text:
    A02A0064.
    WHITE v. THE STATE.
    (564 SE2d 826)
   Smith, Presiding Judge.

Henry J. White was indicted by a Floyd County grand jury for possession of cocaine, two counts of obstruction of an officer, and driving under the influence. The jury acquitted him of driving under the influence and convicted him of the remaining counts. His trial counsel filed an untimely motion for new trial, but then withdrew it. White obtained new counsel, who filed both an amended motion for new trial asserting a claim of ineffective assistance of counsel and a motion for out-of-time appeal. The motion for out-of-time appeal was granted with the provision that a notice of appeal be filed within ten days. This appeal followed before any ruling was obtained on the pending motion for new trial.

1. We first must address the question of White’s failure to obtain an evidentiary hearing in the trial court on his claims of ineffective assistance of counsel. The proper procedure to follow in the case of an out-of-time appeal was set forth plainly by the Supreme Court of Georgia over ten years ago:

[T]he grant of an out-of-time appeal constitutes permission to pursue appropriate post-conviction remedies, including a motion for new trial. It follows from that holding and from the requirement that a claim of ineffective assistance of counsel be determined by means of an evidentiary hearing at the earliest practicable moment, that a claim of ineffective assistance of counsel may not be asserted in an out-of-time appeal unless appellate counsel pursues a motion for new trial, subsequent to the grant of the out-of-time appeal, in which the issue is raised and resolved by means of an evi-dentiary hearing.

Ponder v. State, 260 Ga. 840, 841-842 (1) (400 SE2d 922) (1991). Failure to do so is a procedural bar to raising the claim at a later time. Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996).

The trial court erred in directing that a notice of appeal be filed within ten days, apparently believing that an out-of-time motion for new trial could not be filed. “[T]he scope of the. permission given when an out-of-time appeal is granted must be broader than that. It should be seen as permission to pursue the post-conviction remedies which would be available at the same time as a direct appeal.” Ponder, supra at 841 (1). But White did not ask for reconsideration or for an evidentiary hearing on the ineffectiveness claim. “No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further.” (Citations and punctuation omitted.) Smith v. State, 192 Ga. App. 768, 771 (2) (386 SE2d 530) (1989). In this case, White does not even complain of the trial court’s order on appeal. Accordingly, he has waived his ineffective assistance claim by failing to pursue it at the earliest practicable opportunity and to obtain a ruling upon it from the trial court before filing a notice of appeal. Nobles v. State, 233 Ga. App. 63, 64 (2) (503 SE2d 321) (1998).

2. In White’s remaining enumeration of error, he complains that the trial court erred in failing to give a jury instruction concerning his right not to testify. Ordinarily, the failure to give this charge in the absence of a request is not error. Williams v. State, 249 Ga. 822, 826 (6) (295 SE2d 293) (1982). But we need not reach this issue, because when asked if he had any objections to the charge of the court, White’s counsel responded, “No.” He therefore has waived this claim of error on appeal. Brison v. State, 248 Ga. App. 168, 169 (6) (545 SE2d 345) (2001).

Decided May 2, 2002.

Timothy J. Crouch, for appellant.

Fred R. Simpson, Acting District Attorney, for appellee.

In a single sentence found in his argument on this enumeration of error, White raises the unrelated contention that the trial court erred in allowing his unspecified statement to the police into evidence, even in the absence of an objection, without a foundation or showing that he was given his Miranda warnings. It appears that White is referring to his statement to police that he “shouldn’t have been driving.” But White failed to object to admission of this statement at trial. He therefore has waived any right to assert it as error on appeal. Johnson v. State, 198 Ga. App. 316, 317 (5) (401 SE2d 331) (1991). White insists that admission of this statement was “plain error” requiring reversal even in the absence of an objection. “Plain error is that which is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or which seriously affects the fairness, integrity or public reputation of a judicial proceeding.” (Citation and punctuation omitted.) Buice v. State, 239 Ga. App. 52, 56 (2) (520 SE2d 258) (1999), aff’d, 272 Ga. 323 (528 SE2d 788) (2000). The admission of White’s brief and ambiguous statement does not appear to rise to this level; moreover, White was acquitted of driving under the influence, so it is highly unlikely that this statement, even if improperly admitted, had any effect on the jury’s verdict.

Judgment affirmed.

Eldridge and Ellington, JJ, concur.

       White was also charged and sentenced as a recidivist.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A02A0537.
    CARROLL v. THE STATE.
    (564 SE2d 833)
   Miller, Judge.

Billy Joe Carroll was tried for various felonies and acquitted of all charges except a simple battery misdemeanor charge. The uncon-tradicted evidence regarding the simple battery was that he pulled the victim’s hair, which Carroll himself conceded he may have done when he pulled her toward him to hit her. This renders moot most of the issues in Carroll’s appeal, for the issues primarily concern the felonies of which Carroll was acquitted. Accordingly, we affirm.

Soon after his divorce from the victim, Carroll came to a residence where the victim was having dinner and violently confronted her and her boyfriend. Although the evidence was disputed as to the extent of the confrontation, all testified that Carroll pulled his ex-wife’s hair and struck her, with Carroll himself conceding on the stand that he struck her with his fist and that he may have pulled her hair when he pulled her toward him to land the blow.

Carroll was indicted for burglary, aggravated assault on the boyfriend with a gun, simple battery by pulling the ex-wife’s hair, kidnapping, aggravated assault on the ex-wife with a gun, and possession of a firearm during the commission of a crime. A jury acquitted him on all counts except the simple battery misdemeanor count. He appeals, alleging that the trial court erred in (1) sustaining various relevance objections raised by the State during his cross-examinations, (2) charging the jury incorrectly on the prior inconsistent statement rule, (3) allowing the State to improperly cross-examine his good character witness, and (4) making an expression of opinion on the evidence.

1. Carroll’s complaint that the court improperly curtailed his cross-examination of the State’s witnesses fails for two reasons. First, he correctly points out in his appellate brief that the disputed cross-examination questions were designed to show that Carroll assaulted his ex-wife with his fist, not with a gun as charged in the indictment. Since Carroll was acquitted of all gun-related assault charges, however, this curtailing of his cross-examinations could not have been harmful, rendering this enumeration moot. See Chambers v. State, 252 Ga. App. 190, 193 (4) (556 SE2d 444) (2001).

Second, “the scope of cross-examination is within the sound discretion of the trial court and will not cause reversal unless the discretion is abused. [Cits.]” Chastain v. State, 257 Ga. 54, 55 (354 SE2d 421) (1987); see Roseberry v. State, 251 Ga. App. 856, 857 (1) (554 SE2d 816) (2001) (“ ‘The admission or exclusion of evidence on the ground of relevance lies within the discretion of the trial court.’ ”) (footnote omitted). Having reviewed the disputed cross-examination questions to which objections were sustained, we discern no abuse.

2. Carroll objects to the trial court’s charge to the jury that they could consider prior consistent and inconsistent statements of testifying witnesses as substantive evidence. Although Carroll concedes that the charge was correct under Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982), as to the prior inconsistent statements he made, he argues that it was not correct to instruct the jury that they could consider his prior consistent statements as substantive evidence.

This argument fails for at least two reasons. First, since the prior consistent statements at issue were those of Carroll, it would be only in his favor to allow the jury to consider them; to the extent they were consistent with his trial testimony, they would only bolster that testimony. Second, Gibbons’s rule allowing prior inconsistent statements as substantive evidence was extended to prior consistent statements in Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985). See Woodard v. State, 269 Ga. 317, 318-320 (2) (496 SE2d 896) (1998). The trial court’s instruction to the jury was accordingly correct.

3. Carroll argues that the court erred in allowing the State to cross-examine one of his good character witnesses about Carroll’s prior arrest for criminal trespass. Carroll, however, failed to raise any objection below and has therefore preserved nothing for review. Strong v. State, 263 Ga. 587, 589 (3) (436 SE2d 213) (1993). Carroll’s plea that we consider the issue nonetheless under the “plain error” doctrine is unavailing, as this doctrine applies only in death penalty cases or in alleged violations of OCGA § 17-8-57 in other criminal cases. Abernathy v. State, 252 Ga. App. 635-636 (1) (556 SE2d 859) (2001); see Paul v. State, 272 Ga. 845, 848-849 (3) (537 SE2d 58) (2000). Moreover, we fail to see any “plain error” here, especially since OCGA § 24-9-84 allows a party to cross-examine a character witness about specific transactions to show the extent and foundation of the witness’s knowledge. Cunningham v. State, 182 Ga. App. 591 (356 SE2d 542) (1987).

4. Carroll contends that the trial court improperly intimated a negative opinion of his defense by sustaining various objections of the State in a negative or sarcastic tone. Carroll waived this issue by failing to object or move for a mistrial on this ground below, Paul, supra, 272 Ga. at 848 (2), but inasmuch as he raises a potential violation of OCGA § 17-8-57, we evaluate whether this issue should be reviewed under the “plain error” doctrine. Id. at 848-849 (3).

In this regard, “we must consider whether the court violated OCGA § 17-8-57 and, if so, whether the violation constituted an obvious error or one that seriously affected the fairness, integrity, and public reputation of these judicial proceedings.” (Citations and punctuation omitted.) Seidenfaden v. State, 249 Ga. App. 314, 318 (2) (547 SE2d 578) (2001); see Hunt v. State, 247 Ga. App. 464, 468 (5) (542 SE2d 591) (2000). Carroll’s complaints primarily concern statements the court made in explaining its rulings that sustained the State’s objections to various cross-examination questions. “[T]he statutory inhibition against an expression or intimation of opinion by the trial court as to the facts of the case does not generally extend to colloquies between the judge and counsel regarding the admissibility of evidence.” (Citation, punctuation and footnotes omitted.) Leggon v. State, 249 Ga. App. 467, 473 (6) (549 SE2d 137) (2001); see Rowe v. State, 266 Ga. 136, 139 (2) (464 SE2d 811) (1996).

Decided May 2, 2002.

Steven E. Lister, for appellant.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee.

Our review of the other alleged “expressions of opinion” reveals no violations of OCGA § 17-8-57. For example, the court accurately corrected a witness’s statement that a warrant had been taken out, when in fact only an application for a warrant was made (which application was rejected). To cure any possible misunderstandings of its actions, the court carefully instructed the jury not to interpret any comments or rulings by the court as an expression of opinion upon the facts of the case, upon the credibility of the witnesses, upon the weight of the evidence, or upon the guilt or innocence of the defendant. In light of such instructions and the tenuous nature of Carroll’s arguments, and in light of the jury’s acquitting Carroll on all charges save the misdemeanor, we hold that the court did not violate OCGA § 17-8-57 at all, let alone in an obvious manner that affected the integrity of the proceedings. See Hunt, supra, 247 Ga. App. at 469 (5); Johnson v. State, 234 Ga. App. 58, 59 (1) (506 SE2d 212) (1998). This enumeration fails.

Judgment affirmed.

Blackburn, C. J, and Johnson, P. J., concur.


author: Ruffin, Judge.

text:
    A02A0609.
    MIRANDA v. RODRIGUEZ et al.
    (564 SE2d 830)
   Ruffin, Judge.

Antonio Miranda, M.D., appeals from the trial court’s order concluding that his lawsuit stood automatically dismissed after he failed to timely pay court transfer costs. For reasons that follow, we reverse.

The record shows that Miranda sued Southern Medical Clinics, RA. d/b/a Corporate Center Clinic (“the Clinic”) and its president, Martin Rodriguez, M.D., in the Superior Court of Cobb County for breach of an employment contract. The trial court granted Miranda summary judgment, and Rodriguez and the Clinic appealed. On appeal, we affirmed the trial court’s judgment as to the Clinic, but reversed the entry of judgment against Rodriguez personally.

Following remand, the Clinic, a Fulton County resident, moved to set aside the judgment against it, arguing that venue in Cobb County became improper when we reversed the judgment against Rodriguez, a Cobb County resident. The trial court agreed, set aside the judgment, and on May 16, 1999, ordered that the action be transferred to the Superior Court of Fulton County. In its transfer order, the trial court stated that “[t]he Plaintiff shall be responsible for any transfer costs” and cited Uniform Superior Court Rule 19.1.

On May 19, 1999, the Cobb Superior Court clerk sent Mark Johnson, one of Miranda’s counsel of record, a bill of costs relating to the transfer. The clerk’s accompanying cover letter stated: “Upon receipt of these costs, the case will be transferred to Fulton County. If the costs are not paid within 20 days from receipt of this letter, the case will automatically stand dismissed.” Johnson received the cost bill on May 20, 1999, and forwarded it to Thomas Kenney, another Miranda attorney, on June 16,1999. Kenney paid the cost bill the following day.

Over two years later, the Clinic filed a notice of automatic dismissal by operation of law with the Fulton County Superior Court. In that notice, the Clinic asserted that Miranda had not paid the transfer costs within the 20-day time period, resulting in an automatic dismissal. Noting that Miranda satisfied the cost bill 28 days after Johnson received it, the Fulton County court affirmed the Clinic’s notice of automatic dismissal. Miranda now appeals.

USCR 19.1 (F) provides:

No action or proceeding may be transferred except upon written order of the court in which the action pends (trans-feror court), reasonable notice of which shall be given to all parties. This order shall specify the court to which the matter is to be transferred (transferee court) and shall state that unless plaintiff pays all accrued court costs within 20 days of mailing or delivery of the cost hill to plaintiff, the action shall automatically stand dismissed without prejudice.

The dismissal referenced in USCR 19.1 (F) is automatic and self-executing. According to the Clinic, therefore, the case stood dismissed by operation of law when Miranda failed to pay the cost bill within 20 days after its delivery to Johnson. Miranda counters that the trial court’s transfer order did not sufficiently notify him of the timing requirements and automatic dismissal under Rule 19.1 (F).

In Young v. Martin Drilling & Blasting, a plurality of this Court concluded that the automatic dismissal in Rule 19.1 (F) applies only when the transfer order notifies the plaintiff “that the case will be automatically dismissed if costs are not paid within a certain time.” According to the Young plurality, the order must strictly comply with the rule; substantial compliance is not enough. Thus, the Young transfer order, which simply stated that “ ‘upon payment of all costs within the time provided in USCR 19.1 this action shall be transferred,’ ” did not authorize dismissal, despite the plaintiff’s failure to timely pay the accrued court costs.

As the Clinic points out, Young is only physical precedent, and the Young dissenters found strict compliance with Rule 19.1 (F) unnecessary. In the dissent’s view, substantial compliance is adequate, and “the transferring court’s order, referencing the time requirement provided by Rule 19.1, sufficiently invoked the operation of that Rule,” demanding dismissal. Even assuming that substantial compliance suffices, however, we cannot find that the transfer order in this case invoked the automatic dismissal in Rule 19.1 (F).

The trial court’s transfer order did not inform Miranda that the action would stand automatically dismissed unless he paid the court costs within 20 days of mailing or delivery of the cost bill. Instead, it merely stated that Miranda “shall be responsible for any transfer costs.” The order lacked the language required by Rule 19.1 (F) and thus did not strictly comply with the rule. Furthermore, the order failed to mention the automatic dismissal provision or the timing requirements set by Rule 19.1. And although it stated that Miranda had to pay the transfer costs, it gave no indication that any deadline applied to this payment. Under these circumstances, the transfer order did not substantially comply with the notice requirements in Rule 19.1 (F).

The Clinic argues that the court clerk’s letter, which warned Miranda about the automatic dismissal and the 20-day payment deadline, substantially complied with Rule 19.1 and provided adequate notice of its provisions. In promulgating this rule, however, our Supreme Court directed the trial court to warn the plaintiff by court order of the draconian penalty imposed for failure to timely pay court costs. That penalty carries jurisdictional consequences; an automatic dismissal under Rule 19.1 divests the trial court of jurisdiction over an action.

Decided May 2, 2002

Kenney & Solomon, Thomas S. Kenney, Charles D. Joyner, James R. Little, for appellant.

Wilson, Brock & Irby, Harry L. Cashin, Jr., Fleming & Ray, James M. Sherman, for appellees.

Given these jurisdictional consequences, as well as Rule 19.1 (F)’s clear directive that the trial court inform the plaintiff about its provisions, we cannot find that a letter from the court clerk furnishes adequate notice. Notwithstanding the clerk’s letter or Miranda’s independent knowledge of the rule, the trial court needed to notify Miranda about the requirements and jurisdictional ramifications of Rule 19.1 (F). In the context of this rule — and its harsh remedy for failure to comply — Miranda’s actual knowledge did not relieve the trial court of its notice responsibility. Even if substantial compliance is sufficient, that compliance must be found in the trial court’s order, not in a letter from the court clerk.

The trial court’s transfer order did not mention the automatic dismissal or the timing requirements under Rule 19.1 (F). Accordingly, the order did not comply — strictly or substantially — with the rule’s notice provisions, and Miranda’s lawsuit does not stand dismissed as a matter of law.

Judgment reversed.

Pope, P. J., and Barnes, J., concur.

       See Rodriguez v. Miranda, 234 Ga. App. 779, 783-784 (2), (3) (507 SE2d 789) (1998).

       The record contains a May 17, 1996 pleading entitled “Substitution of Counsel for Plaintiff.” In that pleading, attorney William P. Rowe III “substitute [d] himself as counsel of record in place of the previous appearance entered on behalf of Plaintiff by MARK A. JOHNSON.” Nevertheless, Miranda admitted below that Johnson was counsel of record when the Cobb County clerk issued the cost bill in May 1999. He is now bound by that admission. See Froelich v. State, 210 Ga. App. 647, 648, n. 1 (437 SE2d 358) (1993).

       (Emphasis supplied.)

       See Phillips v. McCroskey, 234 Ga. App. 87-88 (1) (506 SE2d 388) (1998).

       See Drury v. Wall, 234 Ga. App. 95 (506 SE2d 646) (1998) (“Once the 20 days passed without payment of the transfer costs, the case was automatically dismissed by operation of law and was no longer pending, and any further action in the case other than documenting dismissal was a mere nullity.”).

       195 Ga. App. 133, 134 (1) (392 SE2d 714) (1990) (physical precedent only).

       See id.

       Id. at 133-134.

       See id. at 134-135 (Deen, P. J., dissenting).

       Id. at 135.

       See Southern Drayage v. Williams, 216 Ga. App. 721, 722 (1) (455 SE2d 418) (1995).

       See id.

       See Phillips, supra at 88 (3).

       Accord Terrell v. Porter, 189 Ga. App. 778, 779 (1) (377 SE2d 540) (1989) (court lacks jurisdiction over defendant who does not receive sufficient service of process, even if defendant has actual knowledge of the suit).

       See Southern Drayage, supra.


author: Smith, Presiding Judge.

text:
    A02A0701.
    CGU INSURANCE COMPANY v. SABEL INDUSTRIES, INC. et al.
    (564 SE2d 836)
   Smith, Presiding Judge.

This appeal arises out of the trial court’s dismissal of an action filed by CGU Insurance Company against Douglas and Amy Harrison for recovery of workers’ compensation benefits paid to Douglas Harrison. The trial court dismissed the action and dissolved CGU’s subrogation lien on the ground that CGU failed to meet its burden of proving that Harrison had been fully and completely compensated for his losses under OCGA § 34-9-11.1 (b), among other grounds. Because some evidence supports the trial court’s decision, we affirm. We also conclude that CGU is not allowed under the statute to assert a lien against the settlement with respect to benefits not yet paid to Harrison.

On February 29, 2000, during the course of his employment with Newnan Land Development, Douglas Harrison was catastrophically injured while driving his vehicle. As he met and passed by a tractor-trailer traveling in the opposite lane toward him, four large metal plates weighing approximately 400 pounds each fell from the trailer and struck Harrison’s vehicle. The tractor-trailer was operated by a Sabel Industries, Inc. employee. Harrison’s left leg was nearly severed by one of the plates, and amputation above the knee was required later that day. Several additional surgeries over the next month were required to remove infected tissue, to adjust the length of his limb, and to prepare him to be fitted for a prosthesis. He then underwent several months of rehabilitation and was fitted for and received a prosthesis. Using modified machinery at his job as a tug boat operator, Harrison returned to work at his pre-injury wage approximately one year after the accident, earning approximately $34,000 per year. Harrison is married and has three children, aged ten, six, and six months at the time of the accident.

CGU paid workers’ compensation benefits on behalf of Harrison’s employer. As of June 15, 2001, CGU had paid $212,333.92 in medical expenses, temporary total disability benefits, and permanent partial disability benefits. In October 2000, Harrison and his wife filed a negligence action against Sabel Industries and the driver of the tractor-trailer. Following mediation in April 2001, the Harrisons’ claims were settled for $4,500,000, with $4,000,000 allocated as a lump-sum payment and $500,000 paid out through an annuity. Meanwhile, in March, CGU placed the parties on notice of its claimed subrogation rights. Issues concerning the subrogation lien were not resolved during the mediation. The Harrisons filed a motion to confirm settlement, to add CGU as a party defendant, and to dissolve the workers’ compensation lien. CGU filed a motion to intervene, which was subsequently granted.

The trial court then conducted a hearing to determine whether CGU is entitled to recover on its subrogation lien under OCGA § 34-9-11.1. After CGU presented its evidence, the trial court granted a directed verdict to the Harrisons, stating that CGU had not carried its burden of proving full and complete compensation. The court also stated that CGU had not proved which portion of the settlement was attributable to Mrs. Harrison’s consortium claim. In a formal written order, the court stated that the motion for directed verdict had been transformed into a motion to dismiss. The court granted the motion and dissolved CGU’s lien. CGU appeals, arguing that the trial court erred in granting a directed verdict on the basis that CGU failed to prove full and complete compensation as to all present and future economic and noneconomic losses. CGU also maintains that the court erred in placing the burden on it to prove the value of Mrs. Harrison’s consortium claim and in directing a verdict on the ground that no evidence was presented as to the value of that claim.

1. We first address CGU’s argument that the trial court erred in concluding that it failed to meet its burden of proving full and complete compensation to Harrison. Under OCGA § 34-9-11.1 (b), if an injured employee asserts , a right of action against a person other than the employer,

and the employer’s liability under this chapter has been fully or partially paid, then the employer or such employer’s insurer shall have a subrogation lien, not to exceed the actual amount of compensation paid pursuant to this chapter, against such recovery. The employer or insurer may intervene in any action to protect and enforce such lien. However, the employer’s or insurer’s recovery under this Code section shall be limited to the recovery of the amount of disability benefits, death benefits, and medical expenses paid under this chapter and shall only be recoverable if the injured employee has been fully and completely compensated, taking into consideration both the benefits received under this chapter and the amount of the recovery in the third-party claim, for all economic and noneconomic losses incurred as a result of the injury.

The trial court concluded that the evidence presented by CGU was inadequate to show full and complete compensation to Harrison. The court found the expert testimony introduced by CGU to be speculative and also concluded that because the settlement did not allocate a specific award to Mrs. Harrison for her consortium claim, it could not determine whether the remainder of the settlement fully and completely compensated Harrison.

CGU presented the testimony of two experts. Zan Lanford, a certified rehabilitation registered nurse and rehabilitation consultant, testified concerning Harrison’s future medical and vocational needs, stating that his future medical needs are minimal and that his vocational outlook is bright given his education and vocational history.. Although not familiar with the industry, she stated that Harrison had previously worked in the grain industry and that if he were to transition into another vocation, he is employable, based on her review of the labor market. She stated that his history in management could transfer into another job, as well as his previous history of working in agriculture. Also, Lanford testified that he needed only one college credit to receive a bachelor’s degree and that obtaining this degree would make him more marketable.

On cross-examination, however, Lanford admitted that although she reviewed information from the Department of Labor to determine Harrison’s vocational outlook, she did not perform a labor market survey, which would have been required to comprehensively determine his employability. In addition, in assessing his future needs, she did not speak with Harrison, his wife, or the rehabilitation supplier who actually worked with Harrison. With regard to his educational background, Lanford did not know the name of the college he attended, nor did she know how many of his college credits would transfer several years after they were received. Those credits were earned toward a degree in physical education, and Lanford acknowledged that this degree would be of no use to Harrison after the accident. Although she previously testified that he needed only one college credit to graduate with a bachelor’s degree, she admitted that she in fact did not know how long completion of a bachelor’s program would take.

As for Harrison’s vocational outlook, Lanford was aware of the recommendation of Harrison’s physician that he avoid slippery and uneven surfaces, and she stated that she would not recommend working on a boat on a lake. She testified concerning the possibility of his working in the grain industry but admitted that she did not know what type of work he would be doing, and her assessments had not included adaptations and modifications for machinery that would be needed for field work. In fact, she acknowledged that she did not know the nature of Harrison’s previous work at a seed company and if this work required field work. Harrison testified that a portion of his previous experience did require him to work in the field.

In addition, Lanford agreed on cross-examination that large individuals, such as Harrison, with above-the-knee amputations often experienced difficulties with gait, including chronic hip and back pain sometimes requiring surgery. She did not know whether Harrison would need this surgery. She further testified that, in addition to the primary prosthetic used by an amputee, two other types of prosthetics were essential — a backup for use when the primary prosthetic is damaged, and one intended for use while bathing. She did not know, however, whether these devices had been provided to Harrison. Harrison testified that CGU denied him a backup prosthetic.

Patricia Killingsworth, a mediator and arbitrator, also testified on behalf of CGU. She evaluated Harrison’s economic and noneco-nomic losses, stating that the total loss was approximately $1.3 million. Her assessment for the portion of this sum representing lost wages did not, however, take into account the possibility of future surgeries and associated lost work time. In evaluating Harrison’s losses, Killingsworth relied on information provided by Lanford. She admitted that her calculation concerning future lost wages was inaccurate, since the information provided by Lanford was based on Lan-ford’s uninformed opinion that he needed only one college credit. In addition, although Killingsworth was an experienced mediator, she had no previous experience evaluating above-the-knee amputations. Finally, like Lanford, Killingsworth did not interview Harrison, and she agreed this would have been helpful in evaluating his pain and suffering.

In ruling on the Harrisons’ motion for directed verdict, the trial court stated that CGU’s “experts, both of them, speculated on things that they should know and were missing things that were essential” and that the “experts were missing some key information that would have made their numbers something more reliable than speculation.” In addition, the court concluded that it could not determine whether Harrison was fully and completely compensated because sufficient evidence was not presented concerning Mrs. Harrison’s consortium claim, and the court therefore could not determine “how much of this money is his.” In its written order, the trial court stated that CGU could not enforce its lien against the settlement proceeds due Mrs. Harrison and noted that the settlement was not divided to allow it to determine which portion of the proceeds was intended for Harrison, and which was intended for Mrs. Harrison. The court then found CGU’s evidence to be

woefully deficient in proving full and complete compensation to Plaintiff Douglas Harrison. CGU’s experts conceded material omissions in their fact gathering effort and appeared to contradict each other on several significant matters. Despite the assistance from experts, CGU simply failed to demonstrate with sufficient mathematical certainty which portion of the lump sum settlement was subject to CGU’s lien.

CGU contends that the trial court erroneously placed the burden of proving the value of Mrs. Harrison’s consortium claim on it and, alternatively, that its evidence was sufficient to prove the value of the claim. But we need not reach these issues. Even assuming, without deciding, that the entire settlement constituted an award to Harrison alone, the trial court’s conclusion that CGU failed to meet its burden is supported by the record. Under OCGA § 9-11-41 (b),

a trial judge in a non-jury case expressly has the power to adjudicate the case on the merits at the conclusion of plaintiff’s case. . . . Since the court determines the facts as well as the law, it necessarily follows that the motion may be sustained even though [the] plaintiff may have established a prima facie case. Thus, in cases of this nature, the trial judge sits as trier of fact, and [its] findings are analogous to the verdict of a jury and should not be disturbed if there is any evidence to support them.

(Citation and punctuation omitted.) Hertz Corp. v. McCray, 198 Ga. App. 484-485 (1) (402 SE2d 298) (1991). The trial court correctly found that the experts’ testimony was “woefully deficient.” As discussed above, they spoke to neither Harrison nor his wife during their fact-gathering efforts, and a number of facts concerning Harrison’s physical, educational, and vocational needs, which were essential to an accurate determination of Harrison’s losses, were not included in their evaluations. As a consequence, those evaluations were speculative to a great extent. Some evidence supported the court’s finding that CGU did not meet its burden of proof, and we will not disturb its judgment. See generally Liberty Mut. Ins. Co. v. Johnson, 244 Ga. App. 338, 341 (3) (535 SE2d 511) (2000) (trial court’s factual determination not disturbed because some evidence showed that employee was not fully compensated).

2. CGU also contends that OCGA § 34-9-11.1 gives it the right to assert a lien on future benefits, or benefits not yet paid, to Harrison. We do not agree.

As originally enacted in 1920, the Workers’ Compensation Act did not allow subrogation of the employer to any portion of an employee’s claim against a third party. K-Mart Apparel Corp. v. Temples, 260 Ga. 871, 873 (1) (401 SE2d 5) (1991). The Act was amended in 1922, however, to permit subrogation rights to the employer under certain circumstances. Id. As discussed in Spengler v. Employers Commercial Union Ins. Co., 131 Ga. App. 443, 451 (6) (206 SE2d 693) (1974), under former Code Ann. § 114-403, upon giving certain written notice,

the person called upon to make such payment shall be sub-rogated, to the extent of the compensation, medical expenses and/or funeral expenses payable, to all rights arising out of the injury or death which the injured employee . . . shall have against such notified persons, and shall have a lien therefor against the net recovery of any judgment or settlement recovered by the injured employee . . . against any of the persons so notified.

(Punctuation and emphasis omitted.) Subrogation rights conferred by Code Ann. § 114-403 were later abolished by the complete repeal of that statute in 1972. See Aetna Ins. Co. v. Windsor, 133 Ga. App. 159 (210 SE2d 373) (1974). These rights were resurrected in 1992 by the enactment of OCGA § 34-9-11.1 (b). But contrary to CGU’s argument, the circumstances under which subrogation is permitted under the present statute differ from those authorizing subrogation under prior law.

The previous statute clearly contemplated that an employer/ insurer might recover for benefits not yet paid, as it recited that the employer was subrogated to certain benefits payable. The current provision, however, in addition to requiring the employee to be completely compensated before an employer/insurer can enforce its lien, also states that a lien arises when the employer’s liability has been fully or partially paid and recites that the employer’s liability shall not exceed the actual amount of compensation paid. We must presume that the legislature was aware of the prior law, which contemplated a lien on benefits not yet paid, and it could have used the same language in the new law, if it so desired. It did not. The omission of language indicating an intent to permit a lien against future benefits “invites the application of the venerable principle of statutory construction expressio unius est exclusio alterius: the express mention of one thing implies the exclusion of another. . . . The omission of any such reference from the Code subsection must be regarded as deliberate.” (Citations and punctuation omitted.) Homebuilders Assn. &c. v. Morris, 238 Ga. App. 194, 196 (518 SE2d 194) (1999).

We recognize that in Spengler, supra, this court recited the general principle that the right of subrogation served to effectuate the purpose of the workers’ compensation law at the time by permitting “a means for recouping the employer’s loss” and preventing “a double recovery by the employee.” (Punctuation omitted.) Id. at 445 (2). But here, given CGU’s failure to present sufficient evidence sustaining its burden of proof, we cannot conclude that our interpretation of OCGA § 34-9-11.1 (b) confers a double recovery on Harrison. Furthermore, our interpretation “comports with the overall purposes of the Act. Although the Workers’ Compensation Act is in derogation of common law, it is highly remedial in nature. It must be construed liberally in favor of the claimant in order to accomplish its beneficent purposes.” (Citations and punctuation omitted.) Morris, supra at 196-197. Accordingly, we conclude that the trial court did not err in finding that the law does not authorize a lien against the settlement proceeds with respect to future benefits paid to Harrison.

We note that Ga. Star Plumbing v. Bowen, 225 Ga. App. 379 (484 SE2d 26) (1997), and Anthem Cas. Ins. Co. v. Murray, 246 Ga. App. 778 (542 SE2d 171) (2000), relied on by CGU to support its argument that unpaid benefits are subject to a subrogation lien, are not controlling. In fact, in Bowen we expressly stated that “[u]nder the plain language of subsection (b) of the statute, a subrogation lien is created only after the employer has fully or partially paid the workers’ compensation payments due to the employee.” (Emphasis supplied.) Id. at 381. In Anthem, the insurer filed suit for reimbursement of workers’ compensation benefits paid to the injured employee. Summary judgment was granted to the employee on the issue of whether he had been completely compensated for his injuries by a jury verdict against the tortfeasor in the amount of $1.5 million. We reversed, concluding that the evidence was conflicting on the issue, and we remanded for the trial court to “weigh this evidence and make a factual determination as to whether Anthem carried its burden.” (Footnote omitted.) Id. at 781 (1). We stated that on “remand, any reimbursement of benefits to which Anthem may be entitled is statutorily limited to the amount of Murray’s tort recovery. Put another way, in no event may Anthem recover more than $1.5 million from Murray, no matter how much it pays him in workers’ compensation benefits.” (Citations omitted.) Id. at 781 (1), n. 15. CGU argues that these remand instructions “all but recognized that an Employer’s/Insurer’s subrogation lien extends to benefits yet to be paid pursuant to the Workers’ Compensation Act.”

Here, however, following a bench trial as opposed to ruling on a motion for summary judgment, the trial court weighed the evidence presented by CGU and found it to be lacking. Furthermore, in Anthem, the employee admitted that a certain amount would constitute “ ‘a full and complete recovery.’ ” Id. at 780 (1). Harrison made no such admission here. Anthem is thus distinguished from this case, and we simply cannot agree that the instruction in Anthem is an explicit recognition that the subrogation provision confers a right on CGU to a lien with .respect to as-yet-unpaid benefits. This is not to say that CGU can never assert and pursue recovery on a lien. After benefits have been paid, at which time they are no longer “future” benefits, an employer/insurer should be permitted to assert and seek recovery on a subrogation lien to the extent of the benefits paid. And as discussed above, the employer/insurer must meet the burden of showing full and complete compensation to the employee.

Decided May 2, 2002

Lowendick, Cuzdey & Ehrmann, Stephen Cuzdey, Frederick J. Conklin, Jr., Marion G. Waters TV, for appellant.

Carlock, Copeland, Semler & Stair, Wayne D. McGrew III, Goodman & Goodman, Michael D. Goodman, Freed & Berman, Gary S. Freed, Kenneth A. Hindman, for appellees.

Judgment affirmed.

Eldridge and Ellington, JJ, concur.

       To remove Harrison from the wreckage, a paramedic had to cut away a portion of tissue on his lower leg, because a piece of metal had impaled his leg and rested against the steering column. Harrison never fully lost consciousness during the time required to remove him from the wreckage and transport him to the hospital, and he was not given pain medication at the scene.

       Procedurally, this was a correct method to dispose of the motion. “In a bench trial there is no jury verdict. Thus, it is procedurally incorrect to move for a directed verdict; and such motion, as well as the grant thereof, will be construed as one for involuntary dismissal under OCGA § 9-11-41 (b). [Cit.]” Hertz Corp. v. McCray, 198 Ga. App. 484 (1) (402 SE2d 298) (1991).

       Although CGU argues that the trial court did not make a specific finding in its final order as to whether the lien against the settlement proceeds applies to future benefits, the trial court did state during the hearing that it found no authority for this proposition.


author: Johnson, Presiding Judge.

text:
    A02A0141.
    FOREST COMMODITY CORPORATION v. LONE STAR INDUSTRIES, INC. et al.
    (564 SE2d 755)
   Johnson, Presiding Judge.

Construction Aggregates, Ltd., owned by Lone Star Industries, Inc. (jointly referred to as “CAL”), was in the business of mining and shipping aggregate stone. Forest Commodity Corporation (“FCC”) owns an ocean terminal facility, where ships can unload ánd store bulk cargo. On August 1, 1994, CAL and FCC entered into a three-year contract for the “thru-putting” of aggregate stone. In the contract, FCC agreed to provide terminal space for unloading aggregate stone, which FCC would then store, reload onto trucks and weigh for transshipment. For the promised services, CAL agreed to pay FCC 900 per ton of aggregate stone unloaded at the FCC marine terminal and processed as described. CAL promised to unload a minimum of 150,000 tons per year, for a total of 450,000 tons over the three-year contract period. A fall-short provision of the agreement provided that CAL would pay FCC $1.50 per ton instead of 900 per ton if and to the extent CAL failed to ship the agreed tonnage under the agreement. The agreement also contained a provision prohibiting the assignment or subcontracting of any portion of the obligations without the written consent of the other party.

During the first year of the contract period, CAL unloaded 148,236 tons of the aggregate at the FCC terminal. In August 1995, CAL unloaded an additional 49,934 tons of aggregate for a total of 198,170 tons. Soon thereafter, CAL entered into negotiations with Martin Marietta Materials, Inc. (“Martin Marietta”) for the sale of CAL’s assets. Martin Marietta agreed to accept CAL’s rights and obligations under the agreement with FCC, and CAL requested that FCC accept an assignment of the thru-put agreement to Martin Marietta. FCC refused to consent to the assignment. Around this same time, FCC and Martin Marietta began negotiations and eventually entered into a substantially similar contract in the fall of 1995 for the thru-putting of aggregate. It is undisputed that after Martin Marietta’s acquisition of CAL and its assets, and pursuant to the new contract entered into with FCC, Martin Marietta thru-put 286,698 tons of aggregate stone at the FCC terminal during the remainder of the original contract period for the CAL thru-put agreement. When combined with the 198,170 tons shipped by CAL, a total of 484,868 tons of aggregate stone was shipped through the FCC facility, 34,868 tons more than the guaranteed minimum under the original agreement.

FCC sued CAL for breach of contract, alleging CAL failed to ship the minimum amount of aggregate stone under the contract. CAL filed a motion for summary judgment as to the breach of contract claim. The trial court granted the motion for summary judgment, finding that FCC was precluded from enforcing the contract because it failed to comply with the nonassignability clause. We find no error and affirm.

1. FCC contends that the trial court erred in granting summary judgment to CAL because there are genuine issues of material fact regarding whether FCC assigned the contract. However, the irrefutable evidence, even when construed in a light most favorable to FCC, points inevitably to the conclusion that an assignment of the CAL. thru-put agreement was effected. An assignment occurs when one party transfers to another its interests and obligations in a contract. The numerous items of undisputed facts in this case show that FCC’s interests and obligations in the CAL thru-put agreement were transferred to Woodchips Export Corporation (“WEC”) without the written consent of CAL, thereby violating the nonassignability clause of the agreement and extinguishing any right to recovery which FCC may have had.

The thru-put agreement obligated FCC to provide a marine terminal facility for the off-loading of aggregate and to perform both the reloading of the aggregate onto trucks and the weighing of such trucks. Yet, the evidence in the record shows that the terminal facility where the CAL aggregate was off-loaded was leased by FCC to WEC. In addition, it is undisputed that FCC had no employees and no equipment to perform the obligations under the CAL agreement. FCC’s vice-president admits that FCC had no employees and that FCC entered into an unwritten agreement with WEC under which WEC agreed to perform FCC’s obligations as its operations agent.

Moreover, FCC’s tax returns for the years covered by the thru-put agreement show that the only income received by FCC during this time period was rental income. These tax returns do not show any income for aggregate thru-putting, nor do they include any expenses for employee wages, equipment rental or maintenance, or fuel expenditures necessary to carry out its obligations under the CAL thru-put agreement. On the other- hand, WEC’s income statements and tax returns reveal that WEC deducted the expenses incurred in conjunction with aggregate thru-putting and received income for the thru-put of aggregate in amounts that correspond to the amounts generated by the CAL thru-put agreement.

Although FCC has gone into great detail to attempt to provide evidence of a material fact issue, proffered rationales that receipt of income by WEC and the failure to declare any thru-put income by FCC were merely the result of inter-company adjustments are not sufficient to overcome the overwhelming evidence of an assignment. Indeed, FCC’s own accountants testified that such debiting and crediting could not have occurred between these two parties since FCC files separate tax returns from the tax returns of WEC and other related companies. Furthermore, the same accountants testified that even if such funds had, in fact, been debited and credited between these two companies, the income would first have appeared on the company actually earning it, which in this case was WEC. As a final note, FCC has offered no documentary evidence supporting this accounting practice, such as documents memorializing such inter-company adjustments through debits and credits.

FCC’s further contention that an assignment could not have occurred since FCC maintains a “receivable” for the thru-put agreement fails for similar reasons. If the thru-put income were truly a receivable of FCC, this income would have appeared on FCC’s tax returns as income received from the thru-put agreement. As FCC’s accountants testified, the party earning the income declares it as such, and had FCC received any income under the thru-put agreement, it would have appeared on FCC’s tax returns.

FCC’s next contention refuting the existence of an assignment in this case is the allegation that the absence of income on FCC’s tax returns is a result of other parties’ involvement in the transaction. FCC contends that other parties were involved in the transaction whose names did not appear on the agreement, at the request of CAL. This attempt to introduce evidence of other entities as parties to the agreement is an impermissible attempt to vary unambiguous terms of the written contract. Furthermore, the agreement contains a merger clause which forecloses such a position.

FCC next argues that no assignment can be found in this case since there is no written assignment document or any other document indicating an intent to assign. However, an assignment can be inferred from the totality of the circumstances and need not be reduced to writing. In addition, Georgia courts may look to tax returns as probative evidence in ascertaining the existence of an assignment. The affirmative decision to declare the thru-put income on the tax returns of WEC and not on the tax returns of FCC is certainly evidence of an intent to assign. Moreover, FCC’s vice-president testified that oral agreements between FCC and WEC were entered into under his direction and supervision, showing yet another intent to assign. The trial court properly found that FCC had assigned the CAL thru-put agreement to WEC.

2. FCC next contends that even if an assignment occurred, it does not amount to a material breach of the agreement and thus should not foreclose recovery by FCC on the CAL agreement. As support for this contention, FCC maintains that the fundamental purpose of the agreement — to provide CAL with a place to discharge and store its aggregate cargo — was satisfied in this case. Thus, according to FCC’s contentions, any breach of the nonassignability clause cannot be considered a material breach of the agreement. We disagree.

Under Georgia law, a party’s refusal to abide by a contract provision prohibiting assignment, or any other relinquishing of contractual obligations, is properly considered a repudiation of the contract amounting to an anticipatory breach. Such a repudiation of the agreement estops FCC from seeking to enforce other provisions of the agreement. Since the assignment of the contract extinguished FCC’s right to performance and constituted an anticipatory breach of the contract, the issue of materiality is irrelevant. We, nonetheless, considered the materiality argument raised by FCC and found that the assignment by FCC is clearly a material breach of the contract.

FCC’s breach of contract claim stems from its refusal to accept CAL’s proposed assignment of the agreement to Martin Marietta. We find it ironic, as did the trial court, that FCC argues the nonassigna-bility clause is not a material aspect of the CAL agreement, especially in light of FCC’s own refusal of CAL’s request for consent to an assignment of the agreement to Martin Marietta. This refusal shows that FCC thought the identity of the parties to the agreement was important or it would have accepted CAL’s proposed assignment. In addition, the agreement creates a bailment relationship between FCC and CAL, wherein CAL entrusts aggregate to FCC’s safekeeping. Certainly, the uniqueness and identity of the parties are material terms in such a relationship, and the trial court did not err in determining that FCC’s assignment was a material breach of the CAL thru-put agreement.

3. FCC asserts that even if an assignment occurred and the assignment is considered a material breach of the CAL agreement, CAL waived any objection to such an assignment because it knew that FCC was one of a group of related companies performing various functions at the facility, yet failed to object. In support of this contention, FCC attempts to introduce parol evidence to the CAL agreement. However, the CAL agreement contains a merger clause. The purpose of merger clauses is to preclude any unilateral modifications of a written contract through evidence of pre-existing terms which were not incorporated into the written contract. Moreover, where parties have reduced to writing a complete and certain agreement, the court will, in the absence of fraud, mistake, or accident, conclusively presume that the writing contains the entire contract, and parol evidence of prior or contemporaneous representations or statements is inadmissible to add to, take from, or vary a written contract. The trial court did not err in finding that CAL did not waive its right to object to the assignment.

Judgment affirmed.

Blackburn, C. J, and Miller, J., concur.

Decided April 11, 2002

Reconsideration denied May 3,2002

Bouhan, Williams & Levy, Roy E. Paul, Walter C. Hartridge, David M. Conner, for appellant.

Hunter, Maclean, Exley & Dunn, Robert S. Glenn, Jr., Colin A. McRae, for appellees.

       This cause of action was added to FCC’s original suit seeking to recover damages for injury to its real property allegedly caused when aggregate stone was negligently unloaded, causing the riverbank to give way under the improperly placed aggregate stone.

        Bank of Cave Spring v. Gold Kist, 173 Ga. App. 679, 680 (327 SE2d 800) (1985).

       See OCGA § 13-2-2 (1); First Data POS v. Willis, 273 Ga. 792, 794 (1) (546 SE2d 781) (2001).

       See First Data POS, supra at 795 (2).

       See generally Empire Distrib. v. George L. Smith II Ga. &c. Auth., 235 Ga. App. 742, 746 (509 SE2d 650) (1998) (the circumstances surrounding a transaction may be considered in determining the scope and effect of the agreement between the parties); CareAmerica v. Southern Care Corp., 229 Ga. App. 878, 882 (1) (494 SE2d 720) (1997) (considering the circumstances surrounding the assignment).

        Carter v. Davenport, 175 Ga. App. 830 (334 SE2d 876) (1985).

        Stevenson v. Allen, 94 Ga. App. 123, 125 (93 SE2d 794) (1956).

       See Thomas v. Garrett, 265 Ga. 395, 396 (1) (456 SE2d 573) (1995).

        See Andrews v. Skinner, 158 Ga. App. 229, 231 (279 SE2d 523) (1981).


author: Phipps, Judge.

text:
    A02A0942.
    WHEELER v. THE STATE.
    (564 SE2d 765)
   Phipps, Judge.

In 1995, an indictment was returned charging Richard Wheeler with numerous counts of child molestation and aggravated child molestation. He was tried in 1996, but a mistrial was declared when the jury was unable to reach a unanimous verdict. During a second trial the next month, Wheeler pled guilty to one count of child molestation. Five years later, he moved for an out-of-time appeal. The trial court denied Wheeler’s motion on various grounds. For reasons which follow, we affirm.

Wheeler challenges the validity of his guilty plea based on claims that (1) his attorney coerced him into entering the plea; and (2) the trial court at the guilty plea hearing failed to inform him of the rights he was waiving, including his right to sentence review, and did not establish a factual basis for the plea by inquiry on the record.

To establish entitlement to an out-of-time appeal, a criminal defendant has the burden of establishing that his failure to file a timely appeal was caused by ineffective assistance of counsel and that the issues he would raise on appeal can be resolved by facts appearing in the record.

Whether Wheeler’s attorney coerced him into pleading guilty cannot be resolved under the present record. Therefore, the court did not abuse its discretion in denying Wheeler’s request for an out-of-time appeal to pursue such claim.

The transcript of the guilty plea hearing shows that, in compliance with Uniform Superior Court Rule 33.8 (B), the trial court fully informed Wheeler before he pled guilty of all the rights he was waiving. Although the recommended practice is for the trial court to inform eligible defendants, at the time of sentencing, of the right to seek sentence review by the sentence review panel, there is no requirement that the court inform a person entering a guilty plea of a right to sentence review.

Decided April 19, 2002

Reconsideration denied May 3,2002.

Richard Wheeler, pro se.

J. Tom Morgan, District Attorney, Jeanne M. Canavan, Sheila A. Connors, Assistant District Attorneys, for appellee.

[W]hile Rule 33.9 of the Uniform Rules for the Superior Courts urges the trial courts to refrain from entering judgment upon a guilty plea “without making such inquiry on the record as may satisfy him that there is a factual basis for the plea” ([cit.]), “(it is not) necessary that a trial court affirmatively state on the record that it is satisfied that a factual basis for a defendant’s guilty plea exists when there is evidence that the trial court is aware of the factual basis.” [Cit.]

Here, the trial court was apprised of the factual basis for Wheeler’s plea through evidence introduced at his first trial, the transcript of which is included in the record. Because the record establishes a factual basis for Wheeler’s guilty plea (of which the trial court would have been aware), the court’s lack of inquiry into the matter does not invalidate the plea.

For these reasons, we find no harmful error in the trial court’s denial of Wheeler’s motion for out-of-time appeal. The remaining issues raised in this appeal are moot.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

       See Neisler v. State, 253 Ga. App. 193, 194 (1) (556 SE2d 258) (2001).

       See id.

       See Bruce v. Stated 175 Ga. App. 453, 455 (5) (333 SE2d 394) (1985).

        Clark v. State, 186 Ga. App. 106, 107-108 (2) (366 SE2d 361) (1988).


author: Blackburn, Chief Judge.

text:
    A02A0301.
    FORD v. WHITE et al.
    (564 SE2d 841)
   Blackburn, Chief Judge.

Chester Allen Ford brought an action seeking specific performance of a verbal agreement by the terms of which his great uncle promised to leave him his entire estate in return for Ford’s rendering certain services for the rest of his great uncle’s life. At the conclusion of Ford’s case, the trial judge granted appellee Jay White’s motion for directed verdict. Ford appeals, and we affirm.

Chester Ford testified at trial that in March 1997, Clay Ford, his great uncle, told him that he was going to need somebody to look after him and take care of him; he asked Chester if he could do that. Chester, though reluctant to make a commitment because of his own family obligations, agreed to do what he could. Chester Ford and Clay Ford then entered into an oral agreement under which Clay would leave Chester his entire estate if Chester would care for him for the rest of his life. Specifically, as Chester alleged in his complaint, the terms of the oral contract required Chester to: contribute to the physical care of Clay Ford; contribute to the maintenance of Clay Ford’s property; and perform errands for Clay Ford. In return for these services, Clay Ford “was to leave, at the time of his demise, all of his property both real and personal to” Chester Ford.

In March 1998, Clay Ford executed a last will and testament in which, besides several small bequests, he divided his property between appellees Jay White, Clay’s nephew, and his wife; Joyce White Shook and Jane White Taylor, Jay White’s daughters; and Howard Cunningham, also a nephew. Chester Ford was left nothing under the will. Chester did not challenge the will in the probate proceedings but subsequently filed suit against the appellees seeking specific performance of his oral contract with Clay Ford.

At trial, Chester Ford testified that he: visited Clay every weekday evening; spent Friday nights with Clay, fixing breakfast on Saturday mornings and staying until early noon; and returned in the late afternoon on Saturdays and spent Saturday night with Clay, again making breakfast on Sunday mornings. Chester also testified that he: cleaned and cooked for Clay; helped him with his personal hygiene; administered, on occasion, Clay’s medications; mowed his lawn; maintained Clay’s car; took Clay wherever he asked to be taken in the car, including trips for haircuts, grocery shopping, and banking; and was available whenever Clay needed him. Chester also testified that after he and his relatives had Clay admitted to a nursing home, he continued to visit Clay on the same evening and weekend schedule, sometimes helping to feed Clay but not staying overnight, for the six months before Clay died.

At the conclusion of Chester’s case, White moved for a directed verdict on various grounds. The trial court granted White’s motion, finding that it could not determine from the evidence presented whether the contract was fair because Chester had failed to prove the value of his services and the value of Clay’s estate.

1. In his first enumeration of error, Chester Ford maintains that the trial court erred in granting White’s motion for directed verdict.

A directed verdict is proper only if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a verdict. OCGA § 9-11-50 (a). In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the any evidence test.

Driggers v. Campbell. In order to determine whether the trial court erred in granting White a directed verdict, we must first ascertain what Chester Ford had to prove in order to secure specific performance of the oral contract into which he entered with his great uncle.

An oral contract by the terms of which a person agrees for a valuable consideration to make a will giving property to the other contracting party may be enforced by specific performance in Georgia. Logan v. Logan “The law, however, very properly has laid down some very strict rules governing the enforcement of any contract by specific performance.” (Punctuation omitted.) Id. “In order to authorize specific performance, the terms of the contract must be clear, distinct, and definite.” Brogdon v. Hogan.

Moreover, since specific performance is an altogether equitable remedy, and not one which can be demanded, merely by virtue of a proven agreement, as a matter of absolute right, it must be made to further appear that the contract is equitable and just, and a court will be justified in refusing a decree of performance should inadequacy of price appear, or any other fact showing the contract to be unfair, or unjust, or against good conscience. Thus, if the alleged contract sued on be based on an oral agreement to convey or devise land in consideration of the performance of ordinary personal services, the petition must not only show that the contract is precise in its terms, but must also allege the value of such services and the value of the land or specific data from which such relative values can be determined.

(Citations omitted.) Bullard v. Bullard,

Exceptions to the general rule as to the necessity for aver-ments as to the value of services may exist in cases involving virtual adoption or contracts between near relatives, where one goes into the home of the other agreeing to nurse and give the other personal, affectionate, and considerate attention, such as could not be readily procured elsewhere, and where the value of such services could not be readily computed in money.

(Punctuation omitted.) Treadwell v. Treadwell. In sum, unless the oral contract which Chester Ford sought to have enforced through specific performance was one requiring him to give such personal, affectionate, and considerate attention as could not be procured elsewhere, and the value of such services could not be readily computed in money, he was required to allege and prove the value of Clay Ford’s estate and the value of the services which he rendered to Clay Ford. Hudson v. Hampton.

The trial judge held that the oral contract which Chester Ford sought to have enforced through specific performance was not one requiring him to give such personal, affectionate, and considerate attention as could not be procured elsewhere. The trial judge explained:

This is not a case where someone moved into the home. This is not a case where someone agreed to be a companion. There’s no evidence that that was a condition that personal, affectionate, and considerate attention may be implied, but he didn’t go into the home, and what he agreed to do is capable of being procured elsewhere. You can hire people to mow the lawns. That’s capable of proof. You can hire people to come by daily and check on you. That’s capable of proof. You can hire people to come in on the weekend and look after you, and that’s capable of proof as to value. So, the value of those things is capable of proof.

We are in agreement with this reasoning and hold that the trial judge did not err in finding that the contract was not an “agreement to nurse and to give ‘personal, affectionate, and considerate attention such as could not be readily procured elsewhere.’ ” Brogdon v. Hogan, supra at 250.

In Brogdon v. Hogan, a contract between the plaintiff and his uncle required the plaintiff and his wife, in return for real property, to “give up where they were living,” move to another county, and there make a home for, and look after, the plaintiffs uncle and father, “during their lifetimes”; it also required the plaintiff and his wife to “cultivate, drain, and improve the property and make it livable and habitable as a home and a farm.” After his uncle’s death, the plaintiff sought specific performance of the agreement to convey the land. The Supreme Court of Georgia denied relief, holding that the contract “called for only such services to [the uncle] as a stranger might have rendered,” and “did not set forth any agreement to nurse and to give 'personal, affectionate, and considerate attention such as could not be readily procured elsewhere.’ ” In the same way, the duties Chester Ford was required to perform under the contract, i.e., contributing to the physical care of Clay Ford, maintaining his property, and performing errands, did not require “personal, affectionate, and considerate attention”; these services are merely such “as a stranger might have rendered,” and would not be difficult to procure elsewhere. Id. See also Treadwell, supra at 161; Lester v. Copeland.

Since the contract did not come within the exception, it was necessary that Chester Ford prove the value of the services which he actually rendered to Clay Ford. Tomlinson v. Patrick. The trial court found, however, that Chester had failed to prove either the value of his services or the value of Clay’s estate and that it thus had “no way to test and measure whether or not it was a fair contract based on the evidence that the plaintiff propounded.” As a result, the trial court properly directed a verdict in White’s favor.

2. Ford complains that the judgment unfairly deprived him of the opportunity to address or remedy an alleged pleading defect. Specifically, Ford argues that “the Defendants, or possibly the court itself, had an obligation prior to trial to raise the point that, under Georgia law, . . . where specific performance of contract is sought, there must be an averment of the values of services provided to the decedent and of the estate or property promised by the decedent in return for the services.” This argument is without merit. White did raise, in a motion for summary judgment, this very issue. The trial court denied the motion, obviously finding that there was an issue of fact as to whether the services rendered by Ford required such proof or fell within the exception. That the trial court determined, after Ford presented his case, that such proof was necessary did not place an obligation upon either White or the trial court to assist Ford in prosecuting his action.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

Decided May 3, 2002.

James N. Butterworth, for appellant.

David E. Ralston, for appellees.

        Driggers v. Campbell, 247 Ga. App. 300, 302-303 (2) (543 SE2d 787) (2000).

        Logan v. Logan, 223 Ga. 574, 576 (2) (156 SE2d 913) (1967).

        Brogdon v. Hogan, 189 Ga. 244, 249 (5 SE2d 657) (1939).

        Bullard v. Bullard, 202 Ga. 769 (1) (44 SE2d 770) (1947).

        Treadwell v. Treadwell, 216 Ga. 156, 160 (115 SE2d 535) (1960).

        Hudson v. Hampton, 220 Ga. 165, 166 (137 SE2d 644) (1964).

        Lester v. Copeland, 219 Ga. 195 (132 SE2d 190) (1963).

        Tomlinson v. Patrick, 228 Ga. 373, 374 (185 SE2d 407) (1971).


text:
    A02A0567.
    GENTRY v. THE STATE.
    (564 SE2d 845)
   Phipps, Judge.

A jury found Randy Thomas Gentry guilty of three counts of child molestation for placing his hand on five-year-old K. L. C.’s vaginal area, for exposing his penis to her, and for placing his hand on the buttocks of her six-year-old brother, T. D. C. On appeal, Gentry contends that the evidence was insufficient to sustain his convictions and that the trial court denied him a “meaningful” continuance. Because the record reveals that the evidence was sufficient and that the trial court did not abuse its discretion in ruling on Gentry’s motion for a continuance, we affirm.

Construed in a light most favorable to the jury’s verdict, the evidence showed that on October 23, 2000, K. L. C., T. D. C., and their six-year-old playmate, S. M., visited Gentry’s residence. When they returned to the home of K. L. C. and T. D. C., T. D. C. told his mother, “my bottom is hurting” and “he touched my bottom and hurt my sister.” K. L. C. told her mother that “the man touched her [‘] monkey, [’]’’ a word that she used for her vaginal area. K. L. C.’s mother testified that she examined K. L. C.’s vaginal area and that it was red, swollen, and “opened up.”

On October 26, a physician examined K. L. C. and T. D. C. and found tears in K. L. C.’s hymen area. She testified that K. L. C.’s vaginal opening seemed “very wide,” and that these findings were consistent with K. L. C.’s statement to her that “someone had put a finger in her monkey.” She further testified that T. D. C. seemed worried as she examined his rectal area, but seemed fairly comfortable during the remainder of his examination.

Also on October 26, Glenda Holt, a social services supervisor of the county’s Department of Family & Children Services, interviewed K. L. C. and T. D. C. K. L. C. told Holt that Gentry had “messed with [her] private . . . [with] his hand,” that Gentry had “[s]tuck his finger up [T. D. C.’s] butt,” and that Gentry had taken off his pants and “show[n] [her] his private.” T. D. C. told Holt that he had seen a man take off his underwear and touch his “butt... in the front.”

On October 27, K. L. C. pointed to Gentry’s photograph when asked whether she could identify from a lineup the man who had “touched her monkey.” T. D. C. separately pointed to Gentry’s photograph when asked whether he could identify the man who had “hurt his butt.”

K. L. C. testified at trial that Gentry had touched her private with his hand, that Gentry had touched T. D. C. in the back near his underwear, that Gentry had shown her the front part of his body usually covered by pants, and that he had told her, “don’t tell.”

As similar transaction evidence, the State presented the testimony of Gentry’s fifteen-year-old niece, who stated that when she was five or six years old, Gentry touched her vaginal area with his hands and showed her his penis.

Gentry testified that K. L. C., T. D. C., and S. M. came to his residence on October 23. He denied exposing himself or inappropriately touching or molesting any of them. He also denied his niece’s allegations.

1. Gentry contests the sufficiency of the evidence, pointing to what he claims are weaknesses and inconsistencies in the evidence. But it was within the jury’s sole province to resolve conflicts in the testimony. This court does not weigh the evidence or assess the credibility of witnesses; rather, we determine whether the evidence, viewed in a light most favorable to the verdict, was legally sufficient under the standard of Jackson v. Virginia. We find that the evidence was sufficient to support Gentry’s convictions for child molestation.

2. Gentry claims that the trial court erred by denying him a continuance when it was disclosed for the first time at trial that S. M. had been interviewed by Holt and the case investigator and that a tape of the interview allegedly had been made.

During the State’s presentation of its case, a sheriff’s investigator assigned to the case testified that she had interviewed S. M. The State went on to call five other witnesses and then rested. At that point, Gentry’s attorney requested a continuance, claiming that the defense had not known that S. M. had been interviewed. The record reveals that the court allowed Gentry’s attorney to recall the investigator, who then testified that she did not know whether S. M.’s interview had been recorded. The court continued the trial until the next morning to allow Gentry’s attorney time to interview S. M. Within 40 minutes, Gentry’s attorney returned to court and announced that he had interviewed S. M. and would be ready to proceed the following morning, which he did — without asking for any additional time.

A trial court’s ruling on a motion for continuance is within the sound discretion of the trial court and will not be disturbed absent a showing of abuse of that discretion. And “[i]n no case will the trial judge’s ruling be reversed for not going further than requested.” We find that the trial court did not abuse its discretion by not allotting additional time that Gentry’s attorney did not request and represented that he did not need. Moreover, “[m]ere shortness of time for preparation does not in itself show a denial of the rights of the accused. He must show harmful error.” Gentry has failed to demonstrate how additional time would have benefitted him or how any lack of time harmed him. Furthermore, the record does not show that there was a tape of S. M.’s interview, and no such tape has been made a part of the appellate record for our consideration.

Decided May 3, 2002.

Christopher G. Paul, for appellant.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J, and Mikell, J., concur.

        Pittman v. State, 243 Ga. App. 564, 565 (1) (533 SE2d 769) (2000).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Pittman, supra at 564.

       See Pittman, supra at 564-565.

        Robinson v. State, 202 Ga. App. 576, 577 (2) (a) (415 SE2d 21) (1992).

       (Citation and punctuation omitted.) Bohannon v. State, 230 Ga. App. 829, 835 (2) (498 SE2d 316) (1998).

       (Citation and punctuation omitted.) Robinson, supra.


text:
    A02A1075.
    DORSEY et al. v. ADAMS et al.
    (564 SE2d 847)
   Johnson, Presiding Judge.

The trial court found DeKalb County in contempt for violating a settlement agreement, which had been adopted as the order of the court, to provide medical care to inmates at the county jail. DeKalb County appeals, arguing that it cannot be held in contempt for duties which belong exclusively to the sheriff, that it was not afforded due process, and that there is insufficient evidence that it wilfully violated the settlement agreement. The arguments are without merit, and we therefore affirm the judgment of the trial court.

Inmates at the DeKalb County jail sued DeKalb County, the DeKalb sheriff and others, alleging inadequate medical care at the jail. On March 26, 2001, the parties entered into a settlement agreement and presented the agreement to the trial court. The court adopted the agreement as its judgment and ordered the parties to comply with the terms of the agreement.

Among other things, the agreement provides that when inmates arrive at the jail, they must be screened for contagious diseases, that inmates who enter the jail on medications for chronic illnesses shall be continued on such medications, that inmates will have access to emergency medical care, that medical request forms will be reviewed daily, that complete medical records must be maintained, and that medical grievances shall be responded to within ten days. The settlement further provides that DeKalb County is responsible for monitoring and enforcing compliance with all provisions of the agreement.

On May 4, 2001, attorneys for the inmates sent a letter to the county’s attorneys claiming that DeKalb County was not yet complying with the settlement agreement. The letter notified the county that unless it immediately began meeting the terms of the agreement, the inmates would move for contempt of the court order requiring the parties to comply with the agreement.

Two and a half months later, Dr. Robert Greifinger, whom the parties had agreed to use as a consultant to assess the county’s compliance with the settlement agreement, inspected medical conditions at the jail. On July 22, 2001, Dr. Greifinger issued his report finding that the county was not complying with the agreement. In the report, he cited numerous violations of the agreement, concluding that screening is inadequate, that inmates are not receiving adequate medical care, that there is no continuity of care or coordination with outside specialists, that medical records are incoherent, and that basic public health safeguards are being ignored. He found no improvement since he had visited the jail in September and October 2000, and no progress toward meeting the settlement agreement terms.

After Dr. Greifinger’s report, the inmates moved to enforce the agreement and for contempt of court. DeKalb County and the other defendants responded to the motion. The trial court notified the parties that an evidentiary hearing on the motion would be held on November 7, 2001.

At the scheduled hearing, the court heard testimony from, among others, Dr. Greifinger. He testified that the county is not in compliance with the settlement agreement and that two inmates died due to poor care and poor oversight by the county. An inmate with human immuno-deficiency virus (HIV) died because he was denied medication for months, and another inmate died after his condition was misdiagnosed and a needed neurologic examination was not performed.

Dr. Greifinger further testified that there is a backlog of many months in medical records and mountains of unfiled material, that a sample of new inmates showed no documentation of required tuberculosis and syphilis testing, that tuberculosis isolation rooms are not working, that diabetic inmates are at risk because they are not getting up-to-date care, that sick call was not being performed as required by the settlement, that grievances were not being timely responded to, and that many aspects of the settlement could not even be assessed due to inadequate records or documentation.

After the hearing, the court found DeKalb County to be in both civil and criminal contempt for failing to comply with the court order enforcing the terms of the settlement agreement. The court held that the county could purge the civil contempt by complying with various remedial sanctions. The court reserved ruling on punitive sanctions for the criminal contempt. The county appeals from the contempt order.

1. DeKalb County contends that although it is obligated to allocate funds to enable the sheriff to perform his duties, under Georgia law the ultimate obligation to maintain the county jail and furnish medical care to inmates belongs to the sheriff. And because it has allocated money to the sheriff to provide inmate medical care, the county reasons that it has met its obligation and cannot be held in contempt for failing to perform duties that fall exclusively to the sheriff.

DeKalb County is correct that the sheriff’s statutory duties include maintaining the jail. But the county’s argument ignores the settlement agreement that it entered into and the court order requiring the county to abide by the agreement. That agreement, which was signed by the DeKalb County Attorney as the county’s authorized representative, plainly provides: “DeKalb County shall be responsible for monitoring and enforcing compliance with all provisions of this Settlement and Release Agreement and for ensuring that adequate funding is appropriated to carry out the terms of this Settlement and Release Agreement.” Thus, pursuant to the agreement, the county is responsible not only for funding medical care at the jail, but also for monitoring that care and ensuring that it meets the settlement terms.

Contrary to DeKalb County’s argument, the court’s finding that the county is in contempt is not somehow based on the sheriff’s statutory duty to maintain the jail, but is properly based on the county’s own violations of the terms of the settlement agreement, which has been adopted by the court. Contempt means disregard for or disobedience of a court order. And the discretion of judges in matters pertaining to contempt of their authority will not be controlled unless grossly abused. Because the trial court did not grossly abuse its discretion in finding the county in contempt for disobeying the terms of the settlement agreement, we affirm the contempt finding.

2. The county contends that it was not afforded due process because it did not receive notice that contempt would be an issue at the evidentiary hearing and because the judge was biased. We have reviewed the record and find no evidence that the judge was biased against the county. And the county’s lack of notice claim is disingenuous as it is apparent from the record that the county was on notice that contempt would be an issue at the hearing.

The motion filed by the inmates was plainly labeled as a motion for contempt, and the county filed a response to that motion. After the inmates amended their motion, the court issued notice to the parties setting the date for the evidentiary hearing on the motion. At the outset of the hearing, the judge told the parties that it was a contempt matter. The county did not object or claim that it did not know contempt would be an issue at the hearing. Instead, the county proceeded to defend itself at the evidentiary hearing on the matter of contempt, cross-examining witnesses for the inmates, presenting its own witnesses, and arguing its case.

Not only did the county fail to claim lack of notice before participating in the contempt hearing, but the record does not support such a claim since a party that voluntarily appears and defends against contempt proceedings need not be served with a rule nisi. Because the county’s due process claims of insufficient notice and bias are not supported by the record, we find no error.

3. The county claims there is no evidence it wilfully violated the settlement agreement. “If there is any evidence in the record to support a trial judge’s determination that a party either has or has not wilfully disobeyed the trial court’s order, the decision of the trial court will be affirmed on appeal.” Having reviewed the evidence presented at the contempt hearing, including Dr. Greifinger’s testimony about the county’s noncompliance with the terms of the settlement, we find sufficient evidence to support the trial court’s finding that DeKalb County wilfully disobeyed the court order that the parties must comply with the settlement agreement.

Judgment affirmed.

Blackburn, C. J., and Miller, J, concur.

Decided May 3, 2002

Elarbee, Thompson & Trapnell, Richard R. Gignilliat, Annette A. Idalski, Constangy, Brooks & Smith, Robert D. Ware, W. Wright Mitchell, William J. Linkous III, for appellants.

Milton D. Rowan, Tamara H. Serwer, Lisa L. Rung, for appel-lees.

       Sheriff Thomas Brown has also filed an appeal brief. But as both Sheriff Brown and the inmates note, the trial court did not hold the sheriff in contempt. Rather, the court held only the county in contempt. Because there was no finding of contempt against the sheriff, we will not consider his brief in this appeal from the contempt order against the county.

       See OCGA § 15-16-10; Chaffin v. Calhoun, 262 Ga. 202, 203 (415 SE2d 906) (1992).

        In re Brant, 230 Ga. App. 283, 284 (1) (496 SE2d 321) (1998).

        R.R.R. Ltd. Partnership v. Recreational Svcs., 267 Ga. 757, 758 (3) (481 SE2d 225) (1997).

       See Barnes v. State, 269 Ga. 345, 348-349 (5) (496 SE2d 674) (1998).

       See In re Brant, supra at 285 (3).

        City of Cumming v. Realty Dev. Corp., 268 Ga. 461, 462 (1) (491 SE2d 60) (1997).


text:
    A02A0067.
    THOMAS v. THE STATE.
    (565 SE2d 130)
   Phipps, Judge.

Following a bench trial, Cardell Thomas was found guilty of trafficking in cocaine and sentenced to 25 years imprisonment and fined $1 million. Thomas appeals, contending that the evidence was insufficient to support his conviction and that the trial judge did not utilize the “reasonable man” standard in evaluating the evidence. Because the evidence was sufficient to support the conviction and the trial court sits as the trier of fact in a bench trial, we affirm.

Viewed in the light most favorable to the verdict, the evidence showed that while Thomas was being held in jail, he was approached by Kenneth McLeod, a special agent with the Federal Drug Enforcement Administration (DEA), about being a confidential informant (Cl).

Following the initial interview, Thomas was released from jail, and he and McLeod met in the Macon DEA office to initiate his establishment as a Cl. McLeod testified that as part of the process, Thomas was photographed, fingerprinted, and shown a document called a form “473,” which provides guidelines for the Cl’s behavior. Among other things, the Cl is prohibited from violating any laws without the direction of the DEA or another law enforcement agency. McLeod said that after he explained the contents of the form to Thomas and asked him whether he had any questions, Thomas said “no” and signed the document.

McLeod testified that he told Thomas that his application for Cl status must be approved by a supervisor and that it could take some time.'He instructed Thomas to let his former drug contacts know that he was out of jail and would soon be ready to do business with them.

He also told Thomas to go to Miami to reestablish contact with his former supplier. McLeod said that at no time did he instruct Thomas to conduct any drug transactions. He testified that on one occasion when Thomas called him and told him that he had been to Miami, he told Thomas that he was having problems getting him accepted as a Cl. He said that he called Thomas a minimum of four to five times asking for additional information needed to process Thomas’s paperwork.

Thomas later flew into Hartsfield airport from Miami and was arrested for drug trafficking after a package of powder cocaine was found on his person. He told the officer who detained him that he was working for McLeod as a Cl. The officer contacted McLeod and was told that Thomas was not an official Cl.

According to Thomas, his drug suppliers in Miami were skeptical, and he had to reassure them that he could be trusted. He said that he had made three trips to Miami and that he had talked with Agent McLeod after the first two trips and was never told to stop his efforts to make connections. Notably, Thomas explained that on his last trip to Miami when he was given a bag of cocaine on consignment and told to bring back $10,000, he did so because it would have I been “totally out of character” for him not to have taken the cocaine.

He also said that he felt intimidated by what he perceived to be “dan- I gerous people.” He explained that he did not call McLeod to tell him about the drugs before he boarded the airplane because the Miami drug suppliers were with him until he boarded.

The State proffered testimony from an inmate who shared a cell with Thomas that Thomas told him he had in fact purchased and transported cocaine on all three trips to Miami. The inmate also testified that Thomas said that if he was ever caught with drugs he would tell authorities that he was a Cl, even though in reality he “wouldn’t ever do nothing for no white folks.”

Contrary to Thomas’s assertions, a reasonable person could have concluded beyond a reasonable doubt that Thomas knew that he was not yet an approved Cl and that he conducted the drug transaction for his own benefit. In a bench trial, the trial court sits as the trier of fact, and its findings are analogous to a jury verdict. The credibility of the witnesses was for the trial court to determine, and that determination will not be disturbed absent an abuse of discretion. We find no such abuse in this case.

Decided May 6, 2002.

James W. Bradley, for appellant.

Robert E. Keller, District Attorney, Lalaine A. Briones, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J, and Mikell, J., concur.

       Although Thomas specifically enumerated as error that “the evidence is insufficient to prove beyond a reasonable doubt that [he] was not entrapped,” he did not support his entrapment claim beyond this conclusory statement. Under Court of Appeals Rule 27 (c) (2), an appellant must support enumerations of error with argument and citations of authority, and “[m]ere conclusory statements . . . are not the type of meaningful argument contemplated by [Rule 27 (c) (2)].” Jenkins v. State, 240 Ga. App. 102,103 (1) (522 SE2d 678) (1999). Accordingly, any argument that Thomas was entrapped is deemed abandoned.

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

        Green v. State, 239 Ga. App. 617, 618 (2) (521 SE2d 441) (1999).

        Lyons v. State, 244 Ga. App. 658, 661 (1) (535 SE2d 841) (2000).


text:
    A02A0155.
    MOBLEY v. THE STATE.
    (564 SE2d 851)
   Johnson, Presiding Judge.

A jury found Tommy Lee Mobley guilty of statutory rape, child molestation and aggravated child molestation for offenses committed against his 11-year-old stepdaughter. On appeal, he challenges the sufficiency of the evidence to support the verdict, and he argues that the trial court erred in admitting a videotaped statement of the victim without a proper foundation. Because the evidence and the foundation were sufficient, we affirm the convictions.

On appeal, the defendant no longer enjoys a presumption of innocence; moreover, this Court views the evidence in a light most favorable to the verdict and does not weigh the evidence or determine witness credibility, but only determines if the evidence is sufficient Tinder the standard of Jackson v. Virginia.

Viewed in this light, the evidence shows the following. Mobley and the victim’s mother married when the victim was about three years old. The victim testified that one morning, when she was about eleven years old, Mobley came into the family’s living room as she slept on the sofa. He fondled her genitals and inserted an object which resembled a penis into her vagina. The victim’s 17-year-old sister walked into the living room, and Mobley fled into another room. After the sister left the living room, Mobley returned, removed his pants, climbed on top of the victim and inserted his penis into her vagina.

Later that day, the victim’s sister asked the victim why the sofa was squeaking earlier. At first the victim replied that she did not know. The sister asked the victim if Mobley had been “messing with” her. The victim told her that he had been. The victim also testified that Mobley had made her perform oral sex on him and that he had been doing that “a long time.” The sister told the grandmother, and the child was taken to the hospital for evaluation. The examining physician testified that her physical findings were consistent with a child having been sexually abused over a long period of time and that the child’s hymen had experienced repeated trauma “over and over” again.

The victim’s sister testified that, on the morning in question, she heard the living room sofa squeaking “like somebody was having sex.” She walked into the living room and saw that her sister, who was on the sofa, was not wearing pants. She told the victim to put on some pants and went back into her bedroom. A short time later, the sister asked if Mobley had been “trying to mess with” her. The victim replied that he had been, and the sister reported it to their grandmother, who was outside. The grandmother went inside and confronted Mobley, who denied the victim’s accusations but then remarked to the victim: “tell your grandmama how many times you sat in my lap and begged me to play with you.”

1. Mobley contends the evidence was not sufficient to support the verdict because the victim and her sister were not credible. Specifically, he claims that the victim’s sister was not credible because she did nothing when she heard the sofa squeaking, and the victim had on a shirt and underwear when the sister walked into the living room. Mobley complains that the victim was not credible inasmuch as her parents had been having problems with her being dishonest and disobedient. He points out that the victim was angry at him that day because he had made her do household chores. However, the credibility of witnesses and the weight to be given their testimony are questions for the trier of fact. Although Mobley does not deem the victim’s or her sister’s testimony credible, the jury did. The jury could reasonably infer from the evidence that the offenses occurred as charged beyond a reasonable doubt.

2. Mobley complains that the trial court permitted the state to introduce into evidence a videotaped interview of the victim when the state failed to present expert testimony establishing that the videotape had not been altered or manipulated. According to Mobley, such expert testimony is required by the “silent witness rule” set out in State v. Berky, which requires authentication of a videotape where no witness is available to testify. This enumeration presents no grounds for reversal.

Decided May 6, 2002.

Sullivan & Sturdivant, Harold A. Sturdivant, Michele W. Ogle-tree, for appellant.

William T. McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

First, Mobley’s only objection at trial to the admission of the videotape was that the state failed to establish the chain of custody. Because the ground urged on appeal, namely the state’s alleged error in failing to provide expert testimony that the tape had not been altered or manipulated, is not the same as that urged below, it may not be considered for the first time on appeal.

Second, even if the issue was preserved, the Berky decision would not require a reversal in this case. Aside from the fact that the Berky decision was vacated in 1995, and that its “silent witness” theory was implicitly rejected by the Georgia legislature shortly thereafter, expert testimony would not have been required here because a witness with personal knowledge of the videotape was available.

A videotape is admissible where the operator of the machine which produced it, or one who personally witnessed the events recorded, testifies that the videotape accurately portrayed what the witness saw take place at the time the events occurred. The social worker who conducted the videotaped interview was available and gave the required testimony. The foundation was adequate.

Judgment affirmed.

Miller, J., concurs. Blackburn, C. J., concurs in judgment only.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Banks v. State, 250 Ga. App. 728 (552 SE2d 903) (2001).

        McIntosh v. State, 247 Ga. App. 640, 641 (1) (545 SE2d 61) (2001).

       See id.

       See Lee v. State, 250 Ga. App. 110, 112 (1) (550 SE2d 696) (2001).

       214 Ga. App. 174 (447 SE2d 147) (1994); see note 8, infra.

       We note that the chain of custody requirement does not apply to distinct and recognizable physical objects that can be identified upon observation, such as videotapes. Gadson v. State, 263 Ga. 626, 627 (2) (437 SE2d 313) (1993).

       See Leatherwood v. State, 212 Ga. App. 342, 344 (5) (441 SE2d 813) (1994).

        Berky v. State, 266 Ga. 28 (463 SE2d 891) (1995) (vacating State v. Berky, 214 Ga. App. 174, on grounds that the state had no authority to appeal in that case).

       See discussion in Phagan v. State, 268 Ga. 272, 280-281 (5) (486 SE2d 876) (1997).

       Id. at 281 (5).

       See Diaz v. State, 239 Ga. App. 795 (1) (522 SE2d 242) (1999).