author: Beasley, Presiding Judge.

text:
    A93A1112.
    TOPVALCO, INC. v. GARNER.
    (436 SE2d 25)
   Beasley, Presiding Judge.

Topvalco sued Garner for $8,265.60 and other damages based upon Garner’s default in rent and other charges due under a commercial lease. Garner answered and filed a counterclaim alleging that Topvalco had violated the lease and damaged Garner in an undetermined amount by causing Garner’s business to lose substantial profits.

Garner testified that she had been in the video rental business for over eight years. She opened stores in Hartwell (February 1984), Elberton (March), Toccoa (July), and a second in Toccoa (1985). The two Toccoa stores were later consolidated. All three stores were profitable, if not immediately then shortly thereafter, with Toccoa on top.

In 1987, Garner decided to open a video rental store in Athens. She was attracted to a Kroger shopping center called Westside Plaza, because it was on the Atlanta Highway, a major thoroughfare; she was aware of another video rental store in a Kroger shopping center which had been very successful; the Kroger in Westside Plaza was being converted to a Super Kroger; Athens was a university town comparable to Toccoa, which has several small colleges in surrounding areas, and she had enjoyed tremendous success with young people; there were high-density apartments as well as other residential areas and businesses nearby; and, prior to opening the Athens store, she went to other video stores in Athens, including those in the area of Westside Plaza, and determined she could fill a community need.

Garner and Topvalco entered into a three-year lease beginning April 1, 1988, at $700 per month for the first year, $750 per month for the second year, and $800 per month for the third year. It also called for $81 per month for common area maintenance. After entering into the lease, Garner closed the Hartwell and Elberton stores.

The Kroger did not have a video department, and Garner testified that she was told by the rental agent that the new Kroger would not have one either. However, it did, and although it was initially quite small, it was later expanded.

From the store’s first day, there were problems with loitering and parking as a result of a video arcade called Video Rama which was also in the shopping center. It attracted a group of people who loitered in the parking lot, parked illegally, sat on their cars, played loud music, drank beer, and carried on, to the extent that Garner and her employees feared for their safety and customers were unable to park at her store. These disruptions occurred mainly on weekends when most revenues from video rentals are derived. The parking lot would be strewn with empty beer bottles and litter, typically all weekend. She called the police on probably 50 occasions, but they could do nothing unless they saw an underage youth actually drinking. The youth avoided detection. Garner called the realty agent 24 times and complained in writing.

The Video Rama ceased its operation in November 1989. The last three months Video Rama was there, the shopping center provided security on Friday and Saturday nights. Garner testified that this kept the kids in their cars but provided a hostile environment because the security guards questioned anyone walking through the parking lot. Garner paid her rent and maintainance charges through April 1990 and vacated the premises on July 31.

Itemizing her expenses at the Athens store, Garner testified that her break-even point before paying herself a salary was roughly $4,300 per month, which was roughly comparable to the break-even point of her Toccoa store. Based upon all of the factors she testified to, she expected the Athens store to do as well.

Garner testified from her sales tax revenue records that the quarterly sales for her Athens store were $10,637, $16,226, and $13,856 in the second through the fourth quarters of 1988. They were $15,134, $11,518, $11,942, and $11,633 in the first through the fourth quarters of 1989. They were $14,284 and $11,557 in the first and second quarters of 1990, and they were $2,442 for July 1990. This totalled $119,259 over a 28-month period.

By comparison, the revenue sales from the Toccoa store were $30,803, $38,235, and $35,210 for the second through the fourth quarters of 1988. They were $39,888, $34,167, $43,154, and $40,155 for the first through the fourth quarters of 1989. They were $24,409 and $20,692 for the first and second quarters of 1990, and they were $8,146 for July 1990. This totalled $314,859 during the same 28-month period. She explained the drop in the first quarter 1990 revenues as resulting from the opening of a Blockbuster store.

Based on her experience, she testified that the reason she did not meet her expectations in Athens was mainly the security of the parking lot, although competition with the Kroger store contributed. She sought to recover lost income, rent paid, and approximately $11,500 expended by her for store improvements.

Garner’s counterclaim was predicated on two grounds: (1) Topvalco breached the lease agreement by allowing Kroger to rent videotapes, contrary to an exclusive use clause in the lease and representations by the rental agent that this would not occur; and (2) Topvalco failed to provide adequate security, contrary to a covenant of quiet enjoyment. At the close of the evidence, Topvalco moved for directed verdict on Garner’s counterclaim. The court denied the motion on the latter ground but granted it on the former.

Topvalco’s claim for rent and Garner’s counterclaim for damages were submitted to the jury, which returned a verdict in favor of Garner in the amount of $9,138.87 and against Topvalco. Judgment was entered accordingly.

1. Garner’s motion to dismiss this appeal is denied. See Honester v. Tinsley, 183 Ga. App. 146, 147 (1) (358 SE2d 295) (1987); Boatner v. Kandul, 180 Ga. App. 234 (2) (348 SE2d 753) (1986).

- 2. Topvalco contends that the court erred in denying its motion for directed verdict based on Garner’s waiver of the breach of the covenant of quiet enjoyment by remaining on the premises even though she had notice of the alleged breach since the inception of the lease.

Topvalco relies upon Flair Fashions v. SW CR Eisenhower Drive, 207 Ga. App. 78 (427 SE2d 56) (1993), and Forehand v. Perlis Realty Co., 198 Ga. App. 165, 169 (2) (400 SE2d 644) (1990). In each case, this Court held that, as a matter of law, the shopping center tenant had waived its claim that the landlord had breached the lease by not complaining until after being sued for non-payment of rent. In this case, the tenant continuously complained. She testified that she remained on the premises because she had sold two of her other stores in order to open the new one and had little choice but to try to make a go of it. Under these circumstances, whether the breach was waived was a jury question.

3. Topvalco contends that the trial court erred by allowing Garner to recover lost profits or revenues for a start-up venture with no track record of clearly defined business experience as to profit and loss.

“It is the general rule in this state, when the owner of a business seeks to recover lost profits, that recovery can be had only if the business has a proven ‘track record’ of profitability.” Stern’s Gallery of Gifts v. Corporate Property Investors, 176 Ga. App. 586, 592 (3) (337 SE2d 29) (1985). “ ‘A distinction is drawn between claims for profits derived from a new business venture and those derived from a going concern. The general rule is that evidence of expected profits from a new business is too speculative, uncertain, and remote to be considered, and does not meet the legal standard of reasonable certainty. Accordingly, recovery of lost profits is not generally allowed for injury to a new business with no history of profits.’ [Cit.]” Radio of Ga. v. Little, 129 Ga. App. 530, 534 (2) (199 SE2d 835) (1973).

The primary reason is that neither the revenues the new business would have generated nor the expenses it would have incurred but for the cessation of its operations due to the defendant’s breach of contract or commission of a tort can be projected with reasonable certainty. See Radio of Ga. v. Little, supra; see also Re/Max of Ga. v. Real Estate Group on Peachtree, 201 Ga. App. 787, 788 (2) (412 SE2d 543) (1991); Palm Restaurant of Ga. v. Prakas, 186 Ga. App. 223, 226 (5) (366 SE2d 826) (1988); Stern’s Gallery, supra; Molly Pitcher Canning Co. v. Central of Ga. R. Co., 149 Ga. App. 5, 10 (4) (253 SE2d 392) (1979); compare Bennett v. Smith, 245 Ga. 725 (267 SE2d 19) (1980); Moultrie Farm Center v. Sparkman, 171 Ga. App. 736, 738 (3) (320 SE2d 863) (1984); Kitchens v. Lowe, 139 Ga. App. 526, 529 (3) (228 SE2d 923) (1976).

Here, like Bennett and unlike Radio of Ga., Garner proved revenues actually generated and expenses actually incurred. But it is a new business venture, and she had the difficult burden of proving that Topvalco was the cause of the new business’ failure to generate revenues. “ ‘The rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages . . .’ [Cits.]” Molly Pitcher, supra, 149 Ga. App. at 11. “[T]he losses must be directly traceable to the acts of the other party. [Cit.]” Grossberg v. Judson Gilmore Assoc., 196 Ga. App. 107, 109 (2) (395 SE2d 592) (1990). Garner did not carry this burden, if for no other reason than that after Video Rama left the shopping center and the breach of the covenant of quiet enjoyment had ended, Garner’s revenues did not exceed those generated during the breach.

Decided September 2, 1993

Reconsideration denied September 23, 1993.

W. Glover Housman, Jr., for appellant.

Heard, Leverett & Phelps, R. Chris Phelps, for appellee.

Garner’s failure to meet her revenue expectations at the Athens store may have been caused by Kroger’s competition, among other causes. The trial court ruled that such competition did not violate the lease, and Garner has not cross-appealed from this ruling. However, she also sought to recover the cost of improvements she made to the store in addition to lost profits or revenues, and Topvalco has not enumerated error on the submission of this issue to the jury. Since it appears that at least part of the verdict awards Garner damages for lost profits or revenues, and since this part of the verdict is not separable from the rest, the judgment on the counterclaim must be reversed. See Co-op Cab Co. v. Arnold, 106 Ga. App. 160, 165 (126 SE2d 689) (1962). The judgment on the complaint is affirmed.

Judgment affirmed in part and reversed in part.

Cooper and Smith, JJ., concur.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A93A1317.
    COLSTON v. FRED’S PEST CONTROL, INC.
    (436 SE2d 23)
   Blackburn, Judge.

On February 4, 1992, the appellant/plaintiff, Jerrold Colston, brought the instant action against the appellee/defendant, Fred’s Pest Control, Inc. (Fred), for Fred’s alleged negligence in the inspection and treatment of Colston’s home and for Fred’s failure to provide Colston with protection from termites pursuant to a contractual agreement. Fred responded to the complaint on March 4, 1992, denying liability and asserting several defenses. On April 14, 1992, 41 days after the filing of its initial responsive pleading, Fred amended his answer, and asserted that Colston failed to contemporaneously file an expert affidavit with his complaint for professional negligence, and as a result, the complaint did not comply with OCGA § 9-11-9.1. Seven months later, Fred filed a motion to dismiss the complaint based upon Colston’s failure to file an expert affidavit, and the trial court granted the motion. This appeal followed.

Colston contends that the trial court erred in granting Fred’s motion to dismiss. He further maintains that the trial court incorrectly applied the standards enunciated by our Supreme Court in Gillis v. Goodgame, 262 Ga. 117 (414 SE2d 197) (1992), and Glaser v. Meck, 258 Ga. 468 (369 SE2d 912) (1988).

In Gillis, Gillis sued a physician and a radiological physicist based upon their alleged failure to exercise the requisite degree of medical care, diligence and skill exercised by physicians in general. Although she attached to her complaint, pursuant to OCGA § 9-11-' 9.1, an expert affidavit concerning the professional negligence of the physician, she did not attach to the complaint an affidavit concerning the professional negligence of the physicist. The Supreme Court, in reversing the grant of the motion to dismiss, concluded “that the affidavit requirements of § 9-11-9.1 apply only to those professions recognized under Georgia law in OCGA §§ 14-7-2 (2); 14-10-2 (2) and 43-1-24.” Id. at 118.

Under OCGA § 14-10-2 (2), the term “ ‘professional service’ means the personal services rendered by attorneys at law and any type of professional service which may be legally performed only pursuant to a license from a state examining board pursuant to Title 43. . . .” Moreover, OCGA § 43-45-24 mandates that any person, firm, corporation, or association engaging in household pest control, control of wood-destroying organisms, fumigation, or related work, first secure a license from the State Structural Pest Control Commission, which provides for the examination of applicants, for the purpose of performing such work or risk misdemeanor prosecution. Based upon the statutory definition of professional service, Fred’s control and treatment of wood-destroying organisms is deemed a profession under Gillis. “However, it is clearly not the defendant’s professional status which determines whether a suit in negligence is a malpractice action within the ambit of OCGA § 9-11-9.1. . . . The determinative factor as to whether a suit in negligence is or is not a malpractice action within the ambit of OCGA § 9-11-9.1 is the- existence or absence of allegations that the defendant-professional has rendered negligent professional services.” Jordan, Jones & Goulding v. Wilson, 197 Ga. App. 354, 355 (398 SE2d 385) (1990). Considering the allegations in the complaint that Fred “was negligent in the inspection and treatment of [Colston’s] home and failed to provide [Colston] with the protection from termites as agreed upon,” which “ ‘calls into question the conduct of [Fred as] a professional in [its] area of expertise,’ ” Lutz v. Foran, 262 Ga. 819, 820 (2) (427 SE2d 248) (1993), we must conclude that this action is one involving professional malpractice which mandates the contemporaneous filing of an expert affidavit. As this is a professional malpractice case, “the basis of legal liability is whether [Fred] exercised a reasonable degree of skill and care, as determined by the degree of skill and care ordinarily employed by respective professions under similar conditions and like surroundings.” (Citation and punctuation omitted.) Roebuck v. Smith, 204 Ga. App. 20, 21 (418 SE2d 165) (1992).

However, Colston’s failure to file an expert affidavit based upon the facts in this case does not warrant the dismissal of the action because Fred did not assert this affirmative defense in its initial responsive pleading. OCGA § 9-11-9.1 (e) provides that “if a plaintiff fails to file an affidavit as required by this Code section contemporaneously with a complaint alleging professional malpractice and the defendant raises the failure to file such an affidavit in its initial responsive pleading, such complaint is subject to dismissal for failure to state a claim. . . .” (Emphasis supplied.) As our legislature has limited a plaintiff’s ability to amend a complaint for the inclusion of an affidavit to only those circumstances enunciated in OCGA § 9-11-9.1 (b), the legislature has likewise limited a defendant’s assertion of the plaintiff’s failure to file an expert affidavit as an affirmative defense. “Where the statutory language is plain and unequivocal, judicial construction is unauthorized. . . . [Cits.]” Housing Auth. of Savannah v. Greene, 259 Ga. 435, 438 (4) (383 SE2d 867) (1989). In the case sub judice, Fred did not raise the defense of Colson’s failure to file an affidavit in its initial responsive pleading of March 4, 1992, and in fact, amended its answer 41 days later solely to assert this defense. Inasmuch as Fred failed to assert the defense in its initial responsive pleading as required by OCGA § 9-11-9.1 (e), the trial court erred in granting Fred’s motion to dismiss.

Our decision is consistent with the Supreme Court’s ruling in Glaser, supra. In Glaser, the Supreme Court refused to allow Meek, a physician, to assert the same defense in an amended pleading filed three months after the filing of the initial response. Although the court was especially concerned with the assertion of the defense after the expiration of the statute of limitation, which has not been addressed as a concern in the case sub judice, the court reversed the trial court’s grant of the motion to dismiss, refusing to reward the physician for a pleading default while penalizing Glaser for a pleading default. We likewise refuse to reward Fred for the untimely assertion of the defense. Accordingly, the decision of the trial court must be reversed.

Decided September 1, 1993

Reconsideration denied September 23, 1993

William H. McWhorter, Jr., for appellant.

Chambless, Higdon & Carson, Thomas F. Richardson, for appellee.

Judgment reversed.

McMurray, P. J., concurs. Johnson, J., concurs in the judgment only.


author: Andrews, Judge.

text:
    A92A0299.
    BURGESS v. THE STATE.
    (436 SE2d 84)
    Decided September 23, 1993.

      Murphy, Murphy & Garner, Stephen E. Garner, for appellant.

      William A. Foster III, District Attorney, Jeffrey L. Ballew, Assistant District Attorney, for appellee.
   Andrews, Judge.

In Burgess v. State, 204 Ga. App. 766 (420 SE2d 590) (1992), we affirmed Burgess’ conviction for attempting to elude a police officer, but reversed his conviction for violation of OCGA § 16-13-30.1. The Supreme Court granted certiorari and reversed our decision reversing Burgess’ conviction for violation of OCGA § 16-13-30.1 in Burgess v. State, 263 Ga. 143 (429 SE2d 252) (1993). Accordingly, our judgment in this case is vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Beasley, P. J., Cooper, Johnson, Blackburn and Smith, JJ., concur.


author: Johnson, Judge.

text:
    A93A1097.
    HUNTER TURNKEY, INC. v. PILOT PROPERTY COMPANY.
    (436 SE2d 84)
   Johnson, Judge.

Canterbury Trails, Ltd. owned the Kensington Apartments. Pilot Property Company acted as Canterbury’s agent in managing the apartment complex. Hunter Turnkey, Inc., pursuant to oral agreements with Pilot, provided various maintenance services at the complex. Hunter was not paid for the services and filed a lawsuit against Pilot seeking payment. Pilot denied acting in its individual capacity, contending that it dealt with Hunter solely in its capacity as Canterbury’s agent. The trial judge, sitting without a jury, entered judgment in favor of Pilot. Hunter appeals, arguing that the court’s judgment that Pilot is not personally liable is contrary to the evidence.

Decided September 23, 1993.

Smith, Welch & Studdard, Benjamin W. Studdard III, for appellant.

Trauner, Cohen & Thomas, Russell S. Thomas, for appellee.

“ ‘In order to avoid personal liability an agent is under a duty to disclose the fact of his agency and the identity of his principal, and one who deals with an agent who fails to disclose his principal may at his election recover from either the agent or the principal. The disclosure of an agency is not complete for the purpose of relieving the agent from personal liability unless it embraces the name of the principal.’ [Cits.]” Collins v. Brayson Supply Co., 157 Ga. App. 438 (278 SE2d 87) (1981); see also Wojcik v. Lewis, 204 Ga. App. 301, 304 (2) (419 SE2d 135) (1992). Here, the uncontradicted evidence shows that Pilot never disclosed to Hunter the fact of its agency or the identity of Canterbury as its principal. There is some evidence from which the court could have found that Hunter, despite the lack of disclosure by Pilot, knew from other circumstances that Pilot merely managed the property and did not own it. Nonetheless, there is absolutely no evidence that Pilot ever disclosed to Hunter the name of Canterbury as the property owner and principal. Because Pilot did not meet its duty of disclosing the name of Canterbury as its principal, Pilot is not relieved from personal liability for the services provided by Hunter. Allen v. Sun Concrete Co., 185 Ga. App. 662, 663 (365 SE2d 506) (1988). The trial court’s judgment that Pilot is not personally liable is not supported by any evidence and therefore must be reversed. See generally Decatur Co. v. Bowen, 203 Ga. App. 84, 87-88 (1, 2) (416 SE2d 304) (1992).

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A93A1370.
    HARRIS v. THE STATE.
    (436 SE2d 231)
   Andrews, Judge.

Ronald Keith Harris was found guilty by a jury and convicted of speeding and driving an automobile while his alcohol concentration was at least .10 grams as prohibited by OCGA § 40-6-391 (a) (4). At about 3:50 a.m. on November 7, 1991, a Cobb County police officer visually observed and registered Harris on radar driving his car north on Interstate 75 at about 90 mph. After stopping Harris for speeding, the officer noticed the smell of alcohol on his breath, and noticed Harris’ eyes appeared bloodshot, and his speech was slurred. Upon failing various field sobriety tests administered by the officer at the scene, Harris was arrested, charged with speeding and driving under the influence, and subsequently registered .14 grams of alcohol concentration on a test conducted on an Intoximeter 3000 machine.

1. Harris argues on appeal that the results of the various field sobriety tests given to him by the arresting officer at the scene should have been suppressed because he was in custody at the time, and the officer failed to inform him of his federal and state constitutional rights prior to administering the tests. In his motion to suppress, denied by the trial court, Harris contended that he was illegally stopped without probable cause, and that the State intended to “introduce evidence concerning Defendant’s demeanor, results of a breath test, [and] statements of the Defendant made while in custody without the benefit of advice of his federal constitutional rights. . . .” The motion to suppress filed in the trial court did not raise the issue of suppression of the field sobriety tests, the record does not show that this issue was raised in arguments or briefs on the suppression motion in the trial court, and the trial court did not rule on this issue in its order denying Harris’ motion to suppress. Accordingly, the enumeration presents nothing for appellate review. Smith v. State, 205 Ga. App. 848-849 (424 SE2d 60) (1992). In any event, even if the issue had been properly raised, the enumeration is without merit. Lankford v. State, 204 Ga. App. 405, 406-407 (419 SE2d 498) (1992).

2. There is no merit in Harris’ claim that the trial court erred by admitting evidence of a prior DUI offense as a similar transaction. The hearing conducted by the trial court was sufficient. “While defendant has a right to a hearing on the similarity of other transactions sought to be introduced into evidence, it need not be a full evidentiary hearing and it is sufficient if the prosecutor shows the requisite similarity of the previous transaction by stating in his place the nature of the evidence to be given regarding the similar transaction. [Cit.]” Johnson v. State, 204 Ga. App. 453 (419 SE2d 741) (1992). The evidence showed a sufficient similarity between the first offense occurring about one year prior to the present offense in that Harris was stopped both times in Cobb County for speeding while traveling on similar northbound routes in the early morning hours, driving the same car. The similar transaction was admissible for the purpose of showing motive, bent of mind, and propensity for committing the same type of offense. Hansen v. State, 205 Ga. App. 604, 605-606 (423 SE2d 273) (1992); Lankford, supra at 408; Blane v. State, 195 Ga. App. 504 (393 SE2d 759) (1990). The first incident, which culminated in a plea of nolo contendere, was not rendered inadmissible under OCGA § 17-7-95 (c), because the State made no reference to the plea. Hansen, supra at 607.

3. Even if the State failed to lay the necessary foundation for introduction of radar evidence of Harris’ speed, the arresting officer’s testimony that he observed Harris driving at an estimated speed of 90 mph was sufficient to support the speeding conviction. Brown v. State, 204 Ga. App. 629 (420 SE2d 35) (1992), overruled on other grounds, Carver v. State, 208 Ga. App. 405 (430 SE2d 790) (1993); Taylor v. State, 205 Ga. App. 84 (421 SE2d 104) (1992), overruled on other grounds, Carver v. State, supra.

4. In his fourth enumeration of error, Harris claims the State failed to lay a proper foundation for admissibility of the results of the test administered to him on the Intoximeter 3000 machine showing he had an alcohol concentration of .14 grams. Harris objected at trial that Officer Vaughn, who testified he administered the test and testified to the foundational facts supporting admission of the test results, could not remember giving the test to Harris. Officer Vaughn testified he had given hundreds of such tests on the machine, and that he could not remember what Harris looked like or identify him. However, after reviewing the printed test results from the machine, Vaughn was able to testify that he remembered giving the test to a subject named Ronald Keith Harris on November 3, 1991 at about 4:50 a.m. The arresting officer testified that Harris was arrested on the present charges, and brought in for the test administered by Officer Vaughn, on the same date and time. This was sufficient to show that the test was administered to Harris by Officer Vaughn, who otherwise testified to the foundational elements necessary for admission of the test results. See Mullís v. State, 201 Ga. App. 75, 77 (410 SE2d 182) (1991); Riley v. State, 175 Ga. App. 810-811 (334 SE2d 863) (1985).

5. Harris contends the trial court erred by refusing to allow an expert in chemistry with experience in the field of alcohol and drug testing to testify about the possibility of error in the test results produced by the Intoximeter 3000 machine. See Lattarulo v. State, 261 Ga. 124, 126 (401 SE2d 516) (1991) (accused may produce evidence of the possibility of error or circumstances that may cause the machine to malfunction). The trial court allowed the expert to testify about machines which operated on principles similar to the Intoximeter 3000, and the possibility of error in these alcohol measuring devices, but would not allow the expert to testify specifically about the possibility of error in the Intoximeter 3000, apparently on the basis that the expert was not certified to operate the machine. Even assuming the expert was just as qualified to testify about the principles governing the operation of the Intoximeter 3000 as he was about the same principles governing similar machines, we find no reversible error in the exclusion of this testimony. Harris had already produced another expert who testified specifically about the Intoximeter 3000, the principles on which it operates, and the possibility of error in the test results of the machine, so the excluded testimony would have been cumulative of testimony already in evidence. See Chisholm v. State, 199 Ga. App. 746, 747 (406 SE2d 112) (1991); Green v. State, 206 Ga. App. 42, 44 (424 SE2d 646) (1992); Jones v. Scarborough, 194 Ga. App. 468, 470-471 (390 SE2d 674) (1990).

Decided September 23, 1993.

Spruell & Dubuc, Brian M. Dubuc, for appellant.

Benjamin F. Smith, Jr., Solicitor, Barry E. Morgan, Mary L. Kendall, Assistant Solicitors, for appellee.

6. The trial court’s charge in this case regarding the State’s burden to prove guilt beyond a reasonable doubt was substantially similar to the charge recommended by the Council of Superior Court Judges of Georgia in the Suggested Pattern Jury Instructions, including use of the phrase “moral and reasonable certainty” as part of the description of the burden. In a case decided after the present trial, the Supreme Court noted that the better charge on burden of proof “would not include the unnecessary phrase ‘moral and reasonable certainty.’ ” Vance v. State, 262 Ga. 236, 238, n. 5 (416 SE2d 516) (1992). Nevertheless, the charge as a whole accurately instructed the jury on the burden of proof. Id.

7. There was no error in the trial court’s denial of Harris’ motion for a new trial.

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.


text:
    A93A1512.
    GOODMAN v. THE STATE.
    (436 SE2d 85)
   Blackburn, Judge.

On February 21, 1992, a Fulton County Grand Jury indicted appellant, Kent Goodman, for possession of cocaine with intent to distribute. The trial court denied Goodman’s motion to suppress the evidence. Thereafter, Goodman reserved the right to appeal the denial of the motion to suppress and pled guilty to the crime charged. On appeal, Goodman’s sole enumeration of error raises the trial court’s denial of his motion to suppress the evidence.

On January 4, 1992, at 8:30 p.m., Officer M. J. Brown, with the Atlanta Police Department, and two other officers were approached by a woman who stated that two black males in a late-model-brown Nova were selling narcotics in the area of Hobson and Mary Streets. The officers immediately proceeded to that area and arrived there in approximately one minute. Upon their arrival at the scene, Officer Brown noticed a black male sitting in the driver’s seat of a brown Nova parked on Hobson Street. Officer Brown approached the vehicle and noted that Goodman was sitting in the driver’s seat and that the keys were in the ignition. Goodman informed Officer Brown that he had just driven to that location and was waiting for a friend to go buy beer. Officer Brown requested Goodman’s driver’s license and proof of insurance, which Goodman was unable to produce. Goodman told Officer Brown that his name was “Kenny Goodman.”

Officer Brown then moved Goodman to the patrol car and requested a check for driver’s license on Goodman through tactical radio. While they waited for the license check, Officer Brown backed his car out of sight of the brown Nova. Officer Brown testified that Goodman stated that his friend was Bobby Ingram and Goodman described what Ingram was wearing. Upon Ingram’s approach to the vehicle, a chase ensued in which Ingram was eventually caught and searched. During the search of Ingram, the officers discovered cocaine. At approximately the same time, Officer Brown was informed over tactical radio that there was no driver’s license under the name “Kenny Goodman.” Thereafter, Officer Brown arrested Goodman for failure to have his driver’s license or proof of insurance and as a party to a crime involving possession of cocaine with intent to distribute. Officer Brown conducted a search of Goodman incident to arrest and found 21 hits of crack cocaine in Goodman’s groin area. It was later determined that Goodman did have a driver’s license under the name “Kent Goodman”; therefore, Goodman was never charged with driving without a license.

On appeal, Goodman contends that the initial stop was pretextual. The initial stop of Goodman can be described as a Terry-type stop, which must be supported by reasonable suspicion. State v. Corbett, 205 Ga. App. 554, 555 (423 SE2d 38) (1992). Officer Brown’s reasonable suspicion was based on information obtained from an apparent concerned citizen and the officer’s immediate corroboration of the basic facts supplied. The fact that the informant was not shown to be reliable is not relevant to our inquiry. An inquiry into the indicia of reliability of the informant is appropriate when determining the presence or absence of probable cause, but is inapplicable to evaluating information prompting a mere investigatory stop. Watson v. State, 159 Ga. App. 618, 619 (284 SE2d 636) (1981).

In order to continue the investigation, in light of Goodman’s lack of a driver’s license while in control of a motor vehicle, Goodman was detained briefly by being placed in the patrol car. “Where the officer has the reasonable suspicion which will justify detaining a suspect briefly, we have approved of detention in the back seat of a patrol car for 10 to 15 minutes as being within the duration of the seizure contemplated under Terry v. Ohio.” State v. Corbett, supra at 556.

Decided September 23, 1993.

Dwight L. Thomas, for appellant.

Lewis R. Slaton, District Attorney, Nancy A. Grace, William W. Fincher, Assistant District Attorneys, for appellee.

In his testimony at the motion to suppress, Goodman contradicted Officer Brown’s testimony regarding the events. However, at a suppression hearing, the trial court is the trier of fact and its decision regarding credibility must be accepted unless clearly erroneous. Harris v. State, 205 Ga. App. 813, 814 (423 SE2d 723) (1992). A review of the record indicates that the trial court’s denial of Goodman’s motion to suppress was not erroneous.

Judgment affirmed.

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


text:
    A93A1638.
    BELL v. CITY OF ALBANY. DANIEL v. BELL.
    A93A1639.
    (436 SE2d 87)
   Andrews, Judge.

After Bell drove his car into a utility pole, he was arrested by City of Albany police and charged with driving under the influence of alcohol, driving on a suspended license, and no insurance. Evidence showed Bell was heavily intoxicated, exhibiting slurred and incoherent speech, and needing assistance to walk. Bell was handcuffed at the scene by Officer Daniel of the Albany police department, and taken to the police station for an intoximeter test, which he either refused or was unable to take. Bell was able to walk to the booking desk with support from Officer Daniel. After being either unwilling or unable to respond to the booking officer, Officer Daniel started to walk Bell over to the adjacent jail. Up to this point, Bell had not physically resisted the arrest. However, as Officer Daniel opened the door from the booking area, Bell suddenly refused to go through the doorway, and began to physically resist the officer’s attempt to take him through the doorway. Officer Daniel grabbed Bell, and as the officer forcibly struggled to move Bell in front of him through the doorway the officer lost control of Bell as Bell fell forward through the doorway taking Officer Daniel down with him. Bell, who was still handcuffed at the time, struck his head on a car parked just outside the doorway, and suffered a fractured skull. Although the booking officer called for another officer to help Officer Daniel when the struggle began, the fall occurred before the other officer, could assist.

Alleging negligent and intentional torts under state law, Bell sued Officer Daniel individually for actions taken in his official capacity as an Albany police officer alleged to have caused the injury, and sued the City of Albany on the basis of respondeat superior. Alleging violation of federal rights, Bell’s suit also stated a cause of action pursuant to 42 USC § 1983 seeking to impose personal liability on Officer Daniel for his actions, and liability on the City of Albany claiming the injury resulted from City policy or custom. The trial court entered an order granting the City of Albany’s motion for summary judgment on the state and federal claims. In Case No. A93A1638, Bell appeals from a portion of this order, alleging that the trial court erred in concluding there was no evidence of a City policy or custom which caused the injury, and in granting summary judgment in favor of the City on his claims pursuant to 42 USC § 1983. In the same order, the trial court denied Officer Daniel’s motion for summary judgment in which he sought a ruling that he was entitled, as a matter of law, to qualified immunity on the claims brought pursuant to 42 USC § 1983. In Case No. A93A1639, Daniel cross-appeals from the denial of his motion for summary judgment.

Case No. A93A1638

Under 42 USC § 1983: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. ...” The statute creates no substantive rights; rather it provides a remedy for federal rights found elsewhere, and supports a cause of action which may be brought in state as well as federal court. Oklahoma City v. Tuttle, 471 U. S. 808, 816 (105 SC 2427, 85 LE2d 791) (1985); Davis v. City of Roswell, 250 Ga. 8 (295 SE2d 317) (1982). Municipalities are persons under the statute held accountable if the deprivation of rights alleged was the result of a municipal policy or custom. Monell v. Dept. of Social Services of New York City, 436 U. S. 658 (98 SC 2018, 56 LE2d 611) (1978); Armour v. Davidson, 203 Ga. App. 12 (416 SE2d 92) (1992).

Bell argues that the City of Albany had a policy authorizing the use of excessive force against Bell, and an informal policy or custom of permitting a single police officer to handle and escort highly intoxicated and handcuffed arrestees despite a high risk of injury to the arrestee. Although not clearly stated, the latter allegation appears to include a claim that the injury resulted from a policy of inadequate police training with respect to handling intoxicated arrestees. The only evidence adduced by Bell in support of these contentions was the single incident in which Bell was injured while struggling with Officer Daniel, a non-policymaking employee of the City. In some instances a single decision by municipal policymakers, or a single implementation of a municipal policy or custom by a municipal employee, may be sufficient to establish that a municipal policy or custom caused the alleged deprivation, but municipal liability may not be imposed pursuant to 42 USC § 1983 for a single incident of unconstitutional conduct by a municipal employee without proof that the conduct was taken pursuant to a municipal policy or custom. Pembaur v. Cincinnati, 475 U. S. 469, 478-482 (106 SC 1292, 89 LE2d 452) (1986).

There was no evidence of any official City policy or custom of using excessive force against arrestees, nor was there any evidence that the City endorsed a policy or custom of handling intoxicated arrestees in a manner which resulted in injury. There was no evidence of other incidences of such conduct suggesting any widespread informal policy or practice constituting a custom or usage with the force of law. City of St. Louis v. Praprotnik, 485 U. S. 112, 127 (108 SC 915, 99 LE2d 107) (1988); Armour, supra at 13. Neither was there evidence sufficient to create any factual issue in support of any claim of inadequate training. “[I]f a city employee violates another’s constitutional rights, the city may be liable if it had a policy or custom of failing to train its employees and that failure to train caused the constitutional violation. . . . [inadequate training of police officers [can] be characterized as the cause of the constitutional tort if — and only if — the failure to train amounted to ‘deliberate indifference’ to the rights of persons with whom the police come into contact.” Collins v. Harker Heights, 503 U. S. _ (112 SC 1061, 117 LE2d 261, 272) (1992) (construing Canton v. Harris, 489 U. S. 378 (109 SC 1197, 103 LE2d 412) (1989)). The evidence showed that City police officers received appropriate training in dealing with intoxicated arrestees. Even assuming that there was evidence to support a factual issue as to whether the training was completely adequate, there was certainly no evidence of a failure to train amounting to deliberate indifference.

The trial court properly granted summary judgment in favor of the City of Albany.

Case No. A93A1639

Government officials performing discretionary functions are granted a qualified immunity shielding them from imposition of personal liability pursuant to 42 USC § 1983 “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U. S. 800 (102 SC 2727, 73 LE2d 396) (1982); Forney v. Purvis, 190 Ga. App. 192, 195-196 (378 SE2d 470) (1989). Thus, the test is applied by considering the objective reasonableness of the official’s actions (irrespective of his subjective beliefs) in light of legal rules which were clearly established at the time the action was taken. Harlow, supra, 457 U. S. at 818-819. “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful. . . but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” (Citations and punctuation omitted.) Anderson v. Creighton, 483 U. S. 635, 640 (107 SC 3034, 97 LE2d 523) (1987).

Although Bell’s 42 USC § 1983 action does not clearly state the substantive right he claims was violated, his injury was suffered when Officer Daniel used physical force in the course of procedures effecting Bell’s arrest, prior to actual detention on the charges, and the claim is properly analyzed as an excessive force claim under the objective reasonableness standard applicable to the Fourth Amendment’s prohibition against unreasonable seizures of the person. Graham v. Connor, 490 U. S. 386 (109 SC 1865, 104 LE2d 443) (1989). “Determining whether the force used to effect a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake. Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. Because the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application, however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.

The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . .With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.

As in other Fourth Amendment contexts, however, the reasonableness inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” (Citations and punctuation omitted.) Id. 490 U. S. at 396-397.

Having stated the legal rules applicable to the use of physical force during the arrest, in deciding whether qualified immunity will be granted we must consider whether the force used by Officer Daniel, under the circumstances presented, was such that it would have been clear to a reasonable police officer that using such force would violate Bell’s rights under the Fourth Amendment not to be subjected to an unreasonable use of force during his arrest. In other words, even if we concluded, with the benefit of hindsight, that Officer Daniel violated Bell’s constitutional rights, if a reasonable officer under the same circumstances would have acted similarly, then Officer Daniel is entitled to the shield of qualified immunity. Under this standard, we conclude that it would not have been clearly evident to a reasonable police officer that Officer Daniel’s use of force was excessive or unreasonable. Although the injuries suffered by Bell were serious and unfortunate, the force which Bell contends caused them did not exceed the means a reasonable police officer would have employed under similar circumstances in response to Bell’s resistance to arrest. Moreover, we find no evidence that Officer Daniel should have reasonably anticipated that, by himself, he would be unable to adequately control Bell during the arrest. “[I]n such cases those [officers] — like other officials who act in ways they reasonably believe to be lawful — should not be held personally liable.” Anderson, supra, 483 U. S. at 641. We find, as a matter of law, that Officer Daniel’s actions were an objectively reasonable use of force under the circumstances, and that he is entitled to the protection of qualified immunity.

Decided September 23, 1993.

Short, Fowler & Castellow, James M. Bivins, for Bell.

Black & Black, Eugene C. Black, Jr., Al Grieshaber, Jr., for City of Albany and Daniel.

The trial court erred by denying Officer Daniel’s motion for summary judgment on the issue of qualified immunity from Bell’s claims under 42 USC § 1983.

Judgment affirmed in Case No. A93A1638, and reversed in Case No. A93A1639.

Pope, C. J., and Birdsong, P. J., concur.

       Although not raised by the parties, prior to analyzing whether the City is liable for injury to Bell resulting from a policy or custom, the initial question is whether the evidence shows that the injury to Bell was caused by a deprivation of any federal rights. Collins, supra, 117 LE2d at 270. Under the present facts, even if there had been evidence of the City policies or customs alleged by Bell, if Officer Daniel did not violate Bell’s constitutional rights (see Case No. A93A1639, infra), there would be no basis for City liability under 42 USC § 1983. See Williams v. Richmond County, 804 FSupp. 1561, 1568-1570 (S.D. Ga. 1992) (court granted summary judgment in favor of defendants on 42 USC § 1983 claim on basis that use of force did not violate plaintiff’s Fourth Amendment rights, thus there was no need to reach issues of governmental policy or custom).

       It is undisputed that Officer Daniel was in the exercise of a discretionary function when he took the actions at issue in this appeal.

       Bell’s claim in a separate count of his complaint that his Eighth Amendment right to be free from cruel and unusual punishment was violated has no merit since this right would apply to punishment inflicted on a convicted inmate. See Long v. Jones, 208 Ga. App. 798 (432 SE2d 593) (1993).

       Qualified immunity is a question of law for the court. Stone v. Peacock, 968 F2d 1163, 1165-1166 (11th Cir. 1992).

       The facts of this case support not only an award of qualified immunity to Officer Daniel, but would also support the conclusion that there was no unreasonable use of force sufficient to support a claim that Bell’s Fourth Amendment rights were violated. This is not to say that an award of qualified immunity to a defendant in other cases would be equivalent to concluding that the defendant’s conduct demonstrated no constitutional violation.


text:
    A93A2044.
    KENDRICK v. JAEGER et al.
    (436 SE2d 92)
   Blackburn, Judge.

Appellant James Kendrick d/b/a Town and Country Landscape (Kendrick), filed the underlying action sounding in libel against Dale Jaeger, individually and as agent for Jaeger/Pyburn, Inc. and the Jaeger Company (Jaeger), for statements made by Jaeger to the Gaines-ville City Council which were subsequently published in The Gaines-ville Times. The trial court granted Jaeger’s motion for summary judgment and this appeal followed.

It is undisputed that in March 1992 Jaeger was a professional landscape designer who was working with the City of Gainesville pursuant to a contract between the city and Jaeger. Jaeger provided design services, bidding assistance, and contract administration relating to irrigation and landscape improvements to the Gainesville Civic Center. Jaeger analyzed the bids presented by eight companies to complete the landscape improvements. With regard to each of the bids, Jaeger evaluated the size of the projects previously performed by each landscaping company, contacted the references provided by each landscape contractor, viewed projects previously completed by each bidder, evaluated the bids in relation to each other, and figured the overall cost of each bid to the city. Thereafter, Jaeger concluded that the project should be awarded to the contractor with the third lowest bid. It is further undisputed that Kendrick submitted the lowest bid. On March 19, 1992 and April 7, 1992, Jaeger presented her opinion to the Gainesville City Council. She displayed slides depicting landscape projects performed by the lowest bidders. On April 7, 1992, the city council voted to award the contract to a contractor other than Kendrick.

Kendrick averred in his complaint that on March 20, 1992, The Gainesville Times published an article containing statements made by Jaeger concerning her evaluation of the bids. Jaeger is quoted as saying, “It’s important that we have a good impression.” Kendrick further alleges that the article continues with Jaeger stating that she believes the extra expenditure of taxpayer money is worth it, and that her choice for the job could handle the project better than the two lower bidders. In an article published April 3, 1992, Jaeger is quoted as saying that her choice was the “lowest responsible bidder based on its record of completing projects of the magnitude of the civic center and based on their quality of work.” Kendrick contends that by these statements “a direct reference is made to [Kendrick], as an entity incapable of handling the project and providing a low quality of work.”

We have previously determined that “[t]here is no wholesale defamation exemption for anything that might be labeled opinion. To say otherwise would ignore the fact that expressions of opinion may often imply an assertion of objective fact.” (Citation and punctuation omitted.) Eidson v. Berry, 202 Ga. App. 587 (415 SE2d 16) (1992). However, “[t]he expression of opinion on matters with respect to which reasonable men might entertain differing opinions is not libeloüs. . . . An assertion that cannot be proved false cannot be held libelous. A writer cannot be sued for simply expressing his opinion of another person, however unreasonable the opinion or vituperous the expressing of it may be. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” (Citations and punctuation omitted.) Bergen v. Martindale-Hubbell, 176 Ga. App. 745, 747 (337 SE2d 770) (1985).

Decided September 23, 1993.

Whitmer & Law, Raymond E. George, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Gregory H. Wheeler, for appellees.

“As a general rule, the question of whether a particular publication is libelous is a question for the jury. If its meaning is not ambiguous and can reasonably have but one interpretation, the question is one of law for the judge[;] . . . the trial judge, reading and construing the publication as a whole, may find that it is not defamatory, that it is defamatory, or that it is ambiguous and the question is one for a jury.” (Citations and punctuation omitted.) Morrison v. Hayes, 176 Ga. App. 128, 129 (335 SE2d 596) (1985).

The statements made by Jaeger were an expression of her opinion that one contractor was more suited for a job than another. It is abundantly clear that reasonable people could hold differing opinions on this issue. It is also clear that Jaeger’s statements were neither defamatory nor ambiguous; therefore, the trial court properly granted Jaeger’s motion for summary judgment.

Judgment affirmed.

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

       However, Jaeger’s statements do not make a “direct reference” to Kendrick; therefore, if any reference is found, it must be implied.


text:
    A93A2106.
    OWENS v. UNION CITY CHRYSLER-PLYMOUTH, INC.
    (436 SE2d 94)
   Blackburn, Judge.

The appellant, Betty Owens, commenced this action against Union City Chrysler-Plymouth, Inc. (UCCP), alleging that a UCCP salesperson fraudulently induced her to purchase a used car by stating that the vehicle had never been wrecked, when in fact it had. In her original complaint, Owens sought $25,000 compensatory damages and $100,000 punitive damages, and in an amendment she also requested rescission of the sales contract. UCCP moved for summary judgment on the grounds that Owens’ affirmance of the sales contract containing a merger clause defeated the claim. The trial court granted UCCP’s motion, and this appeal followed.

On February 7, 1991, Owens and her sister visited UCCP’s dealership to shop for a car. After determining that a new automobile was too expensive, Owens settled on a used 1990 Eagle Talon. Owens claims in this action that twice during the sale negotiations, the UCCP salesperson assured her that the car had never been wrecked.

The day after she purchased the car, Owens began to notice problems with it, and she was subsequently advised that the vehicle previously had been involved in a collision. Owens then met with UCCP’s floor manager and discussed trading in the vehicle on a new car, but no deal was ever struck because Owens wanted to get a new Plymouth Laser for the same price as her used car. Owens inquired about the possibility of returning the car in exchange for the return of her purchase money and the automobile she traded in, but UCCP had already sold her old car. Owens and the floor manager further discussed UCCP refunding a portion of the purchase price to pay for necessary repairs on the car, but they were unable to reach an agreement on the amount.

Subsequently, Owens retained an attorney who demanded $2,500 as settlement of the matter in April 1991. This demand also advised UCCP of Owens’ intention of filing suit to recover actual damages, punitive damages, and attorney fees, if the demand was not met within a certain deadline. UCCP did not comply with the demand, and Owens continued to use and maintain the car, and make monthly payments for the car. By January 1993, she had driven the car almost 40,000 miles.

The purchase agreement executed by Owens contained a merger clause providing that the written agreement constituted the entire agreement between the parties and was not subject to modification by verbal statements. Also, the installment contract regarding the financing of part of the purchase price provided that no representations had been made by UCCP unless endorsed in writing. Accordingly, unless Owens effectively rescinded the sales contract by promptly returning or offering to return the used automobile she purchased from UCCP after discovering the alleged fraud, she has no viable claim for the alleged misrepresentation. “The presence of a merger clause in the underlying contract is determinative if the defrauded party has not rescinded but has elected to affirm the contract.” (Punctuation omitted.) Nexus Services v. Manning Tronics, 201 Ga. App. 255 (410 SE2d 810) (1991).

Owens’ purported rescission in the amendment to her complaint almost one year after filing the action was ineffectual. Rescission or attempted rescission is a condition precedent even to bringing an action seeking rescission. Id.

In the instant case, the only possible rescission occurred when Owens met with UCCP’s floor manager and inquired about the possibility of returning the purchased car in exchange for her old car back and refund of the purchase money paid. However, even if this mere inquiry were considered to have manifested a present election to rescind the contract, Owens’ subsequent actions did not adhere to that “rescission,” but instead indicated an affirmation of the contract. Specifically, Owens continued to make monthly payments on the car, maintained the vehicle, and drove it extensively, even on out-of-town trips, putting almost 40,000 miles on the car from the February 1991 purchase date to January 1993. Also, after her discussion with UCCP’s floor manager yielded no satisfactory resolution, Owens’ attorney demanded money damages on her behalf for the alleged fraudulent misrepresentation, and, as noted above, Owens’ original complaint likewise sought money damages rather than rescission. Under these circumstances, any purported rescission was waived, and Owens could not revive it when the matter was before the trial court on summary judgment. See John McDonald Pontiac-GMC Truck v. Klopper, 205 Ga. App. 639 (422 SE2d 925) (1992).

“Where a party who is entitled to rescind a contract on ground of fraud or false representations, and who has full knowledge of the material circumstances of the case, freely and advisedly does anything which amounts to a recognition of the transaction, or acts in a manner inconsistent with a repudiation of the contract, such conduct amounts to acquiescence, and, though originally impeachable, the contract becomes unimpeachable in equity. If a party to a contract seeks to avoid it on the ground of fraud or mistake, he must, upon discovery of the facts, at once announce his purpose and adhere to it. Otherwise he can not avoid or rescind such contract.” Gibson v. Alford, 161 Ga. 672, 673 (5) (132 SE 442) (1926).

Owens misplaces her reliance upon Crews v. Cisco Bros. Ford-Mercury, 201 Ga. App. 589 (411 SE2d 518) (1991), wherein this court excused the plaintiffs from complying with the unconditional tender requirement because such would not have absolved them of their obligation to the third-party creditor that financed the purchases. In Crews, unlike Owens, the plaintiffs had not affirmed the sales contracts involved. Further, although Owens also financed her purchase of the car in question through a third-party creditor, the installment contract provided that any holder of the consumer credit contract was subject to all claims and defenses that the debtor could assert against the seller; and thus the concern in Crews over the continued obligation to the third-party creditor is absent in the instant case.

In summary, Owens’ actions resulted in an affirmation of the sales contract, and by virtue of that affirmation of the contract containing a merger clause, she was estopped from asserting any reliance upon the alleged misrepresentation made prior to execution of the contract. Nixon v. Sandy Springs Fitness Center, 167 Ga. App. 272 (306 SE2d 362) (1983). Accordingly, the trial court properly granted summary judgment for UCCP.

Judgment affirmed.

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

Decided September 23, 1993.

Fred J. Rushing, Jr., for appellant.

Smith, Gambrell & Russell, Thomas M. Barton, Stephen M. Forte, for appellee.


author: Birdsong, Presiding Judge.

text:
    A93A1302.
    VAUGHAN v. THE STATE.
    (436 SE2d 19)
   Birdsong, Presiding Judge.

Jeff Vaughan a/k/a Jeff Vaughn, Jeffery M. Vaughan and Jeffery M. Vaughn appeals his judgment of conviction of two burglary counts. He enumerates five errors. Held:

1. The trial court did not err in denying appellant’s motion for continuance notwithstanding appellant apparently released certain defense witnesses after a member of the district attorney’s office stated the case would not go to trial and appellant’s counsel announced “not ready” on call of the case. The motion for continuance was for an unspecified time period. Trial was held in Fayetteville, Georgia, and lasted two days; two of the released defense witnesses were from Jonesboro and one was from Cherokee County. Each of the requirements of OCGA § 17-8-25 must be met before an appellate court may review a trial judge’s discretion in denying a motion for continuance based upon an absent witness (Dorsey v. State, 203 Ga. App. 397, 399 (1) (416 SE2d 879); Garrett v. State, 202 Ga. App. 463 (414 SE2d 693)); these statutory requirements exist regardless whether the State’s conduct contributed to the release of witnesses. Appellant has failed to meet these requirements in at least four respects: the witnesses had not been subpoenaed, the record does not establish that appellant expected to be able to procure the witnesses’ testimony at the next term of court, the facts expected to be proved by the witnesses were not stated, and their anticipated testimony was not shown to be material. Additionally, the witnesses were absent with the permission of appellant, albeit that permission was given in partial reliance on statements made by a representative of the State; moreover, appellant’s counsel conceded his understanding in court that only the trial court can give continuances. There is no evidence the State made a misrepresentation to appellant for the purpose of causing a premature release of defense witnesses or for any other improper purpose, and appellant did not so contend during trial. The denial of the motion was not an abuse of the trial court’s discretion. Dorsey, supra; Garrett, supra.

2. The trial court did not err in denying appellant’s severance motion and general demurrer. Although we agree that a right of severance exists where the offenses are joined solely on the ground that they are of same or similar character, Dingier v. State, 233 Ga. 462 (211 SE2d 752), the record does not establish a joinder for this sole purpose. Where two or more joined offenses are “ ‘ “based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan,” ’ [or have an identical modus operandi,] severance lies within the discretion of the trial court.” Bailey v. State, 157 Ga. App. 222, 223 (3) (276 SE2d 843); Mack v. State, 163 Ga. App. 778 (1) (296 SE2d 115). The appellate test is whether, in light of the number of the offenses charged and the complexity of the evidence, the fact-trier will be able to distinguish the evidence and apply the law intelligently to each offense. Dobbs v. State, 204 Ga. App. 83, 84 (1) (418 SE2d 443). Absent an abuse of trial court discretion, denial of a severance motion is not grounds for reversal. Freeman v. State, 205 Ga. App. 112 (421 SE2d 308). The burden is on a defendant requesting severance “ ‘to do more than raise the possibility that a separate trial would give him a better chance of acquittal. (Cit.) He must make a clear showing of prejudice and a consequent denial of due process.’ ” Id.

The two burglaries were committed within 48 hours of each other; both burglaries were of private residences in Fayette County. The two crime locations were in close proximity of each other; a car only has to make one or two turns to get on Milam Road from Lee’s Mill. In both instances the houses were ransacked, drawers were pulled out and dumped on the floor, closets emptied, “just a complete mess of every room that [the perpetrators entered].” Both burglaries were committed in the daylight hours when owners might be away or at work. No breach of trial court discretion is shown in denying severance (compare Mack, supra with Bailey, supra); the jury would be able to distinguish the evidence pertaining to each burglary offense and apply the law intelligently as to each separate burglary count.

3. Appellant asserts the trial court erred in admitting appellants’ pretrial statement in evidence, as it was not affirmatively shown that the statement was voluntarily made with waiver of rights, and without duress or coercion. Appellant also asserts the trial court erred in allowing appellant’s pretrial statement as to the December 10, 1986 burglary, as the prosecution did not establish there was a waiver of Miranda rights when admissions were made as to that offense. The only waiver of rights that existed was for any statement made regarding the burglary of December 12, 1986. These contentions are without merit.

(a) The evidence regarding the voluntariness of appellant’s admitted pretrial statement and certain statements made prior to the recording of that statement was in conflict. The trial court, after conducting a Jackson-Denno hearing, made certain findings of fact, inter alia, that: the accused was under arrest at the time the statements were taken; appellant was advised of his Miranda rights, by the interrogating officer, at approximately 7:50 p.m.; appellant “declined to avail himself of any of these rights” and “he expressed a willingness to go ahead and talk to” the interrogating officer; and it was found “as a matter of law and by a preponderance of the evidence,” appellant “did give a free and voluntary statement.”

(1) State’s Exhibit No. 1, Acknowledgment of Rights, signed by appellant and witnessed by the interrogating officer at 7:50 p.m., December 12, 1986, reflects on its face that appellant was, at least, advised that he was “suspected of the offense of burglary, in Fayette County ... on the 12th day of December, 1986.” Appellant testified and admitted in open court that he understood this acknowledgment before he signed it. “[A] law enforcement officer’s failure to advise a suspect as to the crimes about which he is to be questioned prior to the suspect’s waiver of his Miranda rights is not relevant to the question of whether the suspect’s waiver was knowing and voluntary.” Peebles v. State, 260 Ga. 430, 431 (1) (396 SE2d 229). Assuming arguendo appellant was not warned he was suspected of the December 10, 1986 burglary before he waived his rights, such omission would not be relevant regarding whether his waiver was knowing and voluntary.

(2) The trial court found, inter alia, appellant’s recorded pretrial statement was made freely and voluntarily, that he declined to avail himself of any of his Miranda rights, and he expressed a willingness to talk with the investigator. “ ‘Factual and credibility determinations as to voluntariness of a confession, including factual and credibility determinations as to issues of rights waiver, are normally made by the trial judge and must be accepted by appellate courts unless such determinations are clearly erroneous.’ ” Mathis v. State, 192 Ga. App. 772, 773 (2) (386 SE2d 532). The trial court’s ruling was not clearly erroneous. Further, the interrogating officer testified that before the recorded pretrial statement was taken, appellant “advised me that he understood his rights and that he [wished] to talk to me without an attorney present.” We are satisfied the trial court did not err in finding the statement was freely and voluntarily given, and that appellant’s affirmative waiver of Miranda rights is established by a preponderance of the evidence.

Additionally, “[o]nce Miranda warnings are given and a person in custody gives a statement to police without invoking his right to remain silent and without requesting an attorney, he has in effect waived his rights.” Aldridge v. State, 258 Ga. 75, 76 (3) (365 SE2d 111); Barrs v. State, 202 Ga. App. 520, 521 (414 SE2d 733). The trial court determined appellant’s credibility and in finding the statement freely and voluntarily given, per force rejected his claim that he had invoked either his right to remain silent or had requested an attorney. These determinations are not clearly erroneous and are sufficiently supported by evidence of record.

(b) Appellant’s contentions that the admitted statement was the fruit of previous inadmissible statements also are without merit. We find, as inherently did the trial court, that appellant’s previous conversation with the interrogating officer also was freely and voluntarily made after receiving a proper Miranda warning and after having waived his right of silence and right to counsel. However, even assuming these prior statements had been tainted due to an inadequate Miranda warning or inadequate waiver of Miranda rights, “in Georgia the exclusionary rule does not apply to evidence derived from a voluntary statement obtained without the benefit of Miranda warnings.” Reinhardt v. State, 263 Ga. 113, 115 (4) (428 SE2d 333), citing Wilson v. Zant, 249 Ga. 373, 378 (290 SE2d 442). This ruling “was subsequently given support . . . when [the United States Supreme Court] ruled in Oregon v. Elstad, 470 U. S. 298, 309 (105 SC 1285, 84 LE2d 222) (1985), that although Miranda requires that the unwarned admissions must be suppressed, the admissibility of any subsequent statement turns on whether the statement was knowingly and voluntarily made.” Id. We find that appellant’s subsequent recorded statement, admitted in evidence, was knowingly and voluntarily given. Accordingly, any claim that the admitted pretrial statement was rendered inadmissible through application of the exclusionary rule also is without merit. Id.

4. Appellant’s assertion that the trial court erred by not giving the lesser included offense instruction as to criminal trespass “submitted and requested” by appellant is without merit.

(a) The requested instruction contained a virtual verbatim recitation of the provisions of OCGA § 16-7-21 (a) and (b) (1), and concluded “if you find from the evidence that [appellant] committed any such actions you are authorized to find him guilty of this lesser offense of criminal trespass.” The record, however, does not establish the value of any property allegedly damaged, and certainly there is no proof that any damage thereto was $500 or less. Moreover, there is no evidence that appellant entered upon any “vehicle, railroad car, aircraft, or watercraft of another person.” Thus, the requested instruction was not tailored to the evidence, was inapt, and had the potential to confuse or mislead the jury. Accordingly, the trial court did not err in refusing to give the requested instruction. Campbell v. Cozad, 207 Ga. App. 175 (1) (427 SE2d 515); compare Anderson v. State, 262 Ga. 26 (1, 2) (413 SE2d 732).

(b) Further, appellant testified in his own behalf and made certain admissions in judicio in open court (see generally Lingerfelt u. State, 255 Ga. 180 (3) (336 SE2d 250)) which established his criminal intent to assist his co-accomplice in entering both homes and stealing property therefrom. Where the intent to steal is proved, the crime of criminal trespass merges with or is included within the crime of burglary. Poole v. State, 205 Ga. App. 652, 653 (4) (423 SE2d 52).

Decided August 27, 1993 —

Reconsideration dismissed September 24, 1993.

Saia, Richardson & Meinken, Joseph J. Saia, for appellant.

Johnnie L. Caldwell, District Attorney, James E. Sherrill, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A1336.
    SHELL v. THE STATE.
    (436 SE2d 12)
   Birdsong, Presiding Judge.

Jeremy Shell appeals his conviction for possession of cocaine with intent to distribute. He contends the trial court erred in denying his motion in limine to exclude a similar transaction as there was no notice of intent pursuant to Superior Court Rules 31.1 and 31.3 and because the similar transaction was not similar to the charged offense; and erred in denying his motion for directed verdict in that the verdict was contrary to the evidence. Held:

1. The “similar transaction” evidence that appellant says was erroneously admitted was not “similar transaction” evidence, but was part of the offense charged.

This evidence showed that on September 26, 1991, an undercover officer drove to appellant’s residence in LaGrange, Georgia, and was approached by an unidentified person who asked what she wanted. She told him she wanted a “twenty,” or $20 worth of cocaine. The unidentified male, who was evidently the go-between, approached appellant, whom the officer identified at trial. Appellant handed the go-between what appeared to be a rock of crack cocaine. The go-between was returning to the officer when, for some reason, appellant stopped him and told him not to make the sale. Appellant then demanded the undercover officer leave his property and threatened to break out the windows of her car if she did not. Based on this incident, the next day officers executed a search warrant at appellant’s house. Appellant was not present, but police seized approximately 20 plastic bags of crack cocaine. Appellant was later taken into custody, and, after being given a Miranda warning, he admitted he had been in the yard of his house the night the undercover officer was there, and that he did order the go-between not to sell the crack cocaine to the undercover officer.

As the September 26 incident was part of the charged offense and was the basis of the search warrant, it was not a “similar transaction” of which notice was required to be given. It was evidence of the crime charged, which was possession of cocaine by appellant with intent to distribute. Appellant’s contention that this incident was not sufficiently “similar” to the charged offense to be admissible as a similar transaction is without merit, as it was part of the transaction which was the basis of the offense. Baker v. State, 193 Ga. App. 498 (388 SE2d 402) is inapposite, for it involved evidence of a similar transaction which was not the transaction itself.

Decided August 5, 1993

Reconsideration denied September 24, 1993

Jack F. Witcher, Maryellen S. Mitchell, for appellant.

Peter J. Skandalakis, District Attorney, Jeffery W. Hunt, Assistant District Attorney, for appellee.

2. Appellant was not entitled to a directed verdict, nor was the evidence insufficient to support the verdict. The evidence was sufficient to prove appellant possessed the cocaine found in his house, with intent to distribute. It was not essential to this charge that a consummated sale be proved.

That appellant was not at home when the search warrant was executed and that other persons may have had access to the location of the cocaine, do not invalidate the verdict, since appellant was identified as the person who gave what appeared to be rock cocaine to the go-between to sell to the undercover officer. Viewing the evidence in favor of the verdict on appeal, we find the evidence sufficient to enable a rational trier of fact to find appellant guilty of the offense charged beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A1532.
    HIGHTOWER v. THE STATE.
    (436 SE2d 28)
   Birdsong, Presiding Judge.

Andrew Lee Hightower was tried before a jury and found guilty of possession of cocaine with intent to distribute. He appeals from the judgment of conviction and sentence. In three related enumerations, he assigns error to the introduction in evidence of the circumstances of his prior conviction for the sale or distribution of cocaine. Held:

1. The State gave timely written notice of its intent to offer evidence of similar transactions and, pursuant to Uniform Superior Court Rule 31.3 (B), a pretrial hearing was held on the admissibility of that evidence. In compliance with procedures established by Williams v. State, 261 Ga. 640, 642 (2b) (409 SE2d 649), the trial court made findings of fact on the record that appellant’s prior conviction for distributing cocaine was substantially relevant for a proper purpose, and that the probative value of that prior conviction outweighed its prejudicial impact. See Evans v. State, 209 Ga. App. 606, 607 (2) (434 SE2d 148). Although appellant urges that the State failed to make any affirmative showing authorizing these findings, the record contains no transcript of the Rule 31.3 (B) hearing. “ ‘No facts stated in the (order) show on their face that it was incorrect, and we have no way of knowing what other evidence was presented. The presumption is that the trial [court] faithfully performed the duties devolving upon [it]. An appeal with enumerations of error dependent upon consideration of evidence heard by the trial court will, absent a transcript, be affirmed. (Cit.)’ [Cit.]” Lawal v. State, 205 Ga. App. 842 (1) (424 SE2d 36). Accordingly, the trial court’s pretrial determination that appellant’s previous conviction was admissible is not clearly erroneous.

Appellant further argues that the State failed to establish at trial the “similarity or [logical] connection between that independent offense and the crime charged.” Williams v. State, supra at 643 (2c). This contention is without merit. In addition to the certified copy of appellant’s conviction, the State presented testimony of the undercover agent who, two months prior to trial, had purchased crack cocaine from appellant in Albany, Georgia. This evidence was relevant to the issue of appellant’s specific criminal intent to distribute cocaine. Compare Ramirez v. State, 205 Ga. App. 217 (2) (422 SE2d 3).

2. Likewise without merit is appellant’s unsupported assertion that the trial court expanded the scope of the Rule 31.3 (B) hearing to encompass purposes for which such similar transactions evidence might lawfully be introduced but which purposes were not proffered by the State. The State’s notice of intent does not state any limits on the lawful purposes for which such evidence may be introduced. Accordingly, appellant was on notice that the scope of the hearing on the admissibility of similar transactions evidence could include any proper purpose.

3. Appellant’s previous conviction was determined to be relevant to show a course of conduct and criminal intent. The trial court gave a jury charge limiting the purposes for which the jury might consider appellant’s previous conviction. The identity of the perpetrator was included as a proper purpose, even though the trial court’s pretrial order named only course of conduct showing intent as the sole proper purpose for the admission of the prior conviction. This jury instruction is enumerated as error.

Where an independent offense bears on the question of the identity of the perpetrator, it may be properly admitted as an exception to the general rule of inadmissibility. Williams v. State, supra at 642 (2b), fn. 2. It has long been the rule that where the trial court’s charge as a whole is an accurate statement of the law, it is generally not a good ground for a new trial that the charge includes a statement, one portion of which is applicable and one portion of which is inapplicable or not adjusted to the facts. Eagle & Phenix Mills v. Herron, 119 Ga. 389, 393 (3) (46 SE 405). See also Kennedy v. State, 205 Ga. App. 152, 155-156 (5a) (421 SE2d 560). However, “ ‘ “[t]he instructions . . . in a criminal trial should be tailored to the indictment and adjusted to the evidence admitted in court. (Cits.) Any instruction should stand upon a base founded in the evidence or the lack thereof. Tt is also the general rule that instructions even though abstractly correct (as in the instant case), should not be given unless authorized by the evidence . . . and when such an unauthorized instruction is given, if it should be confusing or misleading to a jury, a new trial will be required.’ (Cits.)” . . . Where the inapplicable instruction authorizes the jury to reach a finding of guilty by a theory not supported by the evidence of record, we cannot say as a matter of law that the charge was neither'confusing nor misleading. (Cit.)’ [Cit.]” Joiner v. State, 163 Ga. App. 521, 523 (5) (295 SE2d 219).

Here, appellant was expressly named in a warrant authorizing the search of a tavern he allegedly helped to run. His identity as the person named in that search warrant was not at issue. Appellant’s identity as the seller in the independent offense was established by the direct testimony of the undercover agent who had purchased crack cocaine from him. Accordingly, the inclusion of identity as a proper purpose, although not authorized by the trial court’s ruling after the Rule 31.3 (B) hearing, would not be erroneous due to any absence of evidence to support the charge. This charge did not mislead the jury to reach a verdict of guilt premised on a theory unsupported by the evidence. Compare Anderson v. State, 262 Ga. 26, 27 (1c) (413 SE2d 732). Any error here was clearly harmless. “ ‘ “Instructions which, when the jury is given credit for ordinary intelligence, are not confusing and prejudicial, are not reversible error.” (Cit.)’ [Cit.]” Yearwood v. State, 198 Ga. App. 389, 390 (3) (401 SE2d 558). We will not impute an inability on the part of the jury to identify that portion of the limiting instruction which was obviously applicable to the facts and issues presented. Rowles v. State, 143 Ga. App. 553, 557 (3) (239 SE2d 164). The trial court did not commit reversible error in this case by including identity as a proper purpose in its limiting instruction to the jury.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.

Decided September 3, 1993

Reconsideration dismissed September 24, 1993.

Knight & Marlowe, Johnny W. Knight, Terry J. Marlowe, for appellant.

Britt R. Priddy, District Attorney, for appellee.


author: McMurray, Presiding Judge.

text:
    A93A1033.
    KENEMER v. FIRST NATIONAL BANK OF ATLANTA.
    (436 SE2d 96)
   McMurray, Presiding Judge.

Is a creditor entitled to recover attorney fees pursuant to OCGA § 13-1-11 if its attorney collects the debt via a foreclosure proceeding? This is the sole question presented for decision in this case.

Kenemer was indebted to the First National Bank of Atlanta (“the bank”) pursuant to a promissory note and deed to secure debt. The note and security deed provided that the bank was entitled to 15 percent attorney fees in the event the indebtedness was collected by an attorney. Kenemer defaulted on the note and the bank notified him that it would seek attorney fees in addition to the amount due. As of that time, Kenemer was indebted to the bank in the amount of $594,004.35.

Thereafter, by and through its attorney, the bank initiated foreclosure proceedings. The properties securing the debt were knocked down and purchased by the bank for $576,000. The bank sought approval and confirmation of the foreclosure sales. The sales were approved and confirmed and the bank brought this suit seeking a deficiency judgment against Kenemer.

The trial court awarded summary judgment to the bank in the principal amount of $41,011.55, plus interest in the amount of $8,050.55, and attorney fees in the amount of $92,551.53. Kenemer appeals. Held:

OCGA § 13-1-11 (a) provides for the enforcement of an attorney fee obligation upon “any note or other evidence of indebtedness” provided that the debt is collected “by or through an attorney after maturity.” The obligation is enforceable whether it is contained in a note or deed to secure debt. OCGA § 13-1-11 (b).

Kenemer contends the bank should not be able to recover attorney fees upon the portion of the debt that was satisfied via foreclosure sale. He apparently takes the position that if a debt is satisfied via foreclosure, it cannot be said that it has been collected by or through an attorney after maturity. We disagree.

The bank is entitled to recover attorney fees if the debt is collected by or through an attorney. OCGA § 13-1-11. That foreclosure proceedings were employed to recover the debt is of no consequence. See Cochran v. Bank of Hancock County, 118 Ga. App. 100, 106 (3) (162 SE2d 765) (dicta). See generally Sheffield v. Bainbridge Oil Co., 3 Ga. App. 200, 202 (2) (59 SE 725). The true inquiry is whether the attorney played a role in collecting the debt. See Assoc. Commercial Corp. v. Storey, 192 Ga. App. 199 (384 SE2d 265). If he or she did as in this case, the creditor is entitled to enforce the attorney fee obligation. OCGA § 13-1-11.

Decided September 24, 1993.

Avrett & Withrock, R. Mike Withrock, for appellant.

McCamy, Phillips, Tuggle, Rollins & Fordham, C. Lee Daniel III, for appellee.

Kenemer’s reliance upon David v. ITT Diversified Credit Corp., 174 Ga. App. 910, 912 (2) (332 SE2d 8), is misplaced. In that case, a portion of the debt was satisfied pursuant to the creditor’s exercise of a longstanding repurchase agreement. Thus, unlike the case sub judice, it could not be said that that portion of the debt was collected by and through an attorney after maturity.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A1493.
    TEMPO MANAGEMENT, INC. v. LEWIS.
    (436 SE2d 98)
   McMurray, Presiding Judge.

David Lewis, d/b/a D & A Enterprises, Inc., filed an action for breach of contract against Tempo Management, Inc. (“Tempo”), alleging Tempo failed to pay for materials and services provided under landscape maintenance agreements entered into between the parties. Tempo denied the material allegations of the complaint and counterclaimed for breach of contract.

The undisputed evidence presented at a jury trial reveals that Tempo and Lewis entered into contracts whereby Lewis was to maintain the grounds at separate apartment communities managed by Tempo. In exchange, Tempo agreed to pay Lewis monthly service fees plus $4.50 for each bale of pine straw required to service the premises. Lewis presented evidence that Tempo failed to pay over $7,000 in monthly service fees and over $10,500 for pine straw. Tempo presented evidence that Lewis charged for pine straw that was not provided. The jury returned a verdict for Lewis in the principal amount of $17,775. This appeal followed. Held:

1. Tempo first contends the trial court erred in failing to give its written request to charge on recoupment as set out in OCGA § 13-7-2.

“Recoupment is a right of the defendant to have a deduction from the amount of the plaintiff’s damages for the reason that the plaintiff has not complied with the cross-obligations or independent covenants arising under the contract upon which suit is brought” OCGA § 13-7-2. “Recoupment lies for overpayments by the defendant or for payments by fraud, accident, or mistake.” OCGA § 13-7-12.

Tempo properly asserted a claim for recoupment in the consolidated pre-trial order. Further, Lewis introduced cancelled checks and testimony revealing that he may not have provided the amount of pine straw charged to Tempo under the ground maintenance agreements. Further, there is expert testimony that the amount of pine straw Lewis allegedly applied at Tempo’s properties was over twice as much as needed to service the properties. This evidence amply supports Tempo’s claim that Lewis overcharged for pine straw and thus authorizes a charge on the law of recoupment. OCGA § 13-7-12. See Atlas Auto &c. Co. v. Atkins, 79 Ga. App. 91, 93 (1), 94 (53 SE2d 171).

“Failure to charge on any legal theory of recovery is harmful as a matter of law. ‘ “From an early date the Supreme Court has uniformly held that the law of the case must be given the jury to the extent of covering the substantial issues made by the evidence, whether requested or not, or attention be called to it or not; otherwise the verdict will be set aside.” (Cits.)’ King v. Luck Illustrating Co., 21 Ga. App. 698, 699 (94 SE 890) (1918); Hager v. O’Neal, 147 Ga. App. [808 (250 SE2d 555)] (1978). ‘It is the duty of the court to charge the jury on the law “as to every controlling, material, substantial and vital issue in the case.” (Cits.) “Where it fails to give . . . the benefit of a theory of the defense which is sustained by the evidence ... a new trial must be granted. (Cits.)” Lincoln Life Ins. Co. v. Anderson, 109 Ga. App. 238, 240 (136 SE2d 1).’ Berger v. Plantation Pipeline Co., 121 Ga. App. 362, 364 (6) (173 SE2d 741) (1970). See also Am. Family Life Ins. Co. v. Glenn, 109 Ga. App. 122, 126 (4) (135 SE2d 442) (1964).” Fowler v. Gorrell, 148 Ga. App. 573, 576 (2b), 577 (251 SE2d 819).

In the case sub judice, Tempo’s primary claim and defense was that Lewis overcharged for materials and services rendered under the ground maintenance agreements. It thus follows that the law of recoupment was essential to Tempo’s case and that the trial court’s failure to give Tempo’s written request to charge on the law of recoupment was error, requiring a new trial.

2. In its second enumeration, Tempo contends the trial court failed to give a full and fair charge on the law of impeachment. It is unnecessary to address this enumeration as any such omission is unlikely to occur upon retrial. See Suggested Pattern Jury Instructions by the Council of Superior Court Judges of Georgia, Volume I, Civil Cases, pp. 13, 16 (2nd ed. 1991).

Decided September 24, 1993.

H. Michael Dever, for appellant.

Cramer & Peavy, Timothy C. Cramer, for appellee.

Judgment reversed.

Johnson and Blackburn, JJ., concur.


text:
    A93A1646.
    ENNIS v. THE STATE.
    (436 SE2d 99)
    Decided September 24, 1993.

      Evelyn P. Luton, for appellant.
   McMurray, Presiding Judge.

This appeal followed defendant’s convictions for child molestation and aggravated child molestation. Held:

In two enumerations, defendant challenges the sufficiency of the evidence.

The eight-year-old victim’s special education teacher testified that the victim is physically and mentally handicapped and that the child is unable to control her bladder. The victim’s teacher testified that she noticed abrasions on the victim’s private parts when she was changing the child’s diaper and that she contacted the Department of Family & Children Services and reported possible child abuse. An emergency room physician testified that the victim’s private area was “mildly inflamed” and that the victim informed him that defendant touched her private area. A law enforcement officer testified that she interviewed the victim on videotape and that the victim then informed her that defendant had subjected the victim to acts of child molestation and aggravated child molestation. The videotaped interview was entered into evidence and it affirmed the officer’s testimony that defendant sexually molested the victim. This evidence was sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of child molestation and aggravated child molestation as charged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Allen v. State, 263 Ga. 60 (1) (428 SE2d 73).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

Joseph H. Briley, District Attorney, Alberto C. Martinez, Jr., Assistant District Attorney, for appellee.


text:
    A93A0944.
    MYRICK v. THE STATE.
    (436 SE2d 100)
   Birdsong, Presiding Judge.

Howard Myrick appeals his conviction for theft by conversion. The indictment alleged that having lawfully obtained funds of Willie and Ruth Stanley in excess of $500, “under an agreement to make a specified application of said funds, to wit: real property improvements [Myrick] did knowingly convert said funds to his own use in violation of such agreement by failing to perform said real property improvements.”

On March 6, 1991, appellant made a written proposal to perform certain specified renovations on the Stanleys’ house, for $11,500 to be paid as follows: “$4,000 beginning, $5,000 when top is on, and $2,500 when completed.” Appellant received the first payment of $4,000. The State contended that despite repeated requests, appellant did not immediately begin work; he appeared several weeks later and poured concrete for the porch but did a poor job. Mr. Stanley again tried to contact appellant and waited several weeks, but he never saw appellant again before taking out a criminal warrant on July 18, 1991.

Appellant contends he could not immediately commence work after March 6 because of an extended rainy season in the spring and summer of 1991, but “after some period of time,” he delivered and laid about eight cubic yards of concrete, expending $700 for labor, $500 for cement, $73 for sand, $75 for steel, $60 for plastic, and $30 for lumber.

Appellant contends he was entitled to a directed verdict of acquittal because the State did not prove the elements of theft by conversion under OCGA § 16-8-4, and that the trial court failed to give certain jury charges distinguishing between a contract dispute and a crime. Held:

This criminal conviction for theft by conversion cannot be sustained, for the State did not prove appellant obtained the $4,000 “under an agreement ... to make a specified application of such funds,” and that he “knowingly converged]” the money to himself. OCGA § 16-8-4 (a); see Hill v. State, 198 Ga. App. 1, 2 (1) (401 SE2d 48). Appellant contends the Stanleys gave him $4,000 with no specific direction as to how that money was to be applied. He contends that, as in Hill (and Eubanks v. State, 144 Ga. App. 152, 154 (2c) (241 SE2d 6)), the contract merely specified what appellant was to do and provided that he be paid a certain total amount for doing it; it placed no burden on him to use the $4,000 to achieve a certain result.

Although Hill did not involve money paid to a contractor, four judges of this court believed that conviction was authorized by Byrd v. State, 186 Ga. App. 446 (1) (367 SE2d 300) which involved a conviction of a building contractor for theft by taking under OCGA § 16-8-2. We find Byrd inapplicable to uphold the conviction in this case. In Byrd the contractor failed to begin work; when the owner terminated the contract, Byrd agreed to return the owner’s money but did not do so. Clearly, that evidence supported a finding that Byrd committed theft by taking (OCGA § 16-8-2) or, as Byrd implies, theft by conversion under OCGA § 16-8-4 (a). See Byrd at 446-447.

Appellant was not indicted for conversion of money paid for real property improvement under OCGA § 16-8-15, which applies to real property improvement contracts and expressly requires the “intent to defraud.” Perhaps because “intent to defraud” could not easily be proved, appellant was indicted for theft by conversion under § 16-8-4 (a), which requires only that money be “knowingly converged]” after being obtained “under an agreement ... to make a specified application of such funds or a specified disposition of such property.”

The indictment does not allege what improvements appellant was supposed to perform for $4,000. The evidence in this case, as in Hill, “shows the existence of an enforceable contract, the breach of which would be civilly actionable [but it] does not show the existence of a violation of the criminal provisions of OCGA § 16-8-4 (a).” Hill at 2. The evidence does not prove beyond a reasonable doubt that the parties had “an agreement ... to make a specified application” of the $4,000.

In any event, the evidence does not prove appellant “knowingly converted] the funds ... to his own use” as required by OCGA § 16-8-4 (a).

The deficiencies in proof are manifested by the State’s assertion that after pouring concrete for the porch in a shoddy manner, appellant left and refused to communicate for “almost a year.” The documents of record show that the agreement was entered on March 6, 1991 and that Mr. Stanley swore out the warrant on July 18, 1991. The evidence shows that it did rain during those four months, and that appellant did pour the concrete for the porch. The evidence was in dispute about what work was supposed to be done within what period of time, and shows the Stanleys’ frustration in being unable to contact appellant. It is very bad business for a contractor to avoid communicating with his customer and to fail to show up for work, and doing so may cost him bad faith assessments in a civil case. But unless it continues for such a time or in such a manner as to authorize a conclusion beyond a reasonable doubt of the intent to defraud, steal or convert the money paid, it hardly forms the basis for a criminal conviction. Even if appellant failed a duty to make a specified application of the $4,000, the evidence does not prove beyond a reasonable doubt that from March until July 18 when Mr. Stanley took out a warrant, appellant knowingly converted the funds to his own use. Appellant did some of the work although he may have done it poorly, and he may have breached his contract in bad faith; but criminal intent to take the money without attempting to do the work, i.e., to commit theft by conversion, is not proved beyond a reasonable doubt.

Decided September 27, 1993.

James G. Maddox, for appellant.

Ralph M. Walke, District Attorney, Peter F. Larsen, Assistant District Attorney, for appellee.

The trial court erred in failing to grant a directed verdict of acquittal to appellant. It is therefore unnecessary to consider the trial court’s failure to give appellant’s requested charges to the jury.

Judgment reversed.

Pope, C. J., and Andrews, J., concur.