text:
    A00A0266.
    RAPID TAXI COMPANY v. BROUGHTON.
    (535 SE2d 780)
   Ruffin, Judge.

Rapid Taxi Company appeals the trial court’s denial of its motion to set aside a default judgment. Because the trial court erroneously concluded that Rapid Taxi’s motion was untimely, we reverse and remand.

James Broughton sued Rapid Taxi for injuries sustained in a collision involving a Rapid Taxi cab. Rapid Taxi answered, alleging that it was not liable for the acts of the driver, who was not its employee or agent. When the case came up for trial, Broughton sought a continuance on the ground that his treating physician was not available. After the trial court denied the motion for a continuance, Broughton dismissed the action without prejudice.

On March 31, 1997, Broughton refiled his complaint against Rapid Taxi, and the matter was assigned a new case number. On April 2, 1997, the complaint and summons were served on Rapid Taxi. Rapid Taxi, however, failed to file a timely answer. On May 22, 1997, more than 45 days after the refiling of the complaint, Broughton filed a motion for a default judgment. On May 27, 1997, the trial court granted Broughton’s motion. The trial court’s order, which is styled “Default Judgment,” provided that “Plaintiff’s motion be GRANTED and JUDGMENT be entered against the Defendant, Rapid Taxi Company, Inc., on the issue of liability.” The order further provided that the case “be placed on the next available jury trial calendar for trial on the issue of damages.”

On June 2, 1997, Rapid Taxi filed a motion to set aside the default pursuant to OCGA § 9-11-55 (b). It also filed a proposed answer and paid court costs. Attached to Rapid Taxi’s motion was the affidavit of Larene Brown LaSonde, a paralegal in the office of Rapid Taxi’s counsel. According to LaSonde, Rapid Taxi promptly forwarded the summons and refiled complaint to counsel’s office, but she inadvertently misfiled them, so counsel never saw them and did not file an answer.

The trial court denied Rapid Taxi’s motion on the ground that it was untimely. According to the trial court, the motion was moot because it was filed four days after the order entering the default judgment against Rapid Taxi. The trial court did not consider the merits of the motion, and it denied Rapid Taxi’s motion for reconsideration.

A trial was held on the issue of damages only, and the jury awarded $40,000 to Broughton. The trial court then entered an order directing that “judgment is awarded in favor of Plaintiff and against Defendant.”

1. In its first enumeration of error, Rapid Taxi contends that the trial court erred by refusing to consider the merits of its motion to set aside the default. We agree.

Under OCGA § 9-11-55 (b),

[a]t any time before final judgment, the court, in its discretion, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of required pleadings or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court.

Once a final judgment has been entered, however, this Code section no longer applies, and a party seeking to set aside a default judgment must satisfy the more stringent criteria set forth in OCGA § 9-11-60. Here, the trial court apparently concluded that its May 27 “Default Judgment” entered against Rapid Taxi was a “final judgment,” and that Rapid Taxi’s subsequent motion was therefore untimely. But a judgment is not final unless “it disposes of the entire controversy, leaving nothing for the trial court to do in the case.” The trial court’s “Default Judgment” did not dispose of the entire controversy; it merely decided the issue of liability. And, rather them leaving nothing for the trial court to do, the “Default Judgment” directed that the case be placed on the next available jury trial calendar. The interim “Default Judgment” was therefore not a final order. It follows that Rapid Taxi’s motion to set aside the default was timely.

2. Broughton argues that we must affirm the trial court’s ruling for a different reason — i.e., because Rapid Taxi failed to satisfy the prerequisites for setting aside a default. Since we affirm a ruling if it is right for any reason, we must consider this argument.

Before the trial court may exercise its discretion to open a default under OCGA § 9-11-55 (b), the defendant must (1) make a showing under oath; (2) offer to plead instanter; (3) announce readiness to proceed to trial; and (4) set up a meritorious defense. Broughton contends that Rapid Taxi failed to satisfy the first and fourth prerequisites and that the trial court therefore had no discretion to consider the merits of its motion. Specifically, Broughton argues that Rapid Taxi’s meritorious defense was not stated under oath and was not set forth in sufficient detail. We disagree.

We have held that one of the showings that must be made “under oath” is the existence of a meritorious defense. According to Broughton, Rapid Taxi did not meet this requirement because its answer was not verified. Broughton cites SunTrust Bank &c. v. Perry, where the defendant filed an answer denying liability, but the answer was not properly verified. We held that the trial court lacked discretion to open the default because the defendant’s showing of a meritorious defense was not made under oath. We did not hold, however, that the only way a defendant can show a meritorious defense under oath is by filing a verified complaint. Here, Rapid Taxi satisfied the prequisite by attaching to its motion an affidavit proper in form that effectively incorporated the allegation in the motion that Rapid Taxi was not liable.

We have also held that a mere averment that meritorious defenses exist is insufficient. Here, however, Rapid Taxi stated that it was not liable because the driver of the automobile was an independent contractor, not an employee. This was adequate detail.

“It is well-settled that a statute which confers discretion upon a judge to decide a particular question also imposes a correlative duty to exercise that discretion when the occasion arises.” Because Rapid Taxi satisfied the prerequisites of OCGA § 9-11-55 (b), we reverse and remand for the trial court to exercise its discretion and to consider the merits of Rapid Taxi’s motion to set aside the default.

3. In view of our holdings in Divisions 1 and 2, we need not address Rapid Taxi’s other enumeration of error.

Decided June 12, 2000.

Sidney L. Moore, Jr., for appellant.

Freedman & Sinowski, Thomas C. Sinowski, Thomas P. deRosay, for appellee.

Judgment reversed and remanded.

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

       Actually, the motion to set aside the default was filed five dáys after the entry of the order styled “Default Judgment.”

       (Emphasis supplied.)

        Smithson v. Harry Norman, Inc., 192 Ga. App. 796 (1) (386 SE2d 546) (1989); Archer v. Monroe, 165 Ga. App. 724, 725 (2) (302 SE2d 583) (1983).

       (Punctuation omitted.) Atlanta J’s v. Houston Foods, 237 Ga. App. 415, 418 (2) (514 SE2d 216) (1999); see also Vangoosen v. Bohannon, 236 Ga. App. 361, 363 (2) (511 SE2d 925) (1999) (order that “leaves the case pending in the trial court” is not a final judgment).

       See Cryomedics v. Smith, 180 Ga. App. 336, 337 (349 SE2d 223) (1986) (trial court’s entry of default judgment on issue of liability in personal injury action was not “final judgment” under OCGA § 9-11-55 (b), even though court denominated it as such).

       See Brown v. Walton Elec. Membership Corp., 238 Ga. App. 347, 350 (2) (518 SE2d 727) (1999).

        SunTrust Bank &c. v. Perry, 233 Ga. App. 701 (505 SE2d 230) (1998).

       (Punctuation omitted.) Id.

       Id. at 702.

       See Grayson & Hollingsworth, Inc. v. C. Henning Studios, 194 Ga. App. 531, 532-533 (391 SE2d 8) (1990) (contemplating that affidavit submitted in support of motion to open default would satisfy the “meritorious defense ‘under oath’ ” requirement if it had disclosed defenses); see also Boynton v. State Farm &c. Ins. Co., 207 Ga. App. 756 (1) (429 SE2d 304) (1993) (“The rule permitting opening of default is remedial in nature and should be liberally applied, for default judgment is a drastic sanction that should be invoked only in extreme situations.”) (punctuation omitted) (physical precedent only).

       See Ga. Hwy. Express Co. v. Do-All Chem. Co., 118 Ga. App. 736 (165 SE2d 429) (1968); Coleman v. Dairyland Ins. Co., 130 Ga. App. 228, 229-230 (202 SE2d 698) (1973).

        Patel v. Gupta, 234 Ga. App. 441, 443 (1) (507 SE2d 763) (1998).

       Rapid Taxi urges us to simply grant the motion. Our function, however, is to correct the errors of the trial court, not to perform that court’s duties. See id. (remanding to trial court to exercise its discretion under OCGA § 9-11-55 (b)).


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A00A0345.
    PRESIDENTIAL FINANCIAL CORPORATION v. FRANCIS A. BONANNO, INC.
    (535 SE2d 809)
   Ruffin, Judge.

Presidential Financial Corporation appeals from the trial court’s grant of summary judgment in favor of Francis A. Bonanno, Inc. on Presidential’s promissory estoppel claim. Because genuine issues of material fact preclude summary judgment, we reverse.

Presidential extends loans to businesses and uses their accounts receivable as collateral. In 1995, Presidential entered into a business relationship with Moccia Brothers, Inc., a distributor of alcoholic beverages. Presidential extended a revolving line of credit to Moccia Brothers, which executed certain loan agreements in favor of Presidential secured by the company’s assets, including its accounts receivable. In March 1996, Moccia Brothers defaulted on the loans, and Presidential filed suit against Moccia Brothers. Moccia Brothers eventually repaid the loans, and Presidential dismissed the lawsuit.

Shortly after Presidential filed the suit, Moccia Brothers informed Presidential that it had become the sole American importer for Villa Massari, an Italian distiller. Moccia Brothers also told Presidential that it had assigned to Bonanno, an Ohio-based liquor distributor, the exclusive right to distribute Villa Massari products in the United States. According to Moccia Brothers, Bonanno could obtain Villa Massari products only through Moccia Brothers. Because Bonanno sought generous payment terms which Moccia Brothers could not afford to extend, Moccia Brothers again turned to Presidential for credit. After performing a background check, Presidential determined that Bonanno was creditworthy. Presidential states that it agreed to extend further credit to Moccia Brothers, but only if Bonanno would agree to be unconditionally and directly liable to Presidential for the products it ordered from Moccia Brothers.

In July 1996, Bonanno ordered $48,625 worth of Villa Massari products from Moccia Brothers pursuant to Invoice No. 330. Moccia Brothers used the order as collateral to draw funds on its line of credit from Presidential. Before extending credit, Presidential prepared a letter agreement addressed to Bonanno on Moccia Brothers’ letterhead which stated as follows:

We have entered into an accounts receivable financing agreement with Presidential Financial Corporation where all of our receivables are assigned to Presidential and in that regard have assigned:
Invoice: #330
Dated: July 21, 1996
Amount: $48,625
Please be kind enough to acknowledge below that you are presently liable for the invoice and that you will pay to [Presidential] within terms.
Many thanks for your assistance. Please be kind enough to fax your reply directly to [Presidential’s assistant vice president].

(Emphasis supplied.) The letter was signed by the president of Moccia Brothers, and below his signature appeared the following:

To: Presidential Financial Corporation
This acknowledgment is to state that we will pay directly to you without offset of any kind, $48,625 no later than August 25, 1996.

(Emphasis supplied.) Below this paragraph was a blank for Bonanno’s signature. Moccia Brothers forwarded the letter to Bonanno, which signed it and returned it directly to Presidential. Upon receipt of the agreement, Presidential loaned $36,468.75 to Moccia. According to Presidential’s assistant vice president, Presidential never would have approved this loan if Bonanno had not executed and returned the acknowledgment letter. In accordance with the letter, Bonanno paid Presidential the sum of $48,625 on or before August 25, 1996.

Bonanno placed three more orders with Moccia Brothers. Each time, Bonanno executed an acknowledgment letter identical to the first one, except that the invoice number, amount, date, and repayment date were different. Bonanno faxed each acknowledgment letter directly to Presidential. Bonanno paid the invoice on the second order to Presidential without incident. Disputes arose, however, as to the third and fourth orders.

With respect to the third order, dated August 27, 1996, Bonanno ordered $59,251 worth of products from Moccia Brothers pursuant to Invoice No. 370. Bonanno signed a letter with the same language quoted above, agreeing to pay Presidential the sum of $59,251. Presidential, in turn, extended credit to Moccia Brothers. Bonanno paid Presidential only $49,169.33, however, claiming that it had deducted from the bill certain marketing expenses that Moccia Brothers owed it.

With respect to the fourth order, dated November 1, 1996, Bonanno ordered $59,000 worth of products from Moccia Brothers pursuant to Invoice No. 390. Once again, Bonanno signed a letter with the same language quoted above, agreeing to pay Presidential the sum of $59,000. And again, Presidential loaned money to Moccia Brothers. Bonanno never received the merchandise it ordered, however, and it refused to pay Presidential anything on Invoice No. 390. Moccia Brothers has failed to repay Presidential for the loan advanced pursuant to Invoice No. 390, as well as other sums.

Presidential filed suit against Bonanno for amounts allegedly owed under Invoice Nos. 370 and 390, asserting claims for breach of contract and promissory estoppel. Presidential claims that the express language of the third and fourth letter agreements unconditionally obligated Bonanno to pay Presidential the sums of $59,251 and $59,000, respectively, and prohibited Bonanno from offsetting those payments in any way. Bonanno denies that it owes Presidential any money. As to Invoice No. 370, Bonanno claims that Moccia Brothers agreed to share marketing expenses for the Villa Massari products, and that Bonanno was entitled to deduct Moccia Brothers’ portion from its payment to Presidential. With respect to Invoice No. 390, Bonanno maintains that, under its contract with Moccia Brothers, it was obligated to pay only for goods it received and accepted. In essence, Bonanno asserts that Presidential, as Moccia Brothers’ assignee, is bound by the terms of the Bonanno/Moccia Brothers’ contract.

Bonanno filed a motion for summary judgment. In its interrogatory responses, Presidential admitted that there was no consideration for its letter agreements with Bonanno. Based on this admission, the trial court granted summary judgment to Bonanno on Presidential’s contract claim, and Presidential does not appeal that ruling. As to Presidential’s promissory estoppel claim, the trial court denied summary judgment on Presidential’s claim for money owed under Invoice No. 370, concluding that the parties’ agreement was ambiguous regarding “the sharing of the marketing expenses between Moccia and Bonanno.” The trial court granted summary judgment, however, on Presidential’s claim for money owed under Invoice No. 390. The court agreed with Bonanno’s position that, as Moccia Brothers’ assignee on Invoice No. 390, Presidential’s claim was subject to any defenses Bonanno would have against Moccia Brothers. “Certainly,” wrote the court, “in a dispute between Moccia and Bonanno, Bonanno would be entitled to show that it received no goods and thus was not required to pay for the invoice.”

Following the trial court’s grant of partial summary judgment, the parties entered into a “Consent Judgment” that broadly stated: “By consent of the parties, judgment is hereby entered in favor of Francis A. Bonanno, Inc. and against Presidential Financial Corporation.” According to Presidential, the purpose of the consent judgment was to “facilitate this appeal.” On appeal, Presidential challenges only the trial court’s grant of partial summary judgment as to Invoice No. 390.

1. At the outset, we consider whether we have jurisdiction to hear this appeal. We are troubled by Presidential taking this appeal from a consent judgment. In Riverdale Pools & Constr. v. Evans, the trial court granted partial summary judgment against the defendant on the issue of liability, leaving unresolved the amount of damages. The parties later settled the case and entered into a consent judgment for a specified sum. Thereafter, the defendant filed an appeal, challenging the trial court’s ruling on liability. We held that

a party not aggrieved by the judgment of the trial court is without legal right to except thereto, since he has no just cause of complaint. In this appeal, [defendant] cannot be aggrieved by the trial court’s judgment since it was entered with his consent. Moreover, the enumerations of error concern only the grant of partial summary judgment, and do not challenge the terms, validity, or enforceability of the judgment entered pursuant to the parties’ consent agreement.

Because the appeal was moot, we dismissed it.

At first blush, Riverdale Pools seems to be controlling here. Presidential did not directly appeal the trial court’s partial summary judgment order, but instead filed an appeal after a consent judgment was entered against it. This appeal challenges only the partial summary judgment order, not the consent judgment. Here, however, there is no indication that the parties have settled Presidential’s claim as to Invoice No. 390. And, despite the broad wording of the consent judgment, it appears from the record that Presidential intended to consent to judgment only as to its claim on Invoice No. 370 — not as to its claim on Invoice No. 390 — and intended to reserve its right to appeal the trial court’s partial summary judgment order. We therefore cannot say that this appeal is moot.

2. Turning to the merits of Presidential’s appeal, we begin with the law applicable to promissory estoppel. In order to prevail on this claim, Presidential must show that (1) Bonanno made certain promises; (2) Bonanno should have expected that Presidential would rely on those promises; and (3) Presidential did, in fact, rely on the promises to its detriment. We conclude that genuine issues of material fact exist as to whether Presidential has satisfied these requirements, and that summary judgment was therefore inappropriate.

(a) As to the first requirement, it is clear that the October 29 letter constituted a promise on the part of Bonanno; it is less clear exactly what that promise was. Presidential argues that the plain language of the letter shows that Bonanno promised unconditionally to pay Presidential a sum certain — $59,000 — by February 1, 1997. Bonanno, on the other hand, contends that the letter represents a promise to pay Presidential for the invoice, but only to the extent that it would be liable to Moccia Brothers under the invoice. Thus, Bonanno maintains that Presidential stands in the shoes of Moccia Brothers and is subject to any defenses that Bonanno would have had against a suit for payment by Moccia Brothers. Bonanno asserts the defense of nonreceipt of the goods, which it contends would have been a valid defense under the Bonanno/Moccia Brothers contract. It is undisputed for the purpose of summary judgment that Bonanno never received the goods and that this was a valid defense under Bonanno’s agreement with Moccia Brothers. Thus, if Bonanno’s interpretation of its promise to Presidential is correct, then Bonanno is entitled to summary judgment.

We start with the language of the fourth letter agreement. By signing and returning the letter, Bonanno agreed to pay $59,000 “directly” to Presidential by February 1, 1997. This appears to be a straightforward promise to pay a sum certain by a specific date. Bonanno, however, points to the language in the agreement asking Bonanno to acknowledge that it will pay the invoice “within terms.” Nothing in the letter explains the meaning of this phrase. Bonanno insists that it means within the terms of the Bonanno/Moccia Brothers contract, which requires payment only upon acceptance of the goods. Presidential, on the other hand, maintains that the phrase means only that Bonanno had a 90-day payment term, not that the provisions of the Bonanno/Moccia Brothers contract have been “imported” into the letter agreement.

As further support for its position that Bonanno had no defenses against payment, Presidential points to the clause in which Bonanno agreed to pay “without offset of any kind.” Once again, the letter agreement does not explain what this phrase means. Presidential asserts that “[t]he clear meaning of the term ‘offset’ provides a broad scope of defenses and claims that Bonanno agreed to waive.” Bonanno, on the other hand, argues that “offset” means a recoupment, not “affirmative relief” or a “counterclaim.” Thus, according to Bonanno, while “there is arguably some dispute regarding Bonanno’s ability to ‘offset’ against Presidential,” the phrase does not constitute a waiver of the right to assert defenses.

We find that the phrases “within terms” and “without offset of any kind” are ambiguous. Reading the letter agreement as a whole, we cannot ascertain, from the face of the document, the intention of the parties. Parol evidence is admissible to explain the ambiguities, and as there is a conflict in that evidence, it is up to the jury to decide what the phrases mean. Thus, genuine issues of material fact remain as to the nature of Bonanno’s promise to Presidential.

(b) Assuming that Bonanno made an unconditional promise to pay a sum certain to Presidential, we next consider whether Bonanno did so knowing that Presidential would rely on that promise. Presidential has presented evidence that Bonanno knew that Presidential would loan money to Moccia Brothers only if Bonanno executed the fourth letter agreement. Thus, there is a jury question on the second element of promissory estoppel.

Bonanno argues that any reliance by Presidential was unreasonable as a matter of law. Bonanno suggests that Presidential could not possibly have believed Bonanno would make an unconditional promise to pay, because Bonanno would receive no benefit from doing so. Presidential presents evidence, however, that its financing arrangement with Moccia Brothers enabled Bonanno to obtain the 90-day payment term it sought. Moccia Brothers apparently could not afford to extend a 90-day term without a loan from Presidential, and Moccia Brothers was Bonanno’s only source of the Villa Massari products. Thus, Bonanno clearly stood to benefit from Moccia Brothers’ arrangement with Presidential.

(c) As to the third element of promissory estoppel, Presidential presented evidence that it detrimentally relied on Bonanno’s alleged unconditional promise to pay. According to Presidential’s vice president, Presidential would never have loaned money to Moccia Brothers without such a promise from Bonanno. Moreover, Bonanno timely and fully paid the first two invoices assigned to Presidential, and the dispute over the third invoice did not arise until after Bonanno executed the fourth letter agreement and Presidential extended credit to Moccia Brothers.

In light of these factual disputes, the trial court erred in granting summary judgment to Bonanno on Presidential’s promissory estoppel claim for money due under Invoice No. 390. We therefore reverse.

Decided June 12, 2000.

Sutherland, Ashill & Brennan, Steven L. Polk, for appellant.

Griffin, Cochrane & Marshall, Craig A. Courville, Gerald L. Turner, for appellee.

Judgment reversed and remanded.

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

       Moccia Brothers’ president avers that the company purchased the products from Villa Massari and made them available for Bonanno to pick up. Bonanno’s president, on the other hand, avers that “Moccia never shipped, and Bonanno never received or accepted the goods referenced in Invoice No. 390.”

       Although neither party raises this issue, “[i]t is not only the right but the duty of a reviewing or appellate court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.” (Punctuation omitted.) Atlantic-Canadian Corp. v. Hammer, Siler &c. Assoc., 167 Ga. App. 257 (1) (306 SE2d 22) (1983).

       210 Ga. App. 127 (435 SE2d 501) (1993).

       (Citations and punctuation omitted; emphasis supplied.) Id. at 127-128.

       See OCGA § 9-11-56 (h); Olympic Dev. Group v. American Druggists’ Ins. Co., 175 Ga. App. 425 (1) (333 SE2d 622) (1985) (“The grant of partial summary judgment as to one or more but fewer than all the claims or parties is reviewable by direct appeal if the notice of appeal is filed within 30 days of the rendition of such judgment.”).

        Nickell v. IAG Fed. Credit Union, 213 Ga. App. 516, 519 (4) (445 SE2d 335) (1994).

       Summary judgment is appropriate when there is no genuine issue of material fact as to any essential element of the plaintiff’s claim and the defendant is entitled to judgment as a matter of law. We review a grant of summary judgment de novo. Murray v. Fitzgerald Convenient Centers, 239 Ga. App. 799 (521 SE2d 915) (1999).

       See OCGA § 13-2-3 (“The cardinal rule of [contract interpretation] is to ascertain the intention of the parties.”); Brown v. Ohio Cas. Ins. Co., 239 Ga. App. 251, 254 (2) (519 SE2d 726) (1999) (“We look to the language of the contract to determine the intent of the parties”).

       In support of their differing interpretations, the parties cite Black’s Law Dictionary and a number of Georgia cases defining “offset” in contexts different from the one present here. These authorities, however, do not help us determine what the parties intended for the word to mean.

       See Bell v. Sasser, 238 Ga. App. 843, 851-852 (2) (520 SE2d 287) (1999) (“ Ambiguity in a contract may be defined as duplicity, indistinctness, an uncertainty of meaning or expression.’ ”).

       Id. at 852.

       Bonanno also relies on OCGA § 11-9-318 (1) (a), which, provides that
      [u]nless an account debtor has made an enforceable agreement not to assert defenses or claims arising out of a sale . . . the rights of an assignee are subject to . . . [a]ll the terms of a contract between the account debtor and assignor and any defense or claim arising therefrom.
      But Presidential is not suing as an assignee of the account receivable; it is suing on Bonanno’s direct, independent promise to Presidential — whatever that promise is. Thus, OCGA § 11-9-318 does not apply here. And even if it did apply, the question of whether the fourth letter agreement constitutes an enforceable agreement by Bonanno not to assert defenses against Presidential is not amenable to summary resolution, as discussed above.

       See Fidelity &c. Co. v. West Point Constr. Co., 178 Ga. App. 578, 580 (344 SE2d 268) (1986) (“Promissory estoppel cannot be applied unless the promisee reasonably relied on the promise.”).


author: Miller, Judge.

text:
    A00A0558, A00A0559.
    SHEFFIELD v. DARBY et al.; and vice versa.
    (535 SE2d 776)
   Miller, Judge.

After watching a male horse owned by Terry and Manita Darby perform at a horse show, Ashley Sheffield contacted the Darbys about buying him. The Darbys assured her that the horse had no problems and would make a good show horse for use in competition. In the presence of and in consultation with her father (who raised horses for a business), Sheffield rode the horse and decided to purchase him for $8,500. Within three weeks, Sheffield and her trainer discerned that the horse was lame. Sheffield sued the Darbys for fraud and for breach of express and implied warranties, and the court entered summary judgment in favor of the Darbys on all claims. We affirm, holding that the representations concerning the horse were either true or unactionable statements of opinion (mere “puffing”).

1. At the outset, we note that the record in Case No. A00A0558 is incomplete, even though the notice of appeal directs the clerk to omit nothing from the record on appeal. Both parties in their appellate briefs refer repeatedly to testimony from Sheffield’s deposition and the exhibits thereto, yet that deposition is not included in the record transmitted to this Court, nor was it even filed in the trial court until a month after this appeal had been docketed. The record has not been supplemented. “[W]e are limited to review only that which is contained in the appellate record,” and thus cannot consider the alleged testimony from the missing deposition. Moreover, it was obviously not before the trial court at the time it entered summary judgment.

2. For a fraud action to survive summary judgment, some evidence must support each of the following five elements: a false representation by defendant, scienter, intent to induce plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff. No evidence supports either the first or fourth element.

The alleged misrepresentations are found in Sheffield’s interrogatory responses:

The Defendants told the Plaintiff that the horse could be ridden and shown. The Defendants told the Plaintiff that there was no problem with the horse that would prevent him from being shown. The Defendants told the Plaintiff that the horse had participated in competitions in the past successfully.

To prove the falsity of these statements, Sheffield points to affidavits from the horse’s previous trainer and owner from whom the Darbys purchased the horse 11 months before selling the horse to Sheffield. These men testified that they told the Darbys the horse was not physically sound enough to be a show horse, that therefore the horse was sold to the Darbys for only $1,000, and that this unsound condition was not discoverable without subjecting the horse to a training regimen.

This opinion evidence about the horse’s prior condition and prognosis was completely refuted by the undisputed circumstance that the horse successfully competed in two horse shows before the sale to the Darbys and thereafter successfully competed at the very horse show (placing four times) where Sheffield and her father first observed him and began efforts to purchase him. An athlete with a malformed leg may be told she will never run, but under inspired tutelage may prove all wrong and run in Olympic races. The fact that the horse’s previous owner and trainer opined that the horse’s particular physical condition (which they never specified) would preclude him from competing successfully is without probative value in the face of the undisputed direct evidence that under the Darbys’ training, he competed successfully in full view of Sheffield and her father, which success motivated in part the purchase in question.

Moreover, at Sheffield’s request, a veterinarian cursorily examined the horse immediately prior to the sale to her and opined that the horse was not lame, although he did have a limiting condition known as “straight in the pasterns.” Sheffield’s father knew of this condition at the time Sheffield purchased the horse, for (i) the condition was obvious, (ii) the horse wore special shoes (which was pointed out to the Sheffields), and (iii) the Sheffields observed that the horse was “short-stepping.” Sheffield contends that this condition did not cause the lameness but that a disease known as “ringbone” caused it. But Sheffield submitted no evidence that the horse had ringbone or any other ailments that caused the lameness manifested after three weeks under Sheffield’s trainer. She simply relies on the previous owner’s and trainer’s vague affidavits opining without detail that the horse was not physically sound enough to compete successfully. As this prognosis was undisputably disproved, no competent evidence in the record supports the element of a false representation.

Nor does any evidence support a finding of justifiable reliance. A party may not justifiably rely on and assume to be true representations consisting of mere expressions of opinion, hope, expectation, puffing, and the like; rather, the party must inquire into and examine such representations to ascertain the truth. Statements that a horse has no problems and would make a good show horse are very similar to the following statements that have been held unactionable as mere opinions, commendations, or puffing: defendant had the experience and qualifications to run a paint and body shop; a building was maintained in good condition and was suitable for use as a chiropractic clinic; a car was “bug-free”; a building was sound, of excellent construction, and well maintained; farm machinery was in good condition and would satisfactorily pick cotton; a car was in “A-l condition”; and a car was in good condition and suitable for driving. Just as the court in U-Haul Co. &c. v. Dillard Paper Co. found dispositive that the buyer of the building failed to employ a structural engineer to examine the building before purchasing it, so Sheffield’s failure to have a comprehensive veterinarian exam of the horse, which exam her father conceded was “something a prudent person would do” and was something he typically did when purchasing a horse, precludes her from claiming justifiable reliance on the Darbys’ opinion that the horse had no problems and would make a good show horse.

3. The warranty claims similarly fail. Since the Darbys’ state-merits were mere opinions, commendations, or puffing, Sheffield’s express warranty claim cannot stand. “[A] statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.” With regard to the implied warranty under OCGA § 11-2-315 that the horse would be a good show horse, the undisputed evidence shows that at the time of the sale, this representation was true; thus, no breach of implied warranty can be shown.

Decided June 12, 2000.

Webb, Tanner & Powell, Robert J. Wilson, for appellant.

L. Katherine Adams, Guy J. Notte, for appellees.

4. The above rulings render moot the Darbys’ cross-appeal in Case No. A00A0559.

Judgment affirmed in Case No. A00A0558. Appeal dismissed as moot in Case No. A00A0559.

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

        Graham v. Ault, 266 Ga. 367 (2) (466 SE2d 213) (1996).

       See Young v. YMCA &c., 204 Ga. App. 224, 225, n. 1 (419 SE2d 97) (1992).

        Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989); see OCGA § 51-6-2.

        Todd v. Martinez Paint & Body, 238 Ga. App. 128, 129 (1) (517 SE2d 844) (1999).

       Id. at 133 (1).

        Morris v. Budd, 226 Ga. App. 455, 456-457 (1) (486 SE2d 682) (1997).

        Reeb v. Daniels Lincoln-Mercury Co., 193 Ga. App. 817, 819 (1) (b) (389 SE2d 367) (1989).

        U-Haul Co. &c. v. Dillard Paper Co., 169 Ga. App. 280, 281 (312 SE2d 618) (1983).

        Wilkinson v. Walker, 143 Ga. App. 838 (1) (240 SE2d 210) (1977).

        Strother Ford, Inc. v. Bullock, 142 Ga. App. 843, 844 (1) (237 SE2d 208) (1977).

        Randall v. Smith, 136 Ga. App. 823, 824-825 (222 SE2d 664) (1975).

       Supra, 169 Ga. App. at 282.

       OCGA § 11-2-313 (2); see Servais v. Philbrick, 190 Ga. App. 861, 862 (380 SE2d 496) (1989); Kushner v. McLarty, 165 Ga. App. 400, 403 (2) (300 SE2d 531) (1983).

       See Jones v. Marcus, 217 Ga. App. 372, 373 (1) (457 SE2d 271) (1995) (with regard to implied warranties under OCGA § 11-2-314, “ ‘the defect or condition of the goods relied upon to establish that there has been a breach of warranty must have existed at the time of the sale.’ ”) (citation omitted).


text:
    A00A0656.
    BROWN v. THE STATE.
    (535 SE2d 785)
   Ruffin, Judge.

Following a bench trial, the trial court found Reuben Brown guilty of trafficking in cocaine, possession of marijuana, and possession of a firearm during the commission of a felony. On appeal, Brown contends that the trial court erred in denying his motion to suppress. Brown also challenges the sufficiency of the evidence. For reasons that follow, we affirm.

The record demonstrates that, on April 7, 1998, a confidential informant told DeKalb County Police Detective M. T. Lewis that drugs were being sold from an apartment in Sutton Village on Jolly Avenue. Based on this information, Lewis set up a controlled buy. After Lewis searched the informant to ensure that he had no contraband or money on him, Lewis gave him money and watched him walk into the apartment. Approximately ten minutes later, the informant returned to Lewis carrying a bag containing cocaine. Lewis then completed an affidavit and application for a search warrant. On April 7, the magistrate issued the warrant, which Lewis and members of the DeKalb County Strike Force executed. Upon entering the apartment, the police found Brown and a 14-year-old female in a room with two couches, a television, and a stack of clothing.

In plain sight on top of the television, the police found marijuana. Under the couch next to Brown, the police found a handgun. Beneath the stack of clothing, the police discovered a duffel bag that contained a small safe. Upon opening the safe, the officers found a large amount of cocaine. Brown also was searched, and officers discovered a large amount of money, a plastic bag containing 27.1 grams of cocaine, and another plastic bag containing 17.3 grams of marijuana.

Brown was charged with trafficking in cocaine, possession of cocaine with intent to distribute, possession of marijuana, and possession of a firearm during the commission of a felony. At his preliminary hearing, Brown admitted that the drugs in his pocket belonged to him, but claimed that the cocaine in the safe and the gun were not his. Following a bench trial, Brown was found guilty of trafficking in cocaine, possession of marijuana, and possession of a firearm during the commission of a felony.

1. In two enumerations of error, Brown contends that the trial court erred in failing to grant his motion to suppress. According to Brown, Lewis’ affidavit was insufficient because it failed to inform the magistrate about the informant’s criminal background and his pending criminal charges. Thus, Brown argues, the magistrate lacked the requisite information to determine whether probable cause existed. We disagree.

In determining if probable cause exists, a magistrate’s job

is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

In order to fully apprise the magistrate, an officer seeking a warrant should provide the magistrate with any information relevant to the informant’s reliability, including information about his criminal history or any pending criminal charges. But an officer’s failure to provide such information does not automatically warrant suppression of evidence. If any omissions on the part of the officer are offset by independent corroboration of criminal activity, then the magistrate may still have sufficient information to find that probable cause exists.

Here, Lewis’ affidavit was based, in large part, on the controlled buy in which he sent the informant into the apartment with no contraband, and the informant returned with cocaine. Under the “common sense” approach to search warrants, this controlled buy strongly corroborated the reliability of the informant and showed a fair probability that contraband would be found in the apartment. Accordingly, the magistrate had sufficient information to establish probable cause, and the trial court did not err in denying Brown’s motion to suppress.

2. Brown contends that the evidence was insufficient to authorize his convictions because others had access to the apartment. June Ferguson, an employee of Sutton Village apartments, testified that Brown did not rent the apartment and that she had only seen him at the apartment a few days prior to the execution of the search warrant. Because both the tenant and the juvenile female had equal access to the apartment, Brown contends that he cannot be shown to have possessed either the gun, the marijuana, or the safe containing cocaine. Again, we disagree.

Under the equal access rule, “merely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.” “A finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity.”

Here, the trial court, as the factfinder, was authorized to conclude that Brown had constructive possession of the cocaine in the safe because there is evidence “other than [his] own equal access connecting (him) to [the] contraband.” In addition to the cocaine in the safe and the marijuana on top of the television, the police discovered cocaine, marijuana, and a large amount of cash in Brown’s pocket, which supports a finding that Brown was involved in the drug trade. Thus, there was more than mere “spatial proximity” linking Brown to the contraband. Likewise, the trial court was authorized to find that Brown had constructive possession of the gun under the couch. Accordingly, this enumeration of error lacks merit.

Decided June 12, 2000.

W. Michael Maloof, Maurice G. Kenner, for appellant.

J. Tom Morgan, District Attorney, Keith E. Adams, Robert M. Coker, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

       The trial court issued an order of nolle prosequi on the possession with intent to distribute charge.

       (Punctuation omitted.) DeYoung v. State, 268 Ga. 780, 787 (7) (493 SE2d 157) (1997).

        Robertson v. State, 236 Ga. App. 68, 70 (510 SE2d 914) (1999).

       Id.

       See Starks v. State, 240 Ga. App. 346, 348 (1) (523 SE2d 397) (1999).

       Id.; see also Pettus v. State, 237 Ga. App. 143, 145 (2) (514 SE2d 901) (1999).

       Although Brown challenges the sufficiency of the evidence supporting his conviction for possession of marijuana, he admits that the drugs in his pocket belonged to him. Thus, by his own admission, Brown is guilty of possession of marijuana. See OCGA § 16-13-30 (a). With respect to the trafficking conviction, however, the State must prove that Brown was “knowingly in possession of 28 grams or more of cocaine.” OCGA § 16-13-31 (a) (1) (A). Accordingly, the 27.1 grams of cocaine found in Brown’s pocket cannot establish the offense of trafficking, and the State must show that Brown had constructive possession of the cocaine in the safe.

       (Punctuation omitted.) Love v. State, 227 Ga. App. 772, 773 (490 SE2d 527) (1997).

       (Punctuation omitted.) Brannon v. State, 220 Ga. App. 572, 573 (1) (469 SE2d 716) (1996).

       (Punctuation omitted.) Smith v. State, 235 Ga. App. 223, 226 (510 SE2d 295) (1998).

       See Brannon, supra.

        Cantrell v. State, 204 Ga. App. 330, 332 (419 SE2d 141) (1992).


author: Andrews, Presiding Judge.

text:
    A00A0738.
    MOON v. THE STATE.
    (535 SE2d 771)
   Andrews, Presiding Judge.

Pursuant to the grant of his motion for out-of-time appeal, Joseph Lee Moon appeals from the denial of his motion for new trial after his conviction for theft by taking. Moon was acquitted of the charge of kidnapping.

1. Moon challenges the sufficiency of the evidence regarding theft by taking in his third enumeration, and we consider it first.

“On appeal [,] the evidence must be viewed in the light most favorable to support the verdict, and [Moon] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. . . . [T]he test established in Jackson [v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)] is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.” (Punctuation omitted.) [CitJ

Carter v. State, 235 Ga. App. 260 (1) (510 SE2d 539) (1998).

So viewed, the evidence was that Moon, then 45 years old and a heroin addict since the age of 18, was undergoing daily methadone treatment for his addiction. He daily drove from Athens to Doraville to a clinic to get his medication. On August 14, 1998, Moon was on the way to get his methadone when he was involved in an automobile wreck in Lawrenceville around 11:00 a.m. Because he had overslept, he was already overdue for his medication and called his son from the other accident victim’s cell phone. Although the son agreed to come and pick Moon up, he did not. The investigating police officer took Moon to the Quick Trip (QT) on Sugarloaf Parkway to wait for his wife, who said she would come.

Maschas, the manager of the QT, first noticed Moon waiting outside near the pay phones when he arrived for his shift at 2:00 p.m. Maschas eventually went outside and asked Moon if he needed help, but Moon told him he was waiting for a phone call. Moon later called his wife again and discovered that she had gotten lost on her way to pick him up.

Around 4:00 p.m., 17-year-old Leslie Grace stopped at the QT for gas. After getting gas, Grace was unable to get the car restarted. At that point, she saw her father’s small Ford pickup truck go into the shopping center across the street and she walked over to get his help. Lewis Grace then drove his truck across the street and parked it front bumper to rear bumper with Leslie’s car while he attempted to fix the problem. Leslie’s five-year-old half-sister, Kristine, was sitting in the rear fold-down seat of her father’s pickup, and, initially, Leslie sat in the front seat while her father worked. Because it was hot, the truck was running with the air conditioner on for Kristine. Mr. Grace then summoned Leslie to try to start her car, which still would not start. As Leslie got out of the car, she noticed the truck was farther from her car than it had been and mentioned this to her father.

Moon, who had begun having physical symptoms of withdrawal, including vomiting, saw the pickup, and, as he described the event: “I said, I got to have my medication. So I got in the truck, and I noticed the car in front of the truck with the hood raised. I didn’t know whose it was, and I wasn’t even concerned. I just wanted to get my medication.”

Mr. Grace ran after the truck, banging on the side and yelling. The truck then made a u-turn and started to accelerate. Mr. Grace jumped into the truck bed and continued pounding on the truck and saying his daughter was inside. Although Moon heard a thump, he did not stop until he had gone about 100 yards down the street and looked into the back and saw Kristine. After Moon stopped the truck and got out, Mr. Grace jumped out of the truck bed and got between Moon and the truck. Moon told Mr. Grace, “I thought it was my truck.” As he testified, “I didn’t know what else to say. I knew I had did something wrong. I knew it was wrong for trying to take the man’s truck, but I was so sick, and it felt like my guts was coming out. I had to try to get to the clinic to get my medication.” Mr. Grace told Moon to leave, which Moon did, walking toward Highway 316. Moon was later seen getting into a tractor-trailer by Maschas who told the driver about the incident. The driver made Moon get out, and Maschas saw Moon going into nearby woods. He was later captured by police.

The evidence of theft by taking was legally sufficient. Jackson v. Virginia, supra; Kunis v. State, 238 Ga. App. 323, 324 (2) (518 SE2d 725) (1999).

2. Moon’s second enumeration is that trial counsel was ineffective on the sole ground that he failed to reserve objections to the jury charge. Appellate counsel specifically disavowed during the motion for new trial hearing that he was contending that trial counsel was ineffective because he failed to make a written request that the trial court charge on justification as Moon’s sole defense to theft by taking.

Here, it is argued only that, since trial counsel is authorized to reserve his challenges to a jury charge until making a motion for new trial or appeal, pursuant to, e.g., Gaither v. State, 234 Ga. 465, 466 (2) (216 SE2d 324) (1975), it is per se ineffective assistance of counsel not to do so. No other authority for this proposition is presented, and we know of none. Further,

[tjhere are two components to a claim for ineffective assistance of counsel. “First, the defendant must show that counsel’s performance was deficient. Second, the defendant must show that the defense was prejudiced by the deficient performance. Both components must be shown before we can find that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.”

Whitner v. State, 202 Ga. App. 608 (415 SE2d 52) (1992).

Even assuming that failure to reserve objections could be equated with a deficiency in performance, appellate counsel for Moon has totally failed to point out any errors in the trial court’s charge that would illustrate the necessary prejudice. No error has been shown. Williams v. State, 214 Ga. App. 106 (446 SE2d 789) (1994); Concepcion v. State, 205 Ga. App. 138, 139 (421 SE2d 554) (1992); see Bell v. State, 226 Ga. App. 271, 275 (7) (f) (486 SE2d 422) (1997).

3. Finally, Moon contends that the trial court erred in not giving the jury a charge, without request, on Moon’s sole defense of justification regarding the theft by taking charge, relying on Tarvestad v. State, 261 Ga. 605 (409 SE2d 513) (1991).

Decided June 12, 2000

Although trial counsel was not called to testify at the motion for new trial hearing, his comments during the trial reflected that his trial strategy was to acknowledge that Moon took the truck, as Moon’s testimony set out above reflects, and attempt to persuade the jury that Moon did not intend to kidnap the child, the more serious charge. As reflected by the jury’s acquittal of Moon on the kidnapping charge, the strategy was successful. Realizing that he cannot criticize trial counsel for strategic decisions such as this, Dewberry v. State, 271 Ga. 624, 625 (2) (523 SE2d 26) (1999), appellate counsel contends the court should have, nonetheless, charged on justification.

“ ‘Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law.’ (Citation omitted.) Davis v. State, 269 Ga. 276, 279 (3) (496 SE2d 699) (1998).” Heath v. State, 240 Ga. App. 492, 493 (2) (522 SE2d 761) (1999).

In Tarvestad, the husband, convicted of being an habitual violator, had orally requested the charge on justification where he had been driving his pregnant wife, in labor and unable to drive, to the doctor. No other options for Tarvestad were suggested by the evidence. Here, by contrast, Moon had been offered help by Maschas, which he had refused, and had access to a phone which he could have used to call 911. Also, Moon’s trial counsel chose to concentrate on gaining an acquittal of the kidnapping charge, for which he filed a request to charge on the defense of accident, which was given. He and Moon opted to acknowledge the taking of the truck.

This situation is more similar to and controlled by Odum v. State, 220 Ga. App. 263 (469 SE2d 394) (1996). There, Odum was convicted of driving as an habitual violator after he allowed his son, too young to drive, to drive the car while, he was a passenger. As Odum, his son, and his nephew, also too young to drive, approached a roadblock, the two young men got out of the car, and Odum proceeded to the roadblock. He argued that, as a matter of law, he was justified in doing so. This argument was rejected because Odum’s own actions had put him in the situation where the choice arose. Similarly, here, Moon’s decision to take the truck was not the only option available to him. Further, his own addiction, his failure to leave home earlier, and the failure of his relatives to come for him after repeated calls created the situation in which he made his choice.

There was no error in the trial court’s failure to sua sponte charge on justification under these circumstances.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

Lenzer & Lenzer, Robert W. Lenzer, Thomas R Lenzer, for appellant.

Daniel J. Porter, District Attorney, R. Keith Miles, Assistant District Attorney, for appellee.


text:
    A00A0744.
    GRIFFIN v. THE STATE.
    (535 SE2d 783)
   Ruffin, Judge.

Mark Griffin appeals the trial court’s denial of his motion to resentence. Griffin contends that the court erred by failing to consider whether to sentence him under the First Offender Act. We disagree and affirm.

In 1996, a jury found Griffin guilty of one count each of rape, battery, and false imprisonment. At Griffin’s sentencing, the prosecutor told the court that OCGA § 17-10-6.1 (b) set forth a mandatory minimum sentence of ten years in prison for the crime of rape, and he recommended that the court sentence Griffin to fifteen years, with ten to serve, on the rape charge. Defense counsel agreed that OCGA § 17-10-6.1 (b) established a ten-year mandatory minimum sentence for rape, and he asked the judge to impose that minimum. Defense counsel then stated: “I don’t know if I can ask you to come under that. I would if I could. . . .” The trial court sentenced Griffin to ten years to serve in prison for the rape charge, with concurrent sentences of ten years for false imprisonment and twelve months for battery.

At no time during Griffin’s sentencing did any of the attorneys or the trial court raise the issue of Griffin’s eligibility for sentencing under the First Offender Act. At the hearing on Griffin’s motion to resentence, the trial court conceded that it did not occur to him at Griffin’s sentencing to consider first offender treatment. Griffin submitted an affidavit from his trial counsel, who stated that he was not aware at the time of sentencing that Griffin was eligible for first offender treatment and that, had he been so aware, he would have requested such treatment.

The First Offender Act provides as follows:

Upon a verdict or plea of guilty or a plea of nolo contendere, but before an adjudication of guilt, in the case of a defendant who has not been previously convicted of a felony, the court may, without entering a judgment of guilt and with the consent of the defendant:
(1) Defer further proceeding and place the defendant on probation as provided by law; or
(2) Sentence the defendant to a term of confinement as provided by law.

Upon completion of a sentence of probation or confinement imposed under this act, “a first offender is discharged without any adjudication of guilt and is not considered to have a criminal conviction.” “A trial court is not required to grant first offender treatment, but may impose, in its discretion, any sentence prescribed by law.”

The parties agree that at the time of Griffin’s sentencing, he was eligible for first offender treatment. The parties also agree that the sentence Griffin received was allowed under the law. Griffin argues, however, that even though defense counsel did not request first offender treatment for Griffin, the trial court was nevertheless obligated to consider that possibility, and that the trial court’s failure to do so rendered the sentence void. We disagree.

Nothing in the First Offender Act specifically requires that a trial court consider first offender status in the absence of a request by the defendant. Griffin points to a portion of the act providing that “[t]he defendant shall be informed of the terms of this article at the time of imposition of sentence.” Contrary to Griffin’s assertion that this language “clearly establishes the duty is upon the Court to advise a defendant of his right to be considered as a First Offender,” it merely requires that a defendant be fully informed of the consequences of accepting first offender treatment if the court grants such treatment and proceeds under the act. This reading is entirely consistent with the proviso that a court may not impose first offender treatment without a defendant’s consent.

Decided June 12, 2000

Larry D. Wolfe, for appellant.

Thurbert E. Baker, Attorney General, Michael E. Hobbs, Counsel to Attorney General, David S. McLaughlin, Assistant Attorney General, for appellee.

Griffin also relies on our decision in Jones v. State. There, the trial judge denied the defendant’s request for first offender treatment, stating that he had never used such treatment and never intended to do so. We held that the trial court’s “mechanical sentencing policy” of never granting first offender status amounted to a refusal to exercise discretion, and we vacated the sentence and remanded for the judge to consider the merits of the defendant’s first offender request. Here, there is no indication that the trial court had an inflexible policy of never granting first offender treatment or that the court failed to exercise its discretion in that regard. The record simply shows that Griffin never requested first offender treatment, so the matter was never brought to the court’s attention. Jones does not apply here.

In the absence of specific language in the First Offender Act mandating a trial court to consider sua sponte whether to apply first offender treatment, we will not judicially create such a requirement.

Judgment affirmed.

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

       See Griffin v. State, 224 Ga. App. 225 (480 SE2d 608) (1997) (affirming convictions).

       OCGA § 17-10-6.1 (b) provides that “no portion” of the ten-year mandatory minimum sentence for one of seven enumerated violent felonies, including rape, “shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and shall not be reduced by any form of pardon, parole, or commutation of sentence by the State Board of Pardons and Paroles.”

       Griffin does not argue that trial counsel was ineffective for failing to request first offender treatment.

       OCGA § 42-8-60 (a).

        State v. Allmond, 225 Ga. App. 509-510 (484 SE2d 306) (1997).

       (Punctuation omitted.) Head v. State, 203 Ga. App. 730, 731 (4) (417 SE2d 398) (1992).

       In 1998, after Griffin’s sentencing, OCGA § 17-10-6.1 (b) was modified to provide that persons convicted of a “serious violent felony,” including rape, are not eligible for first offender treatment. See Fleming v. State, 271 Ga. 587, 588-589 (523 SE2d 315) (1999). However, we apply the law that was in existence at the time of Griffin’s sentencing. See Hicks v. State, 228 Ga. App. 235, 237 (1) (b) (494 SE2d 342) (1997).

       Although a trial court lacks jurisdiction to modify a sentence after the term of court has ended or 60 days have passed, the court may resentence the defendant at any time if the original sentence was void. Barber v. State, 240 Ga. App. 56, 57 (522 SE2d 238) (1999).

       OCGA § 42-8-61.

       See OCGA § 42-8-60 (a).

       208 Ga. App. 472 (431 SE2d 136) (1993).


text:
    A00A0040.
    SEWELL v. THE STATE.
    (536 SE2d 173)
   Miller, Judge.

Thomas Edward Sewell was tried before a jury and found guilty of aggravated sodomy (Count 1), sexual battery as a lesser included offense to aggravated sodomy (Count 2), child molestation (Counts 3 through 7), and attempted child molestation (Count 8) for sexual acts directed at M. L. and C. W. On appeal, his six enumerations of error (1) challenge the sufficiency of the evidence and complain of (2) improper bolstering; (3) the admission of similar or extrinsic acts; (4) restrictions on cross-examination; (5) the trial court’s refusal to permit defense counsel to review documents with which an expert witness refreshed his recollection; and (6) the admission of evidence as to how a police investigator determines whether a child is truthful. Except for the attempted child molestation alleged in Count 8, we affirm.

Viewed in the light most favorable to the jury’s verdicts, the evidence revealed the following: Over the weekend of July 5, 1996, the then 14-year-old victim, M. L., was to spend the night at the home of his second cousin, defendant Sewell, and his wife. After watching television that evening, M. L. went to sleep wearing a pair of boxer shorts Sewell gave him. He later awoke to find Sewell kneeling beside the bed and felt “something go down [his] pants.” M. L. was scared and tried to push Sewell away with his hands. Sewell started kissing M. L. all over and trying to take the boy’s clothes off. Sewell then committed an act of oral sodomy on M. L. Sewell got on top of M. L. and pinned his hands and legs down. Using his hands, Sewell masturbated both M. L. and himself to the point of climax. Sewell also tried to commit an act of anal sodomy, where M. L. felt something wet going in the back of him. After 15 or 20 minutes, M. L. curled up against the wall and went to sleep.

The next morning when M. L. awoke, Sewell was still with him in bed, and defendant started kissing M. L. and putting his hands down M. L.’s pants, touching M. L.’s genitals and touching himself. After M. L. got dressed, Sewell accosted him in the kitchen, pushed M. L. up against the wall, and told him he better not tell anyone. Although there were telephones in the Sewell residence, M. L. felt defendant was always near so M. L. could not call anyone.

Saturday, Sewell showed M. L. the church where defendant was the preacher. There, M. L. met C. W., a boy who sang in the choir. It was arranged that C. W. would spend the night with M. L. at Sew-ell’s. The boys shared the same room M. L. slept in the night before. M. L. again awoke in the middle of the night with Sewell kneeling beside the boy’s bed, trying to kiss M. L. and rubbing him all over. M. L. resisted, and Sewell left after M. L. said he would wake up C. W. M. L. went back to sleep, but Sewell again awakened M. L., kissing M. L. on the lips and chest. Sewell started removing the boy’s pants and committed an act of oral sodomy and masturbated the boy. M. L. ran downstairs and saw C. W. asleep on the sofa. M. L. told Sewell that he would wake C. W. if Sewell did not leave M. L. alone. M. L. eventually returned to the upstairs bedroom, and Sewell did not bother him further. Sunday night, after M. L. was home, he told his mother what Sewell had done to him.

In a taped interview, C. W. confirmed that Sewell had sent C. W. back downstairs to sleep on the couch. There, Sewell had touched C. W.’s private parts inside C. W.’s clothes. C. W. kicked at Sewell who left and went back upstairs and “was messing with [M. L.]” After 30 minutes, M. L. came downstairs yelling at Sewell to leave him alone, stop touching him, or he would tell his mother when he got home. Sewell picked up M. L. and took him back upstairs.

Defendant’s first cousin, John Franklin Sewell, related earlier incidents when defendant fondled and kissed defendant’s then ten-year-old cousin and further described two attempts by defendant to commit anal sodomy on him. One such attempt was witnessed by Timothy Eugene Sewell.

1. The first enumeration urges the general grounds. Sewell argues the evidence is insufficient because M. L. was not a credible witness and because M. L.’s testimony conflicts with Sewell’s own.

(a) On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant (defendant here) no longer enjoys the presumption of innocence. An appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia. Any conflict in the testimony of the witnesses, including the State’s witnesses, is a matter of credibility for the jury to resolve. So long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(b) A person commits child molestation when he “does any immoral or indecent act to or in the presence of or with any child under the age of 16 years,” with the intent to arouse or satisfy the sexual desires of either the child or the person. A person commits aggravated child molestation by any act of child molestation “which act physically injures the child or involves an act of sodomy.” And a person commits the offense of criminal attempt when, “with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.”

(c) “The testimony of a single witness is generally sufficient to establish a fact.” Specifically, “[t]here is no requirement that the testimony of the victim of child molestation or aggravated child molestation be corroborated.” Nevertheless, in this case the testimony of M. L. is corroborated by his outcry to his mother and by the witness C. W. And the circumstances related by M. L. corroborate the testimony of Sewell’s indecent liberties with C. W. The evidence is sufficient to authorize the jury’s verdicts that Sewell committed aggravated child molestation as alleged in Count l and sexual battery as a lesser included offense to the aggravated child molestation alleged in Count 2. The evidence is also sufficient to authorize the jury’s verdicts that Sewell is guilty, beyond a reasonable doubt, of the acts of child molestation alleged in Counts 2, 4, 5, 6, and 7. But as to the criminal attempt alleged in Count 8, in our view the evidence shows the completed offense of the intended molestation and not any subsequent attempt, because Sewell had already committed the Saturday night molestations when M. L. fled and found C. W. downstairs. While a person can be convicted of criminal attempt upon proof of the completed offense, he “may not be convicted of both the criminal attempt and the completed crime.” Consequently, we reverse the judgment of conviction as to Count 8 because that criminal attempt to commit child molestation is subsumed into the separate consummated crime for-which Sewell was also convicted.

2. A licensed psychologist evaluated M. L. and performed a battery of tests upon him. During direct examination by the State, this witness was asked, “Tell me how [M. L.] performed on those tests.” In response, the witness stated: “Based upon the model that I used,. . . I concluded that he had been sexually abused.” The trial court denied Sewell’s ensuing motion for mistrial based upon impermissible expert opinion testimony as to the ultimate issue for the jury, but gave cautionary instructions for the jury to “disregard that portion of [the] testimony.” In this case, “the exclusion of the testimony and the trial court’s curative instructions prevented [any] error from occurring.”

3. The admission of defendant’s so-called similar or extrinsic acts of fondling and attempted anal sodomy on other cousins is enumerated as error. But proof of his predilection for pederasty is relevant and admissible to show his state of mind toward the type of young victims such as M. L. and C. W. and to establish his pattern of sexual predation. The 20-year lapse of time between episodes of the sexual exploitation of young family members does not render this evidence impermissibly stale.

4. Sewell next contends the trial court impermissibly restricted his cross-examination of the sheriff’s deputy who first interviewed M. L.

(a) The defendant is entitled to a thorough and sifting cross-examination of the witnesses called against him, but the scope of cross-examination is not unlimited. Rather, the extent of permissible cross-examination lies within the sound discretion of the trial judge. Restrictions on cross-examination will not be cause for reversal unless that discretion is abused.

When asked, “It’s true . . . that you had some problems with some of the officers in other matters in terms of your veracity in terms of testifying,” the witness replied, “No, sir.” The State objected to improper impeachment, and defense counsel explained that other “officers at the sheriff’s department testified under oath that [this witness] could not be believed, that they would not believe her under oath.” The trial court ruled that the witness would not be obliged to answer the question unless and until her bad reputation for veracity was introduced “through the mouths of these other witnesses,” at which point this witness could be recalled.

On appeal, Sewell argues that he was unfairly denied impeachment under OCGA § 24-9-82 because he was (allegedly) prohibited from asking the factual question “whether any of her fellow officers had testified she could not be believed under oath.” But that is not the question posed at trial. The ambiguous and prolix question put to the witness at trial was whether she had any problems with other officers about her veracity. This asks for her opinion. The truth of the circumstance that other officers testified that they would not believe her under oath does not disprove or impeach her opinion that, no, she has no problem with other officers. Consequently, Sewell’s contention that he was denied impeachment under OCGA § 24-9-82 is not supported by the record.

(b) In order to impeach a witness by proof of general bad character, OCGA § 24-9-84 contemplates the presence of an impeaching witness, to whom will be put the statutory questions. The final statutory question is whether, based on that character, the impeaching witness would believe the other on his oath. The trial court’s procedural ruling that proof of the witness’s general bad reputation for veracity would have to come from her fellow officers, testifying from the witness stand, was correct. If the effect of that procedural ruling was to bar Sewell from asking the factual question he desired until after the defense produced impeachment witnesses, we hold it nevertheless did not amount to an abusive restriction on the permissible extent of cross-examination, because the order of presentation of evidence also is a matter committed to the sound legal discretion of the presiding judge.

5. Defendant made no timely written demand for discovery before arraignment under either OCGA § 17-16-4 or former OCGA § 17-7-211, and the trial court adhered to an earlier decision not to extend the time for requesting discovery. Nevertheless, the court examined the psychologist’s written evaluation of M. L. for exculpatory matter within the purview of Brady v. Maryland and found none. During Sewell’s cross-examination of the psychologist, the doctor made reference to a “Confidential Questionnaire for Children and Adolescents,” which M. L.’s mother had filled out, giving details of her background and M. L.’s background. Apparently reading from this questionnaire, the witness itemized some of those details: During pregnancy, M. L.’s mother was not on any medications; did not drink alcohol or use drugs; and smoked a half-pack of cigarettes per day. M. L. was not premature; it was a normal birth; and M. L.’s birth weight was four pounds, two ounces. When defense counsel requested a copy, claiming he was entitled to it, the State objected. The witness stated he had not prepared his trial testimony with this questionnaire and “[had] not looked at it for the last several months.” Upon further cross-examination, the psychologist confirmed that this questionnaire was the only information he received about M. L. from the mother.

On appeal, Sewell contends the trial court erroneously denied him the opportunity to review documents which the witness used to refresh his recollection. “ [I] f a witness uses documents to refresh memory after the inception of a hearing or trial, then during that hearing or trial, the cross-examiner is entitled to examine such documents.” Pretermitting whether the questionnaire was discoverable or privileged before trial, it is apparent that the witness either read from the document or testified from it after the inception of the trial. Consequently, the trial court erred in failing to permit the cross-examiner to examine the document. But we find the error harmless in this instance.

The trial judge should have granted the [defendant’s request] to examine the [document]; [but] the error is not reversible. Our review of the evidence convinces us that it is highly probable that the error committed as a result of the denial of [access to the document which the witness had already read into the record in substantial part] did not contribute to the verdict and is, therefore, harmless [under the test enunciated in] Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).

6. When the lead investigator was questioned on direct examination about her qualifications to conduct a child molestation inquiry, she testified without objection that she had attended a special training session on “things to look for [regarding] child abuse cases, child molestation cases.” Specifically, she attended a three-day class on interview techniques and referred (without objection) to “signs to look for, whether they’re telling the truth or maybe telling a lie.” Of the signs she was taught to look for, “[e] motion is one. . . . Eye movement. Just a whole demeanor-type thing you look for.” In deciding which cases to pursue further, the investigator testified without objection that she first attempts to determine whether the complainant is telling the truth about an alleged perpetrator, because “it’s just as important to find that person innocent as it is to find out if that person is guilty.” Finally, when the investigator was asked, “What kind of questions will you ask a child ... to determine whether they may or may not be telling the truth,” Sewell interposed the following objection: “I don’t think this witness is competent to do that.” Sewell further argued that this kind of testimony is “not permitted from a person who is not licensed. . . .” This objection was overruled, and the witness answered the question as she recalled it, first by describing the setting. She would interview the child away from any influential adult (such as the possible perpetrator), and then engage the child in general conversation. She consciously avoids direct questioning at first and avoids putting words in the child’s mouth but seeks to have the child voluntarily reveal what (if anything) happened, using general terms such as “good touch” and “bad touch.”

Decided June 13, 2000.

Leonard Danley, for appellant.

David McDade, District Attorney, William J. Atkins, Assistant District Attorney, for appellee.

On appeal, Sewell essentially ignores the enumerated error and digresses to complain of the investigator’s credibility or to discuss cases from other jurisdictions where molestation convictions have been reversed allegedly because of research on the suggestibility of child molestation reporters subjected to suggestive questioning. In this case, nowhere did this witness testify as to her opinion on the truthfulness of M. L. or C. W. or otherwise place her imprimatur on the credibility of either victim. The trial court did not err in this instance by permitting the investigator to relate her interview techniques.

Judgment affirmed in part and reversed in part.

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

        Watts v. State, 186 Ga. App. 358 (1) (366 SE2d 849) (1988) (whole court).

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

        Howard v. State, 261 Ga. 251, 252 (403 SE2d 204) (1991); Turner v. State, 223 Ga. App. 448, 449 (1) (a) (477 SE2d 847) (1996).

       OCGA § 16-6-4 (a).

       OCGA § 16-6-4 (c).

       OCGA § 16-4-1.

       OCGA § 24-4-8.

       (Citations omitted.) Dent v. State, 220 Ga. App. 147 (1) (469 SE2d 311) (1996). Accord Adams v. State, 186 Ga. App. 599 (1) (367 SE2d 871) (1988) (whole court).

        Dent v. State, supra, 220 Ga. App. at 147 (1); Stander v. State, 193 Ga. App. 212 (1) (387 SE2d 422) (1989).

        Turner v. State, supra, 223 Ga. App. at 449 (1) (b).

        Smith v. State, 210 Ga. App. 634, 636 (2) (c) (437 SE2d 333) (1993). Accord Deyton v. State, 182 Ga. App. 73 (1) (354 SE2d 625) (1987).

       See, e.g., Strickland v. State, 223 Ga. App. 772, 774 (1) (a) (479 SE2d 125) (1996) (whole court) (sexual battery can be included in child molestation as a matter of fact).

        Turner v. State, supra, 223 Ga. App. at 449 (1) (b). Accord Dent v. State, supra, 220 Ga. App. at 147 (1).

       This count charged Sewell with criminal attempt to commit child molestation by making C. W. leave the room where M. L. was sleeping and trying to restrain M. L. so that the accused could perform a sexual act on M. L.

       OCGA§ 16-4-2.

        Brown v. State, 262 Ga. 833, 834 (1) (426 SE2d 559) (1993).

        Green v. State, 242 Ga. App. 868 (3) (532 SE2d 111) (2000). Accord Wellborn v. State, 258 Ga. 570, 572 (2) (372 SE2d 220) (1988).

        Nichols v. State, 221 Ga. App. 600, 602 (3) (473 SE2d 491) (1996). Compare Tyson v. State, 232 Ga. App. 732 (1) (503 SE2d 640) (1998) (40-year-old episodes of cunnilingus not involving family member too remote).

       OCGA § 24-9-64.

        Belins v. State, 210 Ga. App. 259, 262 (3) (435 SE2d 675) (1993).

        Chastain v. State, 257 Ga. 54, 55 (354 SE2d 421) (1987).

       “A witness may be impeached by disproving the facts testified to by him.”

        Dent v. State, 14 Ga. App. 269 (4) (80 SE 548) (1914).

        Teat v. State, 237 Ga. App. 867, 870 (2) (d) (516 SE2d 794) (1999).

       373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).

       (Emphasis in original.) Johnson v. State, 259 Ga. 403, 405 (2) (383 SE2d 118) (1989).

       See, e.g., Horne v. State, 192 Ga. App. 528, 530-531 (4) (a) (385 SE2d 704) (1989) (whole court).

        Johnson v. State, supra, 259 Ga. at 405 (2). See also Sterling v. State, 267 Ga. 209, 211 (3) (477 SE2d 807) (1996).

       See Long v. State, 241 Ga. App. 370, 372 (3) (526 SE2d 875) (1999). Compare Dickerson v. State, 207 Ga. App. 241, 242 (2) (427 SE2d 591) (1993).


author: Pope, Presiding Judge.

text:
    A00A0060, A00A0061.
    THREE CROWNS ANTIQUES, LTD. v. JERRELL; and vice versa.
    (535 SE2d 827)
   Pope, Presiding Judge.

Michael A. Jerrell d/b/a Major Computer Industries filed a complaint in magistrate court seeking $1,413 plus costs from defendant Three Crowns Antiques, Ltd. Three Crowns Antiques answered the complaint and counterclaimed, asserting that it had been damaged in the amount of $7,500; it also asserted a claim for punitive damages.

The case was tried to a jury, and on January 14, 1998, the jury returned a verdict in favor of Jerrell for $2,426.07 on the account and $9,027.85 in attorney fees. The jury’s verdict was also in favor of Jerrell on Three Crowns’ counterclaim. On January 21, 1998, the court entered judgment for $11,453.92.

Three Crowns immediately filed a motion for new trial and for judgment notwithstanding the verdict, arguing that the jury’s verdict was insupportable and excessive. Thirteen months later, on March 8, 1999, the trial court granted Three Crowns’ motion in part, concluding that the attorney fees award was excessive. Accordingly, the court reduced the verdict against Three Crowns on attorney fees to $6,965.35, contingent upon Jerrell’s acceptance of the reduced amount. The court indicated that Jerrell would have until April 10, 1999, to notify the court in writing if he declined to accept the award. If Jerrell did not accept the award, the court stated that it would grant a new trial on the issue of attorney fees. The order stated:

The plaintiff shall have until April 10, 1999 to notify the Court in writing by a pleading filed with the Clerk if he declines to accept the new judgement amount. The failure to decline by filing a timely written objection will be deemed acceptance of the reduced damages award as a final judgement.

On April 6, 1999, Three Crowns filed a notice of appeal, stating that it was appealing the March 8, 1999 judgment and the judgment granting attorney fees. Three Crowns stated that it was appealing “only as to the award of attorney fees in the original amount of $9,027.85, contained within the January 21, 1998, Judgment, and reduced to $6,965.35, in the March [8], 1999, Order, as being excessive.” On April 15, 1999, Jerrell cross-appealed, asserting that the court should not have reduced the amount of attorney fees and that it erroneously directed a verdict on one of the complaint’s counts.

Several jurisdictional questions are raised by this appeal. We first address the issue of whether Three Crowns may appeal, as it attempts to do, the original amount of attorney fees awarded ($9,027.85) in the January 21, 1998 judgment. As stated above, the court proceeded under OCGA § 51-12-12 (b) and conditioned the grant of a new trial on Jerrell’s refusal to accept the reduced amount of attorney fees. After the court granted Three Crowns’ motion for new trial and reduced the amount of attorney fees, contingent upon Jerrell’s acceptance, the original award of $9,027.85 was no longer the final judgment in the case. Thus, Three Crowns could not directly appeal that original judgment. See generally Jacobsen v. Haldi, 210 Ga. App. 817, 819 (1) (437 SE2d 819) (1993), citing Spence v. Hillard P.C., 260 Ga. 107, 108 (389 SE2d 753) (1990).

Nevertheless, Three Crowns filed its notice of appeal on April 6, four days before the April 10 deadline for Jerrell’s response to the reduced damage award. When Three Crowns filed its notice of appeal, the status of the case was unclear — either Jerrell would not file a pleading rejecting the reduced amount and the lower amount would become the final award, or Jerrell would file a pleading rejecting the reduced amount and the court would hold another trial.

In MTW Investment Co. v. Alcovy Properties, 223 Ga. App. 230 (477 SE2d 395) (1996), this court faced a similar factual situation. In that case, as here, the trial court issued an order under OCGA § 51-12-12 (b) which granted the motion for new trial on the issue of damages, but conditioned the grant of the new trial on Alcovy’s refusal to accept a reduced damage award. The trial court’s order, issued on November 7, 1995, gave Alcovy two weeks from its receipt of the order to notify the court in writing of its intention to accept or refuse the reduced award. Id. at 230. On November 29,1995, the defendants in counterclaim filed a notice of appeal from the November 7 order. On November 30, the trial court received a letter from Alcovy accepting the reduced award with the condition that Alcovy preserved its right to appeal if the defendants in counterclaim appealed the judgment.

In MTW Investment v. Alcovy, this court concluded that it lacked jurisdiction over the appeal from the November 7 order. The court stated that the November 7 order must be viewed as inchoate and that the appeal was premature. Id. at 231. The court stated:

While there may be opportunity for disagreement as to the proper construction of the order filed on November 7, 1995, under any reasonable view of that order the motion for new trial either remained pending or had been granted on November 29,1995, when the first notice of appeal was filed. If the November 7, 1995 order is viewed as inchoate because anticipating further action by the trial court, the absence of any such further action left pending the motion for new trial of the defendants-in-counterclaim. In the alternative, if the November 7, 1995 order does not anticipate any further action by the trial court, it must be viewed as inchoate pending a timely response by Alcovy. If this is not the case, we are confronted with uncertainty since Alcovy was not required to respond by a date certain, but instead within a period of time following receipt of the trial court’s order of November 7, 1995. Thus, on November 29, 1995, the date of the filing of the notice of appeal from the order of November 7, 1995, there was nothing of record to indicate whether a ruling on the motion for new trial remained pending in anticipation of Alcovy’s response or whether the expiration of the time allocated for that response had resulted in the grant of a motion for new trial. But in either case the appeal is premature.

Id. In this case, as in MTW Investment v. Alcovy, the appeal is premature. On April 6, when Three Crowns filed the notice of appeal, the time had not expired for Jerrell to accept or reject the trial court’s reduced amount. On April 10, the “absence of a timely filed pleading rejecting the . . . reduced damages award,” would have become the final judgment in the case accepted by the parties for the purpose of ending the litigation. Jacobsen v. Haldi, 210 Ga. App. at 819 (1). But before that date there was no final conclusion regarding the court’s March 8 order and the appeal must be dismissed. Similarly, because the cross-appeal is also based on this inchoate order, it also must be dismissed. See generally Patel v. Ga. Power Co., 234 Ga. App. 141, 142 (2) (505 SE2d 787) (1998).

Assuming the other jurisdictional requirements are met, the proper procedure for a direct appeal of a court’s interference with a jury verdict under OCGA § 51-12-12 (b) is to appeal within 30 days from the final resolution of the matter. See OCGA § 5-6-38 (a). To avoid confusion, we encourage trial courts to enter a final order documenting a party’s acceptance of an altered award. This final order would then comport with OCGA § 5-6-31, which states: “The filing with the clerk of a judgment, signed by the judge, constitutes the entry of a judgment within the meaning of this article.” Of course, the grant of a new trial is not a final order from which a direct appeal may be taken. See Rockdale Awning &c. Co. v. Kerbow, 210 Ga. App. 119, 121 (2) (435 SE2d 619) (1993). In this case, we instruct the trial court to enter a final judgment documenting the jury’s verdict, its reduction of the jury’s verdict, and Jerrell’s response to the court’s alteration of the verdict. Assuming other jurisdictional requirements are met, Three Crowns will then have 30 days from the entry of that order to file a direct appeal.

Appeals dismissed in Case Nos. A00A0060 and A00A0061.

Smith, P. J., and Miller, J., concur.

Decided June 13, 2000.

Rosensweig, Jones & Macnabb, Jonathan W. Hickman, for appellant.

Philip S. Coe, for appellee.

       Because of our resolution of this case we do not reach the question of jurisdictional amount under OCGA § 5-6-35 (a) (6). Nevertheless, we note that while the reduced judgment was less than $ 10,000, Three Crowns would be entitled to pursue a final judgment pertaining to the counterclaim. See Denton v. Hogue, 208 Ga. App. 734 (1) (431 SE2d 728) (1993).

       Also on November 30, the court entered an order which held that Alcovy’s conditional acceptance of the reduced award was sufficient to satisfy the court’s November 7 order and also denied the defendants in counterclaim’s motions for new trial or for j.n.o.v. Both parties filed appeals from this order. This court also determined that it had no jurisdiction over the later appeals.