., concur.


author: Birdsong, Judge.

text:
    A89A0419.
    SCOTT v. MOHR.
    (383 SE2d 190)
   Birdsong, Judge.

This is a direct appeal by the former wife of the appellee, upon an action for breach of a contract entered into by the parties contemporaneous with the divorce settlement and judgment.

The divorce settlement and agreement entered into and incorporated in the divorce judgment and decree, provided that Mohr would “pay and be responsible for the cost of any psychiatrist or other behavioral scientist the Wife may use for her own care up to, but not exceeding, 24 consecutive months [hereafter] . . . and up to, but not exceeding, a total cost ... in any given month.”

On the same date as the execution of the divorce settlement and judgment, the parties executed another, completely separate “AGREEMENT.” This agreement comprising one page provided: “This document shall constitute an agreement which shall not be attached to the original separation Agreement and the same shall not be made a part of any court order, although the same shall constitute an agreement between the parties which may be enforced as a separate subsequent contractual commitment between the parties. This Agreement shall not be construed as waiving the required payments set forth in paragraph 6 of the separation Agreement.”

This separate agreement, apparently as an inducement to the appellant, former wife, to be sparing in her use of psychiatric care, provided that each month Mohr would pay to appellant “25% of the difference by which $1,400 exceeds her actual psychiatry bills.”

The appellant, former wife, incurred no psychiatric expenses at all during the 24 months specified; so, she sued for 25 percent of $1,400 for each month (“the difference by which $1,400.00 exceeds her actual monthly psychiatry bills”), or $8,400 total. The trial court granted summary judgment to the appellee Mohr. Upon appellant’s direct appeal, Mohr says the suit (enforcement of divorce or domestic relations settlement or agreement) was subject only to discretionary appeal under OCGA § 5-6-35 (a) (2), and therefore this direct appeal should be dismissed. Held:

1. The appellee’s motion to dismiss direct appeal is denied. Admittedly the appeal status of all cases touching on domestic relations is in some disarray, but this agreement clearly was expressly intended by both parties to be a separate contract which could be, and was, sued upon independently as a contract. There is authority for direct appeal in cases which originally may have arisen from a domestic relations situation, but which now sound only as an action at law for contract debt. See Department of Human Resources v. Johnson, 175 Ga. App. 610 (333 SE2d 845); Karsman v. Portman, 170 Ga. App. 194 (316 SE2d 819).

This is not the case to resolve any uncertainty as to the appealability of cases brushing up against a domestic relations subject matter. This separate agreement by its express terms was intended not to be a part of the court’s judgment and decree. Evidently this private financial inducement to the wife to diminish Mohr’s responsibility for any psychiatric services by arranging a bonus for herself, was deemed to be an inappropriate matter for the court judgment. But we cannot find that, freely entered into by both parties, with a potential benefit to each, this separate agreement violates any rule of law or violates public policy. Clearly, a former husband and wife may enter into contractual agreements separate from any decreed by the court upon a divorce. We therefore find this to be a breach of contract action, and directly appealable.

2. The trial court did not err in granting summary judgment to Mohr upon any grounds, including the alleged impropriety of considering Mohr’s summary judgment affidavit.

The “Agreement” on its face is clear and unambiguous. It contemplates that appellant should receive 25 percent of the difference by which $1,400 “exceeds her actual psychiatry bills.” But there were no actual psychiatry bills which $1,400 could “exceed.”

Decided June 6, 1989.

Maddox, Maddox & Maddox, Lynwood A. Maddox, Jr., for appellant.

Donald A. Weissman, for appellee.

If any polemical doubt remains as to the clarity of the parties’ agreed intent here, advertence is made to the divorce separation and agreement made a part of the final judgment which provides that “[hjusband shall pay and be responsible for the cost of any psychiatrist or other behavioral scientist the [w]ife may use . . . [up to $1,400 per month].” (Emphasis supplied.) This provision clearly shows there was no contemplation or intention that the wife would in fact use psychiatric care, but only that he would be responsible up to $1,400 for “any” which she “might” use.

Finally, neither the divorce settlement and judgment, nor the separate private “Agreement” which was to induce her to minimize any psychiatric care, indicates any intention whatsoever to pay or be responsible to her for anything or any amount if she did not incur any psychiatric expense at all.

There is no basis at all for appellant to contend the agreement constituted an agreement to pay her 25 percent of $1,400 per month if she sought or needed no psychiatric care. He was made responsible by the divorce judgment for “any” such treatment the wife “may use,” and that is all. The parallel “agreement,” which is based solely on private mitigation of that court provision, cannot create an obligation where none existed.

This contract is too clear and unambiguous to speculate otherwise. See Citicorp. &c. v. Rountree, 185 Ga. App. 417 (364 SE2d 65).

Judgment affirmed.

Deen, P. J, and Benham, J., concur.


text:
    A89A0420.
    AMATULLI IMPORTS, INC. v. HOUSE OF PERSIA, INC.
    (383 SE2d 192)
   Carley, Chief Judge.

Appellant-plaintiff, a wholesaler, sold two shipments of oriental rugs to appellee-defendant, a retailer. The first shipment was made in October of 1981. Appellant received $12,808.80 from appellee as payment in full for this shipment. The second shipment was made in August of 1983. Appellee has not paid any portion of the $11,125 contract price for the August 1983 shipment. In an effort to resolve the dispute regarding payment for the second shipment, appellant signed a written agreement in February of 1984. In that agreement, appellant acknowledged that it would accept the return of both shipments of rugs, and would issue appellee a refund and a credit. By August of 1984, however, appellee had not returned the rugs, and appellant demanded payment for the second shipment. Not until November of 1984 did appellee attempt to return the rugs. Appellant refused to accept them.

Appellant brought this suit against appellee, seeking judgment in an amount equal to the contract price of the second shipment of rugs plus interest. Appellee answered and counterclaimed. Subsequently, cross-motions for summary judgment were filed. In its motion, appellant urged that appellee, having accepted the rugs, was contractually obligated to pay for them. In its motion, appellee urged that it had a contractual right to return both shipments to appellant and receive a cash refund as to the first shipment and a credit as against the second. The trial court granted summary judgment in favor of appellee and denied appellant’s motion. Appellant brings this appeal from the trial court’s rulings on the cross-motions for summary judgment.

In urging that the trial court’s rulings are erroneous, appellant contends that it has met its contractual obligations, but that appellee has not fulfilled its responsibilities in connection with the transactions between the parties. “The obligation of the seller is to transfer and deliver and that of the buyer is to accept and pay in accordance with the contract.” OCGA § 11-2-301. The undisputed evidence of record does show that appellant transferred and delivered the two shipments of rugs to appellee. According to appellant, the rugs were thus accepted by appellee, and appellee must now pay the agreed upon price for them. “The buyer must pay at the contract rate for any goods accepted. Acceptance of goods by the buyer precludes rejection of the goods accepted. . . .” OCGA § 11-2-607 (1) and (2).

Notwithstanding appellant’s contentions as to appellee’s original acceptance of the rugs, the undisputed evidence of record shows that, subsequent to the second shipment, it entered into a signed written agreement which modified the terms of the original sales contract as to both shipments of rugs. See generally OCGA § 11-2-209. Pursuant to this modification, appellant agreed that it would accept the return of both shipments of rugs and that it would issue appellee a refund and credit. The effect of this modification was to make each shipment of rugs a “sale or return.” See generally Logan Paving Co. v. Massey-Ferguson Credit Corp., 172 Ga. App. 368 (323 SE2d 259) (1984). “Unless otherwise agreed, if delivered goods may be returned by the buyer even though they conform to the contract, the transaction is: A ‘sale or return’ if the goods are delivered primarily for resale.” OCGA § 11-2-326 (1) (b).

In the context of a “sale or return,” the buyer’s obligation to accept or to reject goods is governed by the provisions of OCGA § 11-2-327 (2) (a), which provides: “Under a sale or return unless otherwise agreed the option to return extends to the whole or any commercial unit of the goods while in substantially their original condition, but must be exercised seasonably. . . Accordingly, the question of whether appellee accepted the rugs and must pay for them is dependent upon whether the option to return them was “exercised seasonably.” “An action is taken ‘seasonably’ when it is taken ... at or within a reasonable time.” OCGA § 11-1-204 (3). “What is a reasonable time for taking any action depends on the nature, purpose and circumstances of such action.” OCGA § 11-1-204 (2). It is undisputed that, after the February 1984 modification, appellee did not attempt to return the rugs until November of 1984. Considering the evidence as to the nature and circumstances of the parties’ overall business relationship and the purpose of the February 1984 modification agreement, a jury would be authorized to find that appellee’s nine-month delay was not a seasonable exercise of its option to return the rugs. “ ‘What is a reasonable time ... is ordinarily a matter of fact to be determined by a jury under the particular circumstances of the case. [Cit.]”’ Solomon Refrigeration v. Osburn, 148 Ga. App. 772, 775 (3) (252 SE2d 686) (1979). It follows that the trial court correctly denied appellant’s motion for summary judgment, but erred in granting summary judgment in favor of appellee.

Decided June 6, 1989.

George R. Dean, for appellant.

Schwall, Ruff & Goodman, Emory A. Schwall, Robert S. Wayne, for appellee.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Beasley, J., concur.


text:
    A89A0556.
    GREENE v. LILBURN INSURANCE AGENCY, INC. et al.
    (383 SE2d 194)
   Carley, Chief Judge.

Appellant-plaintiif brought suit, alleging the negligent failure of appellee-defendants to secure and obtain theft insurance coverage on his behalf. The trial court granted appellees’ motion for summary judgment and appellant appeals from that order.

The general rule is that an insured has an obligation to read and examine his insurance policy to determine the nature of the coverage therein. See Epps v. Nicholson, 187 Ga. App. 246, 247 (2) (370 SE2d 13) (1988). There is, however, an exception. “ ‘In Wright Body Works v. Columbus Interstate Ins. Agency, 233 Ga. 268 (210 SE2d 801) [(1974)], the Supreme Court recognized that under appropriate circumstances the broker or agent who held himself out as an expert in the field of insurance and who performed such expert services on behalf of an insured could be liable ex delicto for his negligence in failing to perform those services adequately. ... So long as the insured is required to rely upon the agent to exercise the agent’s expertise, the rule announced in Wright, supra, will apply.’ [Cit.]” McCullohs Svc. Station v. Wilkes, 183 Ga. App. 687, 689 (1) (359 SE2d 745) (1987). The Wright exception will apply “where the prospective insured must rely on the expertise of the agent to identify and procure the correct amount or type of insurance.” Epps v. Nicholson, supra at 248 (2).

Decided June 6, 1989.

John F. Doran, Jr., for appellant.

Dennis & Corry, Michael T. Thornton, John K. Fitzgerald, for appellees.

In his deposition, appellant states that he specifically requested theft coverage. Therefore, “[t]here is no evidence that appellee[s] had any discretion in the type ... of insurance.” McCullohs Svc. Station v. Wilkes, supra at 689-690 (1). Accordingly, no genuine issue of material fact remains as to the applicability of the Wright exception. The evidence of record also shows that appellant is a pharmacist and that he has admitted that he can read. Since “an examination [of the policy] would have made it readily apparent that the coverage contracted for was not issued[,]” Wright Body Works v. Columbus Interstate Ins. Agency, supra at 269, it follows that appellant’s “failure to examine the policy . . . precludes any recovery against the [appellees].” Turner, Wood & Smith, Inc. v. Reed, 169 Ga. App. 213, 215 (311 SE2d 859) (1983). The trial court correctly granted summary judgment in favor of appellees.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


author: Banke, Presiding Judge.

text:
    A89A0608.
    THE STATE v. DIAZ et al.
    (383 SE2d 195)
   Banke, Presiding Judge.

The state appeals the grant of a motion by the appellees, Diaz and Rodriquez, to suppress evidence seized during the warrantless search of a van in which they were riding.

After observing the van enter and leave three successive service stations and “weave” between lanes of traffic, Officer Scott of the Glynn County, Georgia, Police Department stopped it to determine whether the driver, appellee Diaz, was under the influence of alcohol. At the officer’s request Diaz produced his driver’s license and the vehicle registration receipt evidencing his ownership of the vehicle. The officer asked Diaz whether he had been drinking, and Diaz responded that he had consumed one or two beers. The officer then administered a field alcosensor test to him, which, according to the officer, revealed that although he had been drinking, “[h]e wasn’t D.U.I.”

While waiting for radio verification of Diaz’s vehicle registration documentation, the officer began to talk with the passenger, appellee Rodriquez. At this time, the officer noticed a package of cigarette rolling papers on the dashboard of the van. This prompted him to ask Diaz, “Would you mind if I take a look inside your vehicle?” Diaz responded that he would not, and the officer then placed the two appellees in the back of the patrol car, entered the van, seized the package of rolling papers, and opened it. Inside, he found a folded dollar bill which later tested positive for cocaine residue. He then radioed for the assistance of a drug investigative team on duty in the vicinity and, while awaiting their arrival, “continued the search” of the van. During the course of this search, he opened a shaving kit which was located between the two front seats and discovered inside it two bags of green leafy substance, which proved to be marijuana.

The officer admitted that he did not request permission to “search” the van, and the record contains no indication that he explained the purpose of his investigation prior to asking Diaz for permission to “look inside” the vehicle. At the suppression hearing, Diaz testified that he had not intended to give the officer permission to “search throughout any of the items inside the van” but thought the officer only wanted to “see if there was somebody else inside the van,” which was a panel-type vehicle containing no side windows. Held:

1. The state contends that, as a mere passenger, appellee Rodriquez had no legal basis upon which to challenge the legality of the search of the vehicle and the seizure of its contents. In Rakas v. Illinois, 439 U. S. 128 (99 SC 421, 58 LE2d 387) (1978), the Supreme Court held that passengers occupying an automobile could not invoke the protections of the Fourth Amendment with respect to a search of the vehicle where they “asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized.” Id. 439 U. S. at 148. Accord McGhee v. State, 253 Ga. 278, 279 (319 SE2d 836) (1984); Mecale v. State, 186 Ga. App. 276 (367 SE2d 52) (1988). In the présent case, however, the evidence revealed that appellee Rodriquez had paid appellee Diaz $200 to transport him from Tampa to New York in the van and then back to Tampa with his (Rodriquez’s) family and personal belongings. While Rodriquez denied any interest in the property seized from the vehicle, he testified that clothing and bedding belonging to him were contained in the van. Under such circumstances, we conclude that Rodriquez was more than a mere passenger in the vehicle. His position was instead analogous to that of a lessee of a rented vehicle, with the result that he could legitimately claim a reasonable expectation of privacy with respect to it. Compare Mecale, supra. We therefore conclude that “the disputed search and seizure has infringed an interest . . . which the Fourth Amendment was designed to protect” (Rakas v. Illinois, supra, 439 U. S. at 140), such that appellee Rodriquez was entitled to challenge the legality of the search.

Decided June 6, 1989.

Glenn Thomas, Jr., District Attorney, C. Keith Higgins, Assistant District Attorney, for appellant.

James A. Chamberlin, Jr., for appellees.

2. The state contends that the trial court erred in concluding that Diaz had not consented to a full-scale search of the interior of the vehicle and its contents. We disagree. Where a motion to suppress is filed, the burden is, of course, on the state to prove the legality of the search and seizure. See generally State v. Slaughter, 252 Ga. 435, 436 (315 SE2d 865) (1984); Phillips v. State, 167 Ga. App. 260, 261 (305 SE2d 918) (1983); OCGA § 17-5-30. It is apparent without dispute from the officer’s own testimony that he asked merely for permission to “look inside” the vehicle and gave Diaz no indication that he intended to seize and examine the contents of any items or containers therein. “This was the outer extent of investigation consented to; the scope of the consent clearly did not extend to a full-blown search of the interior and [containers found therein]. ... We know of no case which has allowed police officers arbitrarily to expand the scope of a consent search. [Cits.]” Love v. State, 144 Ga. App. 728, 733 (242 SE2d 278) (1978) (overruled on other grounds in Parker v. State, 161 Ga. App. 37, 38 (288 SE2d 852) (1982), and McKinney v. State, 184 Ga. App. 607, 610 (362 SE2d 65) (1987)). We accordingly hold that the motion to suppress was properly granted. Compare Bruce v. State, 191 Ga. App. 580 (382 SE2d 367) (1989) (where the appellant admitted having consented to the search); Williams v. State, 187 Ga. App. 409 (2) (370 SE2d 497) (1988) (where the appellant freely and voluntarily executed a consent form authorizing the search).

Judgment affirmed.

Sognier and Pope, JJ., concur.


author: Sognier, Judge.

text:
    A89A0863.
    WILSON v. THE STATE.
    (383 SE2d 197)
   Sognier, Judge.

Larry Wayne Wilson was convicted of violating the Georgia Controlled Substances Act by possessing cocaine with intent to distribute, and he appeals.

The evidence adduced at trial, construed to support the jury’s verdict, showed that Sgt. Don Weathers of the Bartow County Police Department was asked by Tommy Pruitt, Commander of the Rome Floyd Metro Task Force, to participate in several undercover operations in Floyd County designed to uncover drug sales through the use of confidential informants. On May 29, 1987, one of the confidential informants, who claimed to know that appellant was involved in dealing drugs, arranged a meeting between appellant and Weathers for the purpose of purchasing cocaine. That evening the informant drove Weathers to the parking lot of a local high school and introduced Weathers to appellant when appellant drove up to meet them in his vehicle. Pruitt observed this meeting from his pickup truck parked nearby. Weathers and appellant arranged to leave that location and meet in a less conspicuous place. They drove separately to a prearranged deserted location, where appellant, witnessed by the confidential informant, sold Weathers a substance that was later identified by the State Crime Lab as cocaine. Both Pruitt and Weathers observed appellant’s car tag number and positively identified both appellant and his car as the one in the high school parking lot, and Weathers positively identified appellant as the person who sold cocaine to him.

Appellant contends, in his sole enumeration of error, that the trial court erred by refusing to allow appellant to learn the identity of the confidential informant because identity was appellant’s sole defense, and the confidential informant was the one who “fingered” appellant as a drug dealer. We do not agree, and affirm appellant’s conviction.

“ 4 “Where a person merely takes an undercover police officer to a location and . . . introduces the officer to the defendant, and the officer arranges for and buys contraband from the defendant, and the person witnesses such sale, or alleged sale, such person is an informer and not a ‘decoy’ and a disclosure of his name, address, etc., to the defendant is not required as a matter of law under (OCGA § 24-9-27), but rests in the discretion of the trial judge, balancing the rights of the defendant and the rights of the state under all the facts and circumstances.” (Cit.)’ ” Statiras v. State, 170 Ga. App. 739, 740 (318 SE2d 156) (1984). The facts in this case show clearly that the confidential informant was merely an informer, thereby distinguishing this case from Roviaro v. United States, 353 U. S. 53 (77 SC 623, 1 LE2d 639) (1957), cited by appellant. Given the State’s interest in retaining the informant’s confidentiality because of other, ongoing investigations and the fact that the evidence as to appellant’s identity was overwhelming in that two police officers positively identified appellant, we find no abuse of the trial court’s discretion under the facts presented here. See Statiras, supra at 740.

Decided June 6, 1989.

John E. Sawhill III, for appellant.

Stephen F. Lanier, District Attorney, Fred R. Simpson, Assistant District Attorney, for appellee.

Moreover, appellant made no Brady motion (Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963)) or any other motion to reveal the informant’s identity, and indicated at trial that he was not interested in the identity of the informant. “Failure to make a timely and specific objection at trial may be treated as waiver on appeal. [Cit.] . . . ‘[0]ne must assert his rights properly or face the possibility of their being forever lost.’ [Cit.]” Bennett v. State, 187 Ga. App. 234, 235 (369 SE2d 552) (1988). Accordingly, the trial court did not err by not insisting the State reveal the identity of the confidential informant.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A0921.
    THE STATE v. BILLOUPS.
    (383 SE2d 198)
   Banke, Presiding Judge.

The state appeals the grant of the appellee’s motion to suppress evidence seized during a warrantless search of his person.

The appellee was arrested by Officer Hunter of the Valdosta Police Department at approximately 2:30 a.m., while the latter was on routine patrol in the Hudson-Docket section of the city, a neighborhood which the officer characterized as a “highly drug populated area.” Officer Hunter testified that as his patrol car rounded a corner, he observed the appellee standing on the sidewalk “conversing” with another male subject. He stated that when the two men looked up and saw the patrol car, they “broke and rein,” whereupon he exited the patrol car, chased after the appellee on foot, and ultimately apprehended him. He then conducted a “patdown search” of the appellee’s person to “see if he had a weapon on him.” Upon doing so, he felt an object in the appellee’s pocket which seemed to be a film cannister. Stating that in his experience such cannisters were used to conceal razor blades, he pulled it out of the appellee’s pocket and opened it. It proved to contain “crack” cocaine, resulting in the appellee’s indictment for possession of cocaine with intent to distribute. Held:

Decided June 6, 1989.

H. Lamar Cole, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellant.

William R. Folsom, for appellee.

“Probable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances surrounding a transaction. [Cits.] . . . [F]light in connection with other circumstances may be sufficient probable cause to uphold a warrantless arrest or search. [Cits.]” Cook v. State, 136 Ga. App. 908, 909 (1) (222 SE2d 656) (1975). See also Banks v. State, 187 Ga. App. 280, 282 (370 SE2d 38) (1988); Moore v. State, 155 Ga. App. 721 (1) (272 SE2d 575) (1980); Green v. State, 127 Ga. App. 713, 715 (194 SE2d 678) (1972). We conclude that in the context of the time of day and the location, the appellee’s flight from the officer provided probable cause for a belief that he was in possession of unlawful contraband, with the result that the search was authorized as a search incident to a valid arrest. We accordingly hold that the trial court erred in granting the appellee’s motion to suppress.

Judgment reversed.

Sognier and Pope, JJ., concur.


text:
    A89A0572.
    SKELTON v. DEPARTMENT OF TRANSPORTATION.
    (383 SE2d 162)
   Sognier, Judge.

Billy Skelton received a work-related injury in November 1979 while employed by the Georgia Department of Transportation. The injury ultimately led to Skelton’s retirement in 1985 and he received income benefits until March 1987 when the DOT suspended his benefits asserting that there was a change in Skelton’s wage-earning capacity in that he had found suitable and gainful employment as a preacher and artist. Skelton requested a hearing on the suspension of his benefits. The administrative law judge found that Skelton had received income from his preaching activities and the sale of his artwork prior to his work-related injury in 1979, that Skelton had received income from these activities in 1985 and 1986, but found that notwithstanding Skelton’s earlier receipt of income from these activities, the continuing deterioration of Skelton’s physical condition had forced him to end his preaching in September 1986 and that Skelton had sold no artwork since December 1986. The ALJ rejected the DOT’s argument that Skelton had a change in condition entitling him to benefits only for 350 weeks pursuant to OCGA § 34-9-262 and reinstated Skelton’s benefits. The ALJ’s award was made that of the State Board of Workers’ Compensation. The Superior Court of Gwinnett County reversed the Board’s award and we granted Skelton’s application for discretionary appeal.

Decided May 26, 1989

Rehearing denied June 7, 1989

E. Neal Little, Jr., for appellant.

Michael J. Bowers, Attorney General, John A. Sligh, Jr., for appellee.

We reverse the superior court’s order. The superior court determined that the ALJ’s finding of fact that appellant had earned income from his preaching and art sales prior to his work-related injury was error because appellant had not reported any income derived from those activities to the Internal Revenue Service prior to 1986. The superior court noted that appellant had testified that 1986 was the first year he had made any “decent profit” from his art sales. However, the extent of appellant’s income from his preaching and art sales and the accuracy of appellant’s income tax returns were not matters to be weighed by the superior court. The law is well established that “ ‘ “[a] finding of fact by . . . the State Board of (Workers’) Compensation, when supported by any evidence, is conclusive and binding upon the court, and . . .” [cit.] “(n)either the superior court nor the Court of Appeals has any authority to substitute itself as the fact finding body in lieu of the board.” (Cit.)’ [Cits.]” Hopkins v. Martin, 185 Ga. App. 752, 753 (365 SE2d 544) (1988). See also Thacker v. World Carpets, 187 Ga. App. 833-834 (1) (371 SE2d 464) (1988). There being some evidence that appellant received income from his preaching activities and art sales prior to his work-related injury, it follows that the superior court erred by reversing the Board’s award reinstating appellant’s income benefits.

Judgment reversed.

Banke, P. J., and Pope, J., concur.


author: Benham, Judge. Deen, Presiding Judge,

text:
    A89A0049, A89A0050.
    UNIFUND GENERAL, INC. v. ORR et al.; and vice versa.
    (383 SE2d 199)
   Benham, Judge.

In Case No. A89A0049, Unifund General, Inc. (“Unifund”) appeals from the entry of summary judgment for the defendants in its suit on a contract. In Case No. A89A0050, the defendants in the trial court appeal from the trial court’s denial of their motion to dismiss Unifund’s appeal for delay in having the record prepared for appeal.

1. Because the outcome of Case No. A89A0050 could affect the other case, it will be addressed first.

It is unquestioned that Unifund was more than 30 days late in paying the costs bill in the trial court. While it is true that a delay of more than 30 days in paying costs is prima facie unreasonable and inexcusable (Bouldin v. Parker, 173 Ga. App. 526 (327 SE2d 760) (1985)), there is no authority that such a delay is conclusively unreasonable or inexcusable. The record of this case contains evidence under which the trial court was authorized to exercise its discretion and deny the motion to dismiss. There is in the record an affidavit from a clerk in the appeals section of the trial court clerk’s office which stated that Unifund’s counsel had been in touch with her in an effort to speed the preparation of the record. Considering that affidavit together with another affidavit by the same affiant, the trial court could infer that the contact with the clerk with regard to speeding preparation of the record occurred prior to the filing of the motion to dismiss. There was also an averment in that first affidavit, which is not directly contradicted in the record, that any delay in transmittal of the record was due to the backlog of work in the affiant’s office and not to delay by Unifund or its counsel. A later affidavit recited that it was the “practice” of that section of the clerk’s office to wait until the costs bills were paid before preparing records, but it did not state that the practice was followed in the present case.

The trial court, whose position for making discretionary decisions regarding events which occur at that level is far superior to ours, has considered the record and made a decision which is supported by that record. We find no abuse of discretion in that decision ánd affirm the denial of the motion to dismiss the appeal.

2. The evidence of record establishes that the defendants wished to purchase property which was available for $3.9 million, but had not found financing. They entered into an agreement with Unifund according to which Unifund, for a fee of $150,000, would find a party which would buy the property for $3.9 million, then contract with defendants to sell it to them for $4.9 million and lease it to defendants during the pendency of the sales contract. The defendants eventually refused to go forward after Unifund had produced a party prepared to buy and sell the property as defendants wanted. Unifund then sued defendants on the contract and, by amendment, for fraud. The trial court granted defendants’ motion for summary judgment, citing as one of its reasons the facts that the contract is one for a real estate broker’s fee and that Unifund is not a licensed real estate broker. We agree with the trial court’s holding.

“No person shall bring or maintain any action in the courts of this state for the collection of compensation for the performance of any of the acts mentioned in [OCGA Ch. 43-40] without alleging and proving that he was a licensed broker in Georgia at the time the alleged cause of action arose.” OCGA § 43-40-24 (a). See also Krizan v. Newman & Co., 246 Ga. 214 (271 SE2d 135) (1980), cited by the trial court in its order.

“ ‘Broker’ means any person who, for a fee, commission, or any other valuable consideration or with the intent or expectation of receiving the same from smother, negotiates or attempts to negotiate, or assists in procuring prospects for the listing, sale, purchase, exchange, renting, lease, or option for any real estate. . . .” OCGA § 43-40-1 (2).

Applying the foregoing authority to the facts recited above, it appears beyond peradventure that Unifund was seeking to recover a fee for being a broker. Since Unifund is admittedly not licensed as a broker, it was not entitled to bring or maintain an action for a broker’s fee.

The fact that the contract specified that none of the parties was acting as a real estate broker makes no difference. “It is not the name one gives to a transaction, but the substance, which is material and which must be inspected and analyzed to determine its validity. Regardless of what the transaction is called, it cannot be upheld if it is prohibited by statute. [Cit.] ‘ “A court of justice will not lend its aid to the enforcement of any contract the making of which is prohibited. . . .” ’ [Cit.]” American Chain &c. Co. v. Brunson, 157 Ga. App. 833, 836 (278 SE2d 719) (1981).

The trial court did not err in granting defendants’ motion for summary judgment as to Unifund’s contract claim.

3. Nonetheless, Unifund insists, it should be permitted to pursue a fraud claim based on misrepresentations defendants made in order to induce Unifund to enter into and perform the contract. However, “[one] may not in tort gain access to the courts where [one] may not in contract. To hold otherwise would be to undermine long-established public policy. This we refuse to do.” Thorpe v. Collins, 245 Ga. 77, 79 (263 SE2d 115) (1980).

In sum, Unifund is attempting to recover for services it had no right at law to perform, and the courts will not aid in enforcing such claims. There was no error in granting defendants’ motion for summary judgment as to all of Unifund’s claims.

Judgments affirmed.

Carley, C. J., McMurray, P. J., Sognier and Pope, JJ., concur. Beasley, J., concurs in the judgment only. Deen, P. J., Banke, P. J., and Birdsong, J., dissent.

Deen, Presiding Judge,

dissenting.

The trial court granted summary judgment for the appellees on April 21, 1988. On May 20, 1988, Unifund filed its notice of appeal, which designated the entire record for inclusion on appeal. On May 26, 1988, the appeals clerk mailed to Unifund the costs bill for preparing the appeal record, indicating that preparation of the appeal record would not begin until payment of the costs. Unifund received this bill on May 31, 1988. Unifund’s president contacted Unifund’s counsel on July 7, 1988, advising him that he had been told by the clerk’s office that it was behind, and requesting measures to be taken to reduce the size of the appeal record.

By July 15, 1988, Unifund still had not paid the costs, and the appellees filed their motion to dismiss pursuant to OCGA § 5-6-48 (c), on the grounds that Unifund had unreasonably and inexcusably delayed the appeal by failing to pay the costs bill in a timely manner. On July 18, 1988, Unifund’s counsel contacted counsel for the appellees to discuss reduction of the record on appeal. Unifund paid the costs bill on July 19, 1988, 49 calendar days and 34 business days after its receipt of the costs bill. After Unifund’s payment of the costs, the appeals clerk requested copies of documents which were listed on the docket but were not in the court’s file, and on July 21, 1988, Unifund mailed in those requested documents. The trial court denied the appellees’ motion to dismiss on August 29, 1988, and on September 22, 1988, the appeal was docketed with this court.

OCGA § 5-6-48 (c) provides that “the trial court may order the appeal dismissed where there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court. . . .” This court has previously held that delays of over 30 days in paying the costs are prima facie unreasonable and inexcusable. Bouldin v. Parker, 173 Ga. App. 526 (327 SE2d 760) (1985); Jones v. State, 123 Ga. App. 672 (182 SE2d 190) (1971).

Unifund contends that (1) any delay was reasonable and excusable becausé of its efforts to reduce the appeal record, and (2) any delay in preparing the record was due to the backlog in the clerk’s office. I do not believe that the record supports either contention. Unifund made no effort to reduce the appeal record until after the appellees filed their motion to dismiss. Although the record contains an affidavit of the appeals clerk, taken after Unifund’s payment of the costs, stating that the delay in preparing the appeal record was due to the backlog of work in the clerk’s office, the record also contains a later affidavit of the same clerk stating that preparation of the appeal record did not begin until the costs were paid. Under these circumstances, a delay of 34 business days must be attributed to Unifund. No valid reason or excuse having been presented, I believe that the trial court abused its discretion in denying the appellees’ motion to dismiss. Jones v. State, supra.

Decided June 7, 1989.

Weinstock, Scavo & Montalto, Michael Weinstock, John M. Bruce, for appellant.

Harman, Owen, Saunders & Sweeney, Timothy J. Sweeney, Craig A. Nance, for appellees.

Accordingly, I must respectfully dissent.

I am authorized to state that Presiding Judge Banke and Judge Birdsong join in this dissent.


text:
    A89A0234.
    GLEN OAK’S TURF, INC. v. BUTLER.
    (383 SE2d 203)
   Carley, Chief Judge.

After she was injured in an on-the-job accident, appellee-employee filed a claim for workers’ compensation benefits. Asserting that it was engaged in the business of “farming” and that it had hired appellee as a “farm laborer,” the appellant-employer denied the existence of coverage based upon OCGA § 34-9-2 (a). That statute provides that the Workers’ Compensation Act “shall not apply ... to farm laborers . . . ; nor to employers of such employees. ...” Although the Administrative Law Judge (ALJ) did find that appellant was in the “farming” business, he further concluded that appellee had not been employed as a “farm laborer.” Having thus found there to be no exclusion from workers’ compensation coverage under OCGA § 34-9-2 (a), the ALJ awarded benefits to appellee. On de novo review, the Full Board adopted the award of the ALJ and, on appeal to the superior court, the Full Board’s award of benefits to appellee was affirmed. Appellant’s application for a discretionary appeal was granted in order that we might address the issue of the applicability of the farming exemption óf OCGA § 34-9-2 (a) to appellant’s business and appellee’s employment.

It is undisputed that appellant is engaged in the business of farming. It is also undisputed that appellant is engaged only in the business of farming, raising and marketing its own crops. See Oft v. Sims, 142 Ga. App. 9 (235 SE2d 41) (1977). Compare Ballard v. Butler, 45 Ga. App. 837 (166 SE2d 220) (1932) (truck farmer who was also a jobber and broker, buying, selling, and handling farm products and other merchandise, and employing trucks and men to operate and care for them); Utica Mut. Ins. Co. v. Winters, 77 Ga. App. 550 (48 SE2d 918) (1948) (employer engaged in the automobile business, the gasoline business and farming); Free v. McEver, 79 Ga. App. 831 (54 SE2d 372) (1949) (employer engaged in meat packing business as well as agriculture). Appellee was not hired in connection with the actual cultivation of appellant’s crops. She was employed to drive a truck and deliver appellant’s crops to its customers. In doing so, appellee was clearly engaged in work which was incidental to appellant’s farming business. “The term ‘farm laborers’ as used in [OCGA § 34-9-2 (a)] . . . means laborers who are employed in or about the business of farming, and the word ‘farming,’ in its ordinary sense, signifies the cultivation of land for the production of agricultural crops, with incidental enterprises. . . .” (Emphasis supplied.) Prigden v. Murphy, 44 Ga. App. 147 (1) (160 SE 701) (1931). “[I]f a farmer does no more than go about and sell at retail the products of his own farm, he is still engaged in farming activities. Moreover, labor that is merely incidental to selling a farm product ... is within the exemption.” Larson, Law of Workmen’s Compensation, 1C § 53.33, p. 9-205 (1986). It follows that appellee, as a truck driver who was engaged in the incidental work of delivering appellant’s crops, is a “farm laborer” who is excluded from workers’ compensation coverage pursuant to OCGA § 34-9-2 (a). “An employee of the owner of . . . land [used exclusively for farming purposes], who was engaged in [delivering crops raised thereon], notwithstanding [she] had not been employed to do any other work on the farm, but was employed solely for the purpose of assisting in the [delivering of the corps], was a farm laborer, and for an injury caused . . . while engaged in [such a delivery] in the course of [her] employment [she] was not entitled to compensation under the [W]ork[ers’] [C]ompensation [A]ct. [Cits.]” Culpepper v. White, 52 Ga. App. 740 (1) (184 SE 349) (1936).

Decided June 7, 1989.

Webb, Fowler & Tanner, Anthony O. L. Powell, Swift, Currie, McGhee & Hiers, Guy R. Taylor, for appellant.

Accordingly, the superior court erred in affirming the award of workers’ compensation benefits to appellee. Admittedly, appellant is engaged in farming on a large scale and it has more than three employees whose duties pertain to the marketing of appellant’s crops rather than the actual cultivation of them. Appellant nevertheless engages exclusively in farming and all of its marketing employees are engaged in employment which is incidental thereto. Whether those employers who engage exclusively in farming on a large scale and their employees who are assigned to the marketing, but not the cultivation, of crops should be removed from the scope of the broad exemption of OCGA § 34-9-2 (a) is a matter which must be addressed by the General Assembly, not by the Full Board or by the courts.

Judgment reversed.

McMurray, P. J., and Beasley, J., concur.

Madeleine E. Gimbel, Walter A. Jones, for appellee.


text:
    A89A0450.
    THE STATE v. LIPSKY.
    (383 SE2d 204)
   Benham, Judge.

The State brings this direct appeal from the trial court’s grant of appellee’s motion for discharge and acquittal pursuant to OCGA § 17-7-170. See OCGA § 5-7-1 (5).

On December 17, 1987, a uniform traffic citation was issued to appellee Lipsky, charging him with driving under the influence. Pursuant to the February 4,1988, request of appellee’s attorney, the case was bound over from the Recorder’s Court of Gwinnett County to the State Court of Gwinnett County. The parties agree that the case was bound over to the state court on February 8, 1988. Two weeks later, on February 22, appellee filed a “Demand for Trial” and served it on the solicitor. The sufficiency of the demand is not at issue. An accusation charging appellee with driving under the influence on December 15,1987, was filed in the state court on April 28,1988. Citing OCGA § 17-7-170, appellee filed his motion for dismissal on September 1, 1988.

“Any person against whom ... an accusation is filed with the clerk for [a non-capital offense] may enter a demand for trial. . . . [T]he demand for trial shall be served on the prosecutor and shall be binding only in the court in which the demand is filed, except where the case is transferred from one court to another without a request from the defendant. If the person is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged in the . . . accusation. . . .” OCGA § 17-7-170. “OCGA § 17-7-170 was enacted to implement the constitutional provision for a speedy trial. [Cit.] ... In the absence of a right to a speedy trial the accused might suffer uncertainty, emotional stress, and the economic strain of a pending prosecution indefinitely.” Hubbard v. State, 254 Ga. 694, 695 (333 SE2d 827) (1985).

According to the trial court, the State Court of Gwinnett County has six two-month terms of court beginning in January, March, May, July, September, and November. The parties stipulated that juries were impaneled in the March, May, July, and September terms of court.

Citing Hicks v. State, 183 Ga. App. 715 (359 SE2d 712) (1987), the State contends the trial court’s order should be reversed because appellee’s February 22 demand for trial was premature since the accusation charging appellee with DUI was not filed until April 28. Appellee points out that “where, as here, a defendant has received a ‘Georgia Uniform Trafile Citation Summons, Accusation/Warning,’ the citation itself contains the accusation, and an accusation subsequently filed by the solicitor’s office is superfluous.” Majia v. State, 174 Ga. App. 432 (1) (330 SE2d 171) (1985), aff'd 254 Ga. 660 (333 SE2d 834) (1985). Majia was decided under a now-outdated version of OCGA § 17-7-170. At that time the statute only required that an accusation be preferred against a defendant, and the trial court concluded that an accusation, the traffic citation, had been preferred against Majia. The current version of OCGA § 17-7-170 requires that an accusation be filed with the clerk before an accused may file a demand for trial. Therefore, the timeliness of appellee’s motion depends upon whether an accusation, i.e., the traffic citation, was filed in the state court on February 22, 1988, the date appellee filed his demand for trial. Despite the parties’ stipulation that the case was bound over from recorder’s court to state court on February 8, 1988, there is no evidence that the case received and filed by the state court clerk’s office on that date contained an accusation, the uniform trafile citation. Without evidence that a uniform trafile citation or a formal accusation was filed in the state court prior to appellee’s demand for trial, the trial court erred in granting appellee’s motion for discharge. Hicks v. State, supra. Our reversal of the trial court’s grant of appellee’s motion does not preclude appellee from renewing his motion for discharge and acquittal in the trial court and presenting additional evidence in support of his motion.

Decided June 7, 1989.

Gerald N. Blaney, Solicitor, Bavid M. Fuller, Assistant Solicitor, for appellant.

John B. Tucker, for appellee.

Judgment reversed.

Been, P. J., and Birdsong, J., concur.


text:
    A89A0494.
    JONES v. CARGILL, INC.
    (383 SE2d 206)
   Benham, Judge.

This case involves the renewal statute in OCGA § 9-2-61, and the issue is whether appellant’s failure to ensure that his first complaint was dismissed prior to the filing of the second complaint deprives him of the protection from the statute of limitation afforded by the renewal statute. We agree with the trial court that it does.

Decided June 7, 1989.

Nelson & Hill, Joseph C. Nelson III, Curtis G. Shoemaker, for appellant.

Stephens & Shuler, Ann A. Shuler, for appellee.

Injured in July 1984, appellant sued appellee in superior court in July 1986. The record in that case (as it appears in the record of this case) shows that a voluntary dismissal was filed at 10:34 a.m., August 6, 1987. The complaint in this case was filed in state court at 9:34 a.m., August 6, 1987. Appellee moved for summary judgment, asserting as one ground therefor the expiration of the period of limitation. That defense was based on appellee’s assertion that appellant’s effort to renew the action failed because of his failure to first dismiss the superior court action. Appellee’s position is supported by this court’s decision in Gober v. Nisbet, 186 Ga. App. 264 (1) (367 SE2d 68) (1988): “The validity of a renewal action filed pursuant to OCGA § 9-2-61 (a) is contingent upon compliance with OCGA § 9-11-41 (d), which . . . applies by its terms only to ‘previously dismissed’ actions, and this court has previously held that ‘it is essential that the first action be dismissed and the costs paid before the second action becomes a valid and pending suit.’ [Cit.]” (Emphasis supplied.) Given that authority and the fact that appellant’s first action was not dismissed before the second action was filed, appellee was entitled, as was the defendant in Gober, to summary judgment based on the running of the statute of limitation.

Appellant’s argument that the result here is too harsh to be based on what he calls the “mere fortuity in the processing of the morning mail in the two clerks’ offices,” ignores the reality of the matter: it was appellant who had control over when the dismissal was to take effect and when the second suit was filed. To avoid this result, appellant could have sent the dismissal first, ensured that it was filed, then sent the complaint.

Judgment affirmed.

Birdsong, J., concurs. Deen, P. J., concurs in the judgment only.


author: Pope, Judge.

text:
    A89A0694.
    JOHNSON v. THE STATE.
    (383 SE2d 346)
   Pope, Judge.

Defendant Mark Johnson appeals his conviction of theft by taking in regard to a 1988 Dodge Dynasty automobile. We affirm.

1. During a Jackson-Denno hearing outside the presence of the jury the trial court granted defendant’s motion in limine and instructed the prosecutor and the prosecuting witness (the arresting officer) that testimony could not be presented concerning any statements made by the defendant to the arresting officer which were not disclosed to the defendant prior to trial in response to defendant’s demand for disclosure of custodial statements brought pursuant to OCGA § 17-7-210. At that point in the trial, the arresting officer had already testified without objection that defendant had given him a false driver’s license and had admitted to the officer that the license belonged to someone else. This statement by the defendant had not been previously disclosed to the defendant. After the motion in limine was granted, the officer testified that, in response to his request for information by which he could be identified, defendant provided him with several telephone numbers and the address where defendant’s girl friend lived. The defendant objected to this testimony because it concerned custodial statements by the defendant which also were not disclosed prior to trial and thus violated the court’s order in limine. The trial court denied defendant’s motion for mistrial and instead specifically instructed the jury to disregard the officer’s testimony that defendant gave him a driver’s license number, gave him certain telephone numbers and told the officer where his girl friend lived. Defendant argues the court erred in denying his motion for mistrial because the improper testimony was so prejudicial that no instruction could eradicate its effects from the minds of the jurors.

As to the testimony that defendant had given the officer a false driver’s license, defendant’s objection was untimely. Where an objection pursuant to OCGA § 17-7-210 is not made at the time the testimony was offered, the objection is waived. Cloud v. State, 169 Ga. App. 51 (2) (311 SE2d 491) (1983); Henderson v. State, 162 Ga. App. 320 (3) (292 SE2d 77) (1982). The testimony concerning telephone numbers given to the officer and the address of defendant’s girl friend are not, per se, inculpatory. If this testimony is inculpatory at all it is only because the officer testified he made at least twenty-five telephone calls in an attempt to determine defendant’s identity but was unsuccessful. However, evidence that defendant had provided conflicting information concerning his identity had already been presented to the jury by the officer’s earlier testimony that defendant had given him three different Social Security numbers. Because the testimony in question was not inculpatory, and because it was cumulative of other evidence already before the jury, the court did not err in denying defendant’s motion for mistrial. See Ledesma v. State, 251 Ga. 487 (5) (306 SE2d 629) (1983); Hilburn v. State, 166 Ga. App. 357 (3) (304 SE2d 480) (1983).

Decided June 7, 1989.

John C. Campbell, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

2. The court did not err in denying defendant’s motion for mistrial on the ground that testimony of a prosecution witness impermissibly placed his character in evidence. The manager of the automobile rental agency which owned the car and reported it to be stolen testified that he had seen defendant once before on the premises of the rental agency and that he had gone to “the prison” to identify defendant. Subsequent testimony made it abundantly clear to the jury that the witness was asked to identify the defendant on the day of his arrest when the witness went to the “jail” to retrieve the car. Evidence that an accused was confined in jail for the offense at issue in a criminal trial does not place defendant’s character in evidence. See Fields v. State, 176 Ga. App. 122 (355 SE2d 466) (1985); Dollar v. State, 149 Ga. App. 97 (3) (253 SE2d 461) (1979). We find no harm in the fact that the witness first erroneously referred to the jail as a prison. It was obvious from the testimony as a whole that the witness was referring to the defendant’s pre-trial detention at the jail and not to an unrelated incarceration at a post-conviction prison.

3. The evidence showed that defendant was found in possession of the stolen vehicle more than thirty days after the owner first noticed it was missing. The court did not err in charging the jury that guilt may be inferred by recent unexplained possession of stolen property. “ ‘What would be a recent possession is in all cases a question for the jury, to be determined very largely from the character and nature of the property stolen.’ Cuthbert v. State, 3 Ga. 600, 604 (60 SE 322) (1907).” Brown v. State, 157 Ga. App. 473, 474 (278 SE2d 31) (1981). Accord Collins v. State, 176 Ga. App. 634 (1) (337 SE2d 415) (1985).

4. We have reviewed the evidence in the light most favorable to the verdict and find that the evidence is sufficient to enable any rational trier of fact to find the defendant guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Collins v. State, supra.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A0705.
    KERSEY v. THE STATE.
    (383 SE2d 348)
   Pope, Judge.

This appeal is from the trial court’s denial of appellant’s motion for discharge and acquittal, brought pursuant to OCGA § 17-7-170 (b). On April 1, 1988, appellant was charged with improper lane change, driving on a suspended license and driving under the influence. On April 20, 1988, the State filed its accusation against appellant on these charges in the State Court of Glynn County. During a court appearance on May 19, 1988, appellant filed a document in which he referred to OCGA § 17-7-170 and demanded that his case be tried “in this term or the next succeeding term of Court.” On December 6, appellant filed a motion for discharge and acquittal pursuant to OCGA § 17-7-170 (b), which motion the trial court denied. This direct appeal follows. See Hubbard v. State, 254 Ga. 694 (333 SE2d 827) (1985); Smith v. State, 169 Ga. App. 251 (1) (312 SE2d 375) (1983). Held:

OCGA § 17-7-170 (b) provides: “If the person is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense. . . .” If no jury is impaneled and qualified to try a person when the demand is filed, the time designated in § 17-7-170 does not begin to run until the term at which jurors are impaneled and qualified to try the person. Waller v. State, 251 Ga. 124 (3) (303 SE2d 437) (1983), rev’d on other grounds, 467 U. S. 39 (104 SC 2210, 81 LE2d 31) (1984).

The terms of court for the State Court of Glynn County are January, March, May, July, September and November. Each term lasts two months. The terms are not designated “criminal” or “civil.” Ga. L. 1981, p. 3359, § 5. The supplemental record provided by the clerk in this case shows that juries were impaneled and qualified May 2-4, 1988, October 3-6, 1988 and December 5-9, 1988.

It follows that appellant’s demand for speedy trial did not become effective to trigger the running of time specified in OCGA § 17-7-170 (b) until juries were impaneled and qualified during the September term. The State was prepared to try appellant at the next succeeding term, November. The trial court did not err in denying appellant’s motion.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.

Denied June 7, 1989.

Lane & Tucker, Alan D. Tucker, for appellant.

Richard H. Taylor, Solicitor, for appellee.


text:
    A89A0899.
    In the Interest of J. I. H. et al.
    (383 SE2d 349)
   Sognier, Judge.

The mother of J. I. H., R. M. H., and J. A. H. appeals from the trial court’s denial of her motion for a new trial made after an order was entered terminating her parental rights in the children.

The record reveals that the children were initially found to be deprived in 1986, at which time they were removed from appellant’s home, the Department of Family and Children Services (DFCS) was given temporary custody, and the children were placed in foster care. That deprivation was found on the basis of both neglect and physical and sexual abuse on the part of appellant. Appellant subsequently pled guilty to child molestation and cruelty to children and received a five-year sentence with one year to serve. On June 21, 1988, a petition was filed on behalf of DFCS seeking to terminate the parental rights of the natural parents, including appellant. Appellant, who was out of prison and living in Iowa, was notified, and on August 17, 1988, the juvenile court received a letter from appellant stating that she was unsure whether she would be able to appear for the hearing, but that if she appeared she would need a lawyer appointed to represent her. The DFCS caseworker then sent appellant copies of all previous orders, the petition for termination of parental rights, and a summons showing the time and place of the hearing. Those documents were sent to appellant by certified mail, and were received and signed for by appellant on August 23, 1988.

Appellant did not appear at the hearing on September 8, 1988. The juvenile court heard evidence and found that the children were deprived due to lack of proper parental care or control and that the deprivation was likely to continue. Finding that the children needed a secure and stable home, the court terminated appellant’s rights in the children.

1. Appellant contends the juvenile court erred by denying her motion for a new trial because her failure to appear at the hearing was not her fault. We do not agree. The record reveals that appellant received notice of the hearing, which notice contained proper information as to the exact place and time at which the hearing would be held, and that despite such notice appellant did not appear. At the hearing on appellant’s motion for a new trial, counsel appointed to represent appellant stated that appellant had driven from Iowa and was present at the county courthouse at the time of the hearing, but was unable to locate where the hearing was being held. She called DFCS and was told the hearing was not that day, but when she went to the DFCS office she was told she had missed the hearing. DFCS confirmed that appellant had appeared at its office after the hearing, but not that she had called that morning, or that she had been told the hearing was not that day. Although appellant’s counsel stated that appellant discovered after the hearing where it had been held, the juvenile court found that appellant was familiar with the Clayton County courthouse complex and the location of the juvenile court, having appeared in superior court on other occasions, and having received a summons which clearly stated the address of the juvenile court building where the hearing was to be held. Further, the court noted that appellant had written a letter to the court after the termination hearing stating that she had not appeared because she had been “stuck in traffic” and had gotten lost. Because the record establishes that notice was properly given, appellant’s failure to appear because of a mistake on her part does not afford a basis for relief. See McCullough v. Molyneaux, 163 Ga. App. 352, 353-354 (2, 3) (294 SE2d 560) (1982). There being evidence to support it, the trial court’s exercise of its discretion in refusing appellant’s motion for a new trial on this ground will not be reversed. Hospital Auth. of Walker &c. Counties v. Smith, 142 Ga. App. 284, 286 (2) (235 SE2d 562) (1977).

2. Appellant also enumerates as error the trial court’s failure to grant her motion for a new trial because counsel was not appointed to represent her at the termination hearing despite her request. OCGA § 15-11-85 (b) provides that in any proceeding for terminating parental rights “[i]f the parent or parents of the child desire to be represented by counsel but are indigent, the court shall appoint an attorney for such parent or parents . . . .” The record in the case sub judice is clear, however, that appellant never requested that counsel be appointed before the termination hearing, applied for the appointment of an attorney, or showed proof of her indigency. Thus, we find no reversible error in the, trial court’s failure to appoint counsel to represent appellant at the termination hearing. See generally In the Interest of C. C. B., 188 Ga. App. 46 (1) (372 SE2d 6) (1988). We note that after the termination hearing, when appellant properly indicated her desire to appeal and satisfied the court that she was indigent, an attorney was appointed to represent her.

3. Appellant contends the evidence was insufficient to support the termination of her parental rights. In particular, appellant argues that the only evidence adduced at the hearing dated from several years before the hearing, and that because “[a] finding of unfitness must be based on present circumstances [cits.],” In re N. R. F., 179 Ga. App. 346, 348 (346 SE2d 121) (1986), it was insufficient. We do not agree that no evidence about current circumstances was adduced at the hearing or that the evidence was insufficient to support the termination of appellant’s rights.

“In considering the termination of parental rights, the court shall first determine whether there is present clear and convincing evidence of parental misconduct or inability .... If there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest of the [children], after considering the physical, mental, emotional, and moral condition and needs of the [children] who [are] the subject of the proceeding, including the need for a secure and stable home.” OCGA § 15-11-81 (a).

The record clearly establishes that these children have been the objects of parental misconduct within the meaning of OCGA § 15-11-81 (b) (4) (A) and that they are deprived within the meaning of OCGA § 15-11-2 (8). The children were found in a state of physical neglect. There was evidence of physical and sexual abuse, as to which appellant pled guilty, thereby demonstrating that the lack of proper parental care and control was the cause of the children’s deprivation. That the children’s deprivation was likely to continue was evidenced by reports and testimony concerning appellant’s mental and emotional problems, including drinking and drug addiction, for which she has been treated several times without result and with a poor prognosis. Appellant also has a history of suicide attempts, and has been diagnosed as having an antisocial personality and as unable to profit from her mistakes. The children have already suffered serious physical and emotional harm from the continued deprivation, as evidenced both by their physical bruises and by their adjustment problems. Thus all four criteria set forth in OCGA § 15-11-81 (b) (4) (A) have been satisfied.

Moreover, there was evidence that appellant failed to communicate with her children or support them or attempt to do so for a period of over two years, warranting a finding that she abandoned the children, and .the children’s guardian ad litem testified that the children were currently “terrified” of their mother because of her cruel treatment of them. DFCS and the children’s guardian ad litem both recommended that appellant’s parental rights be terminated.

“Obviously, those same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights . . . [is] in the [children’s] best interest. Thus, a finding as to whether the termination of parental rights is in the best interest of the [children] represents, in essence, a finding as to whether the specifics of the parental default that have otherwise been found to exist are of such magnitude as to warrant the conclusion that the [children themselves] would be better served by the grant of the petition to terminate. [Cits.] In this regard, our review of the entire record shows that there was likewise sufficient clear and convincing evidence to support the juvenile court’s finding that the termination of the parental rights of [appellant] would be in [the children’s] best interest. [Cits.]” In the Interest of G. K. J., 187 Ga. App. 443, 444 (2) (370 SE2d 490) (1988). Consequently, although mindful that “ ‘[t]here is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship . . .’ [cit.] [and that] ‘(c)ompelling facts are required to terminate parental rights, (cits.)’ [cit.],” In re N. F. R., supra at 348, we find no error in the trial court’s order terminating appellant’s parental rights.

Decided June 7, 1989.

Linda S. Cowen, for appellant.

Michael J. Bowers, Attorney General, Carol A. Cosgrove, William C. Joy, Senior Assistant Attorneys General, Michael D. Anderson, for appellee.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A1161.
    SEARS, ROEBUCK & COMPANY v. SPELL.
    (383 SE2d 207)
   Deen, Presiding Judge.

We granted this discretionary appeal in order to determine whether, as appellant Sears, Roebuck & Company (Sears) contends, the Superior Court of Glynn County erred in reversing the award of the full Board of Workers’ Compensation and in holding that a videotape purporting to show a “totally disabled” claimant engaged in strenuous work was insufficient to establish the claimant’s ability to work. According to the record, appellee/claimant Spell sustained a compensable injury in December 1979 and thereafter received total disability benefits; he had a spinal fusion in October 1980; he was subsequently treated by a Dr. Bowman.

In April and May of 1985, while Spell was still drawing toted disability benefits, a videotape was made which showed him building a deck on his residence and engaging in bending, stooping, heavy lifting, and using a hammer and power saw. The videotape was shown to Dr. Bowman, who thereupon stated as his opinion (and later gave a deposition to the same effect) that Spell was able to return to work without any restrictions. On the basis of this evidence an Administrative Law Judge (ALJ) found a change of condition for the better and authorized the employer (Sears) to cease paying disability benefits. The full Board of Workers’ Compensation affirmed the ALJ’s award, but the Glynn County Superior Court reversed the board on the basis that the evidence did not support the board’s decision. See OCGA § 34-9-105 (c) (4).

Decided June 7, 1989.

Dickey, Whelchel, Brown & Readdick, Richard A. Brown, Jr., for appellant.

Edward E. Boshears, for appellee.

On applying to this court for an appeal from this decision, Sears pointed out that the superior court had never actually viewed the videotape; that, moreover, neither the videotape nor a series of still photographs allegedly showing Spell engaged in heavy work was ever transmitted to the superior court by the Board of Workers’ Compensation. We granted Sears’ motion for transmission of physical evidence and ordered the Clerk of the Superior Court of Glynn County to obtain this evidence and transmit same to the Clerk of the Court of Appeals. We then viewed the videotape. Held:

“ ‘The superior court when sitting as an appellate body, is ordinarily bound by the “any evidence” standard of review ... In this posture, the superior court is not authorized to substitute its judgment for that of the Board ....’” Thacker v. World Carpets, 187 Ga. App. 833 (371 SE2d 464) (1988); OCGA § 34-9-105 (c). Like any other tribunal, the superior court is duty-bound to base its judgment on the record as a whole; this the superior court did not do in the instant case because the entire record was not before it. We find this to be reversible error requiring that the case be remanded to the superior court for reconsideration of the record as a whole, including the omitted photographic evidence.

Judgment reversed; case remanded with direction.

Birdsong and Benham, JJ., concur.