text:
    A00A1061.
    R. A. SIEGEL COMPANY et al. v. BOWEN et al.
    (539 SE2d 873)
   Blackburn, Presiding Judge.

In this action for the wrongful death of Anita Boise, the R. A. Siegel Company and Donald Bell (hereafter collectively defendants) appeal the jury’s verdict in favor of Samantha Bowen and Marie Diaz (hereafter collectively plaintiffs). Defendants contend that the trial court erred by: (1) directing a verdict against defendants; (2) excluding the testimony of their expert regarding the condition of the car after the accident; (3) excluding evidence that the driver of the car had ingested marijuana prior to the collision; and (4) admitting photographs from the autopsy of the decedent. For the reasons discussed below, we affirm.

1. Defendants contend the trial court erred by directing a verdict in favor of plaintiffs.

A directed verdict is appropriate where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. OCGA § 9-11-50 (a). A grant of directed verdict can be upheld only where we determine that all the evidence demands that verdict. This requires a de novo review.

(Punctuation omitted; emphasis in original.) Hulsey v. Dept. of Transp.

With particular regard to “rear-end” collision cases, our Supreme Court has admonished that liability is generally a jury question, depending upon a “factual resolution of the issues of diligence, negligence, and proximate cause.” Atlanta Coca-Cola Bottling Co. v. Jones. While a directed verdict in such cases is rare, liability can be summarily decided in the proper circumstances. “Of course, where there is no dispute as to the facts, and they amount to a confession of liability as a matter of law, a directed verdict is warranted.” Id. at 450. In the present case, the indisputable facts establish liability because the only evidence was that Bell’s tractor-trailer overrode the car, and Bell had no explanation for the accident.

The evidence having shown that the plaintiff was completely free of negligence and defendant’s testimony having revealed no legal reason or excuse for his failure to avoid colliding with the rear of the plaintiff’s automobile, the trial judge did not err in directing a verdict for the plaintiff on the question of liability.

(Punctuation omitted.) Johnson v. Curenton.

The evidence at trial showed that in the early morning hours of October 9, 1996, Anita Boise was a passenger in a car driven by her husband Mark Boise. The Boises, en route to Florida, were traveling on Interstate 75 near Calhoun, Georgia. The Boises were driving with their headlights on down a straight stretch of highway in clear weather. Bell, an employee of the R. A. Siegel Company, was driving a tractor-trailer and following the Boises in the same lane. Experts at trial testified that the tractor-trailer overrode the Boises’ Mercedes, driving onto its back. Still connected to the car, the tractor-trailer pushed the Mercedes down the highway, off the road, down an embankment, and into a tree. After the car hit the tree, the tractor-trailer rolled over its trunk and roof. The Boises died in the collision.

Bell testified that he did not know how the collision occurred. He never saw the car until the impact on the highway, when he saw a flash on the right side of the cab. Another trucker following Bell did not see the Mercedes and did not see Bell’s truck swerve. Despite defendants’ contentions, there was no evidence that the Mercedes pulled in front of the tractor-trailer or otherwise contributed to the cause of the collision. At the close of evidence, the trial court directed a verdict on liability in favor of plaintiffs. The jury awarded $1,392,750 to plaintiffs.

There was no. conflict in the evidence. Bell’s tractor-trailer overrode the car and, still attached to the car, pushed it into the tree. Bell had no explanation for his failure to see the Mercedes on the straight highway in clear weather. This evidence allows no other conclusion but that Bell was negligent. As the evidence demanded a verdict in favor of plaintiffs, the trial court did not err by directing a verdict. Atlanta Coca-Cola Bottling Co., supra; Johnson, supra; Hulsey, supra.

2. Defendants argue that the trial court erred by precluding the testimony of its expert regarding possible causes of the accident deduced from an examination of the wrecked car as a sanction for the spoliation of the Mercedes. See Sharpnack v. Hoffinger Indus. (“ ‘spoliation’ is the destruction or the significant . . . alteration of evidence”). Although defendants contend that the sanction imposed here was overly harsh, we disagree.

A trial court has the power to control the behavior of those appearing before it to ensure its ability to conduct a fair trial. See OCGA § 15-1-3; Atlanta Newspapers v. Grimes. The power to do so is exercised at the discretion of the judge, and this Court will not interfere with that power unless it has been abused. Id.; Young v. Champion.

Shortly after the accident, St. Paul Fire & Marine, the insurer for defendants, through its agent Carson-Brooks, Inc., had the Mercedes stored with Sadisco Salvage. In March 1997, Carson-Brooks instructed Sadisco that the car was not to be sold without the permission of either defendants’ attorneys or St. Paul. The subject wrongful death action was filed in June 1997.

Experts retained by plaintiffs and an expert retained by defendants examined the car and rendered opinions. In April 1998, plaintiffs filed a motion asking the trial court to require defendants and their agents (St. Paul and Carson-Brooks) to preserve the Mercedes for trial, contending that the Mercedes contained evidence crucial to the outcome of the case. The motion was unopposed and granted in July 1998.

Less than three months after the order to preserve the car was entered, Sadisco sent a salvage notice to St. Paul asking permission to sell the Mercedes. A representative from St. Paul, inexplicably unaware that the car was the subject of pending litigation and unaware that St. Paul had been ordered to preserve the car, authorized the sale. The Mercedes was destroyed shortly thereafter, without notice to the trial court, defendants’ attorneys, or plaintiffs.

Plaintiffs filed a motion for sanctions against defendants for the destruction of the Mercedes. The motion requested that the trial court strike defendants’ answers and enter default against them or prohibit defendants from using their expert witness at trial and for additional sanctions. After a hearing on the motion, the trial court issued an order precluding defendants from offering at trial any evidence of any kind concerning the condition of the 1980 Mercedes, which they contend is probative of causation.

To remedy the prejudice resulting from the spoliation of evidence, a trial court may (1) charge the jury that spoliation of evidence creates the rebuttable presumption that the evidence would have been harmful to the spoliator; (2) dismiss the case; or (3) exclude testimony about the evidence. Chapman v. Auto Owners Ins. Co. Defendants argue that the trial court, by excluding evidence by their expert witness of causation based on the condition of the Mercedes, imposed too harsh a sanction.

To determine whether the trial court abused its discretion in this case, we look to the factors identified in Chapman v. Auto Owners Ins. Co., supra, for imposing such sanctions:

(1) whether the [party seeking sanctions] was prejudiced as a result of the destruction of the evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the [party who destroyed the evidence] acted in good or bad faith; and (5) the potential for abuse if expert testimony about the evidence was not excluded.

Id. at 542. See Headley v. Chrysler Motor Corp.

Applying the five factors, the trial court noted that, with regard to prejudice, plaintiffs had specifically requested the preservation of the Mercedes for use at trial, not just for examination by an expert. The trial court found that plaintiffs were prejudiced by the destruction of the Mercedes because they could not show the car to the jury to support their contentions or to rebut defendants’ contentions about the cause of the accident. Plaintiffs were further prejudiced because they could not show the jury the tangible evidence of the nature of the impact, for example, tire marks left on the trunk and roof of the car. Addressing the second factor, the trial court found that the prejudice could not be cured because the car had been stripped and crushed. The trial court did not abuse its discretion in determining that plaintiffs had suffered incurable prejudice as a result of the destruction of the Mercedes.

With regard to the third factor, the trial court found that the practical importance of the Mercedes was the tangible proof of the condition of the car after the collision. Plaintiffs wanted the car at trial to rebut the opinion of defendants’ expert witness and to demonstrate the speed of impact and the crush of the car. Defendants make the point that the expert witnesses for all parties had inspected the car and rendered an opinion about the cause of the collision prior to the car’s destruction. Furthermore, these experts took extensive photographs of the car. We agree that the expert evidence and photographs are mitigating factors. However, this argument fails to address the loss of the tangible evidence for the jury’s viewing, which evidence might have supported the plaintiffs’ argument and rebutted the defendants’ argument about the cause of the collision.

With regard to the fourth factor, the trial court found bad faith based on the reckless disregard of its order to preserve the evidence. The circumstances here support this finding. The court issued the order to preserve the evidence in July 1998. The car was destroyed in November 1998, just four months later. Defendants rely on the affidavit of the St. Paul employee who authorized the sale of the car. She asserted that she did not know of either the litigation or the court’s order and that she would not have approved the sale had she known. However, the record also suggests she made no effort to find out why the car was being held. Assuming the approval of the sale of the Mercedes was inadvertent, we cannot condone or support such reckless conduct by the insurance company. St. Paul is experienced in litigation and claims handling procedure. Knowing it had an affirmative duty to preserve the evidence, St. Paul should have had procedures in place. It is no excuse that the left hand did not know what the right hand was doing. St. Paul was palpably remiss in failing to make reasonable arrangements to preserve the evidence, especially after the trial court issued an order to do so. See Chapman v. Auto Owners Ins. Co., supra at 542; Northern Assurance Co. v. Ware.

With regard to the potential for abuse if defendants’ expert testimony about the car was not excluded, the trial court observed that plaintiffs would be unable to rebut the theory of that expert. Furthermore, the trial court observed that the spoliation issue would distract the jury from the primary case, the wrongful death suit. The trial court did not abuse its discretion in finding a potential for abuse. Had defendants’ expert been permitted to testify, the actions of their agent, St. Paul, prejudiced plaintiffs’ ability to rebut that expert opinion. Likewise, actions of St. Paul prevented plaintiffs from presenting tangible evidence of the collision.

After weighing the factors, a trial court should exercise its discretion by imposing sanctions which correspond to its findings. See Sedrati v. Allstate Life Ins. Co. (exclusion of expert testimony about evidence which had been destroyed ensured fairness at trial); Northern Assurance Co., supra (exclusion of expert testimony appropriate remedy for spoliation); Schmid v. Milwaukee Elec. Tool Corp. (jury charge on spoliation more appropriate remedy than exclusion of expert); Howell v. Maytag (more severe sanctions of dismissal or exclusion of evidence were not appropriate). We are mindful that the sanction imposed here, excluding expert testimony, is a harsh sanction as it can be the functional equivalent of striking the answer or dismissal. Cases often depend entirely on the expert, the expert being the only means of proving causation or alternative causes. We also recognize that this sanction has been imposed in other jurisdictions typically where the party seeking sanctions had been denied the opportunity to inspect or analyze the evidence. Sedrati, supra; Northern Assurance Co., supra; Headley, supra; Unigard Security Ins. Co. v. Lakewood Engineering &c. Corp. Although this case is distinguishable because all parties did get to inspect the car, we cannot say the trial court abused its discretion by imposing this sanction.

Defendants advocate a lesser sanction, charging the jury on the rebuttable presumption that the damage on the car did not, in fact, support defendants’ argument. While the presumption might remedy the prejudice suffered in the conflicting expert testimony, it does not address the loss of the ability of the jury to view the damage to the car. The spoliator of the evidence should not benefit from its destruction. The trial court found that the destruction of the Mercedes impaired its ability to conduct a fair trial and, under the circumstances here, took appropriate steps to remedy the problem. We find no abuse of discretion.

Decided September 28, 2000.

Hall, Booth, Smith & Slover, Robert L. Shannon, Jr., Rebecca T. Christian, for appellants.

Gray, Hedrick & Edenfield, William E. Gray II, Bruce M. Eden-field, Evan R. Mermelstein, for appellees.

3. The trial court did not err by excluding evidence that Mark Boise, the driver of the Mercedes, had ingested marijuana within 36 hours of the collision on relevance grounds. “The admission or exclusion of evidence is reviewed by an abuse of discretion standard. Questions of relevance are generally matters within the trial court’s discretion.” (Citation omitted.) Ray v. Ford Motor Co. Defendants proffered evidence that Boise had ingested marijuana and that marijuana could affect one’s driving skills. However, none of the evidence about the effect of marijuana on driving skills was specific to this case. In fact, the expert deposed that he could not state whether the marijuana had any effect on Boise’s driving and that he had no knowledge whether the marijuana contributed to the collision.

4. Although defendants enumerate as error the trial court’s admission of photographs from the autopsy of Anita Boise, they have not supported the enumeration with argument, so it is deemed abandoned. Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Hulsey v. Dept. of Transp., 230 Ga. App. 763 (498 SE2d 122) (1998).

        Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448, 451 (224 SE2d 25) (1976).

        Johnson v. Curenton, 127 Ga. App. 687 (195 SE2d 279) (1972).

        Sharpnack v. Hoffinger Indus., 231 Ga. App. 829, 830 (499 SE2d 363) (1998).

        Atlanta Newspapers v. Grimes, 216 Ga. 74, 79 (114 SE2d 421) (1960).

        Young v. Champion, 142 Ga. App. 687, 690-691 (2) (236 SE2d 783) (1977).

        Chapman v. Auto Owners Ins. Co., 220 Ga. App. 539 (469 SE2d 783) (1996).

        Headley v. Chrysler Motor Corp., 141 FRD 362 (D. Mass. 1991).

        Northern Assurance Co. v. Ware, 145 FRD 281, 283-284 (D. Me. 1993).

        Sedrati v. Allstate Life Ins. Co., 185 FRD 388 (M.D. Ga. 1998).

        Schmid v. Milwaukee Elec. Tool Corp., 13 F3d 76 (3rd Cir. 1994).

        Howell v. Maytag, 168 FRD 502 (M.D. Pa. 1996).

        Unigard Security Ins. Co. v. Lakewood Engineering &c. Corp., 982 F2d 363 (9th Cir. 1992).

        Ray v. Ford Motor Co., 237 Ga. App. 316, 317 (1) (514 SE2d 227) (1999).


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A00A1103.
    SURMAN v. BLANSETT.
    (539 SE2d 890)
   Pope, Presiding Judge.

Wayne Surman appeals from a judgment granting Dale Blansett specific performance of a real estate purchase contract executed by the parties.

The evidence at trial showed that Surman was divorced in November 1996 and, as a part of the divorce settlement, was awarded the family home. By July 1998, however, Surman was unemployed and three to four months behind in his mortgage payments, so he decided to place an advertisement in the paper to sell his home. The advertisement noted that Surman had a nonqualifying loan on the property, which could be assumed by the purchaser.

Blansett responded to the advertisement, and the parties met at Surman’s house on July 7, 1998. Blansett quickly indicated his interest in buying the house. He had in his briefcase a “Contract to Purchase Realty” form that he had used in prior transactions, and at his urging, both he and Surman signed a contract that afternoon. The purchase contract reflects that Blansett paid Surman $500 in earnest money on the transaction. Surman testified, however, that although Blansett handed him the earnest money check, “somehow or another,” while Surman was copying the documents, he ended up with only a copy of the check.

After brief negotiations, the parties had agreed to Surman’s asking price of $25,000 cash plus Blansett’s assumption of Surman’s outstanding loan balance. The outstanding loan balance at that time was approximately $62,441, bringing the total purchase price to $87,441.

Surman had a “non-escalating, non-qualifying,” or “NENQ loan,” on his house. Blansett testified that a purchaser can assume a NENQ loan without having to qualify separately for his own financing and, therefore, the closing costs on the assumption of such a loan are less than on a traditional loan. In addition, the last of the NENQ loans were made in 1989, thus making them more difficult to find. Blansett is in the mortgage investment business and holds mortgages on enough properties to live off the proceeds. Blansett stated that the relatively rare NENQ loan on Surman’s house made the property especially attractive to him because he planned to resell the house in the future.

For the short term, however, Blansett and his wife intended to use the house when they visited their son and grandson, who lived in the area. Surman’s house had the added advantage of being a one-story ranch house, which made it easier for Blansett’s elderly mother-in-law to get around. It also had a fenced dog kennel, which Blansett intended to use for his son’s pet pig.

On or before July 18, 1998, however, Surman telephoned Blansett to say that he would not go through with the deal. The testimony showed conflicting reasons for Surman’s change of heart. Blansett testified that Surman told him that he had discovered $7,000 in termite damage that needed to be repaired and that he would have to pay his ex-wife three and one-half percent of the sales proceeds under the terms of their divorce settlement. In addition, he said that he would have to pay off a lien that his ex-wife incurred. With all these expenses, Surman told Blansett that he would not net enough money off the sale and did not wish to close. Surman testified, however, that he changed his mind after he called his mortgage company and discovered that he would remain secondarily liable on the mortgage even after its transfer to Blansett.

Despite written demands from Blansett’s attorney, Surman refused to close on the transaction. Blansett then filed suit for specific performance and attorney fees. Following a bench trial, the trial court ordered specific performance of the parties’ contract.

1. Surman asserts that the trial court’s order should be reversed because the purchase contract lacked mutuality of obligation. Surman bases his argument on a provision of the purchase contract relating to earnest money. The relevant provision reads:

In the event Seller is unable to provide marketable title or the mortgage(s) cannot be assumed without qualification or credit check or if the Buyer’s attorney advises, for any reason, that the closing should not take place, the earnest money shall be returned to Buyer as full liquidated damages and both Buyer and Seller shall be released from any and all liabilities.

(Emphasis supplied.) This language provides that the earnest money shall be returned to Blansett and neither party shall be bound if one of three contingencies occurs: (1) if Surman is unable to provide marketable title to the property; (2) if the mortgage cannot be assumed without the necessity of Blansett qualifying or without a credit check; or (3) if for any reason, Blansett’s attorney advises him not to close. Surman’s argument addresses only the third contingency. He asserts that because the language of this provision gives Blansett’s attorney complete discretion to call off the deal, the purchase contract lacks mutuality.

But a contract does not fail for lack of mutuality “where the satisfaction of a third person is made a condition precedent to the payment of the purchase price. [Cits.]” (Emphasis in original.) Nalley v. Harris, 176 Ga. App. 553, 555 (1) (336 SE2d 822) (1985) (real estate contract did not lack mutuality where it provided that repairs must be done to satisfaction of the inspector or the purchaser). “This is true even though the third person is employed or selected by the party contesting performance. [Cit.]” Id. But see Jakel v. Fountainhead Dev. Corp., 243 Ga. App. 844, 846 (534 SE2d 199) (2000) (option agreement lacked mutuality of obligation where it gave seller complete discretion to refuse offer to buy).

Moreover, our Supreme Court has held that the payment of earnest money in exchange for the owner’s promise to sell provides sufficient consideration for a real estate purchase contract. Brack v. Brownlee, 246 Ga. 818, 819 (273 SE2d 390) (1980). The court noted that “where there is any . . . consideration for a contract [other than mutual promises] so that each promise does not depend upon the other for consideration, mutuality of obligation is not essential. [Cit.]” (Punctuation and emphasis omitted.) Id. Here, the purchase contract stated that Blansett paid Surman $500 in earnest money, and both parties agree that he tendered the check to Surman, though it may have later been misplaced in the shuffle of papers. Under the authority of Brack v. Brownlee, therefore, mutuality of obligation was not required in this instance. Cf. Potter v. Hicks, 260 Ga. 146 (2) (390 SE2d 850) (1990).

Decided September 28, 2000.

2. Surman also asserts that Blansett was not entitled to specific performance because he failed to prove that the sale price under the purchase contract represented the fair market value and thus failed to establish that the contract was fair, just, and equitable.

“[S]pecific performance is not a matter of absolute right.” Kelly v. Vargo, 261 Ga. 422, 423 (2) (405 SE2d 36) (1991). To succeed in a claim for specific performance, the purchaser “must prove the value of the property so as to enable the court to determine that the contract was fair, just and not against good conscience. [Cits.]” Moody v. Mendenhall, 238 Ga. 689, 693 (6) (234 SE2d 905) (1977). And “whether the price was adequate and whether enforcement of the contract was equitable” are questions for the trier of fact. English v. Muller, 270 Ga. 876, 877 (2) (514 SE2d 194) (1999).

Here, the evidence showed that Blansett paid Surman the asking price for the property. Surman arrived at the price after talking to “real estate people.” And Blansett, who testified that he was experienced in purchasing property in the area, stated that in his opinion the purchase price was “about right” for the property. Opinion evidence as to the value of property can have probative value when it is based upon a foundation that the witness “has some knowledge, experience or familiarity with the value of the property in question or similar property and he must give reasons for the value assessed and also must have had an opportunity for forming a correct opinion. . . .” (Citations and punctuation omitted.) Bradford v. City of Albany, 242 Ga. App. 477, 478 (529 SE2d 906) (2000).

Accordingly, we find that the evidence was sufficient to support the trial court’s conclusions that Blansett was competent to testify as to value, that at the time the contract was executed the fair market value of the property was “approximately the same as” the purchase price in the .contract, and thus that the contract was fair, just, and not against good conscience.

Judgment affirmed.

Miller and Mikell, JJ., concur.

Delong & Caldwell, Earnest H. Delong, Jr., for appellant.

Bussart & Litt, James C. Bussart, for appellee.


author: Andrews, Presiding Judge.

text:
    A00A1286.
    U. S. TRAFFIC CORPORATION v. TURCOTTE.
    (539 SE2d 884)
   Andrews, Presiding Judge.

U. S. Traffic Corporation (USTC) appeals from the trial court’s grant of partial summary judgment to Ronald Turcotte, claiming among others, that the trial court erred in accepting an amended motion for summary judgment and supplemental affidavit in support of the motion. Turcotte filed the amended motion and affidavit less than 30 days before the hearing, and the trial court accepted them without continuing the hearing and without extending USTC’s time to respond. Because the court was required to allow USTC 30 days in which to respond to the amended motion, we reverse.

This case arose when Turcotte sued USTC claiming it was in default on a promissory note. The promissory note provided that USTC would pay Turcotte $7,500 a month for 36 months. The note stated that it was given in connection with and in consideration of Turcotte’s performance of his noncompete obligations as set forth in the settlement agreement.

USTC raised several defenses and counterclaimed for breach of contract; breach of express representations, warranties, and covenants; breach of good faith and fair dealing; fraudulent inducement and procurement; fraudulent suppression and deceit; and set-off and/ or recoupment. USTC claimed that Turcotte had made numerous representations which were untrue, thereby fraudulently inducing it to enter into the settlement agreement.

Turcotte moved for summary judgment, claiming that USTC’s defenses and counterclaims were barred by a release agreement executed at the same time as the settlement agreement. The trial court granted Turcotte’s motion only as to the defenses or counterclaims of bad faith, unclean hands, and fraud in the inducement, finding they were barred by the release agreement. This appeal followed.

1. We first address USTC’s argument that Turcotte waived the affirmative defense of release because it was not asserted in a responsive pleading to the counterclaim. USTC cites to no authority for this proposition and overlooks controlling case law that is directly contrary. Turcotte was not required to answer USTC’s counterclaim and could assert the defense at trial or at summary judgment without a responsive pleading. Jones v. Conlin, 171 Ga. App. 346 (320 SE2d 188) (1984).

2. Next, USTC claims the trial court erred in granting Turcotte’s motion for partial summary judgment because his amended motion and second affidavit were not served at least 30 days before the hearing date as required by OCGA § 9-11-56 (c). We agree.

Decided September 28, 2000.

Rogers & Hardin, Robert A. Parker, Jr., Daniel D. Zegura, Jonathan B. Butler, for appellant.

The hearing on Turcotte’s motion was set for November 12,1999. On November 5, Turcotte filed an amended motion with a second affidavit. This affidavit was nine pages long with numerous exhibits attached. USTC filed a written motion for a continuance and also pointed out to the court at the hearing that they received the affidavit just five days before and had not had time to respond. Nevertheless, the trial court did not continue the hearing and did not give USTC additional time to respond.

OCGA § 9-11-56 (c) requires that a motion for summary judgment be served at least 30 days before the time fixed for a hearing. In addition, an affidavit relied on in support of a motion for summary judgment must be on file for at least 30 days prior to the hearing. Corry v. Robinson, 207 Ga. App. 167, 170 (427 SE2d 507) (1993); Gunter v. Hamilton Bank &c., 201 Ga. App. 379, 381 (411 SE2d 115) (1991). Furthermore, the filing requirement is not waived unless the opposing party acquiesces in the use of the untimely materials or the party seeking to file a late affidavit seeks and obtains an extension from the court pursuant to OCGA § 9-11-6 (b) to extend the time for filing. Pierce v. Wendy’s Intl., 233 Ga. App. 227, 229 (504 SE2d 14) (1998); Hershiser v. Yorkshire Condo. Assn., 201 Ga. App. 185 (410 SE2d 455) (1991). Here, USTC did not acquiesce and Turcotte did not seek an extension.

It is reversible error to enter an order without allowing the non-moving party 30 days in which to respond unless it is apparent from the record that the nonmoving party’s defenses to the motion are wholly meritless and frivolous. Dixon v. Midland Ins. Co., 168 Ga. App. 319, 321 (309 SE2d 147) (1983). Compare Larraga v. Aetna Cas. &c. Co., 222 Ga. App. 654, 655 (475 SE2d 649) (1996) (party was not harmed by trial court’s abrogation of response period because it was apparent from the record that claim was barred by Workers’ Compensation Act’s exclusive remedy provision); Pierce, supra at 229-230 (apparent from record that there was no evidence on essential element of plaintiff’s claim).

In this case, we are unable to conclude from the record that USTC’s defenses to Turcotte’s motion were frivolous or meritless. Therefore, the trial court erred in ruling on Turcotte’s summary judgment motion without extending the time for USTC to file a response.

Judgment reversed.

Ruffin and Ellington, JJ, concur.

James W. McKenzie, Jr., for appellee.


author: Ruffin, Judge.

text:
    A00A1437.
    ANDERSON v. THE STATE.
    (539 SE2d 879)
   Ruffin, Judge.

Reginald R. Anderson was convicted of armed robbery and motor vehicle hijacking. Following an order authorizing an out-of-time appeal, Anderson filed this appeal in which he challenges the sufficiency of the evidence for both convictions. He also claims that the imposition of mandatory minimum sentencing is unjust and distorts the trial court’s discretion to conduct “humane sentencing.” After review of these issues, we affirm.

On appeal, the evidence must be viewed in a light most favorable to the verdict and Anderson no longer enjoys the presumption of innocence. The evidence, when viewed in that way, established that the victim, T. E., was robbed at gunpoint by Anderson and another assailant. Wearing bandannas that only partially obscured their faces, Anderson and his companion grabbed the victim at night as she was attempting to leave a Fina station. Placing a gun against her neck, Anderson warned her to “shut up, b-.” Anderson then handed the pistol to the other man and told him to hold her there while he unlocked her car. Despite being “scared to death,” T. E. adamantly refused to go with the men to the back of the building as they sought. They fled after stealing T. E.’s car, wallet, and pager. When describing her attackers to police, T. E. provided specific details about Anderson’s age, nose, ears, skin tone, height, weight, and clothing. She remembered the weapon as being an older handgun with a long barrel.

The next day, while responding to an unrelated call at a residence, Detective Keith D. Johnson of the DeKalb County Police Department noticed a Pontiac Sunbird parked inside the garage. Results of a routine tag check executed later revealed that this Sun-bird belonged to T. E. and had been reported stolen in an armed robbery. During a search of an outside garbage can, officers discovered a wallet reportedly stolen in a different robbery. Investigators returned to the house later that day and arrested Anderson and three others who were inside. In the bedroom that Anderson was sharing with another person, police found T. E.’s pager “stuck in between a mattress and box spring.” Police also recovered a long-barreled handgun from inside the house.

From a photographic array assembled shortly after Anderson’s arrest, T. E. unequivocally selected Anderson’s photograph. In court, she voiced certainty that Anderson had held a gun to her, explaining that she had been able to study him because she “was looking at him the whole time.” When asked, “is this defendant the person who held a gun to your neck, who took your car keys, who took your money, who took your vehicle on September the 8th 1996?”, the victim responded, “Yes. Definitely. I won’t forget his face.” T. E. also recognized the long-barreled gun confiscated from the house where Anderson was staying as the one pressed against her neck and side during the robbery.

1. Anderson contends that the verdict is contrary to the evidence, against its weight, and contrary to law and the principles of justice and equity. He argues that no rational juror could have found beyond a reasonable doubt that he committed these offenses. We disagree.

When the general grounds are asserted, as here, only the sufficiency of the evidence can be considered. The applicable and essential elements of the offense of motor vehicle hijacking are: (1) possessing a firearm (2) while obtaining a motor vehicle from a person (3) by use of force and violence or intimidation. The pertinent essential elements comprising the crime of armed robbery are: (1) intentionally taking (2) personal property belonging to another person (3) from that person (4) by use of an offensive weapon.

Here, T. E. identified Anderson as one of two men who held her at gunpoint and forced her to relinquish possession of her vehicle. She testified that while being robbed, she feared for her life. Her missing vehicle was recovered from inside the garage of a house where Anderson was staying. At gunpoint, she was forced to surrender possession of her wallet in addition to her car keys. Her pager was discovered hidden in the room where Anderson was staying. A pistol resembling the one Anderson had brandished during the armed robbery was also found inside the house. This evidence was sufficient within the meaning of Jackson v. Virginia for the jury to find all the essential elements of the offenses of armed robbery and motor vehicle hijacking.

2. Anderson asserts that requiring the trial court to impose the mandatory minimum sentence is unjust, inhumane, and distorts a trial court’s inherent discretion to conduct “humane sentencing” as contemplated by OCGA § 17-10-2.

Decided September 28, 2000.

Henry A. Hibbert, for appellant.

Paul L. Howard, Jr., District Attorney, George W. K. Snyder, Jr., Assistant District Attorney, for appellee.

In pronouncing sentence, the trial court noted the persuasiveness of the evidence of guilt and Anderson’s refusal to accept responsibility for his misconduct. The court observed, “[i]t’s time for you to face the truth, Mr. Anderson. It’s time for you to take responsibility.” Notwithstanding the claim to the contrary, the trial court did, in fact, exercise its discretion and opted to sentence Anderson to ten years on each count rather than the twenty years sought by the State. It is the role of the legislature, not this Court, to determine what constitutes a range of appropriate sentences for a particular crime. When a sentence falls within statutory limits, any question about the alleged excessiveness of that sentence must be addressed to the sentence review panel as provided in OCGA § 17-10-6. Because the sentence imposed by the court falls squarely within the statutory guidelines, Anderson’s sole recourse is to seek relief from the sentence review panel.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

        Pollard v. State, 230 Ga. App. 159 (495 SE2d 629) (1998).

        Yawn v. State, 237 Ga. App. 206 (515 SE2d 182) (1999).

       OCGA § 16-5-44.1 (b); see Bradford v. State, 223 Ga. App. 424, 425 (1) (477 SE2d 859) (1996).

       OCGA § 16-8-41 (a).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see Campbell v. State, 223 Ga. App. 484, 485 (2) (477 SE2d 905) (1996) (offenses of armed robbery and hijacking a motor vehicle do not merge).

       OCGA § 16-8-41 (b) provides: “[a] person convicted of the offense of armed robbery shall be punished by death or imprisonment for life or by imprisonment for not less than ten nor more than 20 years.” OCGA § 16-5-44.1 (c) provides that a “person convicted of the offense of hijacking a motor vehicle shall be punished by imprisonment for not less than ten nor more than 20 years.”

       We note that Anderson does not argue that mandatory minimum sentences are unconstitutional or otherwise illegal.

        Harden v. State, 239 Ga. App. 700, 702 (3) (521 SE2d 829) (1999); accord Taylor v. State, 232 Ga. App. 825, 827 (7) (502 SE2d 540) (1998).

        Hall v. State, 230 Ga. App. 378, 381 (5) (496 SE2d 475) (1998).


author: Eldridge, Judge.

text:
    A00A2022.
    SMITH v. THE STATE.
    (539 SE2d 881)
   Eldridge, Judge.

A Clayton County jury found Derrick Keith Smith guilty of aggravated assault and possession of a handgun during the commission of a crime. On appeal, Smith claims that the evidence is insufficient to support his conviction; that the trial court improperly restricted his cross-examination; and that the trial court improperly permitted the victim to show his injuries to the jury. We have reviewed these claims of error, and, finding them meritless, we affirm Smith’s conviction.

1. On appeal, our review is limited solely to the sufficiency of the evidence, viewed in the light most favorable to the verdict. In that regard, the victim testified at trial that he was visiting Woods Motel when he saw Smith standing at the open window of the victim’s car; that Smith saw the victim looking at him and began to rapidly walk away from the car; that the victim yelled out to Smith, asking what was he doing with the victim’s car; that Smith replied “fuck you”; that Smith and the victim then approached each other in the motel parking lot and bumped chests; and that Smith cursed the victim again and shot him in the chest at point blank range.

Smith, on the other hand, testified at trial that he found an automatic pistol next to a dumpster in the parking lot of Woods Motel; that he had been trying to fire the weapon in an adjacent wooded area, but the pistol was jammed: “I was pulling the trigger. I was trying to bring the lever back that was on the gun, and I couldn’t do it. I couldn’t get the gun to fire”; that he was walking through the parking lot of the motel when he inadvertently dropped the weapon; that he heard the victim yelling at him; that he told the victim “I was busy and for him to please leave me alone”; that the victim then said “fuck you”; that “as we were speaking, I got up with the gun — and as I got up, he approached me and got into my face as I was getting up — and the gun went off”; that Smith got scared and went to his girlfriend’s house; and that he did not intend to shoot the victim.

By its verdict, it seems clear that the jury believed the victim and did not believe Smith’s version of events. That was the jury’s prerogative. Judgments regarding the credibility of witnesses or the weight to be given evidence are strictly within the province of the jury and are beyond the scope of this Court’s review. Instead, “the relevant question is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Here, on the victim’s testimony alone, the evidence is sufficient for a rational trier of fact to have found beyond a reasonable doubt each of the elements of the offenses for which Smith was charged. Accordingly, the evidence was sufficient to uphold the verdict.

2. Smith claims that, because the trial court sustained relevancy objections to two cross-examination questions, he was denied his right to a thorough and sifting cross-examination of the witnesses involved. Upon review of the rejected questions, however, we find no error.

(a) Defense counsel asked an investigating officer whether he had examined the victim’s car for damage. The trial court properly sustained a relevancy objection. Whether or not the officer had examined the victim’s car for damage was irrelevant to the crimes charged. Such question did not go to motive, justification, or any other relevant issue on the trial of this case. Nor could defense counsel establish the question’s relevancy.

(b) Defense counsel asked another investigating officer, “are you familiar with a .25 caliber? ... In your experience, has there been occasion when those type of guns have automatically discharged?” The trial court properly sustained a relevancy objection. There are thousands of .25 caliber weapons from many manufacturers. The question as framed was too broad to be relevant to the specific weapon at issue in this case. “Because the question was too broad to relate directly to a relevant issue, such as the [firing operation of the .25 caliber weapon involved] in this case, we cannot say the trial court manifestly abused its discretion.” Moreover, under Smith’s own testimony at trial, the weapon at issue fired because it was allegedly damaged, not because it was a standard .25 caliber weapon which “automatically discharged.”

Although a defendant is entitled to a thorough and sifting cross-examination as to all relevant issues, the trial court, in determining the scope of relevant cross-examination, has a broad discretion. Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way and to whatever extent [ ] the defense might wish.

Here, the trial court did not abuse its discretion in sustaining objections to the questions about which Smith complains. Accordingly, this enumeration of error is without merit.

3. Smith claims that the trial court erred in permitting the victim to display the injuries he sustained as a result of the aggravated assault because such was unduly prejudicial. We do not agree. “We note the appellant’s objections were directed only to prejudice and not admissibility, and therefore the issue is one of relevancy. The injuries sustained in an aggravated assault are relevant to that assault and therefore admissible.” Accordingly, this claim of error is without merit.

Decided September 28, 2000.

Theresa A. Hood, for appellant.

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

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

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

        McClure v. State, 234 Ga. App. 304, 305 (506 SE2d 667) (1998).

       (Citation, punctuation and emphasis omitted.) Wright v. State, 240 Ga. App. 763 (1) (525 SE2d 143) (1999).

       “The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. “The credibility of a witness is a matter to be determined by the jury under proper instructions from the court.” OCGA § 24-9-80.

        Brooks v. State, 224 Ga. App. 829, 831 (2) (482 SE2d 725) (1997).

       (Citations and punctuation omitted.) Kolokouris v. State, 271 Ga. 597, 600 (4) (523 SE2d 311) (1999).

        Sprouse v. State, 242 Ga. 831, 833 (3) (252 SE2d 173) (1979); Prayor v. State, 217 Ga. App. 56, 58 (4) (456 SE2d 664) (1995); Cail v. State, 194 Ga. App. 584, 585 (1) (391 SE2d 444) (1990).


author: Phipps, Judge.

text:
    A00A1751.
    JONES v. HILL.
    (539 SE2d 893)
   Phipps, Judge.

Sherail Jones and John Hill entered a rent to purchase contract for a parcel of property Hill owned in Rome, Georgia. When Hill later failed to convey the property to Jones, she sued him for breach of contract. Hill counterclaimed against Jones for additional rent he claimed was owed. Jones appeals an order of the trial court granting summary judgment to Hill on her claim and his counterclaim. We reverse the order of summary judgment because we find that genuine issues of material fact exist as to both claims.

The agreement between Jones and Hill, which was recorded on a preprinted form “RENTAL AGREEMENT,” specified that the term of the lease was five years and that rent was payable monthly in the amount of $256. A final paragraph, which was added to the document, stated:

EXTENDED AND SPECIAL TERMS: THE TERMS OF THE CONTRACT IS [sic] AS FOLLOWS: HOUSE PURCHASED AT $8,000.00 ALSO $8,000.00 FOR MAINTANCE [sic] WHICH COMES TO A TOTAL OF $16,000.00. THIS HOUSE AT 108 EAST 9TH STREET WILL BE PURCHASED IN 5 YEARS WITH MONTHLY PAYMENTS OF $256.00 A MONTH. ONCE THE FIVE YEAR TERM IS OVER HOUSE WILL BE TURNED OVER IN SHERAIL ELAINE JONES NAME, BUT UNTIL THEN MAINTANCE [sic] WILL BE PAID BY SHERAIL ELAINE JONES, AND I, JOHN HILL WILL CONTINUE TO PAY TAXES UNTIL THIS CONTRACT IS TERMINATED.

On January 6, 1998, Jones filed suit against Hill seeking a return of the money she had paid to Hill and punitive damages. She asserted that she had made all payments required of her under the contract but that Hill had failed to transfer the property to her. She claimed that when she requested a deed to the property from Hill, she learned that the property was encumbered by approximately $15,000 in debt.

During the year before he entered the agreement with Jones, Hill had borrowed $18,000 from a bank to make improvements on the property. In her response to Hill’s motion for summary judgment, Jones asserted that Hill had told her that no money was owed on the house and that he would deed the property to her “free and clear,” and that she had checked the title on the property before entering the agreement and had seen no evidence of existing encumbrances.

Hill asserted in his answer that he had never intended or agreed to sell the property free of the bank loan. In his counterclaim, he asserted that he was entitled to additional rent from Jones because she had stopped paying rent after the term of the lease expired but had continued to occupy the property.

In a brief in support of his motion for summary judgment, Hill asserted that the sale provision of the contract was vague and indefinite and, therefore, unenforceable as a matter of law. Because it was unenforceable, he asserted, Jones was a holdover tenant and indebted to him for rent. He added that even if the terms of the agreement were deemed sufficiently clear and definite, they did not require him to convey the property free of indebtedness.

Apparently after an unrecorded hearing in November 1999, the trial court entered its order of summary judgment for Hill on Jones’s complaint and Hill’s counterclaim. With regard to the basis for granting summary judgment, the order states that it appeared to the trial court that there was no genuine issue of material fact and that Hill was entitled to judgment as a matter of law. The court awarded Hill $12,032 as past due rent from Jones, representing $256 per month from January 1997 through November 1999.

Summary judgment is appropriate only where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” “[T]he opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. [Cit.]”

“ ‘[T]he policy of the law is against the destruction of contracts on the ground of uncertainty if it is possible in light of the circumstances under which the contract was made to determine the reasonable intention of the parties.’ [Cits.]” To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate. * ‘Parol evidence is admissible to explain all ambiguities, the question as to what was intended being an issue of fact for the jury. (Cit.)’ [Cit.]” A contract is unenforceable where it is so indefinite that it imparts no meaning at all, such that there is nothing to explain.

We do not find that this contract was so indefinite and vague that it was rendered unenforceable. It clearly documented an agreement between Jones and Hill whereby Jones would pay Hill $256 per month for five years, and afterward, Hill would transfer ownership of the property to Jones. Furthermore, the record contains evidence that Jones fulfilled her obligations under the contract and that Hill never transferred ownership to her. Under these circumstances, we find that there is a genuine issue of material fact on Jones’s breach of contract claim and that summary judgment should not have been granted to Hill on her complaint.

Given the genuine probability that Jones was entitled to ownership of the property, it cannot be said that she unquestionably was obligated to pay rent for the period after she arguably should have become the owner. Thus, we also find that summary judgment should not have been granted to Hill on his counterclaim.

Judgment reversed.

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

Decided September 29, 2000.

Floyd H. Farless, for appellant.

Charles Crawford, for appellee.

       Sixty payments of $256 total $15,360.

       In his affidavit in support of his motion for summary judgment, Hill claimed that the house had a fair market value of $30,000.

       OCGA § 9-11-56 (c).

        Gill v. Cooper Tire &c. Co., 231 Ga. App. 482, 484 (1) (499 SE2d 85) (1998).

        Gram Corp. v. Wilkinson, 210 Ga. App. 680, 681 (1) (437 SE2d 341) (1993).

       OCGA § 13-3-1.

        Karlan, Inc. v. King, 202 Ga. App. 713, 715-716 (1) (415 SE2d 319) (1992).

        Gram Corp., supra; McTerry v. Free for All Missionary Baptist Church No. 1, 129 Ga. App. 724, 725 (200 SE2d 915) (1973).


author: Blackburn, Presiding Judge.

text:
    A00A1217, A00A1218.
    JOHNSON v. THE STATE (two cases).
    (540 SE2d 212)
   Blackburn, Presiding Judge.

In two separate cases, Brandon Elliott Johnson appeals his convictions for attempting to flee from a police officer, driving with a suspended license, and possession of marijuana. Because of the related nature of these appeals, we have consolidated them herein.

Case No. A00A1217

In this case, Johnson appeals his convictions for driving with a suspended license and attempting to flee from a police officer. Specifically, Johnson contends that he was illegally stopped, that all evidence against him following the stop should have been suppressed, and that there was insufficient evidence to support his conviction for attempting to flee from a police officer. For the reasons set forth below, we affirm Johnson’s conviction for driving with a suspended license and reverse his conviction for attempting to flee from a police officer.

1. Johnson contends that his convictions must be overturned because the arresting officer lacked reasonable articulable suspicion to stop him and all evidence subsequent to the stop should have been suppressed by the trial court. We disagree.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Johnson] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The . . . verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Kovacs v. State. See Jackson v. Virginia.

Viewed in the light most favorable to the verdict, the record shows that, on May 19, 1999, Officer Dane Hunter received a dispatch to be on the lookout for a red Acura with a prestige tag reading “BANKS2” for possible drug activity. A short time later, Officer Hunter observed a vehicle that fit the description, and he drove toward it for a closer look. As Officer Hunter approached the vehicle, he looked at the driver, whom Officer Hunter recognized from a stop he had made eight months earlier. When Officer Hunter made this prior stop, Johnson was a passenger in another vehicle, and both Johnson and the driver were charged with possession of marijuana with the intent to distribute. During this prior stop, Officer Hunter’s dispatcher told him that Johnson’s license had been suspended.

Based on the “lookout information” and his memory of Johnson, Officer Hunter then pulled behind Johnson. At that point, Johnson pulled into a subdivision, made a U-tum, and began to back out of the subdivision. Still following Johnson, Officer Hunter activated his blue lights, but Johnson did not stop immediately. Officer Hunter then noticed Johnson look back at him in his rearview mirror, and, fearful that Johnson might attempt to elude him, Officer Hunter then activated his siren. Johnson stopped his car within five to ten seconds.

Officer Hunter immediately arrested Johnson for failure to stop and placed handcuffs on him. In response to Officer Hunter’s questions, Johnson confirmed that his license was suspended. At that point, Officer Hunter smelled an odor of burnt marijuana on Johnson, and he also smelled the odor of an alcoholic beverage on Johnson’s breath. Officer Hunter then searched Johnson’s car and found loose marijuana on the passenger side.

Johnson was subsequently charged with refusing to stop for a police officer, driving with a suspended license, and possession of marijuana. Prior to trial, Johnson made a motion to suppress all evidence against him following his stop, which he contends was violative of his Fourth Amendment rights. The trial court denied Johnson’s motion, and a jury found Johnson guilty of refusing to stop for a police officer and driving with a suspended license and not guilty of possession of marijuana. Johnson now appeals the trial court’s denial of his motion to suppress.

When reviewing a trial court’s decision on a motion to suppress, this [C]ourt’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.

(Citations omitted.) Morgan v. State.

In general, a police officer cannot simply single out an individual vehicle to determine whether its driver has a valid license.

Except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment.

(Punctuation omitted.) Stretcher v. State.

In this case, such an articulable and reasonable suspicion did exist. Officer Hunter stopped Johnson, in part, based on his prior experience with him and his knowledge that Johnson’s license had been suspended. It would not have been unreasonable for Officer Hunter to suspect that Johnson’s license suspension remained in effect and that Johnson was violating the law by driving. Therefore, as found by the trial court, Officer Hunter appropriately stopped Johnson.

Contrary to Johnson’s argument, this case is not controlled by McSwain v. State. In McSwain, a police officer stopped the defendant based solely on a lookout description broadcast over his radio which referenced only possible drug activity. In this case, however, Officer Hunter acted on specific information separate from that contained in the lookout broadcast, making this matter distinguishable from McSwain.

2. Johnson argues that the evidence was insufficient to support his conviction for attempting to elude or flee from a police officer. We agree.

OCGA § 40-6-395 (a) provides:

It shall be unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such signal shall be in uniform prominently displaying his or her badge of office, and his or her vehicle shall be appropriately marked showing it to be an official police vehicle.

It is clear that this statute deals with situations where a defendant, knowing that he is being followed by a police officer, attempts to flee in order to avoid apprehension. There is no evidence in this case that Johnson made any such attempt. The evidence is undisputed that Johnson remained at a slow rate of speed during his encounter with Officer Hunter, and he made no effort to elude the pursuing officer. In fact, Officer Hunter testified that, moments after he noticed Johnson looking at him in his rearview mirror, he activated his siren to prevent any future attempt to flee by Johnson. Rather than flee, however, Johnson promptly stopped for Officer Hunter. Accordingly, the evidence did not support a violation of OCGA § 40-6-395, and Johnson’s conviction for attempting to flee from a police officer must be reversed. See Jackson, supra.

Case No. A00A1218

3. In this case, Johnson appeals his conviction for possession of marijuana, contending that the evidence was insufficient to support his conviction and that the trial court erred by denying his motion to suppress the evidence found after his car was stopped by police. For the reasons that follow, we affirm Johnson’s conviction.

Viewed in the light most favorable to the verdict, the record reveals that, on May 24, 1999, an informant called Officer Randall Coppolino and told him that Johnson was selling crack cocaine on Booker Avenue. Officer Coppolino then met with the informant and gave him a marked $20 bill to make a purchase from Johnson. Afterward, Officer Coppolino watched the informant purchase cocaine from Johnson, and the informant notified Officer Coppolino that Johnson said that he had more cocaine, but he was about to go somewhere with his girlfriend. As predicted by the informant, Johnson was picked up by his girlfriend, and the car was stopped by police shortly thereafter. Officer Coppolino testified that he had insufficient time to seek a warrant prior to the stop.

After the stop, Officer Coppolino asked Johnson to get out of the car. Because Johnson was fidgeting and acting nervous, Officer Coppolino asked him to sit on the ground to ensure that he would not try to run away. Johnson was placed under arrest, and, at that point, an officer asked Johnson to remove his shoes. Johnson then pulled a plastic bag containing marijuana out of his right shoe and attempted to swallow it. After a short struggle, Johnson spit out the bag. Johnson also possessed the marked $20 bill that had been used by the informant to purchase cocaine. At trial, a jury convicted Johnson for possession of marijuana. No charges were brought against him regarding the sale of cocaine to protect the identity of the informant.

Decided October 2, 2000.

Patricia A. Buttaro, for appellant.

Steven L. Harris, Solicitor, for appellee.

This evidence is sufficient to support Johnson’s conviction for possession of marijuana. See Jackson, supra.

4. Johnson also contends that the trial court should have suppressed evidence of the marijuana because the police lacked grounds to stop his car. This argument is meritless.

Based on the information received from the informant, as well as the observations of [Officer Coppolino], the officer had specific and articulable facts which reasonably warranted a brief stop of the vehicle. Because [Johnson] had been identified as a possible suspect in the distribution of illegal drugs there was sufficient articulable suspicion for the officer to temporarily detain him and question him.

(Citations and punctuation omitted.) Lester v. State.

After Johnson was stopped and placed under arrest, the police appropriately searched him for weapons and contraband.

OCGA § 17-5-1 authorizes an officer, after making a lawful arrest, to search the defendant’s person and the area within his immediate presence for the purpose of protecting the officer from attack, preventing the defendant from escaping, or discovering or seizing the fruits of the crime or any articles used in the commission of the crime.

Polke v. State. Accordingly, Johnson’s conviction for possession of marijuana was authorized.

Judgment affirmed in Case No. A00A1218.

Judgment affirmed in part and reversed in part in Case No. A00A1217.

Eldridge and Barnes, JJ, concur.

        Kovacs v. State, 227 Ga. App. 870 (1) (490 SE2d 539) (1997).

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

        Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990).

        Streicher v. State, 213 Ga. App. 670, 672-673 (445 SE2d 815) (1994).

        McSwain v. State, 240 Ga. App. 60 (522 SE2d 553) (1999).

        Lester v. State, 226 Ga. App. 373, 375 (1) (487 SE2d 25) (1997).

        Polke v. State, 241 Ga. App. 891, 893 (528 SE2d 537) (2000).


author: Barnes, Judge.

text:
    A00A1456.
    OBJECT TECHNOLOGIES, INC. v. MARLABS, INC.
    (540 SE2d 216)
   Barnes, Judge.

Object Technologies, Inc., a Georgia corporation, sued Marlabs, Inc., a Virginia corporation, for unpaid invoices totaling $25,380, plus interest and attorney fees, asserting jurisdiction over Marlabs under the Long Arm Statute, OCGA § 9-10-90 et seq. Marlabs answered, denying that the court had personal jurisdiction over it, and moved to dismiss the complaint. The trial court granted the motion, and Object Technologies appeals. For the reasons that follow, we affirm the trial court.

In an affidavit accompanying the motion to dismiss, Marlabs’ president said he had advertised on an Internet job site seeking a computer programmer to fulfill a contract Marlabs had with a client. Object Technologies’ president responded to the ad, and the two men determined that Object Technologies had a suitable employee available for subcontracting. However, they could not agree on which company’s contract to sign, so they signed both contracts. Marlabs’ president asserted that his company’s principal objective was to protect his client from Object Technologies’ solicitation, and Object Technologies’ principal objective was to prevent Marlabs from hiring the employee. In response to the motion to dismiss, Object Technologies’ president submitted an affidavit affirming that he and Marlabs’ president both signed both contracts. Both contracts include a choice of law provision, each specifying a different state: Georgia in the Object Technologies contract and Virginia in the Marlabs contract. Additionally, Object Technologies’ contract contains a provision selecting Georgia as the exclusive jurisdiction for adjudicating disputes under the contract.

The trial court granted Marlabs’ motion to dismiss, concluding that because the Marlabs contract was signed first and contained an “entire agreement clause,” that agreement was controlling. The trial court further concluded that Marlabs had insufficient contacts with Georgia to be subjected to personal jurisdiction.

1. On a motion to. dismiss for lack of personal jurisdiction, the defendant bears the burden of proof. Easterling v. Easterling, 231 Ga. 90, 91 (1) (200 SE2d 267) (1973). A Georgia court may exercise personal jurisdiction over a nonresident that transacts any business within this state. OCGA § 9-10-91 (1). “Transacting business” means the nonresident has purposefully consummated some transaction in this state; further, the cause of action must arise from that transaction, and the exercise of jurisdiction must not offend traditional fairness and substantial justice. Davis Metals v. Allen, 230 Ga. 623, 625 (198 SE2d 285) (1973).

There is no evidence that Marlabs transacted business here. It is undisputed that all of the contract negotiations took place on the phone or through the Internet, mail or fax. “It is well settled that an out-of-state defendant will not be deemed to have engaged in purposeful business activity in this state on the basis of telephone or mail contact.” (Citations omitted.) ETS Payphone v. TK Indus., 236 Ga. App. 713, 715 (513 SE2d 257) (1999). Therefore, Marlabs is not subject to personal jurisdiction under the Long Arm Statute. The trial court did not err in granting Marlabs’ motion to dismiss the complaint for lack of jurisdiction.

2. Although Object Technologies contends the trial court failed to consider the effect of the entire agreement clause in its contract, we find this argument unpersuasive. The clause provides:

This agreement . . . constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements between the parties, whether written or oral, relating to the same subject matter. No modification, amendment, or supplement to this agreement shall be effective for any purpose unless in writing and signed by both parties.

Because the Marlabs contract contains a more expansive entire agreement clause, Object Technologies’ contract does not supersede the Marlabs contract even though it was signed afterward. The Marlabs contract provides:

This agreement contains all of the terms and conditions of this transaction. No agreement or understanding which modifies the terms hereof whether made prior to, during, or after acceptance of this agreement will be binding upon either party unless made in writing as an amendment to this agreement and duly executed by both parties hereto.

Therefore, as Object Technologies’ contract was not made as an amendment to the Marlabs contract, it was not binding on the parties. Consequently, neither the entire agreement clause nor the clause selecting the courts of Georgia as the exclusive jurisdiction to resolve disputes under the contract are binding on the parties, and the trial court did not err by determining that the Marlabs contract controls.

3. Regardless of which, if either, choice of law provision controls, such a provision alone is insufficient to confer jurisdiction. Mayacamas Corp. v. Gulfstream Aerospace Corp., 190 Ga. App. 892, 894-895 (1) (380 SE2d 303) (1989). In the absence of sufficient minimum contacts to link Marlabs with this state, the trial court did not err in granting its motion to dismiss the complaint.

Decided October 2, 2000.

Udai V. Singh, for appellant.

James W. McKenzie, Jr., for appellee.

Judgment affirmed.

Blackburn, P. J., concurs. Eldridge, J., concurs in the judgment only.


text:
    A00A1974.
    In the Interest of N. A., a child.
    (539 SE2d 899)
   Barnes, Judge.

The juvenile court found that N. A. committed the offense of fornication and therefore was delinquent. N. A. appeals, contending that the juvenile court erred in denying her motion to dismiss because a child who is 12 years old cannot consent to and therefore commit the crime of fornication. N. A. further contends that the court erred in allowing N. A.’s statement to be entered into evidence. We affirm.

1. N. A.’s argument that she cannot be found delinquent for committing fornication is based on her attempt to link two areas of law that cannot be properly joined, specifically, the voluntary element of fornication and our law that consent by a victim under a certain age is no defense to statutory rape. However, consent being no defense to statutory rape has no impact on whether a juvenile commits a delinquent act under the separate fornication statute by voluntarily having sex when unmarried. See K. M. S. v. State, 129 Ga. App. 683, 684 (200 SE2d 916) (1973). In K. M. S., the Court of Appeals affirmed an adjudication of delinquency based on the underlying crime of murder, notwithstanding the fact that the juvenile was 12 years old and now-OCGA § 16-3-1 provided that a person could not be guilty of a crime unless he was 13. The trial court did not err in denying N. A.’s motion to dismiss.

N. A.’s argument is also based on a misunderstanding of a juvenile adjudication. The juvenile court did not find that N. A. committed and was guilty of the crime of fornication, but that she committed the delinquent act of fornication. In re W. S. S., 266 Ga. 685 (470 SE2d 429) (1996). Moreover, this argument misapprehends the purpose of juvenile proceedings.

An order of disposition or other adjudication in a proceeding under the juvenile code is not a conviction of a crime. The juvenile code is concerned with the care, guidance, and well-being of children. Juveniles are declared delinquent because they need treatment and rehabilitation.

(Citation and punctuation omitted.) In the Interest of M. B., 217 Ga. App. 660, 661 (458 SE2d 864) (1995). Thus, one under the age of 13 years “is not prosecuted as a criminal, but is dealt with as the law provides for juveniles who violate the law.” K. M. S. v. State, supra, 129 Ga. App. at 684. In this case, the juvenile court has determined that twelve-year-old N. A., who the evidence showed had sexual intercourse with at least two different older teenage boys, was delinquent and therefore in need of treatment and rehabilitation. We conclude that the juvenile court did not err in so finding.

2. N. A. argues on appeal that the fornication statute violates her constitutional right to privacy. She relies on the Supreme Court of Georgia’s ruling in Powell v. State, 270 Ga. 327 (510 SE2d 18) (1998), in which the court found Georgia’s sodomy law unconstitutional “insofar as it criminalizes the performance of private, unforced, noncommercial acts of sexual intimacy between persons legally able to consent.” Id. at 336. However, this constitutional argument was not made to the juvenile court, and it cannot be considered for the first time on appeal. Ogletree v. State, 211 Ga. App. 845, 846-847 (1) (440 SE2d 732) (1994).

3. Finally, N. A. argues that the trial court erred in admitting her statement into evidence because neither she nor her father understood that she could be charged with delinquency as a result. Therefore, N. A. argues, she did not knowingly and intelligently waive her right to remain silent. The trial court determined that N. A. made her statement voluntarily, and we must uphold that finding unless it is clearly erroneous. Marshall v. State, 248 Ga. 227, 231 (3) (282 SE2d 301) (1981).

In considering whether a juvenile knowingly and intelligently waived her constitutional right to remain silent, we consider the following nine factors: (1) her age; (2) her education; (3) her knowledge of the substance of the charge and her right to consult with a lawyer and remain silent; (4) whether she was held incommunicado or allowed to consult with relatives, friends, or an attorney; (5) whether she was questioned before or after formal charges were filed; (6) interrogation methods; (7) interrogation length; (8) whether she previously refused to give statements; and (9) whether she repudiated the statement later. Riley v. State, 237 Ga. 124, 128 (226 SE2d 922) (1976).

A special agent with the Georgia Bureau of Investigation testified that N. A.’s father and stepmother were present when he first began interviewing N. A. He advised her that he initially came to question her and her parents about whether N. A. was pregnant, but learned that she was not. He then told her he needed to continue the investigation to discover who her sexual partners might have been, and “that if the allegations could be proved true that all the parties in the investigation would be appropriately charged.” He advised N. A. and her father of their Miranda rights, including N. A.’s right to have her parents with her during questioning, their right to remain silent or stop answering questions, their right to a lawyer, and that anything they said could be used against them in court. The agent determined that N. A. was 12 years old, in school, and could read and write. The interview lasted about two hours; after the first fifteen or twenty minutes, N. A. asked that her parents leave the room for the remainder of the interview, which they did voluntarily. N. A. never retracted or repudiated the resulting statement, was not threatened, and was promised no benefit in return. During the interview, the juvenile was free to visit her parents or go to the restroom if she wished. After the oral interview, they took a break, and then the agent wrote out the statement at N. A.’s request.

Decided October 2, 2000.

Jimmy D. Plunkett, for appellant.

Dennis C. Sanders, District Attorney, for appellee.

The trial court heard testimony from the GBI agent and from N. A.’s father, determined that the statement was voluntary, and admitted it into evidence.

“The question of whether a defendant is capable or incapable of making a knowing and intelligent waiver of his rights is to be answered by the trial judge and will be accepted by this court unless such determination is clearly erroneous.” (Citation and punctuation omitted.) Reynolds v. State, 217 Ga. App. 570, 572-573 (5) (458 SE2d 855) (1995). N. A.’s main objection is that she did not understand when she made the statement that she could be charged herself. However, the GBI agent told her and her father before she made the statement that anything she said could be held against her in court. Reviewing the totality of the circumstances surrounding N. A.’s statement, we conclude that the trial court’s finding that it was voluntary was not clearly erroneous.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.

       OCGA § 16-6-18 provides that “[a]n unmarried person commits the offense of fornication when he voluntarily has sexual intercourse with another person.”


author: Mikell, Judge.

text:
    A00A1898.
    PETTIGREW v. COLLINS et al.
    (539 SE2d 214)
   Mikell, Judge.

This appeal is before this Court from the grant of partial summary judgment to the defendants on plaintiff’s claim seeking specific performance of an option to purchase real property. Because the option is unenforceable, we affirm.

The owner of the subject property, Mildred Fincher, died testate on August 11, 1997. Defendants are her three surviving children. Plaintiff is the son of defendant Louise Fincher Pettigrew and the nephew of defendant Linda Fincher Collins, who is the executor of the decedent’s estate.

On August 24, 1997, plaintiff, his wife, and the defendants executed a document captioned “Two Year Rental Agreement With First Option To Buy.” The agreement provided that the plaintiff would repair, remodel, and maintain the property in lieu of paying rent. The agreement further provided: “The house will be appraised in September 1997. If we elect to purchase the home after the two years, we will pay the 1997 appraisal price. . . .’’ On September 1, plaintiff, his wife, and the executor executed a document stating that plaintiff and his wife “are purchasing” the house “at a previously agreed to price.” Plaintiff and his wife took possession of the property on August 24 and allegedly made substantial improvements thereon.

An appraisal dated September 9, 1997, valued the property at $26,500. On August 20, 1999, plaintiff attempted to exercise his option to purchase the property by tendering $33,700. This sum represented the 1997 appraised value plus $7,200 in rent plaintiff had agreed to pay in the event that he exercised his option. The defendants refused to sell the property. Plaintiff filed suit, seeking specific performance, or alternatively, to recover $35,000 in quantum meruit for the reasonable value of the improvements he made to the property. Plaintiff also sought unspecified damages for breach of contract as well as expenses of litigation under OCGA § 13-6-11. Defendants moved for, and were granted, partial summary judgment on the specific performance count.

Wiley v. Tom Howell & Assoc. and its progeny govern the disposition of this appeal. As held in Wiley, an option contract for the sale of real property falls within the Statute of Frauds. As such, the contract must (a) identify the buyer and seller, (b) describe the subject matter of the contract, and (c) name the consideration. At issue in Wiley, as in the case sub judice, is whether an option contract which states the price of the property as its “appraised” value sufficiently names the consideration. As we explained in Wiley, it does not.

“Option agreements have generally been held or recognized to be sufficiently definite as to price to justify their enforcement if either a specific price is provided for in the agreement or a practicable mode is provided by which the price can be determined by the court without any new expression by the parties themselves.” 2 ALR3d 703, § 3. Accordingly, from the foregoing criteria, we conclude that the agreement must be complete within itself as to the essential elements or a “key” or “practical mode” provided within the contract by which a definite price may be ascertained. . . . We do not find the term “appraised” to be ambiguous but conclude that it does not provide sufficient certainty — standing alone — to provide a “key” or “mode” by which a sale price could be determined by a court without any new expression of the parties.

In this case, as in Wiley, plaintiff’s agreement to “pay the 1997 appraisal price” fails for indefiniteness. Plaintiff’s attempts to distinguish Wiley are unavailing. It is true that the plaintiff in Wiley did not lease or improve the property, as has the plaintiff in this case. However, plaintiff’s possession and improvements do not negate the necessity of establishing a definite price for the purchase of the property. This plaintiff has failed to do so as a matter of law. The record is replete with evidence that the parties could not agree upon a purchase price. Accordingly, Wiley bars enforcement of the option contract.

Nor do we agree with plaintiff’s argument that his claim for specific performance remains viable under OCGA § 23-2-131 (b). That Code section, an equitable exception to the Statute of Frauds, provides for specific performance of a parol contract for the sale of real property if the buyer can demonstrate “possession . . . with valuable improvements . . . done with reference to the parol contract.” In his complaint, plaintiff seeks to enforce the written agreement dated August 24, 1997. Hence, OCGA § 23-2-131 (b) is inapplicable.

Plaintiff’s attempt to characterize the written option contract and the parties’ subsequent actions as an enforceable parol agreement fails to take into account the missing element of price. Parol or extrinsic evidence is inadmissible to supply the missing essential element.

Decided September 13, 2000

Reconsideration denied October 3,2000

R. Keith Prater, for appellant.

Glover & Davis, J. Littleton Glover, Jr., for appellees.

Finally, plaintiff’s reliance on Braddy v. Boynton is misplaced, as Braddy is factually inapposite. In Braddy, the Supreme Court affirmed the summary judgment granted to the buyer on his claim for specific performance of a parol contract for the sale of real property. There was no written agreement, and the only term the seller disputed was the closing date, which the Court ruled was not material. In the instant case, a written agreement existed, but it was unenforceable.

Accordingly, the trial court did not err in granting summary judgment to the defendants on the specific performance count of plaintiff’s complaint.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       154 Ga. App. 235 (267 SE2d 816) (1980).

       Id. at 236.

       Id. at 237.

       Plaintiff’s remedy for recovery for any improvements made upon the property lies in his claim for quantum meruit.

       (Citation omitted.) Engram v. Engram, 265 Ga. 804, 805-806 (1) (463 SE2d 12) (1995).

       Wiley, supra.

       271 Ga. 55 (518 SE2d 411) (1999).

       Id.


text:
    A00A2205.
    LANGLOIS v. WOLFORD.
    (539 SE2d 565)
   Eldridge, Judge.

On February 7, 1998, while under the influence of alcohol, Jeffery M. Langlois fled the scene of a collision where he sideswiped the vehicle which Shawn T. Wolford was driving, injuring him. At trial, the court permitted evidence that Langlois had been drinking immediately after the collision, was in an intoxicated state immediately after the collision at another location, and had a long history of drinking, DUI, and other moving traffic violations. Plaintiff had medical specials of $643, and the jury returned a general verdict of $3,500 plus $300,000 in punitive damages. Langlois contends that the trial court erred in not directing a verdict on the punitive damages and in allowing the admission of evidence of his prior drinking, prior traffic offenses, and evidence that he had consumed alcohol after the collision and was intoxicated. The evidence was relevant and material to the aggravating facts and circumstances on the issue of punitive damages and the amount of such damages as well as for liability and impeachment because Langlois contested that he was driving while intoxicated; there being evidence on the issue of punitive damages, the denial of the directed verdict was proper. We affirm.

1. Langlois asserts that the trial court erred in failing to grant his motion for directed verdict on the issue of punitive damages. We do not agree.

The tortfeasor must have engaged in some form of culpable conduct to support an award of punitive damages by clear and convincing evidence. OCGA § 51-12-5.1 (b); Howard v. Alamo Corp., 216 Ga. App. 525 (455 SE2d 308) (1995); Ralston v. Etowah Bank, 207 Ga. App. 775, 777 (3) (429 SE2d 102) (1993). However, wilful and intentional conduct is not essential to recover punitive damages, because where the facts and circumstances of the tort show an entire want of care, such conduct gives rise to a presumption of indifference to the consequences, i.e., wantonness, which is sufficient to support an award of punitive damages. See Brown v. StarMed Staffing, 227 Ga. App. 749, 755 (4) (490 SE2d 503) (1997); see also Hoffman v. Wells, 260 Ga. 588 (1) (397 SE2d 696) (1990); Hodges v. Effingham County Hosp. Auth., 182 Ga. App. 173, 175 (2) (355 SE2d 104) (1987). The peculiar facts and circumstances of a particular case, when supported by clear and convincing evidence of culpability, may cause ordinary negligence to give rise to the presumption that the conduct showed a conscious indifference to the consequences and an entire want of care. See Durben v. American Materials, 232 Ga. App. 750, 751 (1) (503 SE2d 618) (1998).

Leaving the scene of an accident was criminalized under OCGA §§ 40-6-270 (a) and (c) and 40-6-271, as hit and run, because the public policy of this state mandates that a party to an accident must stop and render aid to those involved in the collision, no matter who caused the collision, and not leave them in a possibly disabled state without aid. Ga. Power Co. v. Shipp, 195 Ga. 446 (24 SE2d 764) (1943); Bellamy v. Edwards, 181 Ga. App. 887, 889 (3) (354 SE2d 434) (1987); Battle v. Kilcrease, 54 Ga. App. 808, 809-810 (4) (189 SE 573) (1936). Thus, such act of leaving the scene of a collision without even speaking to the other party, as mandated by statute, was an intentional and culpable act; such conduct demonstrated a conscious indifference to the consequences and an entire want of care as to the victim’s well-being, permitting the jury to find that such conduct was of an aggravated and indifferent nature for purposes of imposing punitive damages. Bellamy v. Edwards, supra at 889; Battle v. Kilcrease, supra at 809-810 (4). Thus, such conduct alone was sufficient to show aggravated circumstances so as to permit the jury to consider the imposition of punitive damages for such culpable conduct. Further, driving under the influence of alcohol constituted such wanton conduct that it was both intentionally wilful and evinced such entire want of care as to be wanton, because it placed others at great risk of injury or death. See Moore v. Thompson, 255 Ga. 236, 237 (336 SE2d 749) (1985); Holt v. Grinnell, 212 Ga. App. 520 (441 SE2d 874) (1994).

The defendant left the scene of the collision without even speaking to the plaintiff, which gave rise to the reasonable inference that flight was from a sense of guilt. Parker v. State, 232 Ga. App. 609, 611 (1) (502 SE2d 310) (1998); Agony v. State, 226 Ga. App. 330, 331 (486 SE2d 625) (1997). Further, flight also gave rise to the inference that the defendant sought to conceal the odor of alcohol on his person and intoxication, which even the brief encounter required by law would reveal. The investigating officer, Carrero, testified that hit and run cases occurred to conceal another offense, i.e., no license, no insurance, or driving under the influence. The defendant was observed immediately after the collision at another location driving with an open beer in his hand and in a highly intoxicated condition; the close connection in time makes the evidence relevant to show his condition at the time of the collision. Steiner v. Melvin, 143 Ga. App. 97, 98 (1) (237 SE2d 635) (1977); see also Menendez v. Jewett, 196 Ga. App. 565, 566-567 (2) (396 SE2d 294) (1990). Such high level of intoxication only a short time after the collision gave rise to the reasonable inference that he was also intoxicated at the time of the collision and, coupled with a past history of drinking and DUI, gave rise to the reasonable inference that he had been drinking and driving when the collision occurred and that he sought to conceal such conduct by flight. See Moore v. Thompson, supra at 237. Thus, driving under the influence was an aggravated conduct supporting punitive damages. See id.; Holt v. Grinnell, supra. “[E]vidence regarding alcohol consumption is admissible when punitive damages are sought.” (Citation omitted.) Shelter Mut. Ins. Co. v. Bryant, 220 Ga. App. 526, 528 (1) (469 SE2d 792) (1996).

The jury was authorized to consider that the defendant’s perception, attention, reaction time, and motor skills had been affected by alcohol so that the defendant sideswiped plaintiff’s vehicle and that defendant left the scene of the collision to avoid detection of his drinking while driving as causing the collision. There was sufficient evidence for the jury to find a causal connection between plaintiff’s injuries and defendant’s drinking and hit and run conduct. See Beal v. Braunecker, 185 Ga. App. 429, 432 (3) (364 SE2d 308) (1987). Shortly after the collision, the defendant was observed in a drunken state that the jury could find had not occurred between the collision and arrival at the condo where Langlois was staying, because there was insufficient time for him to become intoxicated to the degree observed in such period. Lovejoy v. Tidwell, 212 Ga. 750, 751 (95 SE2d 784) (1956); Menendez v. Jewett, supra at 566-567.

It was proper for the trial court to deny the motion for directed verdict where there was evidence to support a jury award of punitive damages by clear and convincing evidence. Ga. Kraft Co. v. Faust, 200 Ga. App. 686, 688 (2) (409 SE2d 247) (1991).

2. The defendant contends that the trial court erroneously denied his motion in limine to exclude evidence of his history of alcohol consumption and of his driving record, including DUI. We do not agree.

This case presents an unusual combination of issues. Defendant, at the time that he left the scene of the collision without communicating with the plaintiff, was under threat of discharge from the Army if found drinking again, because he had been found drunk on duty one morning after release from jail for a charge of DUI and had been caught drinking in the barracks on another occasion. Thus, he had not only an interest to avoid both civil and criminal liability, but also to protect his military status by concealing his drinking and driving. Therefore, he left the scene of the collision to avoid detection of his drinking and, at trial, denied drinking and committed spoliation of evidence of his drinking and driving at the time of the collision and then denied drinking and intentionally leaving the scene of the collision so that the rebuttable presumption was of no value. See generally as to spoliation of evidence OCGA § 24-4-22; Jones v. Krystal Co., 231 Ga. App. 102, 107 (498 SE2d 565) (1998); Lane v. Montgomery Elevator Co., 225 Ga. App. 523, 525 (1) (484 SE2d 249) (1997). Thus, evidence of his drinking and driving on February 7, 1998, went not only to issues of liability, punitive damages, and credibility, but also to impeachment. Prior and subsequent DUI offenses and a prior habit of drinking went to punitive damages and interest by showing Langlois’ reason to conceal his intoxication while driving on February 7, 1998. Thus, the trial judge properly exercised his discretion to admit doubtful and inferior evidence where the defendant intentionally prevented direct evidence through his act of spoliation by leaving the scene of the collision. The admission or exclusion of evidence which has been objected to on relevancy grounds is within the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion. O’Neal v. State, 254 Ga. 1, 3 (3) (325 SE2d 759) (1985); McEntyre v. McRae, 240 Ga. App. 148 (1) (522 SE2d 731) (1999). The trial court properly exercised his discretion in admitting evidence of prior similar conduct under the facts and circumstances of this case. See Troncalli v. Jones, 237 Ga. App. 10, 16-17 (4) (514 SE2d 478) (1999).

(a) On February 7, 1998, between 9:45 and 10:00 p.m., Langlois was seen by security guard Willard Bohannon, Jr. at the Summer Wind Condos driving with an open container of beer and with a male companion, Donald Stump. Bohannon talked to the defendant twice shortly after the defendant arrived and got out of his car. Bohannon found the defendant to be in a very intoxicated state: (1) red faced; (2) speech slurred; (3) unsteady on his feet, needing support, and staggering; (4) an odor of alcohol on his breath; and (5) driving too fast for conditions in the parking lot. The defendant, when told by Bohannon that his car was recently damaged, refused to allow the police to be called. Officer Carrero reported the collision as occurring at approximately 10:00 p.m., which placed the collision immediately before the defendant was seen drunk. On cross-examination, defendant admitted that he went directly from the collision to the Summer Wind Condos, where he was seen by Bohannon; however, Langlois denied drinking on that date. Thus, evidence that he had been drinking on that day was also admissible for impeachment of his denial.

Defendant denied drinking and driving under the influence and that it had any causal connection with the collision on February 7, 1998. Therefore, drinking and driving was an integral issue of liability, along with the issues of driving on the right side of the road, maintaining control, and keeping a proper lookout. Thus, whether or not the defendant was drinking was material to the issue of liability, as well as punitive damages. Because punitive damages were sought, prior similar acts of driving under the influence were relevant and material for punitive damages. Thompson v. Moore, supra at 236. In this case, the trial court allowed evidence of the prior drinking to come into evidence to prove the defendant was drinking and driving from evidence of prior similar conduct, because the defendant vigorously denied drinking, had left the scene of the accident to prevent direct evidence on that issue, and had intentionally acted in a fashion to eliminate the possibility of direct proof of his drinking and driving. Webster v. Boyett, 269 Ga. 191, 194-196 (496 SE2d 459) (1998).

(b) The issue of driving under the influence was denied by the defendant so that the evidence, even if doubtful, was relevant and material to the issues of liability, punitive damages, credibility, and impeachment. See Lovejoy v. Tidwell, supra at 751; Menendez v. Jewett, supra at 566-567; Steiner v. Melvin, supra at 98. Prior similar acts may be admitted for impeachment purposes as well as for punitive damages. U. S. Fidelity &c. Co. v. Paul Assoc., 230 Ga. App. 243, 245 (1) (496 SE2d 283) (1998); Chezem v. State, 199 Ga. App. 869, 871 (3) (406 SE2d 522) (1991); Beal v. Braunecker, supra at 431 (2); Tilley v. Page, 181 Ga. App. 98, 99-100 (4) (351 SE2d 464) (1986). Admissibility of evidence of doubtful relevancy or competent evidence or evidence of slight probative value is favored, because the weight has been left to the jury to determine. Ga. Power Co. v. Irvin, 267 Ga. 760, 766 (3) (482 SE2d 362) (1997); Williams v. Worsley, 235 Ga. App. 806, 809-810 (7) (510 SE2d 46) (1998).

(c) Further, defendant had been caught drinking in the barracks by the military and was under threat of discharge for further drinking anywhere. The defendant had a prior history of alcohol abuse, both as a civilian and as a soldier. He would be discharged from the Army if found to have been drinking and driving. Despite his attempts to conceal his driving and drinking, the Army discharged him for such conduct. Thus, he had a substantial interest in denying his drinking and concealing such drinking greater than avoiding the criminal consequences. Evidence tending to show the interest of a party in the outcome has direct relevance and materiality to his credibility as a witness. See OCGA § 24-9-80; Bd. of Trustees &c. v. Englade, 256 Ga. 458, 459 (2) (349 SE2d 703) (1986); Smith v. Davis, 203 Ga. 175, 182 (3) (45 SE2d 609) (1947). Therefore, such evidence was admissible as a foundation to show that the defendant had a drinking problem and was under threat of dismissal from the Army if caught drinking and driving as it affected his credibility.

(d) Prior similar acts of drunk driving and intoxication were relevant and material as evidence of aggravated conduct for punitive damages, and the trial court had the discretion to admit the prior or subsequent similar acts in the liability phase for punitive damages claim. Webster v. Boyett, supra at 194-196; Thompson v. Moore, supra at 236. The trial court several times gave cautionary instructions as to what the prior or subsequent alcohol abuse could be used to prove.

3. Defendant contends that the trial court erred in not granting a mistrial following highly prejudicial testimony. We do not agree.

(a) Stump was an eyewitness to the collision and had been drinking with the defendant both before and after the collision on that evening. However, Stump was unavailable to testify because he was absent without leave and subject to arrest. Investigator James Ashdown interviewed Stump, who told him that the defendant had been drinking prior to the collision. Defendant objected to the testimony as hearsay, which was sustained, and moved for a mistrial, which was denied. The trial court erroneously sustained the objection to such testimony as hearsay when it came within the necessity exception; therefore, such testimony was admissible and not the basis for a mistrial. OCGA § 24-3-1 (b); Luallen v. State, 266 Ga. 174, 178-179 (5) (465 SE2d 672) (1996); Wilbourne v. State, 214 Ga. App. 371, 373 (2) (488 SE2d 37) (1994).

Being AWOL made the witness unavailable. Stump would be subject to criminal prosecution for making a false statement to the police and subject to criminal and military action for aiding and abetting the concealment of the collision. Further, the statement was made by an eyewitness a short time after the collision during the official investigation, was made against his friend, and was made when no motive existed for him to lie, and the statement was never recanted or changed and was corroborated by other evidence. Such factors would demonstrate sufficient indicia of reliability of the statement as particularized guarantees of trustworthiness. See Chapel v. State, 270 Ga. 151, 155-156 (4) (510 SE2d 802) (1998); Fetty v. State, 268 Ga. 365, 367-368 (4) (489 SE2d 813) (1997); Lewis v. Emory Univ., 235 Ga. App. 811, 817 (2) (509 SE2d 635) (1998); McBee v. State, 228 Ga. App. 16, 24-25 (4) (491 SE2d 97) (1997).

Decided September 19, 2000

Reconsideration denied October 3, 2000

Clark & Clark, Fred S. Clark, for appellant.

Hertz & Link, Eric J. Hertz, Mark D. Link, Houston D. Smith III, Rene D. Kemp, for appellee.

(b) Defendant moved for a mistrial when the investigator indicated that a criminal investigation of the hit and run had been conducted, which the trial court denied. There was nothing prejudicial requiring a mistrial based upon the investigator conducting a criminal investigation.

(c) The defendant again moved for a mistrial when the defendant was asked had he been drinking since age 13, which motion was denied and cautionary instructions given. The cautionary instructions were adequate to cure any harm. Further, such testimony was relevant and material as part of the foundation to show defendant’s interest as held in Division 2 (c), which controls.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.