author: McMukray, Presiding Judge. Beasley, Chief Judge,

text:
    A96A0640.
    BOARD OF TRUSTEES OF THE FULTON COUNTY EMPLOYEES RETIREMENT SYSTEM v. MABRY.
    (472 SE2d 542)
   McMukray, Presiding Judge.

Herbert H. Mabry has been an appointed member of the Fulton County Personnel Board since January 1, 1972. On October 6, 1994, he asserted an action against the Board of Trustees of the Fulton County Employees Retirement System and its members (“the Board”), in their official capacities, to compel the Board to recognize his alleged eligibility under a pension system that is administered by the Board and was implemented by Fulton County on July 1, 1982. The Board answered, claiming that Mabry is not eligible to participate in Fulton County’s retirement system because the county’s 1982 pension ordinance was adopted solely for the benefit of county employees, not persons such as Mabry who “are members of a Board.”

After a bench trial, the trial court found that Fulton County’s 1982 pension “ordinance and plan [provides that] the following persons [are] eligible to participate in the pension fund: ‘(a) All state and County Officers, Deputies and employees whose salary or wages are paid in whole or in part by the Finance Department of Fulton County, (b) All state Officers, deputies and employees whose salary or wages are paid in whole or in part by the Finance Department of Fulton County.’ ” The trial court also found that, “[beginning in 1981 and continuing in 1982 and at periodic times after that, Mabry requested the right to participate in the Fulton County Retirement System [and that] Mabry has offered and tendered all contributions to the Employee’s Retirement System from July 1, 1982 to the present with accrued interest.” The trial court concluded that “Mabry is an employee under subsections (a) and (b) of the 1982 Pension Resolution [and declared that he] is entitled to contribute to the Fulton County Retirement System.” The trial court then ordered that “a Writ of Mandamus Absolute issue [for the Board] to allow [Mabry] to become a member of the Fulton County Employee’s Retirement System as of July 1, 1982[, and declared] that [Mabry] is entitled to pay back contributions with accrued interest to such plan so that he shall maintain continuous retirement service from July 1, 1982 through the current date of his employment and until the termination of his employment.” This appeal followed. Held-.

“The right to a pension depends upon whether or not the officer or employee is within the terms of an applicable pension law.” McQuillin, Vol. 3, The Law of Municipal Corporations, p. 725, § 12.147 (3rd ed.). And in so construing such authority, trial courts should liberally construe the law in favor of employees. See Employees Retirement System of Ga. v. Baughman, 241 Ga. 339, 341 (2) (245 SE2d 282). In the case sub judice, Mabry claims pension benefits under the Fulton County pension ordinance that became effective on July 1, 1982. The Board, however, contends this ordinance does not confer Mabry with benefits because it does not specifically mention eligibility for members of the Fulton County Personnel Board. We find this argument lacking in that it focuses exclusively upon what the 1982 pension ordinance does not provide rather than on what the ordinance provides, i.e., a broad class of individuals eligible for benefits under the county’s pension system.

Fulton County’s 1982 pension ordinance pertinently defines persons eligible for retirement benefits as “ ‘[a]ll State and County Officers . . . and employees whose salary or wages are paid in whole or in part by the Finance Department of Fulton County.’ ” There is no question that Mabry’s salary has, at all pertinent times, been “ ‘paid in whole or in part by the Finance Department of Fulton County.’ ” The disputed issue is whether Mabry is an “employee” within the meaning of the 1982 pension ordinance. And to this end, the Board asserts that Mabry is not an “employee” because the state law which established the Fulton County Personnel Board, Ga. L. 1982, p. 4896 et seq., does not state that personnel board members are “employees,” but identifies them as members of the county’s “ ‘unclassified service.’ ” Ga. L. 1982, pp. 4896, 4902, § 6 (b). The Board also asserts that Mabry cannot be considered an employee for purposes of pension eligibility because his duties on the personnel board “are supervisory in nature and [are] not to be carried out under the direction and supervision of any other county board or agency.” These contentions are without merit.

Although Ga. L. 1982, pp. 4896, 4902, § 6 (b) (2), designates “members of boards” as “being in the ‘unclassified service,’ ” nothing in this Act provides that the services furnished by a member of Fulton County’s Personnel Board are not the services of an “employee.” Further, the supervisory nature of Mabry’s job is not determinative of his eligibility under Fulton County’s 1982 pension ordinance. Indeed, saying otherwise ignores that “County Officials,” as well as “County . . . employees,” are eligible for benefits under the 1982 pension ordinance. See McQuillin, Vol. 3, The Law of Municipal Corporations, p. 730, § 12.148 (3rd ed.). Compare Fulton County v. Holland, 71 Ga. App. 455 (31 SE2d 202), where the claimant was working for the county under an independent contract, but was found to be eligible for pension benefits, just as a regular employee, because of proof that he had substantial connection, either direct or indirect, with the county department of which he was alleged to be an employee. Id. at 457-461 (1).

Decided June 18, 1996.

John T. Ferguson, for appellant.

Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, for appellee.

In the case sub judice, it is undisputed that Fulton County pays Mabry a fixed monthly salary, retains power to terminate him for cause and controls the environment in which Mabry carries out his duties. Further, Mabry’s duties are strictly defined and controlled by state law and are completely and exhaustively related to Fulton County’s personnel administration. Finally, it is undisputed that Mabry performs his duties upon appointment and, for designated terms, at the pleasure of the Fulton County Commission. Under these circumstances, we find no error in the trial court’s determination that Mabry “is entitled to contribute to the Fulton County Retirement System.” The evidence authorizes a finding that Mabry is either employed as a “County Official” or an “employee” as these terms are defined under Fulton County’s 1982 pension ordinance. See City of Macon v. Herrington, 198 Ga. 576, 589 (2) (32 SE2d 517). Accordingly, we affirm the trial court in its judgment of “Writ of Mandamus Absolute [for the Board] to allow [Mabry] to become a member of the Fulton County Employee’s Retirement System as of July 1, 1982[, and declaration] that [Mabry] is entitled to pay back contributions with accrued interest to such plan so that he shall maintain continuous retirement service from July 1, 1982 through the current date of his employment and until the termination of his employment.”

Judgment affirmed.

Ruffin, J., concurs. Beasley, C. J., concurs specially. Johnson, J., disqualified.

Beasley, Chief Judge,

concurring specially.

I concur in the opinion but believe it should be made clear that we are not deciding, expressly or by implication, the issue of whether the “minimum pension resolution” of February 15, 1995 (setting the minimum at $330 per month) was intended to cover part-time employees, such as Board members, who receive salaries below that amount.

       The Fulton County Commission and its members, in their official capacities, were also named as defendants but were later dismissed from the action, without prejudice.

       The Board also raised the statute of limitation (OCGA § 9-3-22) and laches in its answer. We do not reach issues relating to these defenses, however, since neither defense was pressed in the trial court nor enumerated as error on appeal. But in this regard see McQuillin, Vol. 3, The Law of Municipal Corporations, § 12.170 (3rd ed.).

       The Board originally appealed to the Supreme Court of Georgia, based on jurisdiction conferred pursuant to Art. VI, Sec. VI, Par. Ill (5) of the Georgia Constitution of 1983. This provision provides that, “[ujnless otherwise provided by law, the Supreme Court shall have appellate jurisdiction of. . . [a]ll cases involving extraordinary remedies.” And even though mandamus has long been considered by Georgia’s Supreme Court as an “extraordinary” remedy for purposes of assigning jurisdiction under this constitutional provision (particularly in cases where the relief sought was ancillary to an underlying issue of law), Settle v. McWhorter, 203 Ga. 93 (1) (45 SE2d 210), the Supreme Court transferred the Board’s appeal to the Georgia Court of Appeals via the following order: “It appearing that the mandamus relief sought in this action is ancillary to the underlying issues of law raised on appeal, the appeal is transferred to the Court of Appeals. See Pittman v. Harbin Clinic Professional Association, 263 Ga. 66 (428 SE2d 328) (1993); Beauchamp v. Knight, 261 Ga. 608 (409 SE2d 208) (1991).” All Justices concurred, except Justice George H. Carley, who dissented. We comply with the Supreme Court’s transfer order and consider the case sub judice because Art. VI, Sec. VI, Par. VI of the Georgia Constitution of 1983 provides that “[t]he decisions of the Supreme Court shall bind all other courts as precedents.” See Crotty v. Crotty, 219 Ga. App. 408, 409 (1) (465 SE2d 517).

       Similar logic can just as easily be employed to support Mabry’s view that members of the county’s personnel board are eligible under the 1982 ordinance. For instance, the pension ordinance does not precisely enumerate all persons eligible for pension benefits, but does exclude eligibility for specific classes of individuals. Thus, since these exclusions do not include members of the Fulton County Personnel Board, it may be inferred that the Fulton County Commission intended to extend pension benefits to members of the county’s personnel board.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A96A0824.
    DEPARTMENT OF HUMAN RESOURCES v. TABB.
    (472 SE2d 540)
   Johnson, Judge.

The Georgia Department of Human Resources (DHR) moved the superior court to hold Tabb in contempt for violating a provision of a divorce decree requiring him to support his children. The superior court denied the motion, and DHR appeals. We reverse.

In its order denying the motion, the superior court found the facts to be as follows:

Tabb and the children’s mother were divorced in June 1984. The mother later remarried, and her new husband indicated that he wished to adopt the children. The mother’s lawyer, in November 1988, sent Tabb a proposed surrender of Tabb’s parental rights, which Tabb signed in December 1988 and returned to the attorney. The attorney wrote Tabb in May 1989, informing him that the stepfather was abandoning his attempt to adopt the children, and reiterating Tabb’s support obligation. Tabb’s lawyer wrote back in October 1990, asserting that Tabb’s support obligation terminated the day he signed the surrender of parental rights.

Tabb asserted the same point in defending against the contempt motion, which was filed in June 1994. The trial court held that this reasoning was correct in denying the motion.

1. Tabb contends we are obligated to affirm the trial court’s decision because we have no transcript of the proceedings below, and no substitute for such a transcript. See OCGA § 5-6-41 (g) and (i). It is frequently true that, when the appellant has made no proper showing on appeal of the facts before the trial court, we are required to presume that the facts supported the trial court’s decision, and thus to affirm. See Tadlock v. Duncan, 215 Ga. App. 441, 442-443 (1), (2) (451 SE2d 80) (1994). In the case before us, however, the trial court’s order is part of the record and contains findings of fact sufficient for analysis of the legal issues. Because the error alleged on appeal is one of law, and “[i]t is not the trial court’s findings of fact that are disputed, . . . the lack of a transcript is no barrier to an appellate consideration of the merits of this appeal.” (Emphasis in original.) State v. Chase, 195 Ga. App. 806, 807 (1) (395 SE2d 284) (1990). See Court of Appeals Rules 27 (a) (1) and (c) (3), which require that an argument on appeal be supported by citations to the record or transcript.

2. DHR contends that a court order is necessary to terminate a parent’s support obligation, and that the trial court thus erred in concluding that Tabb’s support obligation terminated when he signed the surrender in December 1988. OCGA § 19-7-2 provides: “It is the joint and several duty of each parent to provide for the maintenance, protection, and education of his or her child until the child reaches the age of majority, dies, marries, or becomes emancipated, whichever first occurs, except as otherwise authorized and ordered pursuant to subsection (e) of Code Section 19-6-15 and except to the extent that the duty of the parents is otherwise or further defined by court order.” The references to OCGA § 19-6-15 (e) and other language inserted by a 1992 amendment to the statute are not relevant here.

Decided June 18, 1996.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Stephanie M. Baldauff, Kevin M. O’Connor, Assistant Attorneys General, for appellant.

In Dept. of Human Resources v. Cowan, 220 Ga. App. 230, 231-232 (1) (469 SE2d 384) (1996), this Court relied on OCGA § 19-7-2 in holding that a parent’s “surrender of parental rights and his consent for adoption did not release him from his support obligation,” but that a court order is instead required. Id. at 231. “While parental powers over a child may be forfeited [by agreement], we are aware of no law which permits a waiver of maintenance obligations by contract alone. See OCGA § 19-7-1 (b).” (Emphasis in original.) Id. at 231-232. Because there was no court order providing for the adoption of Tabb’s children or otherwise terminating his support obligation, the trial court’s decision is reversed.

The equitable doctrine of “virtual adoption,” under which the conduct of the parties can create an implied adoption even without a court order, does not compel a different result. That doctrine has been confined by the Georgia Supreme Court to inheritance cases, and “is not applicable to a dispute as to who is legally responsible for the support of minor children.” Ellison v. Thompson, 240 Ga. 594, 596 (242 SE2d 95) (1978).

Unlike the lower court’s order in Cowan, the order in the present case contains no findings as to whether Tabb’s failure to comply with the support provision of the divorce decree was wilful. A finding of wilfulness is necessary to hold a parent in contempt of a support order. Cowan, supra at 232 (2). The case is therefore remanded for further proceedings.

3. DHR also contends the trial court erred by modifying its support order in contempt proceedings to enforce that order. This contention is correct. “A trial judge in a contempt proceeding has no authority to modify the terms of a divorce and alimony judgment.” (Citations and punctuation omitted.) Perry v. Perry, 265 Ga. 186, 188 (3) (454 SE2d 122) (1995). This includes modification of support obligations covered by OCGA § 19-7-2. Id. at 189.

Judgment reversed and remanded with direction.

McMurray, P. J., and Ruffin, J., concur.

Randolph H. Phillips, Robert E. Baynard, for appellee.


author: Judge Harold R. Banke.

text:
    A96A0269.
    McNATT et al. v. COLONIAL PACIFIC LEASING CORPORATION et al.
    (472 SE2d 435)
   Judge Harold R. Banke.

Linda and William McNatt, the sole shareholders of Quick-Trip Printers, Inc. (collectively “McNatt”) sued Itex Systems Southeast, Inc. (“Itex”), Burnham Leasing Company, Inc. (“Burnham”), Datronic Rental Corporation, independently and as general partner of Datronic Equipment Income Fund XVII, L.P. (“Datronic”), Colonial Pacific Leasing Corporation (“Colonial”), Terry Demarest, Scott Vines, Drew Alston, Automated Laser Personalization System, Inc., and Laser Systems, Inc., seeking to revoke the acceptance of an allegedly defective printing system, to rescind two leases, and alleging negligent release of funds by Colonial and Datronic to Itex. Datronic and Colonial counterclaimed for breach of the leases and moved for summary judgment on their counterclaims and McNatt’s claims. The trial court entered an order against McNatt in favor of Datronic and Colonial on their counterclaims and on the issue of negligent release of funds. McNatt appeals the trial court’s grant of summary judgment to Colonial and Datronic on both the main action and the counterclaims.

To prevail at summary judgment under OCGA § 9-11-56, the movant must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-movant, warrant summary judgment as a matter of law. OCGA § 9-11-56 (c). Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the evidence presented was as follows: On June 10, 1991, Linda McNatt, as president of Quick-Trip, signed two leases with Burnham for an Itex Page II System. On behalf of Burham, Dianne Grissom signed the leasing documents on June 12, 1991. The Itex Page II System is a complex computer printing system consisting of hardware, software, and other components and is a computerized foil printer and laser tone printer all in one unit. On June 10, 1991, Linda McNatt purportedly signed a personal guaranty for each lease. Before Quick-Trip received the Itex Page II System, Burnham assigned one lease having a 60-month term to Colonial on June 12, 1991. Pursuant to the terms of that lease, Quick-Trip agreed to make 60 payments of $898.65 and paid $3,399 as a security deposit and $898.65 as an advance payment. The other lease, having a 48-month term, Burnham assigned to Datronic on June 13, 1991. This lease required Quick-Trip to pay 48 payments of $741.73 and Quick-Trip paid $1,483.46 in advance as the first and last payments.

None of the components of the Itex printing system were delivered until June 14, and both William McNatt and Linda McNatt testified the system never worked properly and had multiple problems. However, Linda McNatt signed an Acknowledgment and Acceptance of Equipment by Lessee (Quick-Trip) before any equipment was delivered and before Burnham executed either lease or assigned the leases. The acceptance indicates that the equipment was “received in good condition and repair,” and was “properly installed, tested, and inspected, and is operating satisfactorily in all respects for all of Lessee’s intended uses and purposes.” The McNatts testified that they were pressured by sales agents of Itex to sign the leases and other documents without reading them in order for Linda McNatt to be able to participate in a training session beginning on the same day as she signed the paperwork.

Whether the system ever functioned or functioned properly is disputed. McNatt claimed that they discovered that the machine was used, not new, and vastly inferior to what they had been led to expect by Itex and its agents. McNatt alleged that Alston, Demarest and Vines made material misrepresentations of the capabilities of the Itex system, which failed to produce saleable, marketable copy. Instead of a system capable of performing all their typesetting needs, McNatt alleged it could not even produce clean, commercial grade copy or perform the tasks as represented by the Itex sample book. William McNatt testified that on June 20 or 21 he advised Burnham not to release funds to Itex, the vendor, because the equipment was unsatisfactory and incomplete. Linda McNatt testified that in late June the system was not running correctly and was not even fully assembled until at least two weeks after the June 14 delivery of its components.

William McNatt testified that he received telephone calls from Colonial and Datronic inquiring as to whether the equipment was in place and working and whether funds should be released, and that he advised both companies that there were problems and cautioned them saying, “I sure wouldn’t want you to give anyone any money.” According to his testimony, he advised both assignees that they would be releasing the funds at their own risk. Colonial and Datronic, the assignees of the leases, nevertheless, released funds to Itex for the allegedly defective system on June 24, 1991.

Deeming the system defective and totally unacceptable for its business, Quick-Trip made no further payments to Burnham, Colonial or Datronic and a part of the leased equipment was retrieved on or about July 12, 1991. In correspondence dated August 9, 1991, William McNatt described the major deficiencies of the equipment in detail and Quick-Trip’s unsuccessful efforts to have the problems corrected. Ultimately, Colonial sold its portion of the system for $500 on October 14, 1992 and Datronic’s portion was not sold but was scrapped on July 24, 1992.

Linda McNatt and Quick-Trip filed this action seeking revocation of acceptance, rescission of the leases, and compensatory and punitive damages for the allegedly negligent funding to Itex. Datronic and Colonial counterclaimed for breach of their respective leases. The trial court awarded $88,932.06 in favor of Datronic and Colonial with interest accruing from July 15, 1991, the date of default. Held:

1. McNatt contends that the trial court erroneously granted summary judgment on Datronic and Colonial’s counterclaims on the breach of lease issue when it failed to first determine the merit of McNatt’s rescission claim. We agree.

“ A contract may be rescinded at the instance of the party defrauded; but, in order to rescind, the defrauded party must promptly, upon discovery of the fraud, restore or offer to restore to the other party whatever he has received by virtue of the contract if it is of any value.’ OCGA § 13-4-60.” Potomac Leasing v. Thrasher, 181 Ga. App. 883, 886 (2) (354 SE2d 210) (1987). In this case, as soon as the problems were discovered, the McNatts notified Itex, Burn-ham, Datronic, and Colonial that there were problems with the printing system and, in fact, a part of the system was retrieved about a month after the first components were delivered. The evidence shows that McNatt took prompt action to rescind, never took action to affirm after it discovered the system was defective, and did not make a single payment under either lease. Thrasher, 181 Ga. App. at 886 (2).

We reject both Datronic and Colonial’s efforts to use the merger clause and the disclaimer provisions in the leases to defeat McNatt’s rescission claim. The contractual defense of fraud in the inducement by oral misrepresentation is the functional equivalent of a tort action for fraud and deceit and a merger clause cannot be used to defeat such a claim. Thrasher, 181 Ga. App. at 887. Moreover, “[a] stipulation in a contract that the provisions thereof constitute the sole and entire agreement between the parties and that no modification thereof shall be binding on either party unless in writing and signed by the seller can have no bearing in a case where fraud to induce the contract is the issue. [Cits.]” Thrasher, 181 Ga. App. at 887. See City Dodge v. Gardner, 232 Ga. 766 (208 SE2d 794) (1974) (merger clause does not bar action to rescind contract where rescission sought).

Colonial and Datronic further argue that it does not matter whether Itex and its employees were the “bad guys” or engaged in fraudulent conduct because Colonial and Datronic are insulated by the “hell and high water” provisions in the leasing documents. This is plainly incorrect because before any of the contract provisions can apply there must be a valid and enforceable contract. Whether McNatt was fraudulently induced by Itex’s misrepresentations to contract with Burnham is a material issue of disputed fact, as is whether the contract was rescinded under OCGA § 13-4-60. See Stricker v. Epstein, 213 Ga. App. 226, 227-228 (1) (444 SE2d 91) (1994) (merger clause no bar to claim for fraud in the inducement). Compare Consulting Constr. Corp. v. Edwards, 207 Ga. App. 296 (427 SE2d 789) (1993) (purchaser who affirmed contract which contained merger clause and disclaimer provisions and also retained purchased articles, was estopped from asserting that he relied upon seller’s misrepresentations); and Holcomb v. Commercial Credit Svcs. Corp., 180 Ga. App. 451, 452 (1) (349 SE2d 523) (1986) (UCC case controlled by OCGA § 11-2-316, where finance company insulated from fraud claim against vendor where no evidence of relationship shown between them); and Carpenter v. Curtis, 196 Ga. App. 234 (395 SE2d 653) (1990) (physical precedent only, Court of Appeals Rule 33 (a)) (affirmation of a contract precludes fraudulent misrepresentation claim). Accordingly, a jury must determine whether McNatt was defrauded and whether the leasing agreements were rescinded for fraud under OCGA § 13-4-60.

2. McNatt contends that the trial court erroneously granted summary judgment to Datronic and Colonial on McNatt’s negligent release of funds claim.

The evidence presented by Colonial and Datronic on this issue was conflicting and disputed. To refute McNatt’s negligent release of funds claim, Colonial and Datronic offered the Acknowledgment and Acceptance of Equipment by Lessee document, Barbara Varnes’ affidavit testimony that Linda McNatt told her the system was operating satisfactorily, and a portion of a letter to Itex from William McNatt appearing to conditionally authorize the release of funds to Itex. Barbara Varners, a lease processor of Colonial, testified that Linda McNatt informed her that the system was installed and operating satisfactorily as of June 21, and that relying on Linda McNatt’s verbal assurance, she approved the funding transaction.

McNatt offered testimony that Datronic and Colonial were warned about the problems with the system and cautioned not to release funds except at their own risk. Also, Linda McNatt disputes the existence of any conversation with Varnes of Colonial and testified that she had no recollection of ever speaking with anyone from Colonial. Because material issues of fact are disputed, Datronic and Colonial were not entitled to summary judgment on the negligent release of funds count. OCGA § 9-11-56 (c).

3. McNatt claims that the trial court erroneously granted summary judgment on Colonial’s counterclaim against Linda McNatt as personal guarantor of the Colonial lease because a material issue of fact remains unresolved as to whether she actually signed the equipment lease guarantee. Linda McNatt testified that Itex representatives rushed her into signing documents and that she did, in fact, sign papers without reading them. Although she admitted signing the personal guarantee for the lease assigned to Datronic, she indicated that she was not certain the signature on the Colonial personal guarantee was hers and she testified that she lacked any independent recollection of signing that particular document. Linda McNatt’s somewhat ambivalent, uncertain testimony is disputed by the affidavit of Ann Roesinger, a contract employee of Itex, who affirmatively swore that she witnessed Linda McNatt sign both guarantees. Although the evidence clearly weighs toward Colonial, it cannot be said to be undisputed, and Colonial was not entitled to summary judgment on this issue.

4. McNatt claims that the trial court erroneously granted summary judgment to Datronic and Colonial on the issue of failure of consideration because the printer was not new, was unusable from the date of its delivery, and the system was subsequently sold for a mere $500.

A written disclaimer of warranty clause in a contract does not foreclose the defenses of failure of consideration and fraud where the goods supplied are not what was specified in the contract. Granite Equip. Leasing Corp. v. Folds, 133 Ga. App. 856, 857 (212 SE2d 490) (1975) (contract required factory rebuilt printing press but reconditioned press provided, so disclaimer provision in contract inapplicable). Here, the disclaimer of warranty clause in the leases applied, if at all, only to the precise type of equipment specified in the contract. Folds, 133 Ga. App. at 857. Compare Lightsey v. Nalley Equip. Leasing, 209 Ga. App. 73, 74 (2) (432 SE2d 673) (1993) (lessee cannot affirm lease, retain subject of lease, then finally, after repossession occurs, raise failure of consideration as defense where goods unconditionally accepted).

Decided May 9, 1996

Reconsideration denied June 19, 1996

Rumsey & Ramsey, Austin L. Ramsey III, for appellants.

Saveli & Williams, William E. Turnipseed, Lamberth, Bonapfel, Cifelli, Willson & Silvis, Carter L. Stout, Bodker, Ramsey & Andrews, Stephen C. Andrews, for appellees.

Here, McNatt disputes that it ever received what it had bargained for or accepted a lesser substitute. Folds, 133 Ga. App. at 857. Linda McNatt testified that the wrong software was supplied, Quick-Trip never received what it contracted for, and despite repeated efforts to get the system to function properly, the system was defective. William McNatt testified that there were several serial number discrepancies between the serial numbers on the leasing documents and the numbers appearing on various component parts. He testified that the equipment was not new, as promised, and instead was dirty, and looked used, and that he had reason to believe that some parts were from a system which had been repossessed. During oral argument, evidence was presented that John Rosenlund, who was in charge of picking up the equipment from Quick-Trip’s premises, had stated in his affidavit that he could not conclusively identify the equipment as being the exact same equipment which appeared in the lease documents. We reverse because material disputed issues of fact remain as to whether a failure of consideration occurred.

Judgment reversed.

McMurray, P. J., and Ruffin, J., concur.

       Demarest, Vines, and Alston were all affiliated with Itex.

       For part of the system, Linda McNatt signed a separate certificate of acceptance acknowledging delivery and receipt.

       The trial court determined the date of default as July 15, 1991.

       It is undisputed that Linda McNatt signed the personal guarantee for the Datronic lease.


author: McMurray, Presiding Judge.

text:
    A96A0551, A96A0552.
    BRIDGES FARM, INC. v. BLUE; and vice versa.
    (472 SE2d 465)
   McMurray, Presiding Judge.

Plaintiff Scott Wayne Blue brought this tort action against defendant Bridges Farm, Inc., seeking to recover for personal injuries sustained when plaintiff, allegedly as “an invitee upon the premises of Brides Farm, Inc., [was] gratuitously assisting Wayne Bridges and Ricky Cauley in sorting some cattle and moving cattle from one portion of Bridges Farm, Inc. to another portion of said farm.” Plaintiff was leaning for support against a metal fence gate, which collapsed allegedly as a result of broken hinges, “causing the plaintiff to be knocked down and . . . seriously injured as a result of the onrushing cattle.” Wayne Bridges, as agent for defendant, allegedly “failed to warn or . . . alert the plaintiff to the fact that said fence was broken and thus unsafe for use ... in moving said cattle.” Defendant denied the material allegations and contended that plaintiff, while fully aware of the risks attending the herding of cattle, voluntarily left a place of safety (his horse) and, while on the ground in the midst of the cattle, was “kicked in the knee by a cow and was swept off his feet. . .

The case was tried before a jury which returned a general verdict awarding plaintiff $50,000 for the permanent injuries to his knee. Defendant’s motion for new trial was denied, and this appeal in Case No. A96A0551 followed. Plaintiff cross-appeals in Case No. A96A0552. Held:

Case No. A96A0551

1. Defendant enumerates as error the trial court’s instruction on future medical expenses, arguing there is no evidence to support this charge. We agree.

Plaintiff’s medical expert, Dr. John Allen Waldrep, testified that plaintiff reached maximum improvement after orthoscopic surgery while sustaining a permanent partial disability of five percent for his lower leg and “two percent of the body as a whole.” There is a small area of “permanent numbness on the front of his knee.” He may continue to “have some pain in his knee.” Plaintiff may have some difficulty kneeling or climbing, “but otherwise, he should be able to perform his normal duties.” Except for follow-up, Dr. Waldrep did not “expect [plaintiff] to have any further surgery for this.” Nor did Dr. Waldrep foresee the need for any medication in the future. But Dr. Waldrep did see the possibility that excess scar tissue can cause an “inability to completely bend the nerve. It can cause pain and it can cause restriction of motion and localized tenderness and pain.” He also affirmed the possibility that an “arthritic condition could develop as a result of this injury and surgery.” The possibility is “not very high, but it is there.” Consequently, Dr. Waldrep could not “say [plaintiff] won’t develop some early arthritis,” which could require medication. On cross-examination, however, Dr. Waldrep confirmed that, “more likely than not, [he did not] expect any arthritic development in this gentleman [plaintiff].” Dr. Waldrep agreed that talk of “arthritic development in [plaintiff] is sheer speculation at this point.”

An award of future medical costs must be supported by competent evidence “to guide the jury in arriving at a reasonable value for such expenses.” Ga. Power Co. v. Watts, 56 Ga. App. 322, 324 (4) (192 SE 493). Our examination of the record in the case sub judice “shows that no evidence was presented from which the jury could ascertain, except by mere conjecture and speculation, that the plaintiff would ever have any such future expenses. The charge of the court was, therefore, erroneous. [Cits.]” Clayton County Bd. of Ed. v. Hooper, 128 Ga. App. 817, 818 (1) (198 SE2d 373). The error in giving this charge, however, goes only to the quantum of damages and does not affect the determination of liability vel non. Accordingly, “we affirm the judgment in part, based upon the existing jury verdict finding [defendant Bridges Farm] liable for plaintiff’s personal injuries, [but] nevertheless reverse the judgment in part on the basis of the trial court’s improper jury instruction as to [future medical expenses as a special item of] damages. The case is remanded for a new trial, limited solely to the proper amount of damages. OCGA § 9-11-50 (e).” Dept. of Human Resources v. Thomas, 217 Ga. App. 174, 178 (2), 179 (456 SE2d 724). See also F. A. F. Motor Cars v. Childers, 181 Ga. App. 821, 823 (5), 824 (354 SE2d 6) (judgment affirmed on condition that unauthorized future medical expenses, awarded as special item of damages on special verdict, be written off).

2. Defendant next contends the trial court erred in precluding cross-examination of the plaintiff using the complaint for impeachment, under the following circumstances: At trial, defendant questioned plaintiff whether an allegation in the complaint that he was “leaning on the metal fence . . .” was contrary to his testimony at trial that “as far as to what actually made a connection with [his] leg I do not know, it came from behind.” Plaintiff explained “I didn’t understand it when [plaintiff’s counsel] wrote the paper [i.e., the complaint]; I didn’t realize that’s what it said until the day you took my deposition and I told you on that date that that was not correct.” When defendant asked plaintiff to read a portion of the complaint to the jury, plaintiff’s counsel objected on the ground that the complaint constituted “no evidence, [and] it’s been superseded by a pretrial order.” Defendant replied that the complaint is “an admission against interest, it’s a contrary allegation from what he’s alleged here today.” The trial court “sustained] the objection to [plaintiff] reading his pleadings by virtue of the fact the pretrial order has been entered in this case.”

On appeal, defendant argues for the first time that this allegation constitutes a judicial admission against interest, which the opposing party may introduce as conclusive evidence of the truth. See OCGA § 24-3-30. Pretermitting whether this contention both is accurate and was adequately raised below, we find the trial court’s ruling that the pretrial order supersedes the complaint is tantamount to a withdrawal of the allegation. Moreover, plaintiff subsequently affirmed before the jury that, at his deposition, he testified he “didn’t know what happened, . . . didn’t know whether a cow kicked [him], . . . didn’t know whether [he was] knocked down by the gate and [then] a cow kicked [plaintiff] or . . . didn’t know if just the gate did it or anything.”

“The right to a thorough and sifting cross-examination shall belong to every party as to the witnesses called against him.” OCGA § 24-9-64. “ ‘The trial judge has a discretion to control the right of cross-examination within reasonable bounds, and an exercise of this discretion will not be controlled by a reviewing court unless it is abused.’ [Cits.]” Western & Atlantic R. v. Burnett, 79 Ga. App. 530, 531 (2), 532 (54 SE2d 357). “[WJhere the purpose is to impeach or discredit the witness, great latitude should be allowed by the court in cross-examination.” Id. at 533. In the case sub judice, we find “no abuse of discretion in refusing, on cross-examination of [the plaintiff], ‘to allow questions repeated that have been asked and fully answered.’ ” (Emphasis supplied.) McLeod Bros. & Co. v. Wilson Bros., 108 Ga. 790 (2) (33 SE 851). In the alternative, any error in unduly restricting cross-examination of the plaintiff was clearly harmless in view of the fact that the desired answer was cumulative of evidence introduced by other means. See Gaither v. State, 259 Ga. 200, 201 (2) (378 SE2d 464). This enumeration is without merit.

3. Defendant enumerates the refusal of the trial court to give requested instructions contrasting the duty of care owed to a licensee with that owed to an invitee, arguing the jury should have decided whether plaintiff was a “mere social visitor as opposed to an invitee,” because plaintiff “gratuitously” assisted with the cattle.

It is undisputed that plaintiff was assisting in the herding of cattle gratuitously, in that he neither expected nor received compensation, either from his stepfather, Wayne Bridges, or from Bridges Farm. Wayne Bridges affirmed that “it was not uncommon for [plaintiff] to come and help [Wayne Bridges] on occasion and on occasion [Wayne Bridges] would go to [plaintiff’s] farm and help him.” In order to separate the calves from the cows, normally “[t]wo can do it; three works better.” “Monetary consideration is not essential to the relationship of owner or occupier and invitee. Common interest or mutual advantage is sufficient. Flint River Cotton Mills v. Colley, 71 Ga. App. 288, 291 (30 SE2d 426).” Norman v. Norman, 99 Ga. App. 755, 760 (4) (109 SE2d 900). There being no evidence in the case sub judice that plaintiff’s presence was anything other than for the common interest or mutual advantage of plaintiff and Wayne Bridges, the trial court did not err in refusing the requested instruction on the duty of care owed to a mere licensee.

Case No. A96A0552

4. Plaintiff contends the trial court erred in “permitting referenees to collateral sources ... in the presence of the jury. . . .” We disagree.

Decided May 30, 1996

Reconsideration denied June 19, 1996

John T. Croley, Jr., for appellant.

Varnell & Varnell, John D. Varnell, for appellee.

On cross-examination of plaintiff, defendant read from plaintiff’s deposition, where it had been elicited that plaintiff was continuously employed after his injury, and sustained no “out-of-pocket. . . loss of income,” in part, because plaintiff used all of his accumulated “sick leave that [he] had built up,” to continue to collect a salary while he recovered. Plaintiff’s objection on the basis of collateral source was overruled. Plaintiff subsequently explained that he could accumulate up to 700 days sick leave. He actually consumed 420 hours sick leave, which, had he not used them, could have been credited “towards [his] retirement.” An examination of the jury instructions reveals no charge authorizing the jury to reduce plaintiff’s recovery for any lost income to the extent his salary was paid during sick leave taken.

“[A]n evidentiary distinction between tort and contract cases does exist with regard to the applicability of the collateral source rule. The collateral source rule is applicable in tort cases because collateral source evidence cannot be admitted to diminish the defendant’s liability for the actual harm that was caused by his tort. Denton v. Con-Way Southern Express, [261 Ga. 41 (402 SE2d 269)].” (Emphasis omitted.) Amalgamated Transit Union &c. v. Roberts, 263 Ga. 405, 406 (1), 408 (434 SE2d 450). In the case sub judice, however, we pretermit whether plaintiff’s overly responsive answer at his deposition was properly admissible to show that he had not, in fact, sustained any lost wages or whether, in truth, proof that he was employed but paid for sick leave was an inadmissible showing of collateral source evidence. Rather, we find no reversible error in permitting defendant to demonstrate plaintiff’s unique (and possibly irreparable) loss when he had to apply his accumulated sick leave, which was otherwise accruing towards his retirement benefits. Accordingly, this circumstance does not mandate a new trial, even as to damages.

Judgment affirmed in part as to liability and reversed in part and remanded for new trial as to damages on the main appeal in Case No. A96A0551. Judgment affirmed on the cross-appeal in Case No. A96A0552.

Johnson and Ruffin, JJ., concur.


author: Andrews, Judge.

text:
    A94A0039.
    A.B.C. DRUG COMPANY, INC. v. KEATON.
    (472 SE2d 721)
    Decided June 19, 1996.

      Walker & Sweat, Forrest W. Sweat, Lowendick, Speed & Donahue, Craig R. White, for appellant.

      Chambers & Rice, Charles B. Rice, Delman L. Minchew, for appellee.
   Andrews, Judge.

In A.B.C. Drug Co. v. Monroe, 214 Ga. App. 136 (447 SE2d 315) (1994), we reversed the trial court’s denial of A.B.C. Drug Company’s motion for j.n.o.v. The Supreme Court granted certiorari and reversed our decision in Keaton v. A.B.C. Drug Co., 266 Ga. 385 (467 SE2d 558) (1996).

Therefore, our judgment in this case is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment affirmed.

Beasley, C. J., and Johnson, J., concur.


author: Ruffin, Judge.

text:
    A96A0900.
    MELTON v. THE STATE.
    (472 SE2d 547)
   Ruffin, Judge.

This case involves the proper sentence for a kidnapping with bodily injury conviction. It is again before us after remand in Melton v. State, 216 Ga. App. 215 (454 SE2d 545) (1995). We remanded this case to determine the validity of Melton’s 1987 sentence following his conviction for kidnapping with bodily injury. Originally, Melton was sentenced to life as a recidivist pursuant to OCGA § 17-10-7. We expressed concern over the use of the recidivist statute in that Melton’s 1979 rape and sodomy convictions were not convictions within the meaning of OCGA § 17-10-7 since that appeal was currently pending. Melton, 216 Ga. App. at 215. In addition, one of the convictions upon which the recidivist sentence was invoked was a misdemeanor conviction, and only felony convictions can be used to invoke the recidivist statute. Id. at 216.

On remand, the trial court conducted a resentencing hearing and sentenced Melton to life in prison. In his sole enumeration of error, Melton contends he was “sentenced to an unconstitutional, invalid, and excessive sentence which violates his constitutional guarantee against cruel and unusual punishment.” For reasons which follow, we affirm.

It is not disputed that the only sentences authorized for a conviction of kidnapping with bodily injury are life imprisonment or death. OCGA § 16-5-40 (b). See also Melton, 216 Ga. App. at 215; Hasty v. State, 210 Ga. App. 722 (2) (437 SE2d 638) (1993). However, Melton contends the statute is unconstitutional. He attacks the statute because it robs the trial court of any discretion to sentence him to a lighter sentence regardless of the severity of the injury. This Court has previously considered and rejected Melton’s argument in Green v. State, 193 Ga. App. 894 (2) (389 SE2d 358) (1989), and Albert v. State, 180 Ga. App. 779 (10) (350 SE2d 490) (1986). Accordingly, this enumeration is without merit, and the sentence is affirmed.

Decided June 19, 1996.

Walter K. Melton, pro se.

Thomas J. Charron, District Attorney, Joan V. Bloom, Nancy I. Jordan, Debra H. Bernes, Assistant District Attorneys, for appellee.

While Melton also argues the evidence was insufficient to convict him of kidnapping with bodily injury, this issue was previously resolved against him in Melton v. State, 204 Ga. App. 103 (4) (418 SE2d 428) (1992). Moreover, it is not properly before this Court.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


text:
    A96A0520.
    THOMAS REGISTER OF AMERICAN MANUFACTURERS, INC. v. PROTO SYSTEMS ELECTRONIC PACKAGING, INC.
    (471 SE2d 235)
   Andrews, Judge.

Thomas Register of American Manufacturers, Inc. (Thomas Register) sued Proto Systems Electronic Packaging, Inc. (Proto Systems) to collect amounts allegedly owed for advertising placed by Proto Systems in the Thomas Register publication. After a bench trial, the trial court entered judgment in favor of Proto Systems, and Thomas Register appeals.

At trial, Proto Systems admitted that its sales vice president authorized Thomas Register to place the advertisement in the publication for a fee. There was no dispute that the advertisement appeared in the publication and no dispute over the amount charged for the advertisement. Proto Systems’ sole defense was that it had no liability for payment because the sales vice president had no authority to purchase the advertisement on behalf of Proto Systems.

Although Thomas Register presented testimony from its sales representative that Proto Systems’ sales vice president appeared to have authority to purchase the advertisement, Proto Systems’ chief executive officer gave undisputed testimony that the sales vice president had no authority to do so. Whether or not the sales vice president had actual or apparent authority to order the advertisement on behalf of Proto Systems was a question of fact for the trial judge, and there was evidence to support a determination that the sales vice president acted without actual or apparent authority. Hunter v. Roberts, 199 Ga. App. 318, 319 (404 SE2d 645) (1991); Jester v. Hill, 161 Ga. App. 778, 781-783 (288 SE2d 870) (1982). There is no merit to Thomas Register’s contention that the evidence demanded a contrary finding.

However, even assuming the sales vice president had no authority to purchase the advertisement, Thomas Register also produced uncontradicted evidence that Proto Systems ratified the purchase by making a partial payment on the amount due. The Thomas Register sales representative, who had personal knowledge of the transaction, testified that Proto Systems made a $500 partial payment on the total amount due. An invoice to Proto Systems for the advertisement was also introduced without objection showing a $500 payment on the amount due, which was received about nine months after the initial invoice was sent at about the time the advertisement appeared in the publication.

Even if the sales vice president purchased the advertisement without authority, Proto Systems is liable for the purchase if it subsequently ratified the unauthorized act of its sales vice president. OCGA §§ 10-6-1; 10-6-51. Ratification may occur by the principal’s partial payment on an allegedly unauthorized agreement. Pioneer Concrete Pumping Svc. v. T & B Scottdale Contractors, 218 Ga. App. 596, 597-598 (462 SE2d 627) (1995); Holliday Constr. Co. v. Sandy Springs Assoc., 198 Ga. App. 20, 21 (400 SE2d 380) (1990). When an agent acts in excess of his authority, “the principal may not ratify in part and repudiate in part; he shall adopt either the whole or none.” OCGA § 10-6-51.

Ordinarily, whether or not a principal has ratified the unauthorized act of an agent is a question of fact for the factfinder. Burke County Bd. of Ed. v. Raley, 104 Ga. App. 717, 721 (123 SE2d 272) (1961). In this case, however, Thomas Register provided undisputed evidence that months after the advertisement was purchased, appeared in the publication, and invoiced, Proto Systems made a partial payment on the amount due. In the absence of any evidence to the contrary, there was an unrebutted presumption that Proto Systems ratified the unauthorized purchase by its sales vice president. Thompson v. Neely & Wilcox, 32 Ga. App. 131, 134 (123 SE 171) (1924). Accordingly, as contended by Thomas Register, the record reflects a ratification by Proto Systems as a matter of law leaving no factual question to be resolved by the trial court on the issue of liability. Holliday Constr. Co., supra at 21; Thompson, supra at 134.

Decided April 29, 1996

Reconsideration denied May 10, 1996

Reconsideration dismissed June 20, 1996

Karl J. Howe, Jr., for appellant.

Beverly B. Butner, Gary Smith, pro se.

McLeod & Associates, G. Kennedy McLeod, Jr., Emilie A. Minor, for appellee.

Since it appears the trial court’s judgment in favor of Proto Systems was based on the conclusion that the evidence did not sufficiently establish a partial payment by Proto Systems, we set aside the judgment as clearly erroneous. OCGA § 9-11-52 (a). The judgment of the trial court is reversed and the case remanded with directions that judgment be entered in favor of Thomas Register in an amount to be determined by the trial court in accordance with the evidence.

Judgment reversed and remanded with directions.

Pope, P. J., and Smith, J., concur.


text:
    A96A0214.
    HOWELL v. STYLES.
    (472 SE2d 548)
   Ruffin, Judge.

Paul Styles sued Pamela Howell to collect legal fees. Styles’ First Request for Admissions of Fact and Authenticity of Documents was served with the complaint. Howell, acting pro se, filed a verified answer on November 15, 1993, attaching a copy of a notarized letter from the State Bar of Georgia which purportedly "certified that Thomas de Rosay, Styles’ attorney, was ineligible to practice law in Georgia due to nonpayment of his 1993-1994 license fee. Howell did not respond to Styles’ requests for admissions.

On March 10, 1995, another attorney representing Styles filed a motion for summary judgment. The basis for Styles’ motion was Howell’s failure to respond to his requests for admissions. Howell, still acting pro se, responded to the motion and filed a motion to withdraw admissions. In both documents she specifically asserted the requests for admissions were void and did not require an answer since the attorney who signed the requests was not authorized to practice law. The trial court denied Howell’s motion to withdraw admissions and granted Styles’ motion for summary judgment. The trial court did not address the merits of Howell’s defense regarding Thomas de Rosay’s unauthorized practice of law. For reasons which follow, we reverse and remand.

1. In her first enumeration of error, Howell contends the trial court erred in not considering her answer to contain a motion to dismiss. The answer, in its prayers for relief, requested “[t]hat this complaint be invalidated by the Court due to the ineligibility of Mr. DeRosay (sic) to practice law at the time he filed the case.” In addition, the second defense stated that Thomas de Rosay was ineligible to practice law in Georgia when he filed the complaint. However, Howell never filed a motion to disqualify, a motion to dismiss, or any other motion relating to this issue. In addition, Howell cites no authority for her contention that the trial court should have considered her answer to contain a motion to dismiss.

OCGA § 9-11-12 contains the rules relating to answers, defenses, and how and when defenses are presented and heard. According to subsection (c) of this statute, “[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.” This Court has found no authority, and Howell cites no authority, indicating the trial court has authority to treat an allegation or statement in an answer as a motion to dismiss the case. See Thomas v. Mayor of Waycross, 200 Ga. App. 166 (1) (407 SE2d 57) (1991) (defense preserved “by raising the defense in their answer and compelling a ruling via a motion to dismiss”). In fact, pursuant to OCGA § 9-11-7 and Superior Court Rule 6.1, Howell’s defense and prayer for relief in her answer do not meet the requirements of a motion.

It is true that “[a] trial court has inherent authority to dismiss sua sponte a complaint in an appropriate case. [Cits.]” Ga. Receivables v. Williams, 218 Ga. App. 313 (2) (461 SE2d 280) (1995). However, there is no mandate that a trial court must dismiss sua sponte a complaint such as the one involved in this case. Moreover, such an action would have been improper under McKay v. Nally, 173 Ga. App. 372 (1) (326 SE2d 560) (1985). As in McKay, the record in the present case “contains no responsive pleading by [Styles] to [Howell’s] answer and, of course, none was required. OCGA § 9-11-7 (a). ... A defendant may not obtain a judgment on the pleadings on the basis of the allegations in his answer where no reply is required, since under OCGA § 9-11-8 (d) these allegations are deemed denied.” (Citation and punctuation omitted.) Id. at 373.

Accordingly, although Howell was acting pro se, we do not find that the trial court abused its discretion in failing to treat her answer as a motion to dismiss or in failing to dismiss, sua sponte, the complaint.

2. Howell asserts the trial court erred in denying her motion to withdraw admissions under OCGA § 9-11-36 (b). That section provides that “the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.” Howell admits in her brief that she did not meet her burden of showing that the presentation of the merits would be subserved by allowing the withdrawal of her admissions, but asserts the trial court should have given her latitude since she was acting pro se or allowed her additional time to amend her motion and meet this requirement. We find no merit in either argument. It is not the trial court’s responsibility to make out a pro se party’s case, and Howell failed to request a continuance or supplement her motion to include information relative to this requirement. “[I]n a civil case the court cannot put a pro se litigant on a different standard from one represented by counsel.” Long v. Marion, 257 Ga. 431, 434 (2) (360 SE2d 255) (1987).

Citing Intersouth Properties v. Contractor Exchange, 199 Ga. App. 726 (405 SE2d 764) (1991), the trial court specifically found that Howell failed to show that the presentation of the merits would be subserved by allowing a withdrawal of the admissions. Under Inter-south Properties, Howell was “required to show the admitted request either can be refuted by admissible evidence having a modicum of credibility or is incredible on its face, and the denial is not offered solely for purposes of delay.” Id. at 728; see also Goins v. Howell, 201 Ga. App. 237 (410 SE2d 755) (1991). Since Howell failed to satisfy her burden of showing that the presentation of the merits would be subserved by allowing a withdrawal of the admissions, the trial court did not err in denying her motion to withdraw the admissions, subject to our ruling below in Division 3.

3. Howell also argues the admissions should have been withdrawn because they were filed by an individual ineligible to practice law. We remand this issue to the trial court to determine whether Thomas de Rosay was authorized to practice law at the time he served Styles’ requests for admissions.

Pursuant to Georgia State Bar Rule 1-203, “[n]o person shall practice law in this State unless such person is an active member of the State Bar of Georgia in good standing. . . .” (Emphasis supplied.) The listed exceptions do not appear to apply in the present case. Georgia State Bar Rule 1-204 states: “No person shall be deemed a member in good standing: (a) while delinquent after September 1 of any year for nonpayment of the license fee prescribed. . . .”

It follows from the above rules that an attorney who is not in good standing because he has failed to pay his license fee is unauthorized to practice law in the State of Georgia. This court has previously held that “[o]ne cannot purport to act as an attorney . . . before the Superior Court . . . , and avoid compliance with the rules governing the practice of attorneys.” Leasefirst v. Paulk, 200 Ga. App. 497, 499 (408 SE2d 707) (1991). See also Magnan v. Miami Aircraft Support, 217 Ga. App. 855 (5) (459 SE2d 592) (1995). While Leasefirst and Maguan both dealt with pleadings or documents filed by attorneys licensed in other states who neglected to follow Superior Court Rule 4.4 for special admittance, the same analysis applies for attorneys in Georgia who are not in good standing at the time they file pleadings or documents.

Thus, contrary to Styles’ assertion, whether Thomas de Rosay was authorized to practice law at the time he signed and served the requests for admissions is relevant. If Thomas de Rosay was not authorized to practice law when the requests were signed and served by him, then the requests are a nullity, and Howell was not obligated to respond to the requests. If this is the case, the trial court abused its discretion in refusing to allow Howell to withdraw her admissions. Since the trial court has not yet ruled on this issue, we remand this issue for the trial court’s consideration.

In the event the trial court determines that Thomas de Rosay was authorized to practice law at the time the requests for admissions were signed and served, we conclude the trial court’s denial of Howell’s motion to withdraw admissions was correct.

4. Howell next contends the trial court erred by granting Styles’ motion for summary judgment. According to Howell, there are disputed issues of material facts, notwithstanding the admissions. We agree.

The standard of review of the trial court’s grant of Styles’ motion for summary judgment is a de novo review of the evidence to determine whether there is any genuine issue of material fact. See Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993). The standard for granting summary judgment is that the moving party must demonstrate that there is no genuine issue of material fact and that undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law. See OCGA § 9-11-56.

Viewing all the facts and reasonable inferences in a light most favorable to Howell, the record shows that Thomas de Rosay may not have been eligible to practice law at the time he filed the complaint and served the requests for admissions. As we stated in Division 1, it does not appear that Howell requested a hearing or filed a motion regarding this asserted defense. See OCGA § 9-11-12 (c) and (d). However, the record does contain a letter from the Georgia State Bar which appears to substantiate Howell’s contention that Thomas de Rosay was not authorized to practice law at the time the complaint was filed. Thus, absent a ruling on this issue by the trial court, there remains a question regarding whether the complaint is void. This evidence creates a material issue of fact as to whether Styles is entitled to summary judgment as a matter of law. Thus, the trial court erred in granting summary judgment to Styles.

Decided June 20, 1996.

M. P. Schildmeyer, for appellant.

David J. Reed, for appellee.

5. In her fourth enumeration of error, Howell asserts the trial court erred by assessing pre-judgment interest at 18 percent on the judgment amount. Because this issue may recur depending on the trial court’s findings on remand, we will address this enumeration. Ga. Hospitality &c. v. Harrison Advertising, 181 Ga. App. 163 (351 SE2d 489) (1986), cited by Howell in support of this argument, noted that pre-judgment interest may not be awarded in a suit based upon quantum meruit, but may be awarded in a suit based upon a contract. There is no evidence in the record to substantiate Styles’ contention that this is a suit based upon a contract rather than a suit based upon quantum meruit. Thus, based on the record as it now stands, the trial court erred in considering this a suit to collect a contractual indebtedness and awarding pre-judgment interest.

6. Howell’s request for sanctions is hereby denied.

Judgment reversed and remanded with directions.

McMurray, P. J., and Johnson, J., concur.


author: Pope, Presiding Judge. Smith, Judge,

text:
    A96A0291.
    CUSHMAN v. RAIFORD.
    (472 SE2d 554)
   Pope, Presiding Judge.

Larry Edward Cushman appeals from the grant of summary judgment to Jason Matthew Raiford in this tort action.

The record shows that while pushing a vehicle on a dark highway on April 27, 1991, Cushman’s 21-year-old son was struck and killed by a vehicle driven by Raiford. Cushman filed the original suit against Raiford on December 28, 1991, and served Raiford at his father’s home, 4197 Henderson Road, Hephzibah. Cushman voluntarily dismissed the action on May 13, 1993, and refiled it pursuant to OCGA § 9-2-61 on November 12, 1993. The return of service filed by a Richmond County Deputy Sheriff shows that the renewal action was again served upon Raiford’s father at 4197 Henderson Road on November 17, 1993; the return states that the father was “domiciled at the residence of defendant.”

Raiford raised the defense of insufficiency of service of process in his answer, but Cushman did not attempt other service. Raiford filed a motion to dismiss, claiming that service was not properly accomplished pursuant to OCGA § 9-11-4 (d) (7). In support of the motion, Raiford attached three affidavits rebutting the information in the return of service. In his own affidavit, Raiford stated that he did not reside at 4197 Henderson Road and had not resided there on the date of service. Raiford’s father stated in his affidavit that Raiford had not lived with him since January 15, 1993. In the third affidavit, Raiford’s roommate stated that he had lived with Raiford between January 15, 1993, and July 31, 1994, at addresses other than 4197 Henderson Road. In a fourth affidavit, apparently submitted after the hearing on the motion, Raiford claimed that when he moved out of his father’s home he had no intention of returning, either temporarily or permanently.

The superior court granted the motion. Upon review of the record before us, we reverse.

First, we note that although the trial court converted the motion to one for summary judgment in apparent reliance on OCGA § 9-11-12 (b), the motion remained a motion to dismiss. Motions to dismiss for insufficiency of service of process are matters in abatement, and do not form a proper basis for motions for summary judgment or convert to motions for summary judgment when matters outside the pleadings are considered. Church v. Bell, 213 Ga. App. 44, 45 (443 SE2d 667) (1994). Thus, we will treat the court’s order as one dismissing the complaint for insufficiency of service of process. See generally Murray v. Sloan Paper Co., 212 Ga. App. 648, 649 (1) (442 SE2d 795) (1994).

Evidence showed that Jason Raiford was an Augusta College student at the time the renewal action was served on November 17, 1993. At that time, Raiford’s father paid his college tuition and his automobile insurance. At his deposition, Raiford testified that in January 1993 he moved to a McDowell Street address in Augusta for seven months and that he then moved to a Battle Road, Augusta address for a year. In July 1994, Raiford moved to his grandmother’s house at 4198 Henderson Road. At the time of service, in November 1993, according to Raiford’s chronology, he had been at the Battle Road address for four months.

Despite this testimony, there was ample evidence that Raiford considered 4197 Henderson Road his permanent residence. First, in Raiford’s first responses to plaintiff’s interrogatories, dated December 7, 1994, Raiford stated that he resided at 4197 Henderson Road. Twelve days later Raiford filed supplemental responses in which he stated that he resided at 4198 Henderson Road. At his deposition, Raiford testified that until December 1994, his driver’s license listed the 4197 address; that he listed that address on state and federal tax forms for both 1992 and 1993; that he continued to receive mail at that address; and that he had that address printed on personal checks after he claims to have moved to Augusta. Moreover, his father testified that Raiford had previously moved out of his parents’ home temporarily and then moved back in. During his deposition, Raiford admitted that he had occasionally spent the night at 4197 Henderson Road after moving out in January 1993. Moreover, Raiford was served at 4197 Henderson Road with the original action on January 3, 1992, and did not raise insufficiency of service of process as a defense.

“The sheriff’s return of service constitutes prima facie proof of the facts recited therein, but it is not conclusive and may be traversed by proof that such facts are untrue. Webb v. Tatum, 202 Ga. App. 89, 91 (413 SE2d 263) (1991). When a defendant in a lawsuit challenges the sufficiency of service, he bears the burden of showing improper service. The return can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit.’ [Cit.]” Yelle v. U. S. Suburban Press, 216 Ga. App. 46, 47 (453 SE2d 108) (1995).

“ ‘Where a party maintains a residence with a member of his family, but travels about or lives at various other places, the permanent residence may, on the facts, be his usual place of abode.’” Tolbert v. Murrell, 253 Ga. 566, 567 (1) (322 SE2d 487) (1984), quoting from 2 Moore’s Federal Practice, Par. 4.11 [2] at p. 4-122. In the context of the situation where the party is in military service, “a distinction is often made between one temporarily in service, with the intention of returning home after discharge, and one who is a career serviceman, particularly where the serviceman has set up a private home where he is stationed. Thus, in the first situation service by leaving process at defendant’s family home is valid, although defendant is in military service and is stationed elsewhere. ... In the second situation, service at defendant’s former home, or by leaving process with defendant’s parents, [is] invalid.” Tolbert, 253 Ga. at 568. See also Wahnschaff v. Erdman, 216 Ga. App. 355, 356 (454 SE2d 213) (1995).

Pretermitting the issue of whether Raiford’s various representations that he resided at 4197 Henderson Road constituted admissions against interest, see Earley v. Dyson, 220 Ga. App. 586 (469 SE2d 841) (1996), service on Raiford was proper at 4197 Henderson Road. Although Raiford’s affidavit stated that he had no intention of returning to his father’s home, there was evidence that he moved frequently and had not established another permanent residence. See Tolbert, supra. Raiford failed to carry his burden of showing improper service and the evidence he submitted did not traverse the prima facie proof created by the sheriff’s return of service. Compare Garrett v. Godby, 189 Ga. App. 183 (375 SE2d 103) (1988). In concluding otherwise, the trial court abused its discretion. See Patterson v. Coleman, 252 Ga. 152 (311 SE2d 838) (1984).

Judgment reversed.

Beasley, C. J, McMurray, P. J, Johnson, Blackburn and Ruffin, JJ., concur. Birdsong, P. J., Andrews and Smith, JJ., dissent.

Smith, Judge,

dissenting.

I must respectfully dissent. In doing so, I do not express an opinion regarding whether Raiford in fact resided at 4197 Henderson Road at the home of his father. Rather, my dissent is based upon my conclusion that the trial court, as the trier of fact regarding this matter, was faced with strong evidence on both sides of this fact question. Required to resolve that fact question, the trial court did so within its sound discretion. This Court, in my view, may not now decide that question differently based upon that evidence, unless the trial court abused its discretion. I do not agree that the trial court abused its discretion, because the record is replete with evidence that supports the trial court’s conclusion, although that evidence was in conflict.

The majority lists in great detail the evidence supporting its own conclusion; it fails to mention that equally strong evidence was presented supporting the opposite conclusion: that Raiford did not “reside” at his father’s home. For example, no dispute exists that at the time Raiford was served with the summons and complaint he was not living with his father on Henderson Road in Hephzibah, but on Battle Road in Augusta. When he first moved out of his father’s home, approximately ten months prior to service, he took all his furniture and clothing even though he had to store his bed elsewhere because there was no room in his new residence for the bed. One of the reasons he moved from his father’s home was that his father needed the room for Raiford’s brother; Raiford could not have lived there had he wished to. The house next door was being occupied by other relatives. Raiford made sworn statements that he had no intention of returning to his father’s home, that he did not consider it his residence, and that in fact he has not resided at 4197 Henderson Road, either temporarily or permanently, since January 1993. These sworn statements were unrebutted by any evidence presented by Cushman.

Decided June 20, 1996

Christopher G. Nicholson, for appellant.

Allgood & Daniel, Robert L. Allgood, Robert J. Lowe, Jr., Charles C. Mayers, for appellee.

Our case law holds that the issue of whether this evidence was sufficient to overcome the facts reflected in the return of service is a matter within the sound discretion of the trial court. Webb v. Tatum, 202 Ga. App. 89, 91 (413 SE2d 263) (1991). The strong evidence presented by both parties created a question of fact to be resolved by the trial court as the trier of fact on this issue. Terrell v. Porter, 189 Ga. App. 778, 779 (1) (377 SE2d 540) (1989). In such a situation, the law is simple, straightforward, and unambiguous regarding the duty of this Court: if evidence exists to support the trial court’s ruling, it should not be disturbed. Id. at 779 (1). In my view, that is clearly so here. Therefore, whatever this Court’s own conclusion might be as to the weight of the evidence, I would affirm the trial court.

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

       This matter is somewhat complicated by the fact that Raiford’s grandmother owned the house at 4198 Henderson Road, which was next door to 4197 Henderson Road. Raiford sometimes lived with his grandmother at 4198 Henderson Road. On December 19, 1994, when Raiford responded to interrogatories, and at his deposition on January 26, 1995, Raiford gave his address as 4198 Henderson Road. In the interrogatories, he stated that he lived at 4198 Henderson Road at the time of the accident on April 27,1991. Raiford recalled that he had moved to 4198 when his cousins moved into his father’s house at 4197 Henderson Road.


text:
    A96A0897.
    PLOOF TRUCK LINES, INC. et al. v. BENNETT.
    (472 SE2d 552)
   McMurray, Presiding Judge.

Plaintiff Rose Thurmond Bennett brought this tort action against defendant Ploof Truck Lines, Inc. (“Ploof”) and Ploof’s insurer, Protective Insurance Company (“Protective”), seeking to recover for personal injuries she sustained when her vehicle collided with an 18-wheel tractor-trailer that was “negligently making a U~ turn in the middle of the roadway,” at approximately 5:55 p.m. on December 6, 1991. According to the complaint, as plaintiff approached where the tractor-trailer was making a U-turn, “she was unable to see it due to the way it was positioned in the road, and, therefore, was unaware of the presence of said truck until it was too late for her to take evasive action.” Ploof’s attempted U-turn was allegedly negligence per se for violating OCGA § 40-6-121 (3). Ploof and Protective answered, admitting only that a Ploof employee was operating a White tractor in the course and scope of his employment at the time and place of the collision, but denying all material allegations. During discovery, however, defendant Ploof stipulated that its former employee “Johnny Richard Buffington was travelling north on Georgia Highway 17. Buffington attempted to turn around to go south from the east shoulder of Highway 17. Buffington could not complete the turn without backing up his trailer into the northbound lane. At that time, the plaintiff was travelling in the northbound lane of said highway, approaching Buffington from the south. The left front corner of the Plaintiff’s vehicle struck the rear of the trailer of [Ploof’s] vehicle in the northbound lane of said highway.”

The case was tried before a jury which found for plaintiff, awarding her $124,058, after a reduction of 17 percent attributable to plaintiff’s own negligence. Defendants appeal from the judgment entered on the jury’s verdict. Held:

1. Defendants first enumerate the failure of the trial court to give their written request to charge, “number 16, which read: I charge you that the duty to exercise ordinary care includes the duty to drive defensively.” See Plyler v. Smith, 193 Ga. App. 114, 115 (2) (b) (386 SE2d 881). They argue this instruction was adjusted to evidence that plaintiff perceived the tractor-trailer ahead of her but decided to try and drive around the rear. Defendants further argue that their request was not otherwise covered by the general charge. We disagree.

“A party is not entitled to have all of his requested charges given merely because he requests them.” Lenny’s Number Two v. Echols, 192 Ga. App. 371, 374 (3) (384 SE2d 898). In the case sub judice, the trial court’s charge did contain the following instruction: “[E]very person has a duty to exercise ordinary care for their own safety. If you should determine from the evidence that the plaintiff in this case failed to exercise ordinary care for her own safety, and that this failure on her part was the proximate cause of her injuries, then she, the plaintiff, could not recover. It’s the duty — it would have been the duty of the plaintiff on this occasion to maintain a diligent lookout ahead as she drove on the highway. And if, by the exercise of ordinary care, she could have avoided the consequences to herself caused by the negligence of the defendant, then again, she would not be entitled to recover.” The duty to avoid the consequences of the defendant’s negligence was subsequently mentioned two more times. “The jury was otherwise instructed on the legal [principle] contained in [defendants’] refused [request] to charge. Accordingly, the failure to give [that] refused [request] was not error. Lenny’s Number Two v. Echols, 192 Ga. App. 371, 374 (3)[, supra].” Daniel v. Parkins, 200 Ga. App. 710, 713 (7) (409 SE2d 233).

2. Next, defendants enumerate the giving of the following instruction: “One who is rightfully using the highway or street has a right to the use of it which is superior to that of one who is violating traffic regulations, and in the absence of knowledge, is not required to anticipate that some other user will unexpectedly violate the law or one of these rules of the road, and create a situation of danger.” Defendants concede that this instruction is an accurate statement of the law. See Plyler v. Smith, 193 Ga. App. 114, 115 (2) (b), supra. They nevertheless argue that this instruction was not adjusted to the evidence, because plaintiff affirmed on cross-examination that since the dark spot in front of her “could be neither [a hill nor a curve], [she], at that point in time figured out that there was something wrong.” In our view, however, this evidence does not amount to a binding admission that plaintiff knew of and fully appreciated the dangerous circumstances posed by the tractor-trailer’s proceeding with its unlawful U-turn. Plaintiff had earlier affirmed, in response to questions posed by the trial court, that “had . . . that truck [not] backed up, [she] would have been able to have gotten around that truck with no problem.” Consequently, the trial court’s instruction was adjusted to the evidence. This enumeration is without merit.

3. In their final enumeration, defendants contend the trial court erred in failing to use a “proper” verdict form.

Defendants submitted no written proposed verdict or any pretrial order. The trial court instructed the jury to return a general verdict, i.e., “we, the jury, find for the plaintiff in the sum of blank dollars. Where I’ve used the term blank, you of course would insert such sum in dollars and cents as you think she’s entitled to recover. If you do not think she’s entitled to recover, you should find for the defendants and the form of your verdict would be: we, the jury, find for the defendants.” In response to a question from the jury, defense counsel argued that the jury “can [both] render a verdict and make a suggestion,” as to certain medical costs for which the United States might be entitled to reimbursement. The jury’s verdict, in addition to making an award reduced by plaintiff’s comparative negligence, further “suggested] that Eisenhower Hospital’s bill be debated by [plaintiff’s] counsel since failure to detect a break and properly treat [plaintiff’s] knee contributed directly to [her] fall of April 9th, 1992. [SIGNED] Robert W. Gardner, Foreperson.” In response to direct inquiry by the court whether counsel had “any questions as to the form of the verdict[, defense counsel replied:] No, sir.”

“ Tf the form of the verdict was improper, it was incumbent upon [defendants] to make [their] objections as to irregularity of form at the time of its rendition or otherwise such technicality is waived. Golosky v. Wherle, 117 Ga. App. 335 (160 SE2d 614). This is so because a verdict may be reformed or remodeled in the presence of the jury before they have retired from the box. Herndon v. Sims, 7 Ga. App. 675 (3) (67 SE 835). See also Ga. R. &c. Co. v. Tompkins, 138 Ga. 596, 603 (75 SE 664).’ West Ga. Pulpwood & Timber Co. v. Stephens, 128 Ga. App. 864, 869 (3), 870 (198 SE2d 420).” Harrison v. Martin, 213 Ga. App. 337, 344 (2) (444 SE2d 618). In the case sub judice, defendants waived any valid exception to the form of the verdict by failing to urge it before the jury was dismissed. Consequently, this enumeration presents nothing for review.

Decided June 20, 1996.

Glover & Blount, Percy J. Blount, for appellants.

Burnside, Wall, Daniel, Ellison & Revell, Thomas R. Burnside, Jr., Thomas R. Burnside III, for appellee.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


text:
    A96A0139.
    RHODES v. THE STATE.
    (470 SE2d 790)
   Judge Harold R. Banke.

Terry Rhodes was convicted of armed robbery, aggravated assault with intent to rape, and aggravated assault with a deadly weapon. All three crimes were committed against the same victim. Rhodes enumerates eight errors, primarily challenging the denial of certain requested jury charges, the trial court’s rulings on certain jury strikes, and the propriety of part of the State’s closing argument.

On appeal, the evidence must be viewed in a light most favorable to the verdict and Rhodes no longer enjoys the presumption of innocence. Rigenstrup v. State, 197 Ga. App. 176, 180-181 (4) (398 SE2d 25) (1990). Viewed in that light, the State’s evidence was as follows. In late morning, as the victim was walking to work on a heavily wooded path behind her apartment complex, Rhodes ran up behind her with a knife. The victim immediately volunteered all of her money, seven $1 bills. At knifepoint, Rhodes grabbed her arm, dragged her into some bushes and ordered her to lie down. He pulled her to the ground by her arm and untied her belt, threatening to stab her if she moved. While he straddled her and undid her pants, he still had the knife in his hand. Then suddenly he abandoned his intentions and ran back toward her apartment complex.

The victim immediately called the police describing her attacker as a black male, with large eyes, mustache and straggly beard, wearing blue jeans, large shoes or possibly boots, a white hooded shirt and a denim jacket. About a minute after hearing the broadcast radio description, Officer W. D. Harvey spotted a black male wearing light jeans and brown boots, exiting the woods behind the victim’s apartment complex. After Rhodes boarded a MARTA bus, Harvey immediately intercepted the bus, boarded it and questioned him. Harvey explained that he had “a situation” nearby and that Rhodes fit the description provided in a lookout and that he needed to take him back to the scene to see if the victim could identify him. When Harvey stopped him, Rhodes was wearing a blue plaid shirt and did not have a white hooded sweatshirt or a knife. Harvey noticed Rhodes had an unusual speech pattern.

At the field showup, from close range, the victim observed Rhodes, who was seated in the rear of the police car. She immediately recognized him and also claimed she remembered his distinctive voice. Despite searching the densely wooded area, police never discovered the knife or other clothing.

At trial, the victim testified that the perpetrator had an unusual voice, and that she remembered seeing two rings on her attacker’s left hand. She testified that she had seen the same man on the same path wearing the same clothes about a week earlier. Detective Brown testified that upon booking Rhodes he noticed: he was right-handed, had a northern accent, and a mustache and beard, possessed four $1 bills, and was wearing two rings and Texas Steer boots.

Although the bootprint found at the scene and Rhodes’ boots were the same size and design, the State’s forensic expert was unable to be more definite because the boot impression had been left in loose sand and lacked detail. Held:

1. The trial court did not err by refusing to give the requested charge on footprint evidence. Rhodes requested the pattern charge on fingerprints with “shoe impression” substituted wherever the word “fingerprint” appeared. The requested charge was inappropriate because the State’s case did not rely solely on the shoe impression evidence. Compare Gilbert v. State, 176 Ga. App. 561, 563 (4) (336 SE2d 828) (1985); Mercer v. State, 169 Ga. App. 723, 725 (1) (314 SE2d 729) (1984). Nor did the charge conform to the evidence or make good sense. See Harris v. State, 202 Ga. App. 618, 621 (4) (c) (414 SE2d 919) (1992).

2. Rhodes’ trial counsel’s decision not to file a motion to suppress the physical evidence obtained upon his arrest did not constitute ineffectiveness. To establish ineffectiveness, a defendant must prove not only that his trial counsel’s performance was deficient, but also that the deficiency was so harmful that there was a reasonable probability that the result of the trial would have been different but for defense counsel’s substandard performance. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590) (1987).

After the new trial hearing, the trial court specifically found that Harvey had probable cause to stop Rhodes and take him back to the scene of the crime for a showup and that Rhodes’ counsel was not ineffective for failing to file a motion to suppress. Because we are unable to find clearly erroneous the trial court’s determination that Rhodes’ trial counsel’s performance was not ineffective, we need not address the second prong of Strickland, supra. Middlebrooks v. State, 208 Ga. App. 23, 24 (430 SE2d 163) (1993).

3. The trial court did not err in accepting the State’s race-neutral explanations for striking six black jurors. Under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), unless it is shown to be clearly erroneous, a trial court’s finding must be affirmed. Smith v. State, 264 Ga. 449 (1) (448 SE2d 179) (1994).

No transcript of voir dire was made. See State v. Graham, 246 Ga. 341, 343 (271 SE2d 627) (1980). Both the victim and Rhodes are black. The State used six of six peremptory challenges to strike black prospective jurors. After the State offered race-neutral reasons for each of its six strikes, Rhodes, as the opponent of the strikes, had the burden of persuasion. See Chandler v. State, 266 Ga. 509 (467 SE2d 562) (1996). Our review of the transcript of the Batson hearing, persuades us that after the State offered race-neutral reasons for each of its strikes, Rhodes failed to satisfy his burden of persuasion that any of these reasons was pretextual. Chandler, supra; Smith, 264 Ga. at 451 (1). Accordingly, we find no error.

4. The trial court properly determined that Rhodes’ strike of juror no. 1 was improper. The prosecutor raised a challenge under Georgia v. McCollum, 505 U. S. 42 (112 SC 2348, 120 LE2d 33) (1992) to defense counsel’s use of 11 of 12 strikes of white prospective jurors. After hearing defense counsel’s and the State’s arguments on each strike, the trial court accepted all the reasons as race-neutral except for the explanation as to juror no. 1. After reviewing the transcript, and giving the trial court’s finding great deference, we are not able to find that the trial court’s determination was clearly erroneous. See Minor v. State, 264 Ga. 195, 197 (5) (442 SE2d 754) (1994); Sorrells v. State, 218 Ga. App. 413 (2), 414 (461 SE2d 904) (1995). Nor are we able to find that the trial court improperly shifted the burden of persuasion to Rhodes. See Chandler, supra.

5. The trial court properly refused the proposed charge on identification. The trial court fully charged the jury on identification using the pattern charge which included the essential points in the proposed instruction. Suggested Pattern Jury Instructions, Volume II: Council of Superior Court Judges of Georgia, pp. 39-40. It is not necessary to charge the exact language requested when the pertinent principles are covered. Rowell v. State, 176 Ga. App. 309, 310 (3) (335 SE2d 689) (1985).

6. The State did not improperly comment on Rhodes’ right to remain silent. “Reversal for improper comment by the prosecutor requires a finding either that 1) the prosecutor’s manifest intention was to comment on the accused’s failure to testify, or 2) the remark was of such a character that a jury would naturally and necessarily take it to be a comment on the accused’s failure to testify. Ranger v. State, 249 Ga. 315, 319 [(3)] (290 SE2d 63) (1982).” LeMay v. State, 265 Ga. 73, 75 (4) (453 SE2d 737) (1995). In this case, the prosecutor did not comment on Rhodes’ failure to testify, but rather, on Rhodes’ failure to present certain evidence in rebuttal. Although closing arguments were not transcribed, our review of the discussion pertaining to Rhodes’ mistrial motion does not show a manifest intention to comment on Rhodes’ failure to testify or that the jury would have naturally and necessarily interpreted the remarks in that manner.

7. The trial court properly denied the charges on the lesser included offenses of simple assault, simple battery, robbery and theft by taking. “As a general rule, a written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense. Poole v. State, 205 Ga. App. 652 (4) (423 SE2d 52).” James v. State, 210 Ga. App. 454 (2) (a) (436 SE2d 565) (1993). The victim testified that 1) Rhodes came at her with a knife having a five-inch blade, 2) Rhodes had the knife in his hand as he undid her belt, 3) Rhodes grabbed her by the arm as he dragged her off the path into some bushes, 4) she was scared to death, and 5) with the knife in his hand, Rhodes threatened to stab her if she moved as she lay on the ground. A photograph depicting an injury to the victim’s arm was admitted into evidence. Under these facts, we do not find that any of the four requested instructions on lesser included offenses was appropriate. See Harris, 202 Ga. App. at 621 (4) (c) (denial of charge request proper where not authorized by the evidence).

8. The trial court correctly determined that all three counts, armed robbery, aggravated assault with intent to rape and aggravated assault with a deadly weapon did not merge into one count. The jury returned a verdict of guilty on all three counts. On each count, Rhodes received a concurrent sentence of ten years to serve five. Later, in its order denying the motion for new trial, the court decided to merge the aggravated assault with a knife count and the aggravated assault with intent to rape count. However, the trial court did not merge the convictions for armed robbery and aggravated assault with intent to rape.

The essential elements of armed robbery are: with intent to commit theft, taking the property from the person of another, by the use of an offensive weapon. OCGA § 16-8-41 (a). Whereas, the essential elements of aggravated assault are: an assault with intent to rape, by the use of a deadly weapon. OCGA § 16-5-21 (a) (1), (2). In this case, after Rhodes had already obtained the victim’s money at knifepoint and completed the crime of armed robbery, he then forced the victim at knifepoint into the bushes, made her lie down, untied her belt, straddled her, and threatened to stab her if she moved. The evidence shows these were separate offenses and the same facts were not used to prove both. Consequently, the offenses did not merge. See Miller v. State, 174 Ga. App. 42, 44-45 (5) (329 SE2d 252) (1985).

Decided April 30, 1996

Reconsideration dismissed June 21, 1996.

Zion, Tarleton & Siskin, Jonathan J. Wade, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Fran W. Shoenthal, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


text:
    A96A0170.
    McBRIDE v. BOARD OF CORRECTIONS et al.
    (472 SE2d 693)
   McMurray, Presiding Judge.

Plaintiff Stephen McBride, an inmate at Hardwick Correctional Institute, filed this pro se civil action against the “Board of Corrections,” the Georgia Department of Corrections, and against the former Commissioner of the Department of Corrections, Dr. Allen Ault. Plaintiff sought “declaratory judgment” with respect to the validity of certain rules promulgated by the Department of Corrections, and further demanded money damages under 42 USC § 1983 for alleged violations of his civil rights. Defendants denied the material allegations and moved to dismiss the complaint. This motion was granted by the trial court and plaintiff appeals. Held:

Three discernible enumerations are urged in this pro se appeal.

1. The trial court did not abuse its discretion in denying plaintiff’s motion for default judgment after defendants filed an amended answer to plaintiff’s discursive complaint. OCGA § 9-11-55 (b); Colonial Penn Life Ins. Co. v. Market Planners Ins. Agency, 209 Ga. App. 562, 563 (434 SE2d 124).

2. “Declaratory judgment” was not an available remedy to address past grievances regarding administration of a prison. Based on these past events, plaintiff was entitled to seek immediate legal or equitable relief to establish his rights, if any. Logan Paving Co. v. Peoples Bank & Trust, 196 Ga. App. 42, 43 (395 SE2d 287). In the case sub judice, the trial court correctly perceived that plaintiff’s .complaints about the rules and regulations promulgated for running a prison failed to show the existence of any justiciable issue supporting his claims for money damages. Jackson v. Zant, 210 Ga. App. 581, 582 (436 SE2d 771).

As to plaintiff’s civil rights claims, “ A State is not a person within the meaning of (42 USC) § 1983. ... In common usage, the term “person” does not include the sovereign, and statutes employing the word are ordinarily construed to exclude it.’ (Citations and punctuation omitted.) Will v. Michigan Dept. of State Police, 491 U. S. 58, 64 (109 SC 2304, 105 LE2d 45) (1989). The Eleventh Amendment bars a § 1983 action against ‘States or governmental entities that are considered “arms of the State,” for Eleventh Amendment purposes. (Cit.)’ Will v. Michigan Dept. of State Police, supra at 70.” Thompson v. Dept. of Transp., 209 Ga. App. 353, 354 (2) (433 SE2d 623). In Georgia, the Department of Corrections and the “Board of Corrections” would be considered “arms of the State” for Eleventh Amendment purposes. As against former Commissioner, Dr. Ault, “[t]he very existence of these [complained-of] regulations is sufficient to rebut any unsubstantiated allegation that [defendants] were ‘“deliberately indifferent or grossly negligent in respecting citizens’ rights or (that (they)) tacitly authorized constitutionally offensive conduct. . . . (Cit.)” (cit.) . . . (T)he trial court correctly granted [defendants’ motion to dismiss] as to [plaintiff’s] 42 USCA § 1983 claims.’ Martin v. Ga. Dept. of Pub. Safety, [257 Ga. 300 (357 SE2d 569)] at 305 (4).” Poss v. City of North Augusta, South Carolina, 205 Ga. App. 894, 895 (2) (424 SE2d 73).

Decided May 17, 1996

Reconsideration denied June 21, 1996

Stephen McBride, pro se.

Michael J. Bowers, Attorney General, George P. Shingler, Deputy Attorney General, Joachim P. Ferrero, Mark A. Basurto, Assistant Attorneys General, for appellees.

3. The refusal of the trial court to grant plaintiff’s motion to compel discovery has been considered and is found to have been rendered moot. OCGA § 5-6-48 (b) (3).

Judgment affirmed.

Johnson and Ruffin, JJ, concur.