author: Barnes, Judge.

text:
    A00A1779.
    KELLER et al. v. HENDERSON et al.
    (545 SE2d 705)
   Barnes, Judge.

This appeal arises from an action for fraud filed by Franklin and Petra Henderson, the purchasers of a house, against Darnell Phillips Keller and Alva Lionel Phillips, Jr., the sellers (collectively “Keller”), as executors of the estate of Alva L. Phillips, Sr. The Hendersons allege that Keller, with intent to deceive and induce them to buy the property, failed to disclose that a sunroom heater was defective and that the basement floods when it rains. Later, the Hendersons amended their complaint to allege that, even though asked directly, Keller failed to disclose that the property was on a septic tank.

Subsequently, Keller moved for summary judgment, contending that the Hendersons were not fraudulently induced to enter into the agreement because no false representations were made, Keller did not know of any defects in the house, Keller had no intention to induce the Hendersons to act, the Hendersons did not justifiably rely on any representations by Keller, and the Hendersons did not incur any damages. Keller also contended they were not liable because the Hendersons bought a vacant, older house, they affirmed the sales contract, and the condition of the property was the result of an act of God.

After the trial court denied Keller’s motion for summary judgment and they obtained permission to file an interlocutory appeal, this appeal followed. Keller contends the trial court erred by denying their motion on the issues about disclosure of the water heater, the septic tank, and the flooding.

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When ruling on a motion for summary judgment, the trial court should give the party opposing the motion the benefit of all reasonable doubt and should construe the evidence and all inferences and conclusions therefrom most favorably toward that party. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843) (1988). When appellate courts review the grant or denial of a motion for summary judgment, we conduct a de novo review of the law and the evidence. Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997).

2. In this state, the five elements of fraud and deceit are: “(1) false representation made by defendant; (2) scienter; (3) intention to induce plaintiff to act or refrain from acting in reliance by plaintiff; (4) justifiable reliance by plaintiff; and (5) damage to plaintiff.” (Citation omitted.) Butler v. Terminix Intl., 175 Ga. App. 816, 817 (2) (334 SE2d 865) (1985). Further, in an action for fraudulent concealment, “the allegedly defrauded party must prove that the alleged defrauder had actual, not merely constructive, knowledge of the fact concealed.” (Citations, punctuation and emphasis omitted.) Webb v. Rushing, 194 Ga. App. 732, 733 (1) (391 SE2d 709) (1990).

Giving the Hendersons the benefit of all reasonable doubt and construing the evidence and all inferences and conclusions in their favor, the record shows that the Hendersons agreed to buy and Keller agreed to sell a house formerly owned by Alva L. Phillips, Sr. Shortly after closing on the house and taking possession, the Hendersons noticed that the basement flooded during rains. Subsequently, they also learned that, contrary to representations made to them, the house was on a septic tank, not on the city sewer line.

In addition to the clauses directly related to the sale, the contract signed by the parties contains certain clauses important to this case. The “Seller’s Property Disclosure” clause stated that a “Seller’s Property Disclosure Statement is attached hereto and incorporated herein.” The Seller’s Property Disclosure Statement, however, was not attached to the contract when it was signed because it was not completed until over a month later.

The contract also contains a clause providing that the
Agreement constitutes the sole and entire agreement between the parties hereto and no modification or assignment of this Agreement shall be binding unless signed by all parties to this Agreement. No representation, promise, or inducement not included in this Agreement shall be binding upon any party hereto.

In another clause, the sellers and buyers acknowledged that they had not relied on any “advice, representations or statements” made by the brokers.

A purchaser claiming he was fraudulently induced to enter into a sales contract has an election of remedies:

(1) promptly after discovering the fraud he may rescind the contract and sue in tort for recovery of the purchase price and for any additional damages resulting from the alleged fraud; [or] (2) he may affirm the contract and sue for damages resulting from the fraud. This second suit, however, is not one for breach of contract, but one in tort. As these suits involve affirmance of the contract, the defrauded party may keep the benefits of the contract and still maintain an action for damages suffered because of the fraud. Although the action is in tort, it is based on the affirmance of the contract and seeks damages resulting from fraud arising from the contract. Because the allegedly defrauded party elected to affirm the contract, that party is bound by the contract’s terms and is subject to any defenses which may be based on the contract.

(Citation omitted.) Hightower v. Century 21 Farish Realty, 214 Ga. App. 522, 523-524 (1) (448 SE2d 271) (1994). To rescind one must return or offer to return the subject matter of the contract to place the seller in the same situation in which he was before the sale. Garrett v. Diamond, 144 Ga. App. 428, 430 (2) (240 SE2d 912) (1977). As the records show no effort to rescind the contract, the Hendersons have elected to seek the second remedy discussed above. Consequently, they are bound by the terms of the contract, including the clauses specified above.

3. Keller claims the trial court erred by denying their motion for summary judgment on the Hendersons’ claim that the sellers failed to disclose that a water heater was improperly vented. Keller contends only that the purchasers waived any claim concerning the water heater by signing an “Amendment to Remove Inspection Contingency.” A statement in the amendment that “the gas heater on the sun porch to be repaired” is lined through and the statement “pilot light out — has been re-lit” is written in. We cannot agree with Keller that this statement waives a claim based on improper venting of the water heater. The amendment merely shows that the heater had not been working at one point and does not address any venting issues. Nevertheless, we cannot affirm the trial court on this issue because Keller denied any knowledge of this problem and the Hendersons presented no evidence showing that Keller knew of any venting problem with the heater. Accordingly, the trial court must be reversed on this issue.

4. In the same manner, the trial court also erred by denying Keller’s motion concerning the septic tank. No evidence exists that Keller represented to the Hendersons that the house was connected to the city sewer. All the representations that the Hendersons rely upon were made by the real estate agents, not Keller. The Hendersons have identified no occasion on which the sellers, personally, made such misrepresentations. To the contrary, as early as February 26, 1997, Keller signed a Sellers Property Disclosure Statement, clearly stating that the house was on a septic tank.

Even though the buyers deny seeing the property disclosure statement until long after they took possession of the house, that fact is not significant. Here, the contract specifically provides that representations, promises, or inducements not included in the agreement shall not be binding and also states that the buyers acknowledged they had not relied on any “advice, representations or statements” made by the brokers. Under these circumstances, the trial court erred by denying the sellers’ motion. Thus, the disclaimer clause in the contract prevents the Hendersons from asserting reliance on alleged misrepresentations that were not made part of the contract. Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790, 791-792 (1) (359 SE2d 920) (1987). They are “bound by the contract’s terms and [are] subject to any defenses which may be based on the contract.” (Citation omitted.) Hightower v. Century 21 Farish Realty, supra, 214 Ga. App. at 524 (1). Purchasers who affirm a contract with a merger or disclaimer provision and retain the purchased articles are estopped from asserting they relied on a seller’s misrepresentation. Roth v. Bill Heard Chevrolet, 166 Ga. App. 583 (305 SE2d 31) (1983). Accordingly, the trial court erred by denying Keller’s motion for summary judgment as it concerned the septic tank claim.

5. The trial court did not err, however, by denying the motion for summary judgment on the claims arising from the flooding basement.

As was pointed out by this court in Wilhite v. Mays, 140 Ga. App. 816, 817 (232 SE2d 141)[, aff’d, 239 Ga. 31 (235 SE2d 532)], fraud in the sale of real estate may be predicated upon a wilful misrepresentation, i.e., the seller tells a lie; upon active concealment where the seller does not discuss the defect but takes steps to prevent its discovery by the purchaser; and thirdly a passive concealment where the seller does nothing to prevent the discovery but simply keeps quiet about a defect which though not readily discernible, is known to the seller. Traditionally, the rule of caveat emptor had applied and the sales contract merged into the warranty deed and foreclosed any right of remedy by the purchaser after the closing of the contract by transfer of the deed. See Holmes v. Worthey, 159 Ga. App. 262 (282 SE2d 919). Wilhite, supra, changed the rule of caveat emptor and placed upon the builder-seller a duty to disclose a defect of which he knows but is aware that the purchaser is ignorant of the condition and which probably would affect the decision of the purchaser to close the transaction.

Decided March 9, 2001.

Mulkey v. Waggoner, 177 Ga. App. 165, 166 (338 SE2d 755) (1985) (physical precedent).

In this case, the Hendersons point to the Seller’s Property Disclosure Statement, which is part of the contract, in which Keller acknowledged that the basement leaked, but attributed the leak to an air conditioner drain hose that had been repaired. Even though Keller contends they knew of no recurring problem with the basement leaking, this contention was contradicted by neighbors who stated that the basement had leaked from rainwater, and Keller was aware of the problem, but decided not to fix it. This evidence was sufficient to create a genuine issue of material fact on Keller’s knowledge of the leaking basement. The trial court did not err by denying the motion for summary judgment on this ground.

Accordingly, the judgment of the trial court must be reversed and the case remanded to the trial court with direction to grant summary judgment to Keller on the issues concerning the water heating venting and the septic tank and for further proceedings on the Hendersons’ remaining claim concerning the basement flooding.

Judgment reversed with direction.

Blackburn, C. J., and Eldridge, J., concur.

William F. Brogdon, for appellants.

Calvin M. McMullen, for appellees.


source: Caselaw Access Project

license: Public Domain

text:
    A00A2258.
    IKE v. KROGER COMPANY.
    (546 SE2d 903)
   Barnes, Judge.

Angela Ike appeals a judgment, based on a jury verdict, in favor of the Kroger Company in a rainy day slip and fall case. She contends the trial court erred by refusing to give her requested jury charge on the admissibility of admissions made by Kroger employees; by giving Kroger’s charge on expecting to find water on the floor on a rainy day; by giving Kroger’s charge on her obligation to exercise ordinary care for her own safety; by giving Kroger’s charge on equal or greater negligence; by refusing to give her charge on future earnings; by allegedly commenting upon the evidence during the charge; and by denying her motion for a new trial. Ike also contends the verdict is contrary to the evidence, without evidence to support it, decidedly and strongly against the weight of the evidence, and contrary to law and the principles of justice and equity. Finding no error, we affirm.

1. Ike contends the trial court erred by denying her motion for a new trial because the verdict was contrary to the evidence and without evidence to support it, is decidedly and strongly against the weight of the evidence, and is contrary to law and principles of justice. In her recitation of the facts and in her arguments regarding her motion for a new trial, Ike, quite naturally, has stated the facts from her point of view. However, rearguing the evidence,

upon which the jury has already passed, provides no basis for an appeal. The entire question of fact, and particularly the weight and preponderance of the evidence, are for the jury. On appeal, we construe all evidence most strongly in support of the verdict, for that is what we must presume the jury did; and if there is evidence to sustain the verdict, we cannot disturb it. McLarty v. Kushner, 173 Ga. App. 432 (326 SE2d 777).

J C. Penney Cas. Ins. Co. v. Woodard, 190 Ga. App. 727, 730 (2) (380 SE2d 282) (1989).

Therefore, construing the evidence most strongly in support of the verdict, the evidence shows that on a rainy day Ike entered a Kroger store to do some shopping. According to Ike’s testimony, the rain had stopped before she entered the store, and there was a puddle of water inside the store that she slipped and fell in because she did not see the puddle. She also testified that when she entered the store, she saw a large puddle just inside the first door, which she avoided. The puddle she slipped in was of similar size. Kroger’s employees, however, testified that it was still raining when Ike fell. The parking lot was wet.

Contrary to Ike’s testimony, three Kroger employees testified that caution signs were posted at the entrance to the store, carpeted mats were just inside the entrance, and the area was being mopped frequently. These witnesses also testified that Ike did not fall to the floor. She just slipped and caught herself on a shoplifting detection device near the door. Further, Ike continued her shopping after the incident. The witnesses testified that no large puddle was on the floor, only moisture that had been tracked in by customers.

The standard of appellate review of a motion for new trial is that, when a jury returns a verdict and the trial court has approved it, the ruling must be affirmed on appeal if there is any evidence to support it, because the jurors are the sole and exclusive judges of the weight and credit given the evidence. An appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, even when the evidence is in conflict. As long as some evidence supports the verdict, we will not disturb the denial of a motion for new trial. Southeastern Security Ins. Co. v. Hotle, 222 Ga. App. 161, 162 (1) (473 SE2d 256) (1996). Further, Ike’s enumerations contending that the trial court erred by denying her motion for new trial because the verdict was decidedly and strongly against the weight of the evidence and contrary to law and principles of justice do not present an issue for appellate review.

The discretion to set aside a verdict on the ground that it is decidedly and strongly against the weight of the evidence or is contrary to the principles of justice and equity rests solely with the trial judge, and the appellate courts are not vested with such discretion. See generally OCGA §§ 5-5-20; 5-5-21.

(Citations omitted.) Perfect Image v. M & M Electrical Constructors, 191 Ga. App. 605, 608 (5) (382 SE2d 405) (1989).

Accordingly, these enumerations of error are without merit.

2. Ike contends the trial court erred by refusing to give a charge she requested that certain statements made to her by Kroger employees on the day of her alleged fall were admissible in evidence. The charge states: “Ladies and gentlemen of the jury, I charge you that a statement made by an employee within the scope of his employment is admissible as an admission against the interest of the employer and not hearsay.” Ike cites Watson v. Kroger Co., 231 Ga. App. 741 (500 SE2d 631) (1998), as authority for giving the charge. Review of Watson, however, shows that the issue was whether certain statements were admissible, not whether this jury charge was appropriate. Therefore, Watson is not authority for giving this charge. Further, because these statements were, in fact, admitted in evidence, without limitation, the charge was unnecessary. Under the circumstances, the jury had no need to be instructed that the statements were admissible. Language used in appellate court decisions may embody sound law, but it is not always proper to include such language in the jury charge. Dept. of Transp. v. Hillside Motors, 192 Ga. App. 637, 640 (3) (385 SE2d 746) (1989).

As Ike’s arguments regarding the trial court’s failing to charge on res gestae were not raised in the trial court and were not enumerated as error, they present nothing for appellate review. Only those issues properly raised in the trial court will be considered on appeal. Dept. of Transp. v. Hillside Motors, supra, 192 Ga. App. at 638.

3. Ike contends the trial court erred by giving the following charge to the jury:

The risk of harm imposed by some accumulation of water on the floor of a business premises during rainy days is not unusual or unreasonable in and of itself but is one to which all who go out on a rainy day may be exposed and which all may expect or anticipate. Until such time as one who enters might reasonably expect to find the floor free of water, he or she should expect to find water present.

We find no error. This charge accurately states the law in this state. Roby v. Kroger Co., 219 Ga. App. 459, 460 (465 SE2d 496) (1995); Chafin v. Winn-Dixie Atlanta, 201 Ga. App. 209 (411 SE2d 64) (1991). See also Cleveland v. Snowdrop Properties, 232 Ga. App. 447, 448 (501 SE2d 546) (1998). Additionally, the charge was properly adjusted to the evidence presented by Kroger’s employees that it was raining when Ike entered the store.

Ike also contends the court should have charged the jury on Kroger’s duty to mop the floor. Pretermitting whether such a charge was warranted, the charge actually given was a correct statement of the law and was supported by the evidence. As Ike did not request a charge on mopping, the trial court did not err by neglecting to give one. Ferro v. Boswell, 242 Ga. App. 634, 635 (2) (530 SE2d 533) (2000).

4. Ike contends the trial court erred by giving a charge Kroger requested on Ike’s obligation to exercise ordinary care: “If the Plaintiff by the exercise of ordinary care could have avoided the consequences to herself caused by the Defendant’s negligence, the Plaintiff is not entitled to recover.” She asserts the charge was not adjusted to the facts or supported by the evidence. A jury charge, however, is authorized if there is some evidence from which jurors can conduct a legitimate process of reasoning with respect to the charge. T.G.&Y. Stores Co. v. Waters, 175 Ga. App. 884, 886 (2) (334 SE2d 910) (1985). In this case, Kroger’s evidence showing that Ike successfully avoided slipping in one puddle while claiming to have fallen in another was sufficient to warrant the charge. Even if she did not see the second puddle, as she claims, a jury question exists on whether she was exercising ordinary care by keeping a proper lookout for puddles, which she could reasonably expect to find on a rainy day.

Decided March 9, 2001.

Joseph M. Todd, for appellant.

5. Ike also alleges the trial court erred by giving Kroger’s requested charge as follows: “If from all the evidence you were to find that the Plaintiff herself was negligent and her negligence was equal or greater than any negligence on the part of the Defendant, then there can be no recovery by the Plaintiff against this Defendant.” Ike asserts that this charge was not adjusted to the evidence because there was no evidence she was negligent. This argument is without merit for the reasons stated in Division 4 above.

6. Ike contends the trial court erred by refusing to give a charge on future lost wages. The trial court did not err in this refusal. The trial transcript shows that Ike failed to introduce any evidence showing either that she had a permanent injury or that she would be entitled to lost wages for any particular period. The only evidence she introduced in this regard was that she was presently working only six hours rather than eight hours a day. This testimony is not sufficient to prove a claim for future lost wages. Super Discount Markets v. Coney, 210 Ga. App. 659, 660 (2) (436 SE2d 803) (1993) (proof of lost wages must be “reasonably certain” and not speculative).

7. Finally, Ike contends the trial court erred by commenting on the evidence during the charge to the jury. Ike, however, has failed to identify the comments she complains of and failed to support her enumeration with argument or citation of authority. Accordingly, she has waived the issue. Court of Appeals Rule 27 (c) (2); Sepulvado v. Daniels Lincoln-Mercury, 170 Ga. App. 109 (1) (316 SE2d 554) (1984).

The judgment of the trial court is affirmed.

Judgment affirmed.

Blackburn, C. J., and Eldridge, J, concur.

Webb, Carlock, Copeland, Sender & Stair, Douglas A. Wilde, for appellee.


author: Miller, Judge.

text:
    A00A2284, A00A2286.
    GILBERT v. MONTLICK & ASSOCIATES, P.C. (two cases).
    (546 SE2d 895)
   Miller, Judge.

Fred A. Gilbert, attorney, appeals from two separate orders of the trial court arising from attorney’s liens filed against his former law firm. As both appeals involve the same operative facts, we have consolidated them in this opinion. For the reasons that follow, we affirm.

The relevant facts are as follows. Gilbert and David Montlick were partners in the law firm of Gilbert & Montlick, P.C. After a business dispute, Gilbert & Montlick, P.C. initiated arbitration proceedings against Gilbert, which resulted in a ruling terminating the law practice. Under the arbitration ruling, Gilbert received a final award of more than $1.8 million, $1.6 million of which was payable in quarterly installments of $93,446.98. Gilbert attempted to have the arbitration award vacated, but the arbitration results were upheld in superior court and on appeal in this court in Gilbert v. Montlick.

The law firm of Kilpatrick Stockton (KS) represented Gilbert in the arbitration proceedings, and Erck, Dever & Merlin, LLC (EDM) assisted Gilbert in challenging the arbitration award. KS and EDM both withdrew from their representation of Gilbert in 1997, and Gilbert has since been representing himself pro se.

On August 14,1997, EDM served an attorney’s lien under OCGA § 15-19-14 on Montlick & Associates (MA) for $43,468.91, demanding that MA pay EDM any money that MA otherwise owed Gilbert under the final award. In September 1997, ICS also served an attorney’s lien on MA for $144,621.82. MA subsequently filed this inter-pleader action naming EDM, KS, and Gilbert as defendants and as adverse claimants to the funds that MA owed Gilbert under the final award. Both KS and EDM filed cross-claims against Gilbert for legal fees, and Gilbert filed cross-claims against the two law firms for legal malpractice. Gilbert and EDM subsequently agreed to a dismissal of all claims each party had against the other. On April 22, 1998, the trial court ordered MA to pay into the registry of the court the June 1998 and September 1998 quarterly payments due Gilbert under the final arbitration award. The court further ruled that upon payment of such sums that MA would be dismissed with prejudice from the interpleader action and that defendants would thereafter be enjoined from bringing suit against MA “with regard to the attorneys’ liens or the sums deposited with this court pursuant to its various orders.”

Case No. A00A2286

In Case No. A00A2286, Gilbert appeals from the trial court’s June 9, 1998 order. In that order the trial court: (1) partially granted Gilbert’s motion for summary judgment finding that EDM was not retained by Gilbert until after the arbitration award had been entered, but noted that EDM’s breach of contract and quantum meruit cross-claims remain; (2) granted EDM’s cross-motion for summary judgment for legal fees totaling $43,648.57 plus 12 percent annual interest; (3) found that MA was entitled to $2,065 in attorney fees and costs, ordering one-half to be paid by EDM and the remaining one-half to be paid by either Gilbert or KS upon resolution of the action; (4) ordered MA to make a deferred compensation payment into the registry of the court sufficient to satisfy the attorney’s lien filed by KS with the remainder to be paid to Gilbert; and (5) extended the time for completion of discovery.

1. In his third and fourth enumerations of error, Gilbert argues that the court erred in finding that MA had a right to interplead and in failing to dismiss the interpleader action in its entirety. Gilbert argues that MA knew that (1) KS’s claim was not legitimate and (2) EDM had not represented him at the time the final award was entered. The right to interpleader under OCGA § 9-11-22, however, depends upon the stakeholder’s good faith fear of adverse claims. That is regardless of the merits of those claims or what the stakeholder in good faith believes the merits to be. Specifically, a stakeholder’s offer to deposit disputed funds into the registry of the court in order to be discharged from potential litigation should not be denied merely because a claimant’s case is weak or rests on tenuous grounds. These enumerations are without merit.

2. In his first enumeration of error, Gilbert contends that the trial court erred in dismissing MA with prejudice from the inter-pleader action and in enjoining Gilbert from bringing any action against MA. He contends that there is no evidence to support either action. Contrary to this assertion the very case that Gilbert cites clearly explains that where “adverse claims on a fund have in fact been interpleaded, it is proper to dismiss the holder of the disputed fund as a party to the action, assuming that no further relief against the holder is being sought or necessary.” If no direct personal liability is being sought and the only claims are to the funds that the party holds, his capacity in the action is that of merely a stakeholder. The stakeholder’s successful invocation of the interpleader procedure serves to discharge him from the threat of potential liability to the adverse claimants of the disputed funds. Clearly in this case it was proper to dismiss MA, the former holder of disputed funds against which EDM and KS had potentially adverse claims, as no further relief was sought against MA. Therefore, this enumeration is without merit.

3. Gilbert’s argument that the court erred in refusing to hear his motion for summary judgment at the time it heard MA’s motion to dismiss is without merit. Subject to the constitutional rights of the litigants, the presiding judge plainly retains discretionary control of its own calendar, and an appellate court will rightly hesitate to disturb the trial court’s rulings on such matters unless it is clearly shown that this discretion was manifestly abused. The transcript of that hearing clearly reveals that Gilbert’s motion for summary judgment was on the calendar to be heard on June 3, 1998. We find no abuse of discretion in the court’s refusal to hear Gilbert’s summary judgment motion at the same time MA’s motion was heard.

4. Gilbert’s second enumeration of error contends the court erred in finding that MA had established a right to be reimbursed for attorney fees associated with bringing the interpleader action. Gilbert asserts this error prematurely as it has not yet been determined by the trial court whether it is Gilbert or KS that is to pay one-half of MA’s attorney fees and costs. Consequently, this enumeration is not ripe for appellate consideration.*

5. Gilbert’s sixth enumeration of error is deemed abandoned as he has not referenced the record nor has he supported this claim of error by any citation to authority or reasoned argument.

Case No. A00A2284

In Case No. A00A2284, Gilbert appeals from the court’s March 8, 1999 order. In that order the trial court granted partial summary judgment to KS on its cross-claims against Gilbert in the amount of $123,694.23 and denied Gilbert’s motion on the same claim. The court also granted KS’s motion for partial summary judgment on Gilbert’s cross-claim of legal malpractice and denied Gilbert’s motion for sanctions against KS.

6. Gilbert argues that the court “failed to consider, or erroneously considered” his objection to KS’s attorney’s lien. In particular he argues that because he presented evidence that the judgment upon which KS claimed a lien had been assigned to a third party, the lien did not comply with the statute. The attorney’s lien statute is in derogation of the common law and should be strictly construed. “[T]he statute will not be construed so as to apply to any factual situation not strictly within its wording.” The statute clearly states that upon decrees for money, attorneys “shall have a lien superior to all liens except [for] tax liens; and no person shall be at liberty to satisfy such an action, judgment or decree until the lien or claim of the attorney for his fees is fully satisfied.” The attorney’s lien rule applies to existing creditors as the third-party assignee in this case. Therefore, the validity of KS’s lien is unaffected by the assignment. In this regard, Gilbert’s reliance on OCGA § 15-19-14 (c), concerning actions to recover real property, is misplaced.

Gilbert’s argument that the lien was invalid because KS added improper fees also fails. “The inclusion of nonlienable items, easily separable from lienable items, does not defeat the entire lien.” The trial court made the specific finding that issues of fact remain with regard to the contested charges. And the disputed fees are obviously easily separable as the trial court granted summary judgment on KS’s cross-claim reduced by the amount of these fees.

7. Gilbert enumerates as error the court’s grant of summary judgment to KS on the issue of malpractice. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. To prove legal malpractice, Gilbert must establish three elements: (1) employment of the defendant attorney, (2) failure of the attorney to exercise ordinary care, skill, and diligence, and (3) that such negligence was the proximate cause of damage to the plaintiff. In practice, this effectively requires proof that Gilbert would have prevailed on the merits of the original litigation. In other words, Gilbert must show that but for KS’s alleged error, the outcome would have been different. The trial court concluded that KS met its burden of showing that Gilbert’s allegations did not prove the second and third elements of this test.

(a) Gilbert first argues that the court gave no consideration to his claim of KS’s breach of fiduciary duty. In particular, he claims that KS failed to deliver his entire file and refused to allow him to depose Michael Trotter. These arguments are without merit as they relate to KS’s actions after their representation of Gilbert had ended and cannot be the basis of a claim for malpractice. Gilbert also lists examples in his brief of how KS allegedly breached its fiduciary duty, but these are one-sentence assertions, most without citation to the record and all without citation to authority or argument.

Argument is defined as a reason given in proof or rebuttal, or a coherent series of reasons offered. Clearly, the central element in those definitions is reason. A mere statement of what occurred during the trial, and the contentions of the appellant, does not constitute an argument in support of such contentions. The failure to support the enumerated errors by citation of authority or argument constitutes an abandonment of such enumerated errors.

Here, Gilbert has stated what he feels the result should be but has not supported the reason why the trial court’s conclusions that KS breached no duty or caused no harm should be set aside. Consequently, these grounds are deemed abandoned.

(b) Michael Elkourie, chosen to represent Gilbert’s interests and to investigate the finances of Gilbert & Montlick, P.C., was one of three arbitrators. Both Gilbert and MA chose one interested arbitrator each, and those two selected the third arbitrator designated as a “neutral.” Prior to the arbitration, Elkourie’s position was changed to that of a witness. MA’s chosen arbitrator also stepped down, and the hearing proceeded with only one arbitrator, Sidney Smith. Gilbert claims that he was not properly advised of the change of Elkourie’s status from arbitrator to witness and that he was charged excessive fees for Elkourie as arbitrator even though he eventually did not act in that capacity. Susan Cahoon, a KS partner who assisted in the representation of Gilbert, deposed that it was the neutral arbitrator who first suggested that Elkourie change from arbitrator to witness; that she discussed with Gilbert the practicality of Elkourie’s role as a witness since the neutral arbitrator alone would make the final decision, anyway; and that Gilbert consented to this tactic. Gilbert himself conceded that although he was initially opposed to the idea, after discussion with his counsel he accepted their recommendation. Not only did Gilbert consent to the change in Elkourie’s status, “[t]here can be no liability for acts and omissions by an attorney in the conduct of litigation which are based on an honest exercise of professional judgment.” Gilbert’s counsel clearly used professional judgment in deciding that Elkourie would better serve Gilbert as a witness. Moreover, Smith, the sole arbitrator, deposed that the outcome of the arbitration would not have been different with the addition of the two other arbitrators.

Gilbert also argues that he was not told about a conference between KS, MA, and arbitrator Smith concerning the issue of Elkourie’s status. He has not shown, however, how the outcome of the arbitration ruling would have been different if he had been told about the conference.

(c) Gilbert argues that KS’s failure to discover an “off-book” asset (worth approximately $900,000) of Gilbert & Montlick, P.C. constituted malpractice. After the final award was entered, Elkourie discovered a substantial asset in the form of advances to clients that the former Gilbert & Montlick, P.C. had not listed on its financial statement. But in Gilbert’s motion to vacate the arbitration ruling, he conceded that neither he nor his representatives had reason to know or suspect that the true financial position of the firm had been concealed. Therefore, assuming that it was within KS’s range of responsibilities in representing Gilbert to locate Gilbert & Montlick, P.C.’s assets, it cannot be said that KS was negligent in failing to discover the hidden “off-book” assets that were not readily discoverable and of which Gilbert himself had no knowledge. The court did not err in granting summary judgment to KS on Gilbert’s claim of malpractice.

8. Gilbert enumerates two errors involving discovery. Trial judges have broad discretion in controlling discovery, including the imposition of sanctions, and appellate courts will not reverse a trial court’s decision on such matters unless there has been a clear abuse of discretion.

(a) Gilbert argues that the court erred in denying him the right to depose Trotter, a KS attorney. At a hearing on motions for summary judgment, Gilbert argued that even though Trotter billed him for only about an hour’s worth of services, he wished to depose him to ask him questions about a book Trotter had authored on attorney fees. Gilbert filed a notice to take deposition and subpoena for Trotter on July 1, 1998, for the deposition to take place on July 8, 1998, two days before the end of discovery. The deposition did not take place, and the court later ruled that because Trotter billed Gilbert for only 1.3 hours, it was not necessary to keep discovery open in order to take his deposition. As there was some evidence to support the trial court’s refusal to allow Trotter to be deposed, we see no abuse of discretion in the court’s ruling.

(b) Finally, Gilbert argues that the court erred in denying his motion for sanctions for the failure of KS to produce certain documents as ordered by the trial court. At the November 10, 1998 hearing on KS’s and Gilbert’s motions for summary judgment, Gilbert argued that he was denied access to information regarding his file, specifically, correspondence mentioned in a letter to Gilbert from Mara McRae, a KS partner. The court ordered that KS provide Gilbert the correspondence that was referred to in McRae’s letter by December 1, 1998. On February 13, 1999, Gilbert filed a motion for sanctions. Without a hearing or a response from KS, the court denied Gilbert’s motion for sanctions finding that “further delving into KS’s billing entries is not necessary.” Here, as there is evidence of at least an attempt by KS to provide the information requested by Gilbert, and because there was no finding of a wilful or intentional failure to comply with the court’s order, we find no clear abuse of the court’s discretion, in failing to impose the drastic sanctions requested by Gilbert (to strike KS’s claim for attorney fees and to strike KS’s defense to Gilbert’s malpractice claims). Thus, the court did not err in its ruling on these discovery issues.

Decided March 9, 2001

Fred A. Gilbert, pro se.

Nelson, Mullins, Riley & Scarborough, Kenneth L. Millwood, Kilpatrick Stockton, Craig E. Bertschi, for appellee.

9. Gilbert’s second enumeration is deemed abandoned as it is not supported by citation to authority but is simply a lengthy recitation of the same arguments in other enumerations and Gilbert’s contentions without any reasoned argument as to why the partial grant of summary judgment to KS’s claim for attorney fees (in an amount omitting all specifically contested charges) is erroneous.

Judgments affirmed.

Pope, P. J., and Mikell, J., concur.

       232 Ga. App. 91 (499 SE2d 731) (1998).

       “Attorneys at law shall have a lien on all papers and money of their clients in their possession for services rendered to them. They may retain the papers until the claims are satisfied and may apply the money to the satisfaction of the claims.” OCGA § 15-19-14 (a).

       Gilbert appealed the April 1998 order, but the appeal was dismissed as Gilbert failed to follow the discretionary appeals procedures of OCGA § 5-6-34 (b).

         Algernon Blair, Inc. v. Trust Co. of Ga. Bank of DeKalb, 224 Ga. 118, 121 (160 SE2d 395) (1968); Thompson v. Bank of the South, 172 Ga. App. 579, 582 (2) (323 SE2d 877) (1984).

        Algernon, supra, 224 Ga. at 121.

       Id.

       (Citation and punctuation omitted.) Thompson, supra, 172 Ga. App. at 582 (2).

        Glisson v. Freeman, 243 Ga. App. 92, 103 (1) (532 SE2d 442) (2000).

       Id.

        Schwall v. McNeil, 232 Ga. 679, 680 (208 SE2d 487) (1974); accord Frost v. Pennington, 6 Ga. App. 298 (65 SE 41) (1909); see generally OCGA § 15-1-3.

       See Barger v. Garden Way, 231 Ga. App. 723, 727 (5) (499 SE2d 737) (1998).

        Caring Hands v. Dept. of Human Resources, 222 Ga. App. 608, 609-610 (2) (475 SE2d 660) (1996).

       Court of Appeals Rule 27 (c) (3) (i).

       Court of Appeals Rule 27 (c) (2).

        May v. May, 180 Ga. App. 581, 582 (349 SE2d 766) (1986); Steele v. Cincinnati Ins. Co., 171 Ga. App. 499, 501 (3) (320 SE2d 203) (1984).

       (Citations omitted.) Steele, supra, 171 Ga. App. at 501 (3).

       (Emphasis supplied.) OCGA § 15-19-14 (b).

       See Ramsey v. Sumner, 211 Ga. App. 202, 204 (3) (438 SE2d 676) (1993).

       See Johnson v. Giraud, 191 Ga. 577, 583 (2) (13 SE2d 365) (1941).

        Taverrite v. Lowe’s of Franklin, 166 Ga. App. 346, 348 (1) (304 SE2d 78) (1983) (physical precedent only), citing Sears, Roebuck & Co. v. Superior Rigging &c. Co., 120 Ga. App. 412, 415 (4) (170 SE2d 721) (1969).

       OCGA § 9-11-56 (c).

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

        Walker v. Burnett, 241 Ga. App. 105, 108 (526 SE2d 109) (1999).

        Houston v. Surrett, 222 Ga. App. 207, 209 (2) (474 SE2d 39) (1996).

        Szurovy v. Olderman, 243 Ga. App. 449, 451-452 (530 SE2d 783) (2000).

       (Citations and punctuation omitted.) Caring Hands, supra, 222 Ga. App. at 610 (2).

       See id.

       (Citation, and punctuation omitted.) Allen Decorating v. Oxendine, 225 Ga. App. 84, 89 (2) (483 SE2d 298) (1997).

        Butler v. Biven Software, 238 Ga. App. 525, 527 (2) (522 SE2d 1) (1999); Freeman v. Ripley, 177 Ga. App. 522, 523 (339 SE2d 795) (1986).

       See OCGA § 9-11-26 (c) (1).

       This date was later changed to February 1, 1999.

       See Loftin v. Gulf Contracting Co., 224 Ga. App. 210, 214-215 (3) (480 SE2d 604) (1997) (drastic sanctions are appropriate for wilful or conscious disregard of an order compelling discovery).

       Compare Porter v. Buckeye Cellulose Corp., 189 Ga. App. 818, 822-823 (4) (377 SE2d 901) (1989) (physical precedent only).

       Court of Appeals Rule 27 (c) (2).


author: Eldridge, Judge.

text:
    A01A0937.
    SCOTT v. THE STATE.
    (545 SE2d 709)
   Eldridge, Judge.

A Chatham County jury found Peter Miller Scott guilty of the sale of cocaine. A recidivist count showing five prior cocaine convictions was included in the indictment, and Scott was sentenced to life imprisonment pursuant to OCGA § 17-10-7 (c). He appeals, claiming (1) the trial court erred in denying his motion to suppress any in-court identification by the arresting officer since such was tainted by an impermissibly suggestive pretrial photo identification; and (2) the sentence of life imprisonment was improperly imposed without exercise of the trial court’s discretion. We have reviewed Scott’s errors as enumerated. In light thereof, we affirm his conviction, but remand for resentencing.

The facts, viewed most favorably to the verdict,* show that Agent Dillard with the Chatham County Narcotics Team (“CNT”) has specific training in physical surveillance and tactical take-down operations. He specializes in undercover narcotics work. On March 5,1998, using a confidential and reliable informant (“Cl”), Dillard went undercover to Weezy’s, a pool room/snack shop in the 600 block of East 39th Street in Savannah, because drug sales had been reported outside the shop. Dillard’s Cl was'’equipped with both audio and video equipment hidden in his clothing, which equipment was monitored during the entire transaction by another nearby CNT agent. While Agent Dillard remained in the unmarked vehicle, the Cl entered Weezy’s; the audio and video equipment recorded his approach of appellant Scott and their subsequent conversation.

Scott took the Cl outside Weezy’s to the comer of 39th Street and Broad. Agent Dillard had a clear view of the two men as the Cl handed Scott $50, and Scott dropped crack cocaine into the Cl’s hand. The Cl then brought Scott over to Agent Dillard and introduced the two men, identifying Dillard as his cousin, “Tony.” Dillard and Scott shook hands. Thereafter, Dillard and the Cl left the scene and drove directly to the CNT office. The drugs were turned in to the Georgia Bureau of Investigation’s Crime Lab, where they tested positive for cocaine.

After the Cl buy, Dillard told another CNT agent, Plair, what had happened at Weezy’s. From his own experience with that location, Agent Plair picked out a “stack” of six to nine police photographs; he handed them to Dillard, stating “these are the guys that usually be out at 39th Street.” Dillard looked though them until he found Scott. “So I showed him it was Peter Miller Scott that the Cl had bought from.” The photographs were placed in no particular order, and, following Dillard’s identification of Scott, the “stack” of photos was not otherwise preserved for evidentiary purposes.

Approximately two weeks later, again undercover, Dillard returned to the 600 block of East 39th Street, this time with Agent Plair. Dillard saw Scott outside Weezy’s, and he told Plair, “That’s the guy who sold the Cl the crack cocaine.”

1. In his first enumeration of error, Scott contends that the pretrial photographic identification tainted Dillard’s in-court identification of him. He claims that, but for the “suggestive” photographic array, Dillard would not have been able to identify Scott as the perpetrator. We disagree.

(a) Scott’s argument reflects a misunderstanding of the nature of a “suggestive” identification process. There must be a suspect that a State agent is trying to “suggest” as the proper choice in order for an identification process to be impermissibly “suggestive” and, thus, tainted:

It must be recognized that improper employment of photographs by police may sometimes cause witnesses to err in identifying criminals. A witness may have obtained only a brief glimpse of a criminal, or may have seen him under poor conditions. Even if the police subsequently follow the most correct photographic identification procedures and show him the pictures of a number of individuals without indicating whom they suspect, there is some danger that the witness may make an incorrect identification. This danger will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw, or if they show him the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized. The chance of misidentifieation is also heightened if the police indicate to the witness that they have other evidence that one of the persons pictured committed the crime. Regardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent lineup or courtroom identification.

Here, Plair had no particular suspect to “suggest” to Dillard. Plair was not on the scene at the time of the incident; he had not investigated the case; and he had no idea who sold the cocaine to the CI. Plair did not suspect a potential perpetrator and cause — consciously or unconsciously — Dillard to confirm such suspicions through an identification process, which is the essence of an impermissibly “suggestive” ID. In this case, Plair pulled a stack of six to nine photographs of people who were “usually” found outside of Weezy’s, a stack that may or may not have contained the perpetrator. Since Plair did not have any suspect to “suggest” to Dillard, the subsequent photographic identification by Dillard was not made through an impermissibly “suggestive” police procedure.

(b) Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Even where a pretrial identification has been found to be tainted, a subsequent in-court identification is admissible if it has some other, independent basis. Here, Agent Dillard testified that his identification was based on personally seeing Scott outside Weezy’s and viewing Scott’s sale of cocaine to the CI, as well as subsequently being introduced to Scott and shaking his hand. Scott’s arguments regarding the clarity of Dillard’s view from the unmarked vehicle go to the weight of the evidence, not its admissibility. Accordingly, as Dillard’s identification had an independent origin, we find that the trial court properly denied the motion to suppress Dillard’s in-court identification.

(c) Under this enumeration of error, Scott also appears to claim (1) Dillard’s testimony that he previously identified Scott at another court hearing “impermissibly bolstered” his trial testimony; and (2) Dillard’s identification at this prior court hearing was based on the fact that Scott was the “only black male” sitting at counsel table. These contentions are meritless. As stated, Dillard had a sufficient independent basis for his identification of Scott, and, thus, Scott’s status as the only black male at counsel table during the prior hearing went to the weight, not the admissibility of the identification. Further, Scott’s attack on the veracity of Dillard’s identification made relevant any previous identifications, and such were not “impermissibly bolstering.”

2. Scott was indicted as a recidivist with five previous drug convictions. At sentencing, the prosecutor argued to the trial court that the court had no discretion in sentencing under OCGA §§ 16-13-30 (d) and 17-10-7 (c): “I believe that there is only one possible sentence in this case and that is a life sentence under 17-10-7 (c), which by operation of law is without parole.” The trial court accepted the prosecutor’s contention: “I am required under the law to sentence you to the maximum which is a life sentence. This sentence being a life sentence under 17-10-7 (c).” This is incorrect.

Any person who upon conviction for a fourth [felony] offense or for subsequent offenses [must] serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served. OCGA § 17-10-7 (c). For a second or subsequent violation of OCGA § 16-13-30 (b), the sentencing judge must impose a sentence of not less than ten years nor more than 40 years or life imprisonment. OCGA § 16-13-30 (d). Consequently, the sentencing judge retains the discretion either to impose any sentence within the statutory mandatory minimum and maximum sentence range or else to impose a life sentence.

While under OCGA § 17-10-7 (c), Scott would be required to serve the maximum time provided in the sentence of the judge, the sentence of the judge was by no means fixed. The judge’s failure to exercise discretion when sentencing Scott to “not less than ten years nor more than 40 years or life imprisonment” under OCGA § 16-13-30 (d) was error which we cannot find harmless under the circumstances. Scott’s sentence is therefore vacated and this case remanded for the exercise of the trial court’s discretion upon resentencing.

Decided March 9, 2001.

Davis Cohen, for appellant.

Spencer Lawton, Jr., District Attorney, Ian R. Heap, Jr., Assistant District Attorney, for appellee.

Under this enumeration of error, Scott also contends the trial court erred during sentencing when considering his conviction for possession of cocaine with intent to distribute under indictment no. CR940834, since his guilty plea thereto was made under Alford and allegedly absent a factual basis. However, we have reviewed the guilty plea transcript introduced at sentencing in relation to this conviction. Therein, Scott stipulated that there was indeed a factual basis for his guilty plea. Further, the prosecution sufficiently established Scott’s guilt as a party to the crime of possession of cocaine with intent to distribute so as to factually support Scott’s Alford plea. Accordingly, this claim of error is without merit.

Judgment of conviction affirmed. Sentence vacated and case remanded for resentencing.

Andrews, P. J., and Miller, J., concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       (Footnotes omitted; emphasis supplied.) Simmons v. United States, 390 U. S. 377, 383-384 (88 SC 967, 19 LE2d 1247) (1968).

        Talley v. State, 209 Ga. App. 79, 80 (1) (432 SE2d 667) (1993).

        Jacobs v. State, 207 Ga. App. 714, 715 (429 SE2d 256) (1993).

        Rivers v. State, 225 Ga. App. 558, 562 (484 SE2d 519) (1997).

       (Citations and punctuation omitted; emphasis in original and omitted.) Mann v. State, 240 Ga. App. 809-810 (524 SE2d 763) (1999).

       Banks v. State, 225 Ga. App. 754, 756 (5) (484 SE2d 786) (1997).

        North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970).

        Ellis v. State, 243 Ga. App. 431, 432 (533 SE2d 451) (2000).


author: Blackburn, Chief Judge.

text:
    A00A2104.
    H & C DEVELOPMENT, INC. v. BERSHADER et al.
    (546 SE2d 907)
   Blackburn, Chief Judge.

H & C Development, Inc. (“H & C”) sought to redeem real property sold at a tax sale and filed the underlying suit against the purchaser, Albert Bershader. The trial court awarded summary judgment against H & C primarily because H & C had failed to pay or legally tender the full amount of the redemption price for the property as required by OCGA § 48-4-47 (a) before filing suit and also because H & C had been administratively dissolved. H & C contends that Bershader failed to comply with the notice requirements of the redemption statute, which precluded summary judgment. We agree and reverse.

When ruling on a motion for summary judgment, the opposing party must be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence.

(Citation omitted.) Hess v. Textron Automotive Exteriors.

When viewed in a light most favorable to H & C, the nonmovant, the evidence established the following facts. In October 1987, H & C purchased a parcel of land in the City of Roswell for $37,000. In 1992, H & C was administratively dissolved by the Secretary of State for failure to file annual returns and to pay annual fees. On July 5,1995, Bershader purchased the same property at a sheriff’s sale for $1,373.24, the amount of the 1993 unpaid taxes.

In an effort to comply with the statutory notice provisions in OCGA § 48-4-45, Bershader sent notice by certified mail to H & C at an address in Knoxville, Tennessee, and arranged for notice to H & C by publication. On May 22, 1997, Bershader borrowed $120,000 from Republic Consumer Lending Group, Inc. (“Republic”) using the property as collateral. After procuring title insurance, Bershader built a house on the lot.

On May 27, 1998, H & C sued Bershader, his wife, Larisa Bershader, and Republic, claiming that H & C still had title to the property because Bershader had failed to give proper notice to H & C, as the property owner of record. H & C also alleged that the security deed between Bershader and Republic was void. H & C asserted that the purchase of the tax fieri facias and the foreclosure of its right of redemption were legally deficient, insufficient, and void. H & C alleged that its power to exercise the right of redemption had not been extinguished. H & C asked the court to declare all deeds involving Bershader as void or unenforceable and to set them aside.

The defendants moved for summary judgment on several grounds. The defendants claimed that H & C lacked standing to file suit under OCGA § 9-11-9 (a) because the corporation had been administratively dissolved years earlier. Bershader also asserted that the suit was untimely under OCGA § 14-2-1410 and that H & C’s actual address had not been “reasonably ascertainable” under OCGA § 48-4-45 (a) (2).

The trial court determined that H & C’s “failure to tender the full amount of the redemption price for the property prior to filing this action is fatal to its claim. OCGA § 48-4-47.” The trial court also found that Bershader was not required to give notice to H & C because H & C had been administratively dissolved as a corporation.

1. H & C contends that the trial court erred by finding that its failure to tender the full amount of the redemption price for the property before filing suit barred that action under OCGA § 48-4-47 because it claims it did not receive the statutorily required notice. We agree.

It is well settled that because the forfeiture of the right of redemption is so harsh, the law favors the redeeming property owner. Wallace v. President Street. As such, the “[l]aws of this state governing the right to redeem are to be construed liberally and most favorably to persons allowed by the statute to redeem.” Dixon v. Conway.

The right to redemption following a tax sale exists “(1) [a]t any time within 12 months from the date of the sale; and (2) [a]t any time after the sale until the right to redeem is foreclosed by the giving of the notice provided for in Code Section 48-4-45.” OCGA § 48-4-40. After such notice is given, no redemption action can be entertained “unless and until the plaintiff in the action pays or legally tenders to the grantee in the deed or to his successors the full amount of the redemption price for the property.” OCGA § 48-4-47 (a).

In this case, the evidence established that H & C had been incorporated in Cobb County, Georgia, and the only address for the corporation, its registered agent, and corporate secretary on file with the Office of the Secretary of State was an address in Marietta. Bershader, however, did not send notice to the address in Marietta of H & C’s registered agent or corporate secretary. Instead, on February 26, 1997, Bershader sent H & C notice by certified mail to 1137 Durham Road, in Knoxville, Tennessee. This notice was returned as unclaimed. The record also indicates that notice by publication of H & C’s right of redemption appeared in the Fulton County Daily Report on March 24, March 31, April 7, and April 14, 1997.

H & C, however, offered evidence showing that in 1996, more than eight months before the certified mailing occurred and three months before the tax deed was recorded, H & C’s address had been changed at the Fulton County Tax Commissioner’s Office to an Atlanta address belonging to Allen Hsu, the son of T. C. Hsu, a principal of H & C. Allen Hsu testified that at his father’s request, he completed change of address forms in both Fulton County and City of Roswell in order to have H & C’s mail forwarded to him in Atlanta. Allen Hsu testified that when the 1996 tax bill was mailed to him, he had forwarded it to his father in Knoxville. According to Hsu, he had resided without interruption from December 1995 through late 1997 at the address in Atlanta that he had provided to the tax office. Hsu testified that he believed that this address lies within DeKalb County, not Fulton County.

Tom Biggers, the Delinquent Tax Administrator with the Fulton County Tax Commissioner’s Office, corroborated Hsu’s testimony about H & C’s address change. Biggers testified that:

Anyone inquiring of the Fulton County Tax Commissioner’s Office as to the address contained in our records for the owner of the property between June 9, 1996 and June 6, 1997 would have been told that our records reflected the owner of the property to be H & C Development, Inc., and that the owner’s address for purposes of sending bills and other communications was “do Allen Hsu, 3427 Flowers Road, Atlanta, Georgia 30341 USA.”

Further, copies of the tax records themselves reflect the change in address in 1996, that the mailing address became: “C/O ALLEN HSU, 3247x Flowers Rd., Atlanta, Ga. 30341.”

As noted above, the redemption statute requires that notice be sent by registered or certified mail to a person residing outside the county in which the property is located, “if the address of that person is reasonably ascertainable.” (Emphasis supplied.) OCGA § 48-4-45 (a) (2).

H & C claims that it did not receive proper notice. OCGA § 48-4-45 (a) (2) requires the purchaser at the tax sale to send notice by registered or certified mail to the owner of record, “if the address of that person is reasonably ascertainable.”

By statute, corporations are required to maintain continuously in Georgia a registered agent to serve as agent to service of process. OCGA § 14-2-501 (2). If a Georgia corporation has no registered agent or if the corporation’s registered agent cannot be found after a diligent search, a plaintiff may serve the corporation by registered or certified mail, return receipt requested, addressed to the corporation’s secretary at its principal office. OCGA § 14-2-504 (a).

Although a trial court must make the initial determination of the legality of notice, appellate courts must independently decide whether under the facts of each case the search for the absentee interested party was legally adequate. Abba Gana v. Abba Gana The evidence H & C presented clearly shows that after June 9, 1996, the company’s address was designated in the Fulton County tax records as being at Flowers Road in Atlanta. Bershader has not shown that he sent the required notice by either certified or registered mail to the Atlanta address. Under these circumstances, we believe that a jury must determine whether the address appearing in the County’s tax records was “reasonably ascertainable” when the redemption statute is liberally construed. See Dixon, supra.

Decided March 12, 2001

Chestnut, Livingston & Pye, Tom Pye, for appellant.

Fine & Block, Kenneth I. Sokolov, for appellees.

2. H & C also contends that the trial court erred by determining that no notice was required because the corporation had been administratively dissolved. We agree.

H & C’s corporate status was reinstated on December 8, 1999. The certificate issued by the State provided that the reinstatement shall relate back to and take effect as of the date of administrative dissolution and the corporation may resume its business as if the administrative dissolution had never occurred. See OCGA § 14-2-1422 (governing reinstatement following administrative dissolution).

Moreover, “ ‘the enforcement and collection of taxes through the sale of the taxpayer’s property has been regarded as a harsh procedure, and, therefore, the policy has been to favor the rights of the property owner in the interpretation of such laws.’ ” Wallace, supra at 240 (1).

Bershader cites no authority and we have found none that excuses a tax sale purchaser from satisfying the explicit terms of the redemption statute in the event that the original owner is a corporation that becomes administratively dissolved. Nor has Bershader offered any authority to support the proposition that an administratively dissolved corporation can be divested of ownership and title to its real property without due process.

3. Having determined that summary judgment was not due, we need not consider the remaining issues.

Judgment reversed.

Eldridge and Barnes, JJ, concur.

        Hess v. Textron Automotive Exteriors, 245 Ga. App. 264, 265 (1) (536 SE2d 291) (2000).

        Wallace v. President Street, 263 Ga. 239, 240 (1) (430 SE2d 1) (1993).

        Dixon v. Conway, 262 Ga. 709, 710 (425 SE2d 651) (1993).

        Abba Gana v. Abba Gana, 251 Ga. 340, 343 (1) (304 SE2d 909) (1983).


author: Barnes, Judge. Blackburn, Chief Judge,

text:
    A00A2382.
    SWANSON v. THE STATE.
    (545 SE2d 713)
   Barnes, Judge.

A jury found Kenneth Earl Swanson guilty of three counts of homicide by vehicle, three counts of feticide by vehicle, and two counts of driving under, the influence. Swanson appeals, contending the trial court erred by (1) denying his motion to suppress the results of a blood test; (2) denying his motion to quash two counts of the indictment; (3) denying his plea in abatement and motion to quash challenging the array of the grand jury that indicted him; and (4) improperly restricting his counsel’s closing argument. For the reasons that follow, we affirm.

1. Swanson contends the trial court should have suppressed a test of his blood showing a blood alcohol concentration of 0.31 grams for three reasons: (a) the State intentionally destroyed the blood sample and prevented him from independently testing it; (b) the State failed to establish the chain of custody for the blood sample; and (c) the police officer failed to give him a timely implied consent warning.

(a) Swanson claims that the trial court should have granted his motion to suppress the blood test results because the State destroyed the blood sample before he had an opportunity to independently test it.

In order to prevail upon a claim that his due process rights under the Fourteenth Amendment to the U. S. Constitution were violated by the destruction of “potentially useful evidence,” Swanson must show bad faith. Arizona v. Youngblood, 488 U. S. 51, 57-58 (109 SC 333, 102 LE2d 281) (1988); Walker v. State, 264 Ga. 676, 680 (3) (449 SE2d 845) (1994); Milton v. State, 232 Ga. App. 672, 679 (6) (503 SE2d 566) (1998). Bad faith is a question of fact for the trial court to determine, and we will not disturb a trial court’s finding on bad faith if there is any evidence to support it. Milton, supra, 232 Ga. App. at 679; Lynott v. State, 198 Ga. App. 688, 690 (4) (402 SE2d 747) (1991).

In this case, the trial court made the following findings:

The court can find no evidence to show “bad faith” on the part of law enforcement which resulted in the destruction of the blood sample. The Crime Lab might well have been negligent or careless in their handling of the blood sample in view of the oral announcement concerning the preservation of the sample. The District Attorney’s office may well have been negligent or careless in failing to follow up on the oral request, but there is no evidence that the sample was destroyed out of an interested or sinister motive, or through a conscious doing of wrong. The evidence shows, and the court so finds, that the evidence was destroyed at the time that the Crime Lab guidelines indicated that it should be destroyed. Defendant produces no evidence that the Crime Lab or anyone acting for the State of Georgia intentionally destroyed the evidence or had the evidence destroyed as a result of improper motive, such as keeping exculpatory evidence from the defendant.

We have reviewed the record and find evidence to support these findings. As a result, we affirm the trial court’s decision to allow the blood test results into evidence.

(b) We find no merit in Swanson’s claim that the State failed to establish a sufficient chain of custody.

Where the State seeks to introduce evidence of a fungible nature, it must show a chain of custody adequate to preserve the identity of the evidence. [Cit.] The burden is on the State “to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution.” [Cits.] The State need not negative every possibility of tampering, and “need only establish reasonable assurance of the identity” of the evidence. [Cit.] “(W)hen there is only a bare speculation of tampering, it is proper to admit the evidence and let what doubt remains go to the weight.” [Cit.]

Anderson v. State, 247 Ga. 397, 399 (2) (276 SE2d 603) (1981).

We have reviewed the chain of custody evidence and find that the State established reasonable assurances of the identity of the blood samples. Discrepancies in the testimony about the color of the test tube caps, the description of the package received by the crime lab, or which officer took custody of the tubes after the blood was drawn do not preclude admission of the blood test results. See Jordan v. State, 223 Ga. App. 176, 182 (3) (477 SE2d 583) (1996) (chain of custody established even though arresting officer’s description differed from the forensic toxicologist’s description of the urine sample’s packaging); Jackson v. State, 188 Ga. App. 834, 837-838 (3) (374 SE2d 777) (1988) (chain of custody established despite discrepancies in description and number of tablets tested by crime lab); Carver v. State, 175 Ga. App. 599, 601 (2) (333 SE2d 697) (1985) (chain of custody established even though testimony differed about how the evidence was delivered to the crime lab and to whom it was delivered).

The fact that evidence was temporarily stored in a police officer’s car trunk and an unlocked refrigerator at the sheriff’s patrol post also fails to render the chain of custody evidence insufficient. See Sanders v. State, 243 Ga. App. 216, 217-218 (1) (a) (534 SE2d 78) (2000) (chain of custody established even though evidence remained in Drug Enforcement Administration agent’s trunk for days); Floyd v. State, 187 Ga. App. 27 (1) (369 SE2d 316) (1988) (chain of custody established even though blood vials were stored in unlocked refrigerator before being sent to crime lab for testing).

The trial court properly ruled that these facts could be considered by the jury in its determination of the weight to be given to the blood test results.

(c) Swanson asserts the trial court should have granted his motion to suppress blood test results because he was not read the implied consent warning at the time of his arrest as required by Georgia law. See OCGA § 40-6-392 (a) (4); Perano v. State, 250 Ga. 704 (300 SE2d 668) (1983).

When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.

(Citations and punctuation omitted.) State v. Williams, 225 Ga. App. 736, 737 (1) (484 SE2d 775) (1997).

In this case, the record shows that the arresting officer testified in a motion hearing that he thought he gave the implied consent warning to Swanson at the scene of his arrest, but could not swear to it. In a later motion hearing, the officer could testify, after reviewing his report, that he read the implied consent warning to Swanson at the time of his arrest. Since there is evidence to support the trial court’s finding that the officer gave Swanson a timely implied consent warning, we find no merit in this enumeration of error.

2. We find no merit in Swanson’s claim that the trial court should have quashed Counts 1 and 4 of the indictment because the State failed to allege that his per se DUI violation (OCGA § 40-6-391 (a) (5)) was the proximate cause of the victims’ deaths. These counts stated:

COUNT ONE
in the name and behalf of the citizens of Georgia, charge and accuse Kenneth Earl Swanson with the offense of Homicide by Vehicle, for that the said accused, in the County of Towns and State of Georgia, on the 11th day of July, 1997, did, without malice aforethought, cause the death of Maria Rubi, another living person, through the violation of OCGA § 40-6-391 (a) (5), to wit: did drive and was in actual physical control of a moving vehicle while having a blood alcohol concentration of .10 grams and more at a time within three hours after said driving, from alcohol consumed before said driving ended, contrary to the laws of this State, the good order, peace and dignity thereof.
COUNT FOUR
and the Grand Jurors aforementioned, in the name and behalf of the citizens of Georgia, charge and accuse Kenneth Earl Swanson with the offense of Feticide by Vehicle, for that the said accused, in the County of Towns and State of Georgia, on the 11th day of July, 1997, did cause the death of an unborn child so far developed as to be ordinarily called “quick” by causing injury to Maria Rubi, the mother of the child, through a violation of OCGA § 40-6-391 (a) (5), to wit: the accused did drive and was in actual physical control of a moving vehicle while having an alcohol concentration of .10 grams and more at a time within three hours after said driving, from alcohol consumed before said driving ended, contrary to the laws of this State, the good order, peace and dignity thereof.

The allegation in these counts that the victims’ deaths were caused by Swanson’s per se violation adequately alleges proximate cause. Tidwell v. State, 216 Ga. App. 8, 10 (1) (453 SE2d 64) (1995) (allegation that the defendants’ actions “resulted” in the victim’s death adequately asserted proximate cause).

3. We also find no merit in Swanson’s claim that the indictment should have been quashed because the list of potential grand jurors was drawn from the 1980 Census instead of the 1990 Census. According to Swanson, the use of the 1980 Census resulted in a violation of his rights under the Sixth Amendment to the U. S. Constitution because citizens in the 18 to 24 age group were underrepresented in the grand jury pool.

To prevail on his Sixth Amendment jury pool composition challenge, Swanson must show that the 18 to 24 age group is a “cognizable group” and that this group has been consistently underrepresented in the Towns County grand jury pool. Potts v. State, 259 Ga. 812, 813 (1) (388 SE2d 678) (1990).

To show that a group is distinct or cognizable under the sixth amendment, a defendant must show: (1) that the group is defined and limited by some factor (i.e., that the group has a definite composition such as by race or sex); (2) that a common thread or basic similarity in attitude, ideas, or experience runs through the group; and (3) that there is a community of interest among members of the group such that the group’s interests cannot be adequately represented if the group is excluded from the jury selection process. [Willis v. Zant, 720 F2d 1212, 1216 (11th Cir. 1983), cert. denied, 467 U. S. 1256 (104 SC 3548, 82 LE2d 851) (1984).]

Id. at 813.

In this case, the trial court found that “the Defendant did not produce evidence that this group was cognizable for purposes of Grand Jury selection.” We must accept this finding unless it is clearly erroneous. Bryant v. State, 268 Ga. 664, 665 (2) (492 SE2d 868) (1997). Our review of the record shows that the trial court did not clearly err.

4. In his remaining enumeration of error, Swanson claims the trial court denied him “his rights to due process and effective assistance of counsel when it curtailed [his] counsel’s proper closing argument to the jury and by admonishing [his] counsel in the presence of the jury.” The record shows that the trial court precluded defense counsel from outlining in great detail “the three standards of proof” in “ancient Scotland and Wales,” as well as the preponderance of evidence standard in civil cases.

“The trial court has the right and duty to govern the scope of argument both before and after the presentation of evidence, and the proper range of argument is a matter within the trial court’s discretion.” Miller v. State, 243 Ga. App. 764, 766 (7) (533 SE2d 787) (2000). Although counsel may refer to applicable law in closing argument, they should not present law about which the court will not charge the jury. Kirkland v. State, 271 Ga. 217, 219 (3) (518 SE2d 687) (1999). In this case, the trial court, appropriately, did not charge the jury on the standards of proof in civil cases or in ancient Scotland and Wales. Thus, it did not abuse its discretion when it prohibited defense counsel from confusing the jury with inapplicable law.

Judgment affirmed.

Eldridge, J., concurs. Blackburn, C. J., concurs specially.

Blackburn, Chief Judge,

concurring specially.

Although I agree with the judgment and analysis of the majority, I concur specially in order to set out the factual basis for the majority’s decision on Swanson’s chain of custody argument.

After a detailed review of the evidence, we cannot say that the trial court erred in holding that the State had produced sufficient chain of custody evidence. Swanson’s contentions as to opportunities for tampering with the evidence went to the weight of the evidence, not its admissibility. See Jordan v. State In the present case, as in Jordan, a significant amount of time had passed between the date of the incident and the time of trial (27 months herein and 14 months in Jordan). Rather than testifying as to their handling of Swanson’s blood samples, the majority of the witnesses testified to their normal procedure for handling blood samples in DUI cases. Small discrepancies can be explained by faulty memory rather than evidence of tampering. See id. (trial court’s admission of evidence was not clearly erroneous where it determined that contradictions in the arresting officer’s description of the initial packaging of the evidence and toxicologist’s description of the way the package looked when it arrived at the crime lab did not suggest tampering, but a faulty memory).

In the present case, Swanson contends that the chain of custody was not established because Judy DeCrisci’s testimony regarding the color of stoppers she would have used on top of the vials of blood contradicted Trooper Mathis’ and Dr. Brown’s testimony regarding the vials of blood tested. Trooper Mathis testified that he received the vials of blood in a biohazard bag and that they were topped with gray stoppers. Dr. Brown testified that he received at the crime lab two vials of blood topped with gray stoppers. Swanson relies on DeCrisci’s testimony wherein she testified that if she drew two vials of blood her normal procedure would have been to top the vials with one red stopper and one gray stopper. However, she further testified that if the evidence in the present case established that two vials of blood were drawn and both were topped with gray stoppers such evidence would not be cause for concern because sometimes a certain tube is requested or sometimes the hospital was out of red stoppers.

Swanson also contends DeCrisci’s testimony regarding the information which she put on the vials of blood did not match Dr. Brown’s description of the blood he tested. DeCrisci testified that she would put the person’s name, date, time, Social Security number, and her initials on each vial. On cross-examination by Swanson’s attorney, she testified that if all of the described information was not on the vial, she would not believe that it was the sample she took. Dr. Brown testified from a report prepared by the person who opened the package at the crime lab and assigned a laboratory case number to the sample. He explained that the crime lab would be interested in only the name on the blood vials; if there was other information on the blood vials, it would not be noted on the report. Dr. Brown could not remember specifically what information was on the vials of blood involved in this case other than what was noted on the report. Dr. Brown testified that the vials had the defendant’s name on them. He did not testify that the other information described by DeCrisci was not contained on the vials in addition to the name that was listed on the report.

Swanson argues that the testimony conflicted as to how the vials were taped and packaged. Officer Garrison was present in the room when DeCrisci drew blood from Swanson. He testified that “to the best of [his] recollection” DeCrisci drew two vials of blood and put them into a Styrofoam container. He further testified that he did not see DeCrisci tape up the vials or the box. DeCrisci, Trooper Mathis, and Dr. Brown testified that the two vials of blood were taped with transparent tape and put into a biohazard bag. Officer Garrison’s testimony is equivocal at best.

Swanson correctly points out the conflicts in the evidence as to who received the blood samples from DeCrisci. DeCrisci testified that she gave the samples to Officer Garrison. Officer Garrison testified that he left the sample with DeCrisci. Trooper Mathis testified that he picked up the blood from DeCrisci. DeCrisci was not sure who took the samples from the hospital, and she did not know whether Officer Garrison left the samples for Trooper Mathis. Such evidence would have supported a finding of a potential for tampering with the evidence. It does not, however, require a finding of a break in the chain of custody. See cases cited in majority.

Additionally, Swanson erroneously contends that Officer Garrison signed a form indicating that he received the blood samples. DeCrisci testified, and the record confirms, that the form signed by Officer Garrison requested that the blood tests be performed. It was not a receipt for the blood samples.

Swanson next contends that the chain of custody was not established because the blood was kept in the trunk of Trooper Mathis’ police car overnight and then kept in an unlocked refrigerator for several days before it was mailed by an unknown person. The evidence, however, supports a finding that from the time the blood samples were taken from the hospital, they were taped securely and placed in a sealed and taped biohazard bag. The evidence indicates that this bag was intact when the blood was received at the crime lab. »

Decided March 12, 2001

Head, Thomas, Webb & Willis, William C. Head, for appellant.

N Stanley Gunter, District Attorney, Lynn Akeley-Alderman, William J. Langley, Assistant District Attorneys, for appellee.

Trooper Mathis testified that after leaving the blood samples in his trunk overnight he took them into the station and packaged them for mailing before leaving them in the station refrigerator. Trooper Mathis packaged the blood samples on a Saturday so they were not mailed until the following Monday or Tuesday. Trooper Mathis further testified that no one got into his patrol car overnight while the blood samples were in the trunk and that the public did not have access to the refrigerator where the packaged blood samples were left. See Sanders v. State and Floyd v. State cited by the majority. Any issue of spoliation of evidence is not before us.

Finally, Swanson contends that the chain of custody was not established because Dr. Brown’s testimony conflicted with Trooper Mathis’ testimony regarding how the blood samples were packaged for mailing. Again, the transcript authorizes a determination that any conflicts regarding the packaging of the samples were based on faulty memory rather than evidence of tampering. Trooper Mathis testified that he could not remember for sure but that he thought he packaged the blood samples in Styrofoam boxes for shipping. The station had switched policies as to how the samples were shipped. Trooper Mathis testified that he put the samples either in Styrofoam boxes or in metal cans. Dr. Brown testified that the blood samples arrived in a sealed metallic mailing cylinder. Contrary to Swanson’s argument, there was no conflict in the testimony of Dr. Brown and Trooper Mathis regarding the packaging of the blood vials because Trooper Mathis testified that he might have put the blood sample in a metallic mailing cylinder. Even if the alleged conflict had existed, it would not have been sufficient for a break in the chain of custody. See Jordan, supra.

Based on the foregoing testimony, the trial court’s decision to allow the test results into evidence was not clearly erroneous.

       This case differs from our recent opinion in State v. Blackwell, 245 Ga. App. 135 (537 SE2d 457) (2000), cert. granted, December 1, 2000. In Blackwell, the defendant’s urine sample initially tested negative for drugs. In this case, the only test of the defendant’s blood revealed a blood alcohol concentration well above the legal limit.

       Swanson’s contention that there was also a discrepancy in the testimony about the writing on the label of the test tubes is not supported by the record. We have reviewed the testimony cited by Swanson and find no inconsistency in the testimony on this issue.

        Jordan v. State, 223 Ga. App. 176, 182 (3) (477 SE2d 583) (1996).

        Sanders v. State, 243 Ga. App. 216, 217-218 (1) (a) (534 SE2d 78) (2000).

        Floyd v. State, 187 Ga. App. 27 (1) (369 SE2d 316) (1988).


author: Phipps, Judge.

text:
    A00A2529.
    SUMMAGE v. THE STATE.
    (546 SE2d 910)
   Phipps, Judge.

Kerwin Summage was convicted of three counts of child molestation and one count of first degree cruelty to children. He appeals, claiming that the trial court erred by (1) allowing the jury to replay the victim’s videotaped interview in the jury room, (2) admitting, photographs and videotapes that did not depict the sexual activity with which he was charged, (3) allowing testimony that improperly commented on the victim’s credibility, (4) improperly expanding the indictment in the jury charge on child molestation and (5) incorrectly instructing the jury that witnesses are presumed to speak the truth. Summage also claims that his trial counsel was ineffective for failing to object to certain testimony by State’s witnesses. Because we find that the trial court improperly allowed the jury to replay the victim’s videotaped interview in the jury room and that the error was not harmless, we reverse.

Summage met C. M.’s mother in a nightclub in December 1996. They began dating, and several weeks later, Summage and his two-year-old daughter moved in with her, her two-year-old son and C. M., who was seven years old. Summage took care of both two-year-olds while C. M.’s mother was at work and C. M. was at school. On at least two occasions, Summage also looked after C. M. while her mother was at work.

C. M. testified that one night while her mother was at work, Summage showed her some photographs of “other children, other people . . . posing with no clothes on.” She said that Summage had a lot of photographs, but that she did not look at all of them. At trial, she identified three photographs as ones Summage had shown to her. C. M. testified that after Summage showed her the photographs, he told her to take off her underwear and get into two positions — crawling on her hands and knees and on her back with her legs open. She testified that he then took pictures of her with a Polaroid camera and showed them to her. He asked C. M. if he could touch her “on her private,” but she said “no.” C. M. testified that on another occasion, Summage told her to get on her hands and knees, rubbed “his private” on her “bottom” and “stuff came out,” which she wiped off with a paper towel.

C. M.’s mother testified that several days after the last time Summage babysat for C. M., C. M. told her that he had been taking pictures of her in different poses without her panties. That night, C. M.’s mother took her to the emergency room of Scottish Rite Children’s Hospital to be examined. Dr. Kelley examined C. M. and found her to be a “normal, pre-pubertal female.” He testified that his examination would reveal only a violent and extremely painful injury and that children can be sexually abused in ways that would not show up in a medical examination. Dr. Kelley referred the matter to the Cobb County Police Department, and C. M.’s mother made an appointment to meet with Cobb County Police Detective Williams, who worked in the Crimes Against Children Unit.

Williams conducted a videotaped interview with C. M. Williams testified that C. M. stated the following during the interview: While Summage was babysitting C. M., he told her to remove her panties and pose for him. He then took pictures of her with a Polaroid camera. Summage showed her pictures of other children and people in the same poses he had asked her to assume. C. M. denied that Summage had given her a “bad touch,” but said that he had put some type of “grease” on her. After Williams testified, the videotaped interview, which lasted about 45 minutes, was played for the jury.

After interviewing C. M., Williams obtained a warrant for Summage’s arrest and a search warrant for his car. While executing the search warrant, Williams found a Polaroid camera, photographs and videotapes. The police also searched the apartment where Summage was then staying and confiscated a total of 25 videotapes, which were later reviewed by Williams. At trial, Williams identified 20 of 97 photographs found in Summage’s car, all depicting naked women either on their hands and knees or on their backs with their legs open. He also identified 16 videotapes. Williams testified that nine of the videotapes involved males and females engaged in sexual activity and that some of those videotapes involved a young male, but the only indication as to his actual age came from Summage, who testified that he was twenty years old at the time the tape was made.

Williams referred C. M. to the Cobb County Children’s Advocacy Center for counseling. From April 1997 to March 1998, licensed clinical social worker Karen Nash met with C. M. 21 times. During the fifth session, C. M. told Nash that Summage had taken pictures of her twice. C. M. also told her that the second time Summage took pictures of her, he had also taken off his pants and rubbed “his private part against her bottom” and that something came out of his “private part” that made her wet. Nash testified that C. M. was very upset that she had not told her mother and the detective about this incident earlier.

During trial testimony, Summage identified the Polaroid camera as his and admitted that he had taken the photographs previously identified. He also admitted that the videotapes belonged to him. He denied showing the photographs to C. M. and denied taking pictures of her as she alleged or taking similar pictures of any other children. Summage also denied ever putting his penis on C. M.’s buttocks.

The indictment charged Summage with (1) telling C. M. to remove her panties and get into certain poses that would expose her vaginal area and buttocks so that he could take pictures of her in these poses, (2) showing C. M. photographs of females and males in sexually explicit poses, (3) rubbing his penis against C. M.’s body and buttocks and (4) causing C. M. excessive mental pain by engaging in these acts.

1. Summage claims that the trial court erred by allowing the jury to replay C. M.’s videotaped interview in the jury room during its deliberations, in violation of the continuing witness rule.

The trial court has discretion to allow the jury to rehear recorded statements, if it is done in open court. But here the trial court erred by allowing the videotaped statement to go to the jury room, over the objection of defense counsel.

The question remains whether the error was harmful and requires a reversal and a new trial. The trial court did not caution the jurors not to place undue emphasis on the videotape or place any limits on the number of times or manner in which they should view it. The jurors had access to the forty-five-minute tape, arguably the most important evidence introduced by the State, for more than five hours before they reached a verdict. The other evidence against Summage was not overwhelming, and the jury was charged with determining whether he or C. M. was the more credible witness. Under the circumstances, we cannot say it is highly probable that allowing the victim’s videotaped interview to go out with the jury did not contribute to the verdict. We therefore reverse the judgment and order that a new trial be held.

2. Summage argues that the trial court’s admission of the photographs and Williams’s testimony about the content of the videotapes violated the rule set forth in Simpson v. State: Sexually explicit material cannot be admitted merely to show a defendant’s interest in sexual activity; it must be linked to the crime charged.

In a prosecution for a sexual offense, evidence of sexual paraphernalia found in defendant’s possession is inadmissible unless it shows defendant’s lustful disposition toward the sexual activity with which he is charged or his bent of mind to engage in that activity.

Here, the sexually explicit photographs and videotapes were offered for the purpose of showing that Summage often took pictures of naked women in certain positions, the same positions he asked C. M. to assume when he photographed her. Three of the photographs were specifically linked to the crime charged because C. M. identified them as photographs Summage had shown her. Williams identified 20 additional photographs of naked females either on their hands and knees or on their backs, with their legs open, as photographs he found in his search of Summage’s car.

The additional photographs were admitted not for the purpose of showing Summage’s lustful disposition in general, but to show his disposition to photograph naked females in certain poses. Because Summage was specifically charged with taking these types of photographs of C. M., they were properly admitted.

We reach a different conclusion as to the videotapes depicting sexual activity. Although it does not appear that the videotapes were ever played for the jury, Williams was allowed to testify as to their content. There is no evidence that Summage ever filmed C. M. with a videocamera or that any of the videotapes depicting sexual activity involved children. Nor is there any evidence that C. M. knew about or viewed any of the videotapes. Because they did not depict the sexual activities with which Summage was charged and were not otherwise linked to the crimes charged, the videotapes depicting sexual activity were improperly admitted.*

Given our holding in Division 1, we need not determine if this error was harmful.

3. Summage claims that Williams’s trial testimony improperly commented on C. M.’s credibility. He complains of the following testimony:

THE STATE: Normally, when a child discloses abuse, is it always at one time?
WILLIAMS: No.
THE STATE: Okay. What would be an example of something that they would disclose at another time?
WILLIAMS: Well, from my own experience, a case where I interviewed five boys. And this was after I’d interviewed a convicted child molester in the federal pen who had told me about molesting these boys. And he told me exactly in detail what he had done. I took that information. I went and interviewed the five boys. Out of the five, only one made a disclosure at that time. The rest would not make disclosure at all. And they went into therapy for approximately a year. After that time, then they were able to come out and make a disclosure themselves. But this was after he had already told me exactly what he had done to the boys.

The court found Williams qualified as an expert witness based on his experience investigating crimes against children and his training in interviewing children. The disputed testimony illustrates Williams’s experience that children are not always able to disclose abuse immediately after it happens and does not improperly address C. M.’s credibility. Its admission was not erroneous.

4. Summage claims that the trial court improperly expanded the indictment by instructing the jurors on the statutory definition of child molestation, OCGA § 16-6-4, without specifically instructing them that Summage could be found guilty only if they determined the evidence showed he committed the offenses in the way and manner alleged in the indictment. He complains that the definition of child molestation includes “any immoral or indecent act” whereas the indictment charges him only with “an immoral and indecent act.”

In addition to charging the jury on the statutory definition of child molestation, the trial court read to the jurors the indictment charging Summage with three separate counts of child molestation, instructed the jurors that the State bears the burden of proving the material elements of the indictment and instructed the jurors that they were authorized to find Summage guilty only if they determined beyond a reasonable doubt that he committed the offense as alleged in the indictment. Thus, the charge as a whole was correct and properly limited the jury’s consideration of the child molestation charges to the manner alleged in the indictment.

5. Summage asserts that the trial court improperly instructed the jury that “[w]hen witnesses appear, they are presumed to speak the truth.” Because such an instruction can be misleading, Georgia appellate courts have recommended against its use. We strongly suggest that it not be used on retrial of this case.

Decided March 12, 2001.

Steel Law Firm, Brian Steel, Alan J. Baverman, for appellant.

Patrick H. Head, District Attorney, Marsha S. Lake, Maria B. Golick, Assistant District Attorneys, for appellee.

6. Summage’s remaining arguments relate to his claim of ineffective assistance of counsel. “[B]ecause the judgment is reversed and a new trial ordered, we find it unnecessary to address [Summage]’s allegations that trial counsel was ineffective.”

Judgment reversed and case remanded for new trial.

Johnson, P. J., and Smith, P. J., concur.

       An additional count of the indictment was dismissed at trial.

        Owens v. State, 248 Ga. 629, 631 (284 SE2d 408) (1981); see also Inglett v. State, 239 Ga. App. 524, 528 (7) (521 SE2d 241) (1999) (court did not err by replaying videotape of crime scene to jurors after they had begun their deliberations).

       See Fields v. State, 266 Ga. 241, 243 (2) (466 SE2d 202) (1996) (it is error to allow jury to take written or recorded statements into jury room during deliberations unless statements are consistent with defendant’s theory of case).

       Compare Nixon v. State, 234 Ga. App. 797, 798-800 (1) (507 SE2d 833) (1998).

       Compare Owens, 248 Ga. 629.

       See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976) (standard for reviewing nonconstitutional errors in criminal cases is highly probable test).

       271 Ga. 772, 774 (1) (523 SE2d 320) (1999).

       Id.

        Jowers v. State, 245 Ga. App. 773, 774 (1) (538 SE2d 853) (2000).

       Compare Frazier v. State, 241 Ga. App. 125, 126 (1) (524 SE2d 768) (1999).

       Id.

       See Odom v. State, 243 Ga. App. 227, 228 (1) (531 SE2d 207) (2000) (expert opinion testimony that directly addresses the child’s credibility is inadmissible, but the fact that such testimony indirectly though necessarily involves the child’s credibility does not render it inadmissible).

        Bean v. State, 239 Ga. App. 106, 111 (7) (521 SE2d 19) (1999).

        Noggle v. State, 256 Ga. 383, 385-386 (4) (349 SE2d 175) (1986); Henson v. State, 205 Ga. App. 419, 420 (3) (c) (422 SE2d 265) (1992).

        Slakman v. State, 272 Ga. 662, 671 (6) (533 SE2d 383) (2000).