author: Smith, Judge.

text:
    A97A1895.
    ROSS v. THE STATE.
    (499 SE2d 642)
   Smith, Judge.

Defendant Vertís Ross was convicted by a DeKalb County jury of two counts of rape, two counts of kidnapping, two counts of aggravated sodomy, two counts of armed robbery, violation of the Georgia Controlled Substances Act, and possession of a firearm by a convicted felon. The charges arose from a crime spree in which two young women were kidnapped, repeatedly raped, sodomized, and tortured, but escaped with their lives. He appeals following the denial of his motion for new trial, raising 27 enumerations of error. We affirm.

Construed to support the jury verdict, the evidence at trial showed that at about 9:00 p.m. on July 19, 1994, two young women, N. X. and S. B., were driving out of the parking lot of a fast food restaurant in N. X.’s convertible when they were forced to a stop by Ross and Sammy Rogers. Ross and Rogers pushed their way into the vehicle, held guns to the women’s heads, and demanded their money and jewelry. Ross took over control of the vehicle and drove it to Candler Park. During the drive, the victims were forced to disrobe in the car and were fondled by the men. When they reached Candler Park, S. B. was forced to orally sodomize Ross, and then both victims were raped. Next Ross drove the vehicle from Candler Park to the back of an abandoned building where he again raped S. B. Thereafter, he drove to a gas station where he purchased fuel for the car. As he left the station, Ross flashed the car lights at a blue car and pulled up beside it. When asked to identify himself to the occupant of the blue car, Ross used the name “E.” Ross left the car with N. X.’s necklace and possibly other jewelry belonging to the victims, walked to the blue car, and returned with a ziplock bag containing crack cocaine.

The victims were then taken to a vacant apartment where they were repeatedly raped, forced to perform oral sodomy, burnt with a cigarette lighter and wax from a birthday candle, hit with a shotgun, and threatened with death. Testimony also indicated that Ross and Rogers smoked crack cocaine throughout the night. Sometime the next day, Ross and Rogers released the victims who were then able to drive their vehicle to S. B.’s mother’s home and call the police.

Investigator Angie Marty of the Decatur Police Department was the lead investigator in this case. She met with the victims and drove around with them to see where the events took place. She immediately thought of Ross as soon as she learned the address of the vacant apartment (Ross lived two doors down), found out that one of the perpetrators went by the name “E,” and heard details from the victims about the physical description of the perpetrator called “E.” Investigator Marty placed Ross’s photograph in a lineup, and both victims immediately identified him. Ross also was positively identified by both victims in the courtroom at trial.

After an arrest warrant for Ross and a search warrant for his residence were obtained, officers executed the warrants and found Ross hiding in a closet in his room. Either on his person or in his room, police found N. X.’s purse, as well as S. B.’s jewelry, identification card, telephone bill, and pager. Officers also found clothing, shoes, and other personal items belonging to Ross that matched the description given by the victims of what “E” had been wearing. Ziplock bags containing cocaine residue were found in a closet in Ross’s apartment. The vacant apartment where the victims had been held also was searched, and the drug paraphernalia, cigarette lighter, and birthday candle described by the victims were found there.

Based upon information obtained from Ross’s sister, the police arrested Rogers and found jewelry belonging to S. B. on his person. Rogers implicated Ross as the other person involved in the crimes.

Immediately after the incident, the victims were taken to DeKalb Medical Center for a medical examination, and a “rape kit” procedure was performed on each of them. At trial, the results of DNA testing were introduced by the State to support the victims’ identification of Ross. Fingerprint, fiber, and hair analyses were not introduced by the State because they failed to connect Ross to the crimes.

Rogers testified for the State at trial after pleading guilty to raping both victims. The jury was made aware of his guilty plea and the life sentences he received on both counts. Rogers’s testimony corroborated that of the victims, except he denied ever having a weapon other than the shotgun in his possession. He also testified that he, Ross, Ross’s sister, and a friend, Kenneth Willis, had smoked marijuana and crack cocaine throughout the evening preceding the kidnapping of N. X. and S. B. He further testified that just prior to the kidnapping, the three men had intended to rob a crack house with a sawed-off shotgun but changed their minds because there were too many people in the area.

Kenneth Willis also testified for the State. He corroborated Rogers’s testimony and confirmed that the men had been smoking marijuana and crack cocaine throughout the evening preceding the kidnapping and that the three men had conspired to- rob a crack house. Willis also testified that after their robbery plan was thwarted, he dropped both Ross and Rogers off near the restaurant where the victims were kidnapped. Ross told Willis he was going back to the restaurant to get the two women. Ross still had the shotgun in his possession when he got out of the car.

Ross’s defense was alibi, and he called several witnesses to testify on his behalf to his whereabouts on the evening in question. He did not present any expert testimony to rebut the State’s forensic evidence.

1. Ross raises thirteen different claims relating to ineffectiveness of counsel and argues that each one should be separately analyzed under both the federal and state constitutions. We first note that “[tjhere exists no substantial difference in the legal standard to be employed in resolving claims of ineffective assistance of counsel under the United States Constitution and under the Georgia Constitution of 1983. Accordingly, the proper standard to be employed in determining enumerations concerning ineffective assistance of counsel, whether based upon a claim of right arising under federal or state law, is the two-pronged test announced in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) [(1984)]. First, appellant must show that counsel’s performance was deficient; second, he is required to show that he was prejudiced by counsel’s deficient performance. There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy. As to the second prong, the question is whether there exists a reasonable probability that, but for his counsel’s errors, the jury would have had a reasonable doubt regarding appellant’s guilt, that is, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless clearly erroneous.” (Citations and punctuation omitted.) White v. State, 216 Ga. App. 583, 584 (1) (455 SE2d 117) (1995). Keeping these principles in mind, we will now address each of Ross’s specific enumerations of error relating to his claims of ineffectiveness of counsel.

Ross first argues he was denied effective assistance of counsel because trial counsel failed to obtain and use an expert in the field of DNA analysis after the trial court had granted a motion for funds for that purpose.

At trial, the GBI Crime Lab’s serologist testified that she was unable to use restriction fragment length polymorphism (RFLP) technology to match any of the DNA from N. X.’s or S. B.’s “rape kit” with Ross’s DNA due to insufficient DNA samples. Using polymerase chain reaction (PCR) testing, however, she had been able to find DNA that potentially could have been contributed by Ross on at least one item of clothing from each of the victims. She further testified that the frequency of Ross’s blood pattern in the black population is one in one hundred. During cross-examination, the State’s serologist restated that she had found no match between Ross’s DNA and either victim’s “rape kit” using RFLP testing. She admitted, that at the request of the State, she had not performed PCR testing on the “rape kit” samples to confirm the RFLP results even though she could have done so. Trial counsel then cross-examined the serologist about the difference in reliability between PCR testing and RFLP testing and called into question the reliability of the procedures she used to conduct the PCR tests in this case.

Ross contends that trial counsel should have called an independent expert DNA witness to testify at trial that the GBI Crime Lab’s PCR testing and test results were unreliable. But Ross failed to introduce any evidence at the hearing on the motion for new trial demonstrating that an independent expert witness would have testified as he claims. “The failure of trial counsel to employ evidence cannot be deemed to be ‘prejudicial’ in the absence of a showing that such evidence would have been relevant and favorable to the defendant. Because appellant failed to make any proffer of the uncalled witnesses’ testimony, it is impossible for [him] to show there is a reasonable probability the results of the proceedings would have been different. It cannot possibly be said that the [expert witness] would have testified favorably to appellant.” (Citations and punctuation omitted.) Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995).

We also note that trial counsel testified at the hearing on the motion for new trial that Ross’s first trial counsel had, in fact, retained a DNA expert in Alabama who had provided a report stating that he had nothing to add to the GBI Crime Lab’s report and certainly could not disagree with it. Accordingly, Ross cannot demonstrate prejudice from trial counsel’s failure to call this expert witness to testify at trial. See, e.g., Boone v. State, 224 Ga. App. 563, 564 (3) (481 SE2d 569) (1997).

2. Ross argues he was denied effective assistance of counsel because trial counsel failed to present expert testimony to show that latent prints lifted from the crime scenes did not match Ross’s fingerprints. The transcript indicates, however, that the jury was fully aware of the existence of this exculpatory evidence by virtue of the testimony of Investigator Marty, who admitted at trial that the GBI Crime Lab had found no matches between Ross’s fingerprints and the latent prints lifted from the crime scenes. Additionally, the prosecutor acknowledged during closing argument that the fingerprint evidence against Ross was a “wash,” and the lack of fingerprint evidence connecting Ross to the crimes was placed before the jury a third time during trial counsel’s closing argument.

Although Ross alleges on appeal that trial counsel should have called the GBI Crime Lab’s fingerprint expert to testify about the exculpatory fingerprint evidence, he has failed to show what the substance of this expert’s testimony would have been. Absent such a proffer, Ross cannot show there is a reasonable probability that, but for trial counsel’s failure to call this expert as a witness, the trial’s result would have been different. See Ponder v. State, 201 Ga. App. 388, 389 (411 SE2d 119) (1991). See also Goodwin, supra at 615-616.

3. Ross argues that counsel was ineffective because he failed to obtain and use an expert in the field of microscopic fiber analysis to testify that none of the fibers taken from the apartment where the victims were held was found on Ross’s clothing and that none of the fibers from Ross’s clothing was found at the crime scene.

Once again, the record indicates that the jury was fully aware that fiber samples were taken from the victims’ bodies and clothing and from the apartment where the victims were held, and that these fiber sample tests yielded no match. Trial counsel also pointed out this lack of fiber evidence to the jury in his closing argument. Absent a proffer as to what the testimony of this microscopic fiber expert would have been at trial, Ross cannot show there is a reasonable probability that, but for trial counsel’s failure to call this expert as a witness, the trial’s result would have been different. See Ponder, supra at 389; Goodwin, supra at 615-616.

4. Ross contends counsel was ineffective because he failed to obtain and use experts in the field of hair analysis. Again the transcript shows that the jury was fully aware that hair samples had been taken from Ross and from the victims, and that there had been no match. Further, trial counsel also argued this lack of evidence to the jury in his closing argument. As discussed in Division 3, above, absent a proffer of this expert’s testimony, Ross cannot show a reasonable probability that, but for trial counsel’s failure to call this expert as a witness, the trial’s result would have been different. See Ponder, supra at 389; Goodwin, supra at 615-616.

5. Ross argues he was denied effective assistance of counsel because trial counsel failed to object to argument by the State that the jury was entitled to draw adverse inferences from Ross’s failure to present his own expert testimony at trial to rebut the State’s scientific evidence. After the prosecutor admitted during closing argument that the State had no fingerprint, fiber, or hair matches, he then argued that Ross had an absolute right to an independent examination of every piece of scientific evidence, so that if there had been “one piece of fiber, hair, fingerprint [or] any other kind of scientific evidence that helped [trial counsel], he would have rammed that down our throat.” The prosecutor never referred to a particular expert or implied that there was a particular defense expert who had not been called to the stand and equally could have been referring to Ross’s right to subpoena the State’s own expert witnesses from the GBI Crime Lab. Contrary to Ross’s assertions, therefore, we find the State’s argument was a permissible comment on the defense’s failure to rebut the State’s scientific evidence, not a reference to Ross’s failure to call his own expert witnesses. See, e.g., Blige v. State, 263 Ga. 244 (1) (430 SE2d 761) (1993). We also find no reasonable probability that, but for trial counsel’s failure to object to this argument, the result of the proceeding would have been any different. See, e.g., Johnson v. State, 222 Ga. App. 722, 728 (9) (475 SE2d 918) (1996).

6. Ross argues that trial counsel was ineffective in failing to impeach Rogers and Willis with certified copies of their felony convictions for crimes of moral turpitude.

At trial, Rogers admitted that he had fully participated in all of the heinous crimes for which Ross was on trial, including his use of crack cocaine prior to and during the incident and his participation in the conspiracy to rob a crack house. During Willis’s testimony at trial, he also admitted that he had smoked marijuana and crack cocaine throughout the evening preceding the kidnapping, that he had participated in the conspiracy to rob the crack house, and that he was on parole at the time of the commission of the crimes and at trial. Although we agree that trial counsel could have further impeached these witnesses with certified copies of their felony convictions, any such deficiency in counsel’s performance could not have prejudiced Ross because the jury was already fully aware of the disreputable character of these witnesses by virtue of their own testimony on the stand. Accordingly, no reasonable probability exists that, but for this error on trial counsel’s part, the result of the proceeding would have been any different. See Johnson, supra at 728.

7. Ross argues that trial counsel harmed him and was ineffective by eliciting testimony from Investigator Marty relating to Ross’s refusal to give a statement to the police when he was arrested. Although the transcript confirms that trial counsel did ask Investigator Marty whether Ross refused to make a statement at the time of his arrest, trial counsel testified at the hearing on the motion for new trial that this line of questioning was pursued as part of his strategy of showing that there was a history of “bad blood” between Investigator Marty and Ross, resulting in the police officers displaying bias against him. Trial counsel also used Investigator Marty’s testimony to show that she had lied to Rogers when she told him that Ross had told his side of the story and that Rogers now needed to tell his side. Under the circumstances in this case, and relying on the strong presumption that counsel’s performance was a matter of strategy and tactics, we hold that trial counsel’s performance was not ineffective. “The fact that appellant and his present counsel now disagree with the difficult decisions regarding trial tactics and strategy made by trial counsel does not require a finding that appellant received representation amounting to ineffective assistance of counsel. [Cit.]” Stewart v. State, 263 Ga. 843, 847 (440 SE2d 452) (1994). This is true even if trial counsel’s tactics or strategy may have been unwise. Luallen v. State, 266 Ga. 174, 177 (3) (b) (465 SE2d 672) (1996).

8. Ross maintains he was denied effective assistance of counsel when trial counsel elicited testimony from Investigator Marty that she had previously arrested Ross following a fight in which he might have been the victim. As discussed in Division 7, this line of questioning was pursued by trial counsel to show Investigator Marty’s bias against Ross and was, therefore, a matter of trial tactics and strategy. Accordingly, trial counsel’s performance was not ineffective. Stewart, supra at 847.

9. Ross asserts ineffectiveness in trial counsel’s failure to object to Rogers’s testimony that Ross smoked marijuana, drank beer, and smoked crack cocaine during the evening preceding the kidnapping. Ross contends this testimony was inadmissible evidence of bad character and “other crimes,” and it should not have been admitted absent the State’s compliance with the notice provisions of USCR 31.3 (E). We disagree. This evidence was “ ‘relevant evidence of (appellant’s) state of mind and admissible as part of the res gestae.’ [Cit.]” Johnson v. State, 264 Ga. 456, 458 (3) (448 SE2d 177) (1994). Trial counsel was therefore not ineffective for failing to object to this testimony.

10. Ross argues he was denied effective assistance of counsel when trial counsel failed to object to Willis’s testimony that Ross smoked crack cocaine during the evening preceding the incident; that Ross conspired to rob a crack house; and that Ross was in possession of a sawed-off shotgun the evening in question. Ross contends this testimony, too, was “other crimes” evidence that should not have been admitted absent the State’s compliance with the notice provisions of USCR 31.3 (E). We disagree. As discussed in Division 9, this testimony pertaining to the acts and circumstances leading up to the kidnapping of N. X. and S. B. was admissible as res gestae evidence. See Johnson v. State, supra, 264 Ga. at 458 (2). Trial counsel was not ineffective for failing to object.

11. Ross asserts counsel was ineffective when he refused to allow him to testify at trial. But trial counsel vehemently denied this allegation and testified at the hearing on the motion for new trial that he explained to Ross in great detail the advantages and disadvantages of testifying and that Ross made the ultimate decision as to testifying. Apparently, the trial court found that trial counsel’s testimony on this issue was more credible, and this finding was not clearly erroneous. “It is the province of the trial court to weigh the credibility of the witnesses and unless clearly erroneous, its findings of fact will be upheld on appeal. [Cit.]” Lawrence v. State, 227 Ga. App. 70, 73 (487 SE2d 608) (1997); Parker v. State, 226 Ga. App. 462, 466 (8) (a) (486 SE2d 687) (1997).

12. Ross alleges ineffectiveness in trial counsel’s failure to object to argument to the jury that Ross would not suffer the full penalty imposed by the court because of pardon, parole, or clemency. Contrary to Ross’s assertions in his brief, the record shows that the prosecutor was not referring to Ross’s sentence when he made this argument to the jury but to Rogers and his plea bargain arrangement with the State. There was no violation of OCGA § 17-8-76 (a). Our review of the record further shows that Ross’s arguments concerning other allegedly improper references to the words “parole” and “probation” also are without merit. Therefore, trial counsel was not ineffective for failing to object to any of these allegedly improper statements.

13. Ross argues that trial counsel’s performance was so poor that this Court should abandon the Strickland v. Washington test set forth above and instead find that trial counsel’s ineffectiveness in this case was “so pervasive that a particularized inquiry into prejudice would be unguided speculation.” (Citation and punctuation omitted.) Ross v. Kemp, 260 Ga. 312, 315 (393 SE2d 244) (1990). See also Cochran v. State, 262 Ga. 106, 108 (2) (b) (414 SE2d 211) (1992).

We disagree and find that this is not an egregious case involving a counsel’s “total failure of trial preparation,” as contemplated by Cochran, supra at 107-108 (2). First, as discussed in Divisions 1 through 12, we have found each of Ross’s specific allegations of ineffectiveness to be without merit. Second, the record indicates that trial counsel was an experienced criminal defense lawyer who was adequately prepared to try Ross’s case, having met with him in jail approximately six times prior to trial, having spoken to him frequently on the telephone, and having kept him fully apprised of developments in his case. Third, the record shows that trial counsel reviewed Ross’s prior trial counsel’s notes, interviewed witnesses for both the State and the defense, and called three witnesses to the stand to support Ross’s alibi defense. Accordingly, we reject Ross’s argument that the two-prong test set forth in Strickland v. Washington, supra, should be abandoned in this case and affirm the trial court’s ruling that Ross was afforded effective assistance of counsel at trial. See, e.g., Hand v. State, 205 Ga. App. 467, 470 (2) (422 SE2d 316) (1992); Manus v. State, 180 Ga. App. 658, 660-661 (350 SE2d 41) (1986) (Beasley, J., concurring specially).

14. Ross argues the trial court erred in failing to conduct an evidentiary hearing meeting the requirements of Harper v. State, 249 Ga. 519, 524-526 (1) (292 SE2d 389) (1982) to determine the admissibility of the State’s DNA evidence.

Our review of the record shows that an evidentiary hearing specifically to determine this question was held by the trial court prior to its decision to allow into evidence DNA test results. At the hearing, a forensic serologist testified at great length about the PCR technique of DNA testing and the testing procedures used in this case. The testimony elicited at this hearing was sufficient to support the trial court’s determination that DNA testing procedures used by the State’s serologist were performed in an acceptable manner and were capable of producing reliable results. See Johnson, supra, 264 Ga. at 458 (5); Redding v. State, 219 Ga. App. 182, 186 (4) (464 SE2d 824) (1995). The trial court did not err in admitting this evidence.

We also note that at no time during this hearing did defense counsel raise the objection now being raised on appeal. To the contrary, defense counsel affirmatively stipulated to the State’s proposal regarding the format and content of the evidentiary hearing on the DNA evidence. “ A litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. Acquiescence deprives him of the right to complain further. . . . (Cit.)’ [Cit.]” Emerson v. State, 220 Ga. App. 485, 486 (1) (469 SE2d 520) (1996). Although defense counsel did object to the admissibility of the DNA evidence on other grounds, “[a]n objection on a specific ground or grounds at trial waives any objection to that evidence on other grounds on appeal. Accordingly, all other grounds for objection, other than the specific grounds posed at trial, are not preserved for appeal.” (Citation and punctuation omitted.) Thomas v. State, 225 Ga. App. 790 (484 SE2d 797) (1997).

Judgment affirmed.

Beasley, J., and Senior Appellate Judge Harold R. Banke concur.

Decided February 26, 1998

Reconsideration denied April 1, 1998

Potts & Badaruddin, Shandor S. Badaruddin, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, John H. Petrey, Assistant District Attorneys, for appellee.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A97A2103.
    MADDOX v. SOUTHERN ENGINEERING COMPANY et al. CARROLL COUNTY WATER AUTHORITY v. MADDOX.
    A97A2104.
    (500 SE2d 591)
   Ruffin, Judge.

H. Gilbert Maddox, Jr. sued Southern Engineering Company (“Southern Engineering”), Carroll County Water Authority (the “Authority”), Still Water Plantation, Ltd. (“Still Water”) and other defendants (collectively the “defendants”) seeking damages for fraud and under Georgia’s Racketeer Influenced & Corrupt Organizations Act (“RICO”), OCGA § 16-14-1 et seq. The trial court dismissed Maddox’s complaint for failure to state a claim. In Maddox v. Southern Engineering Co., 216 Ga. App. 6 (453 SE2d 70) (1995) (“Maddox I”), we affirmed the trial court’s dismissal of Maddox’s fraud claim, but reversed the dismissal of his state RICO claim. On remand, Maddox made a second amendment to his complaint to include individual members of the Authority’s board of directors at relevant times to his lawsuit. The defendants moved for summary judgment claiming, inter alia, that Maddox lacked standing to assert a RICO claim because there was no causal connection between the alleged RICO violations and his injury and because Maddox had no compensable damages under Georgia law. The trial court granted summary judgment to the defendants and Maddox appealed.

In Case No. A97A2103, Maddox appeals the trial court’s order granting the defendants’ motion for summary judgment. In Case No. A97A2104, the Authority appeals the denial of its petition that Maddox post a bond pursuant to OCGA § 50-15-2. For reasons which follow, we affirm the trial court’s grant of summary judgment, and in light of this, we conclude that the issue presented in Case No. A97A2104 is moot.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other . . . [disputations] of fact are rendered immaterial. [Cit.] A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). On appeal from a trial court’s grant of summary judgment, this Court conducts a de novo review of the evidence. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).

Viewed in the light most favorable to Maddox, the nonmovant, the record shows that the Authority contracted with Southern Engineering to provide necessary technical support for obtaining a permit for the construction of a dam and reservoir. Snake Creek, located in Carroll County, was selected from 16 different sites as the site for the proposed dam and reservoir.

As part of the permit application for the dam and reservoir, the Authority and Southern Engineering submitted permit applications along with the required documentation to the United States Army Corps of Engineers (“Corps”) and various state agencies. See OCGA § 12-5-376.

Maddox, who owns property below the proposed dam site on Snake Creek, and six tracts of land on Whooping Creek, vigorously opposed the proposed Snake Creek site. According to Maddox, the construction of the dam and reservoir upstream from his property would have a negative impact on his land. Maddox submitted a feasibility study to the Corps and the state agencies that concluded Whooping Creek was a more feasible alternative. Maddox also informed the Corps and the relevant state agencies that the Authority and Southern Engineering made material misrepresentations in their permit application.

In his deposition, Maddox testified that the defendants made the following misrepresentations: the population of Carrollton, Villa Rica and Bowden were overstated; the drinking water demands of Carroll County were overstated; the amount of water that Carroll County could supply was understated; the completion date for Sharpe Creek Reservoir, an alternative water source, indicated it would not be available for several years, but in fact it would be completed much earlier; the number of alternative water sources was misstated; that a large reservoir is not feasible on Whooping Creek because it would flood a portion of Georgia Highway 5 and a railroad line; the Authority refused to acknowledge the existence of the petroleum pipe under the proposed Snake Creek site; and numerous other misrepresentations made in an effort to establish a reservoir in Carroll County.

After gathering information and independently verifying reports and studies submitted for the record, and after consultation with state and federal agencies involved in the “commenting process,” the Corps determined the Snake Creek, Site A, was the least environmentally damaging practicable alternative to meet the basic project purpose. Although the land near Whooping Creek was studied as an alternative site, it was not selected due to cost and other considerations, and was no longer actively considered upon selection of the Snake Creek site. On August 15, 1994, the Corps issued permits and certifications for construction of the reservoir at Snake Creek.

Maddox argues that the defendants violated OCGA § 16-10-20 by knowingly and willfully submitting false statements to the state agencies, thereby causing him to suffer a depreciation in property value. He contended that these violations constituted predicate acts necessary to establish a pattern of racketeering activity under RICO. See OCGA § 16-14-3 (8) and (9). Maddox also contends that his damages consist of “[t]he stigma of being downstream from a 62-foot or approximately thereof earthen dam and the effects it would have on the riparian rights to the water. Also the alterations in the flood plains that occurred and mandation [sic] of flood insurance, other factors . . . have basically made the property almost impossible to sell.”

Case No. A97A2103

1. On appeal, Maddox argues that the trial court failed to adhere to our ruling in Maddox I by concluding that he did not have standing to assert the RICO claims. We disagree.

In Maddox I, the issue before us was the sufficiency of his complaint, i.e., whether or not Maddox stated a viable claim. We determined that the predicate acts underlying Maddox’s RICO claim were not based on fraud as the defendants alleged, but rather were based on violations of OCGA § 16-10-20, which prohibit the making of false statements to any state governmental department or agency. We consequently ruled that such statutory violations can constitute the predicate acts underlying his claim of racketeering activity. Id. at 7-8. We did not address the issue of whether there was any evidence supporting Maddox’s allegations. More specifically, we did not address whether the substance of the defendant’s misrepresentations entitled Maddox to relief because he had not alleged what specific false statements were made to the state agencies that proximately caused his loss. Id. at 8. Consequently, this issue is ripe for our consideration.

Upon consideration of the alleged statements, we agree with the trial court that Maddox lacked standing to pursue his RICO claim. Georgia’s civil RICO statute provides that: “Any person who is injured by reason of any violation of Code Section 16-14-4 shall have a cause of action for three times the actual damages sustained and, where appropriate, punitive damages.” (Emphasis supplied.) OCGA § 16-14-6 (c). In this instance, Maddox alleged that defendants were liable to him for RICO violations because they repeatedly violated OCGA § 16-10-20 by making misrepresentations to the state agencies involved in the permitting process.

Maddox’s deposition testimony established that he relies on two fundamental allegations in support of his RICO claim: (1) that the defendants knowingly made misrepresentations to various state agencies in violation of OCGA § 16-10-20, and (2) that the diminution of his property value was a direct result of these misrepresentations. In light of these allegations, we must determine whether Maddox’s depreciated property value occurred “by reason of” the defendants’ misrepresentations.

Although there is no Georgia authority addressing this issue, and because the state RICO act is “ ‘modeled upon and closely analogous to the federal RICO statute,’ ” we will look to federal authority to address this question. Dee v. Sweet, 218 Ga. App. 18 (460 SE2d 110) (1995) (physical precedent only). See Morast v. Lance, 631 FSupp. 474, 481 (9) (N.D. Ga. 1986), aff’d, 807 F2d 926 (11th Cir. 1987).

Under the federal RICO act, “[t]he language ‘by reason of . . . imposes a proximate causation requirement on the plaintiffs. [Cits.]” (Emphasis supplied.) O’Malley v. O’Neill, 887 F2d 1557, 1561 (11th Cir. 1989). “This means that a private plaintiff who wants to recover under civil RICO must show some injury flowing from one or more predicate acts. A plaintiff cannot allege merely that an act of racketeering occurred and that he lost money. He must show a causal connection between his injury and a predicate act. If no injury flowed from a particular predicate act, no recovery lies for the commission of that act.” Pelletier v. Zweifel, 921 F2d 1465, 1497 (11th Cir. 1991). In short, the language “by reason of” imposes a proximate causation requirement on the plaintiff. O’Malley, supra at 1561.

In O’Malley, the plaintiffs were terminated university employees. The plaintiffs brought a federal RICO action against several defendants alleging that the defendants committed mail fraud by concealing the financial condition of the university and submitting false statements to the United States government in order to obtain funds for the university. The alleged mail fraud constituted the alleged predicate offenses committed by the defendants. The plaintiffs refused to participate in the mail fraud and claimed they were terminated because of their refusal to participate. Id. at 1558-1559. The Eleventh Circuit Court of Appeals ruled that in order to have standing to sue under RICO, the plaintiffs must show “that the defendants’ mailing of false reports and statements directly caused them to lose their jobs.” Id. at 1561. The court found the plaintiffs merely alleged that the proximate cause of their injuries was the defendants’ “decision to fire them for refusing to participate . . . not the mail fraud scheme itself.” Id. Importantly, the court added, “[i]t may well be true that the commission of the predicate acts constituted the ‘but for’ cause of the firings. However, that tenuous a relation between the harm and the predicate acts is not sufficient to confer standing. [Cit.] RICO does not provide a remedy for every injury that may be traced to a predicate act.” Id. Similarly, the court stated that the injury must “flow directly” from the predicate acts. Id. at 1562 (citing Morast, supra). As a matter of law, “[t]here can be standing to sue and recover only ‘to the extent that [the RICO plaintiff] has been injured ... by the conduct constituting the violation.’ [Sedima v. Imrex Co., 473 U. S. 479, 496 (105 SC 3275, 87 LE2d 346) (1985).]” Morast, supra at 481.

Accordingly, in order to survive summary judgment in this case, Maddox must show that his injury flowed directly from the defendant’s misrepresentations to state agencies, not merely that his injury was an eventual consequence of the misrepresentations or that he would not have been injured but for the misrepresentations. We find no such evidence in the record. Although there is evidence proving that the state agencies knew of the misrepresentations, there is no evidence that the state agencies relied on the misrepresentations. Moreover, even if there was evidence that the state agencies relied upon misrepresentations, there is no evidence that the depreciation in Maddox’s property value was anything more than an eventual consequence of the misrepresentations. Accordingly, like the plaintiffs in OMalley, in this case the evidence shows Maddox was not injured as a direct result of any misrepresentations, but rather “by reason of” the Corps’ decision to issue a permit for the dam and reservoir upstream from his property. Although Maddox may not have been injured but for the misrepresentations, it is clear those misrepresentations were not the proximate cause of his injuries. Thus, the trial court properly granted the defendants’ motion for summary judgment because Maddox lacked standing in that there is no evidence to support proximate causation, an essential element of his RICO claim.

In view of our ruling on the issue of standing, we need not address the remaining 14 enumerations of error.

Decided March 20, 1998

Reconsideration denied April 1, 1998

Gary P. Bunch, for Maddox.

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, for Southern Engineering Company et al.

Johnson, Kayne & Penna, Christopher E. Penna, Johnson, Dangle & Parmer, William P. Johnson, Thomas E. Parmer, for Carroll County Water Authority.

Case No. A97A2104

2. Based on our decision in Case No. A97A2103, the enumeration of error raised by the water authority is moot.

Judgment affirmed in Case No. A97A2103. Case No. A97A2104 is dismissed as moot.

Birdsong, P. J., and Blackburn, J., concur.


author: Birdsong, Presiding Judge.

text:
    A97A2147.
    ANDERSON v. THE STATE.
    (499 SE2d 717)
   Birdsong, Presiding Judge.

Burnie Anderson appeals her conviction for disorderly conduct by uttering fighting words in violation of OCGA § 16-11-39 (a) (3). After her son was arrested for DUI, Anderson went to the jail to post bond. She asked the deputies to take her personal check because she was a friend of the sheriff, but her request was denied. At this point Anderson left the jail after letting the jailers know that in her opinion their prospects for continued employment after the next election were not favorable. The next morning, Anderson sent her son’s girlfriend to the jail with the full cash bond, but a deputy told her that Anderson’s son would not be released until she talked to the sheriff.

After inquiring from the sheriff’s wife as to his whereabouts, Anderson found him at an automobile dealership, washing his car. Because of where Anderson was sitting in relation to the sheriff, she had to lean across and speak to the sheriff through the car’s open window. When Anderson asked about the refusal to release her son, the sheriff asked her why she had been at the jail causing trouble. The sheriff then testified that Anderson “told me they was no good and that I was a no good son of a bitch and that she should get out of the car and kick my ass. ... I told her if she had to talk that way, she could leave [and] ‘if you don’t leave, I’m going to call and have you removed,’ and she said Well, go ahead.’ So . . .1 just went back to washing my car because I felt it wasn’t even worth the trouble. . . . She sat there a few minutes and . . . finally said, ‘Well, I’ll see you on down the road,’ and she drove off.”

When asked whether Anderson’s demeanor showed she was angry, the sheriff testified: “I really didn’t pay her that much attention.” On cross-examination, the sheriff said he was offended and disappointed by Anderson’s above quoted language and that he took seriously her threat.

Anderson testified that without leaving her car, she questioned the sheriff about the failure to release her son. According to Anderson, the sheriff said: “ ‘If you hadn’t of been up there running your god damn mouth, he would have been out. . . . And if you don’t get your god damn ass from up here, I will call somebody . . . and have you locked up with your god damn son.’ ” Anderson left. Later that day the sheriff got a warrant against her.

Anderson was indicted as follows: that she committed “the offense of terroristic threats”; and that on May 14, 1995 she used “to Sheriff John Bowens, the following opprobrious words and abusive language, to-wit: that he was a no good son-of-a-bitch and she would kick his ass.” Although the jury acquitted her of making terroristic threats, Anderson was convicted of using obscene and abusive language.

On appeal Anderson contends this prosecution Infringes on her First Amendment rights and also contends the trial court erred by denying her motion for a directed verdict of acquittal and failing to charge the jury that the scope of OCGA § 16-11-39 was limited to words that had a direct tendency to cause immediate breach of the peace and that the jury must consider the context in which the words were uttered when determining whether the words were fighting words. Held:

1. Anderson’s motion to dismiss the indictment was based on her contention that the phrases “no good son of a bitch” and “I’ll kick your ass” are protected speech under the Constitution of the United States and the Constitution of the State of Georgia. OCGA § 16-11-39 in relevant part provides: “A person commits the offense of disorderly conduct when such person . . . [wjithout provocation, uses to or of another person in such other person’s presence, opprobrious or abusive words which by their very utterance tend to incite to an immediate breach of the peace, that is to say, words which as a matter of common knowledge and under ordinary circumstances will, when used to or of another person in such other person’s presence, naturally tend to provoke violent resentment, that is, words commonly called ‘fighting words.’ ” OCGA § 16-11-39 (a) (3). The statute must be limited in application to situations involving “fighting words” — “ ‘those by which their very utterance inflict injury or tend to incite an immediate breach of the peace.’ ” City of Macon v. Smith, 244 Ga. 157, 158 (259 SE2d 90). Further, even if a person used obscene, vulgar and profane language, the crucial issue is whether that language constituted “ ‘words, expressions or acts which have a direct tendency to cause immediate acts of violence by the person to whom the speech or act is addressed.’ ” Crolley v. State, 182 Ga. App. 2, 4 (354 SE2d 864).

In State v. Klinakis, 206 Ga. App. 318, 319 (b) (425 SE2d 665), this Court held that “the use of ‘fighting words’ does not constitute protected speech under the First and Fourteenth Amendments to the United States Constitution or under Art. I, Sec. I, Par. V of the Georgia Constitution. Fighting words constitute one of those narrow speech areas not constitutionally protected. . . . Thus, it is beyond controversy that a state may enact a statute making criminal the utterance of ‘fighting words,’ provided it does so in a constitutional manner, that is, the criminal statute must be facially constitutional and must be applied constitutionally to a particular offender. [Cits.]” (Emphasis omitted.)

One legislative purpose in these laws is to curtail criminal activity before it escalates into or causes immediate acts of actual violence; classes of constitutionally unprotected speech are limited to ensure the purpose of the limitation; and thus OCGA § 16-11-39 must be limited in application to words that have “ ‘a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.’ ” Id. at 322, quoting Gooding v. Wilson, 405 U. S. 518 (92 SC 1103, 31 LE2d 408).

Under the circumstances of this case, we do not find that the words used by Anderson constituted protected speech. Brooks v. State, 166 Ga. App. 704 (305 SE2d 436). Here, the jury determined that the act of appellant in calling the sheriff a “no-good son of a bitch” and admonishing that she should kick his “ass” constituted fighting words. Further, the fact that the sheriff might be used to hearing this type of language is not a defense. Bolden v. State, 148 Ga. App. 315, 316 (2) (251 SE2d 165). By their verdict the jury found that the words Anderson used were likely to provoke violence in the mind of the sheriff. This is sufficient. Brooks v. State, supra; Johnson v. State, 143 Ga. App. 826 (240 SE2d 207).

As we find that the prosecution of Anderson was authorized, her allegation that she was the victim of a bad faith prosecution is without merit. Therefore, the trial court did not err by denying Anderson’s motion to dismiss.

2. Anderson’s motion for a directed verdict of acquittal was based on her contention that her comments to the sheriff were provoked by the actions of the jailers and deputies at the jail in refusing to release her son even when she produced in cash the amount of bail required and their comments to her. A motion for a directed verdict in a criminal case, however, should only be granted when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. OCGA § 17-9-1 (a); Alexander v. State, 263 Ga. 474, 478 (3) (435 SE2d 187). The test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) is the appropriate one to use when the sufficiency of the evidence is challenged, whether the challenge is from the denial of a directed verdict or the denial of a motion for new trial based upon alleged insufficiency of the evidence. Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436). In this case, whether the conduct at the jail was sufficient to provoke Anderson’s later misconduct was a question for the jury (Dyer v. State, 99 Ga. 20, 21 (2) (25 SE 609)), and thus the trial court did not err by denying Anderson’s motion for a directed verdict of acquittal.

3. The trial court did not err in failing to charge the jury as requested by Anderson. Reviewing Anderson’s requested charge shows that it had two elements: the first part concerned limiting the application of OCGA § 16-11-39 to words having a direct tendency to cause immediate acts of violence by the person to whom the speech is directed, and the second part concerned considering the circumstances and background surrounding the use of the words.

After the trial court called for any objections to the charge, Anderson’s counsel did not reserve objections. Instead, he objected to the failure to give two requested charges. One of the charges is no longer relevant because it concerned the offense of which Anderson was acquitted. In his objection to the failure to give the other charge Anderson’s counsel stated, “I think there are some Appellate decisions that restrict the application of the statute on abusive language.” Later, after counsel again stated that the failure to charge he objected to concerned the appellate restrictions on which words could be prohibited by the statute, the trial court ruled that the charge given covered the matters in the requested charge.

(a) An objection merely stating that the party objects to the trial court’s failure to charge a specific numbered request is insufficient to preserve the issue on appeal (Lissmore v. Kincade, 188 Ga. App. 548, 551 (373 SE2d 819)) because the objection must be stated distinctly so that a reasonable trial judge could understand the nature of the objection and rule intelligently on the specific point. Christiansen v. Robertson, 237 Ga. 711, 712 (229 SE2d 472). Thus, “[t]o be reviewable the objection must be unmistakable in its purport in directing the attention of the trial court to the claimed error and must be stated with sufficient particularity to leave no doubt as to the portion of the charge challenged or as to what the specific ground of challenge is. The grounds of error urged must fully apprise the court of the error committed and the correction needed to cure the error. We construe the statute [OCGA § 5-5-25 (a)] as placing the duty on counsel of exercising a high degree of clarity in objecting to charges.” (Citation and punctuation omitted.) Stone v. Burell, 161 Ga. App. 369 (288 SE2d 636). In this instance, however, counsel was not clear in objecting to the charge because on appeal Anderson now also challeges the failure to give the second part of the requested charge concerning consideration of the circumstances and background surrounding the use of the words.

Thus, in regard to this part of the requested charge, we find that the objection raised below was not sufficient to direct the trial court’s attention to the claimed error and was not stated with sufficient particularity to leave no doubt about the portion of the charge challenged or what the specific ground of challenge was. Therefore, we find that this issue was not preserved on appeal. Compare Lucas v. State, 265 Ga. 514, 515-516 (2) (458 SE2d 103).

(b) Regarding the objection concerning restrictions on the scope of OCGA § 16-11-39, we find no error. It is a fundamental rule that jury instructions must be considered as a whole in determining whether there was error in the charge (Hambrick v. State, 256 Ga. 688, 690 (353 SE2d 177); Dept. of Transp. v. Hillside Motors, 192 Ga. App. 637, 640 (385 SE2d 746)) and it is not error to fail to charge in the exact language of a requested charge if the principles of law embodied in the request are included in the charge given. Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 160 (256 SE2d 916). Further, the language used by appellate courts in decisions may embody sound law, but it is not always proper or necessary to use such language in a charge to the jury. Dept. of Transp. v. Hillside Motors, supra. The jury was advised that fighting words are those words which by their very utterance tend to incite an immediate breach of the peace and that unless the jury found that Anderson used words in the presence of the sheriff, which by their very utterance tend to excite an immediate breach of the peace, they must acquit her. Thus, considering the four comers of the charge, we find that the issue on which Anderson wanted a charge was adequately covered by the full charge.

Further, even if we were to reach the other aspect of the charge concerning the circumstances and background surrounding the use of the words, we find that the jury was instructed to consider the facts and circumstances of the case in the part of the charge concerning reasonble doubt. Although this charge might not have been as artful as the requested charge, it was sufficient in light of the totality of the full charge given to inform the jury of the necessity to consider Anderson’s statements in light of the surrounding circumstances. Therefore, we find the charge as a whole-correctly informed the jury of the substance of the matters contained in the request to charge.

Decided March 11, 1998

Reconsideration denied April 1, 1998

James N. Finkelstein, for appellant.

Charles M. Ferguson, District Attorney, Ronald S. Smith, Assistant District Attorney, for appellee.

Accordingly, for each of the above reasons we find no error.

Judgment affirmed.

Ruffin and Eldridge, JJ., concur.


text:
    A97A2153.
    COTTON v. BANK SOUTH.
    (499 SE2d 129)
   Ruffin, Judge.

Bank South sued Marjorie Cotton for the balance due on a promissory note that Cotton executed in connection with a motor vehicle purchase agreement. Cotton appeals from the trial court’s order granting summary judgment to Bank South. For the following reasons, we affirm.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “ ‘The movant has the original burden of making this showing. Once the movant has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the respondent to come forward with rebuttal evidence.’ [Cit.]” Kelly v. Pierce Roofing Co., 220 Ga. App. 391, 393 (2) (469 SE2d 469) (1996). In rebutting this prima facie case, “an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in [OCGA § 9-11-56], must set forth specific facts showing that there is a genuine issue for trial.” OCGA § 9-11-56 (e); see also Lau’s Corp., supra. On appeal from a trial court’s grant of summary judgment, this Court conducts a de novo review of the evidence. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).

Viewed in the light most favorable to Cotton, the record shows that on January 10, 1994, Cotton purchased a used 1993 Mitsubishi Mirage from Phil Hughes Honda (“the dealership”). During the sales transaction, the dealership’s salesman represented to Cotton that the vehicle had never been wrecked. Cotton executed a sales contract and a promissory note in connection with the purchase of the vehicle. The sales contract contained a merger clause providing that the contract constituted the entire agreement between the parties. The dealership subsequently assigned the promissory note to Bank South.

On October 17, 1994, approximately nine months after Cotton purchased the vehicle, its interior became filled with water. Cotton learned that prior to her purchase of the car it had been severely damaged in an automobile collision and that this damage allowed the water to leak into the vehicle. In a letter dated October 24,1994, Cotton contacted Bank South to inform it of the vehicle’s damaged condition and her potential claim against the dealership for misrepresenting that it had not been previously wrecked. Cotton also informed Bank South that she “[would] not be making any further payments on this account because of her claim/defense against the dealer.” Although Cotton inquired about Bank South’s willingness to finance another car purchase, she did not mention returning the vehicle. In her affidavit, Cotton stated that Bank South offered to resolve the matter if she returned the vehicle in exchange for its excusing the debt. However, Cotton declined the offer because the settlement would have resulted in a loss of the value of her trade-in. Later, Cotton informed Bank South that “if your bank will refund all payments heretofore made to you by Mrs. Cotton, plus her down payment (including the value of her trade-in), we will return the vehicle to you and give you a pro tanto release which reserves the right to take legal action against the dealer.”

Bank South later sued Cotton to collect the debt owed on the promissory note. Cotton answered and counterclaimed seeking monetary damages but not rescission of the sales contract. While attempting to resolve the matter, Cotton moved to Florida and requested Bank South transfer title of the car to her. Bank South complied with Cotton’s request and she obtained a Florida certificate of title to the vehicle. She continued to use and maintain the car, putting approximately 20,000 miles on the vehicle from the date of purchase, January 10, 1994, to the date Florida title was received, April 8, 1996. Bank South moved for summary judgment, and Cotton subsequently dismissed her counterclaim and amended her answer to include a fraud defense and an attempted rescission of the sales contract by alluding to her letter of October 24, 1994. Cotton’s amendment was filed approximately one year after Bank South filed its complaint. The trial court granted Bank South’s motion for summary judgment.

On appeal, Cotton contends that summary judgment was inappropriate because her offer to return the vehicle establishes an attempt to rescind the contract and that rescission was made impossible by Bank South’s refusal to accept this offer.

“In general, a party alleging fraudulent inducement to enter a contract has two options: (1) affirm the contract and sue for breach; or (2) rescind the contract and sue in tort for fraud. [Cits.]” Jones v. Cartee, 227 Ga. App. 401, 403 (489 SE2d 141) (1997). “Depending upon which of the two actions is ultimately pursued, the presence of a merger clause in the underlying contract may be determinative as to the successful outcome. If the defrauded party has not rescinded but has elected to affirm the contract, he is relegated to a recovery in contract, and the merger clause will prevent his recovery. If, on the other hand, he does rescind the contract, the merger clause will not prevent his recovery under a tort theory.” (Citations and punctuation omitted.) Id.

In Owens v. Union City Chrysler-Plymouth, 210 Ga. App. 378, 379 (436 SE2d 94) (1993), the plaintiff, á used car buyer, learned, after she purchased a car, that it was previously involved in a collision. She had discussions with the dealership concerning the possibility of returning the car, but was unable to resolve the dispute. The plaintiff continued to make monthly payments on the car, maintained the car, and drove it extensively for 40,000 miles. The plaintiff amended her complaint almost one year after filing a damage action against the dealership to attempt a rescission of the purchase agreement. We affirmed the trial court’s order granting summary judgment to the dealership. Id. at 380.

In Owens, we determined that “ ‘[w]here a party who is entitled to rescind a contract on ground of fraud or false representations, and who had full knowledge of the material circumstances on the case, freely and advisedly does anything which amounts to a recognition of the transaction, or acts in a manner inconsistent with a repudiation of the transaction, or acts in a manner inconsistent with a repudiation of the contract, such conduct amounts to acquiescence, and, though originally impeachable, the contract becomes unimpeachable in equity. If a party to a contract seeks to avoid it on the ground of fraud or mistake, he must, upon discovery of the facts, at once announce his purpose and adhere to it. Otherwise he can not avoid or rescind such contract.’ [Cit.]” Id.

We concluded in Owens that the plaintiff did not rescind the contract by merely discussing the possibility of returning the car at issue or by her subsequent amendment of the complaint. As for the discussions with the dealership, we found that “even if this mere inquiry were considered to have manifested a present election to rescind the contract, [the plaintiff’s] subsequent actions did not adhere to that ‘rescission,’ but instead indicated an affirmation of the contract.” Id. at 379.

We reach the same conclusion in this case. The undisputed evidence shows that Cotton continued to drive the car approximately two years after her discussions with Bank South about possibly returning it. Moreover, Cotton requested, and Bank South agreed to allow her to obtain, title to the car after she moved to Florida. These actions are consistent with her affirmation of the contract and could not in any manner be construed to constitute a rescission of the contract. See id.

Decided March 18, 1998

Reconsideration denied April 1, 1998

Peevy & Lancaster, Stephen H. Smith, for appellant.

King & Carragher, Joseph R. Carragher, for appellee.

Similarly, “[Cotton’s] purported rescission in the amendment to her [answer] almost one year after filing [the original answer and counterclaim] was ineffectual. Rescission or attempted rescission is a condition precedent even to bringing an action seeking rescission. [Cit.]” Id.

Finally, because the undisputed evidence showed that Cotton affirmed the contract and that the agreement contained a merger clause, “she was estopped from asserting any reliance upon the alleged misrepresentation made prior to execution of the contract. [Cit.] Accordingly, the trial court properly granted summary judgment for [Bank South].” Id. at 380.

In view of our ruling on the issue of rescission, we need not address the remaining enumerations of error.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.


author:
McMurray, Presiding Judge.
      Smith, Judge,

text:
    A97A2156.
    LONEY v. PRIMERICA LIFE INSURANCE COMPANY.
    (499 SE2d 385)
   McMurray, Presiding Judge.

In August 1991, defendant Primerica Life Insurance Company issued a life insurance policy on the life of Jesse James Smith. Smith’s daughter, plaintiff Chantell Loney, was named as the beneficiary on the policy. After Smith died in February 1993, defendant denied coverage based on the absence of a genuine signature of Smith on the application and due to a material misrepresentation on the application regarding the health history of Smith.

Plaintiff filed this action for damages predicated on two alternative theories. Count 1 is a breach of contract claim based on the insurance contract. Count 2 is a fraud claim based on allegations that defendant engages in a practice whereby its agents forge signatures of applicants for life insurance knowing that resulting policies could be declared void if any claim is made on the policy.

The trial court granted defendant’s motion for partial judgment on the pleadings as to the fraud claim in Count 2. The breach of contract claim in Count 1 was tried before a jury which returned a verdiet concluding that Smith did not sign the insurance application, thus resulting in a judgment in favor of defendant. The defense of material misrepresentation on the application was not reached by the jury.

On appeal, plaintiffs first enumeration of error maintains that the first trial judge erred in granting defendant’s motion for partial judgment on the pleadings since plaintiff stated a valid claim for fraud in Count 2 of her complaint. The second enumeration of error complains of the denial of plaintiff’s motion for new trial based, on allegations of improper communication and contact between the second trial judge’s law clerk and the jury. Held:

We conclude that plaintiff’s first enumeration of error is meritorious and reverse the judgment in favor of defendant. “ ‘(T)he question here is whether the undisputed facts appearing from the pleadings show the defendant is entitled to judgment as a matter of law. ... A complaint is not required to set forth a cause of action, but need only set forth a claim for relief.... If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient. Where the party moving for judgment on the pleadings does not introduce affidavits, depositions, or interrogatories in support of his motion, such motion is the equivalent of a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. . . . The motion to dismiss should not be granted unless the averments in the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of his claim.’ (Citations and punctuation omitted.) Christner v. Eason, 146 Ga. App. 139, 140 (245 SE2d 489). See also Sulejman v. Marinello, 217 Ga. App. 319, 320 (2) (457 SE2d 251).” Ransom v. Fleet Fin., 219 Ga. App. 817 (2) (466 SE2d 686). See also Cardin v. Outdoor East, 220 Ga. App. 664, 665 (468 SE2d 31).

Count 2 of plaintiff’s complaint states a viable fraud claim, specifically alleging each of the elements of fraud. Plaintiff alleges that defendant issued the life insurance policy with knowledge that Smith had not signed the application, but that his signature had been forged by defendant’s agent or employee. Plaintiff also alleges that she performed all conditions precedent to the policy and made all timely premium payments in accordance with the terms of the policy without knowledge that defendant’s agent had forged her father’s signature. Under the fraudulent practice described in Count 2, defendant collected insurance premiums while knowing that the policy could be declared void if a claim was made on the policy terms.

Defendant relies upon Georgia public policy which dictates that a policy of life insurance requires the knowledge and consent of the person insured in order to be a valid contract. OCGA § 33-24-6 (a) provides in part: “No life . . . insurance contract upon an individual, except a contract of group life insurance [which is not involved here] . . ., shall be made or effectuated unless at the time of the making of the contract the individual insured, being of competent legal capacity to contract, applies for a life . . . insurance contract or consents in writing to the contract. ...” A failure of an insured to apply or consent in writing as required under OCGA § 33-24-6 (a) renders the policy void ab initio. An insurance contract that is void ab initio as against public policy is never in force, cannot be ratified or affirmed and is not subject to being enforced by the courts. Wood v. N.Y. Life Ins. Co., 255 Ga. 300, 306 (2), 307 (336 SE2d 806); Time Ins. Co. v. Lamar, 195 Ga. App. 452, 453 (1), 454 (2) (393 SE2d 734).

Nonetheless, defendant has missed the point that the fraud claim in Count 2 of the complaint is not based upon enforcement of any insurance contract. Instead, and quite contrary to the assumptions underlying defendant’s argument, the complaint explicitly acknowledges that “the policy could be declared void if a claim was made on the policy terms....” The fraud claim is based on the alleged misrepresentation by defendant in knowingly issuing a void insurance policy with the purpose of deceiving plaintiff, on plaintiff’s reasonable reliance on the appearance that the policy issued was valid and enforceable, and on the resulting harm to plaintiff, including the loss of use of the funds paid as premiums for the void policy. The five elements of a fraud claim are well-settled. See, e.g., Longino v. Bank of Ellijay, 228 Ga. App. 37, 39 (1) (491 SE2d 81); Simpson Consulting v. Barclays Bank PLC, 227 Ga. App. 648, 650 (1) (490 SE2d 184); and Allen v. Hub Cap Heaven, 225 Ga. App. 533, 540 (7) (484 SE2d 259). Furthermore, defendant’s reliance upon Talley v. Mathis, 212 Ga. App. 330 (441 SE2d 854) (rev’d on grounds other than those for which it was cited by defendant, 265 Ga. 179 (453 SE2d 704)), is misplaced since it is merely another case involving an attempt to enforce an underlying illegal agreement, albeit in reversing, the Supreme Court determined that the agreement was not actually illegal.

Next, we reach the question of whether the evidentiary effect of plaintiff’s alternative pleadings bar her pursuit of a fraud claim on the grounds that the signature was forged. As previously noted by this Court, some caution should be exercised by litigants in weighing the evidentiary effect of inconsistent pleadings. “The Civil Practice Act which permits alternative pleadings (OCGA § 9-11-8 (e)) does not change the rule of evidence that a party is bound by‘ its judicial admissions (OCGA § 24-3-30). ‘The CPA did not wipe out or destroy the law in Georgia to the effect that a party to an action is bound by material allegations made in his pleadings. . . .’ Martin v. Pierce, 140 Ga. App. 897, 898-899 (232 SE2d 170) (1977). ... As Professor Green warned in Ga. Law of Evidence, § 238 (2d ed. 1982), a party should be aware of the evidentiary effect of alternative pleadings.” Ditch v. Royal Indem. Co., 205 Ga. App. 478, 479 (422 SE2d 868). “Where the pleading is inconsistent, the admission, not the denial, prevails. [Cit.]” Johnson v. Daniel, 135 Ga. App. 926, 928 (2) (219 SE2d 579).

The alternative pleading in the complaint which is beneficial to the position advanced by defendant, since prior to this litigation, is the admission that plaintiff’s father did not sign the insurance application. This admission may be derived from allegations that Smith’s signature had been forged. Indeed, defendant prevailed upon the trial of Count 1 based on the jury’s special finding on this issue. Since any admission arising from the evidentiary effect of the alternative pleadings is consistent with plaintiff’s fraud claim, these principles provide no basis for barring the fraud claim.

Defendant’s reliance upon evidence developed during discovery is misplaced and beyond the scope of the trial court’s ruling. There is no indication that evidence was considered by the trial court in ruling on defendant’s motion for partial judgment on the pleadings.

We do not reach the issues raised under the second enumeration of error. The issues argued in support of this remaining enumeration of error involve an incident unlikely to recur upon the retrial of this case.

The dissent is mistaken in adhering to the premise that the plaintiff’s fraud claim must be based on the illegal insurance contract. As previously noted, the language of the fraud claim contains allegations that the insurance contract is void. In our experience, it is most unusual to find a party alleging that a contract they wish to rely upon is void. The fraud claim is based upon false representations allegedly made by defendant.

Contrary to the assertions of the dissent, the duty owed by defendant to plaintiff does not arise under any contract. The duty allegedly breached by defendant arises from the standards of our society from which no one is exempted. It is improper for any person to defraud another. Hodge v. Jennings Mill, Ltd., 215 Ga. App. 507, 508-509 (451 SE2d 66). Nor is the dissent correct in suggesting that the only possible measure of damages would be based entirely upon the illegal contract. Even assuming that the premiums paid by plaintiff to defendant are to be refunded, plaintiff has" suffered damages in the loss of use of her funds for the time they are held by defendant. Thus, the time-value of plaintiff’s funds provide one possible measure of damages and other damages unrelated to enforcement of the illegal contract may be proven by appropriate evidence at trial.

Judgment reversed.

Ruffin and Eldridge, JJ., and Senior Appellate Judge Harold R. Banke concur. Andrews, C. J., Birdsong, P. J., and Smith, J., dissent.

Smith, Judge,

dissenting.

I must respectfully dissent, because the plaintiff is unable to demonstrate any state of facts justifying a recovery under this count of her complaint. OCGA § 9-11-12 (c).

As the majority acknowledges, a policy obtained without the knowledge and consent of the insured is void ab initio as against public policy. OCGA § 33-24-6 (a); Wood v. N.Y. Life Ins. Co., 255 Ga. 300, 303-304 (336 SE2d 806) (1985); Time Ins. Co. v. Lamar, 195 Ga. App. 452, 453-454 (393 SE2d 734) (1990). This principle of public policy cannot be waived, nor can it be eliminated by estoppel. “Regardless of the legal theory used, such a contract is not subject to being enforced by the courts. To reach a contrary conclusion would permit the unreasonable result that the conduct of an insurance company or its agent would breathe life into an insurance contract which the General Assembly for reasons of individual and public protection intended to have no life, and would frustrate the strong public policy that no contract for life insurance should be made unless the insured applies for or consents in writing to the contract. This we decline to do.” (Citations and punctuation omitted.) Lamar, supra at 455.

Plaintiff cannot circumvent this well-established law merely by recasting her complaint into terms of fraud. The claim, though couched in terms of fraud, remains based on an insurance contract that is void ab initio as violative of public policy. No duty was owed to plaintiff outside the terms of the contract itself. The only possible measure of damages would be based entirely on the contract. “One cannot do indirectly what the law does not allow to be done directly. [Cit.]” Phillips v. MacDougald, 219 Ga. App. 152, 153 (2) (a) (464 SE2d 390) (1995). In Talley v. Mathis, 212 Ga. App. 330 (441 SE2d 854) (1994), rev’d on other grounds, 265 Ga. 179 (453 SE2d 704) (1995), we held that a plaintiff could not recover on an illegal gambling contract by recasting his complaint in terms of fraud: “although Talley asserts fraud and conversion claims, the entire case is premised upon the agreement between the parties. . . . Where a contract grows immediately out of, and is connected with, an illegal or immoral act, a court of justice will not lend its aid to enforce it. . . . The very essence of the agreement here was to do that which was prohibited by Georgia law and accordingly, the trial court’s order was proper.” (Citations, punctuation and emphasis omitted.) Id. at 332-333. While the Supreme Court reversed our judgment, it did so on the basis that the contract was not illegal and void, but merely an agreement to engage in legal wagering in another state’s officially sanctioned lottery. 265 Ga. at 180 (2).

For these reasons, I respectfully dissent.

I am authorized to state that Chief Judge Andrews and Presiding Judge Birdsong join in this dissent.

Decided March 20, 1998

Reconsideration denied April 1, 1998

Murray & Stewart, Larry E. Stewart, for appellant.

Goldner, Sommers, Scrudder & Bass, Henry E. Scrudder, Jr., Linda J. Pollock, for appellee.


text:
    A97A2303.
    BLACK v. KNIGHT.
    (499 SE2d 69)
   Birdsong, Presiding Judge.

On November 2, 1994, appellee Samuel D. Knight, Sr. filed a suit for damages based on an automobile accident which occurred November 4, 1992. The statute of limitation on the claim thus expired on November 4, 1994, two days after that lawsuit was filed. However, the defendant, Barbara A. Black, was not served with a copy of that lawsuit until August 24, 1995, more than nine months after the statute of limitation had expired on the claim. Black filed a motion to dismiss or, in the alternative, for summary judgment based on lack of due diligence in service of process. The trial court granted that motion, finding that Knight had failed to exercise due diligence in service of process, and in January 1996 entered an order dismissing Black’s complaint with prejudice.

Within six months of that dismissal with prejudice, Knight filed another complaint against Barbara Black, asserting the same claim, and asserting that the action was filed within six months of dismissal of his original action pursuant to OCGA § 9-2-61, which is commonly known as the “renewal” statute. This second complaint was timely served. Appellant filed a motion to dismiss or for summary judgment, asserting that this was not a suit which could properly be re-filed. The trial court denied her motion, under authority of Hobbs v. Arthur, 264 Ga. 359 (444 SE2d 322) and Urrea v. Flythe, 215 Ga. App. 212 (450 SE2d 266).

Barbara Black appeals. Held:

The first action in this case could not be renewed under OCGA § 9-2-61 (a) because the trial court had dismissed it with prejudice, in effect declaring the suit void. Accordingly, it was not subject to renewal; this conclusion is consistent with remarks made in the Supreme Court’s Hobbs v. Arthur, supra. The record shows that although plaintiff Knight filed his first action two days before the statute of limitation expired, he did not serve that first action on the defendant until 293 days after the statute of limitation had expired. Regardless whether the trial court expressly stated that Knight’s lack of due diligence in serving the suit was the reason it dismissed his suit with prejudice, the fact is that the suit was dismissed with prejudice and with good reason. That suit was therefore void and could not be “renewed” under OCGA § 9-2-61 (a). This conclusion is not inconsistent with anything held by the Supreme Court in Hobbs, for that court finally said that in an action “properly refiled under OCGA § 9-2-61 (a), . . . any delay in service in a valid first action is not available as an affirmative defense in the renewal action.” Id. at 360-361.

Knight argues that Black’s motion to dismiss the first suit was based on Knight’s “procedural” failure to obtain timely service and establish personal jurisdiction, and that Black’s motion “was not based upon any defect in the ‘merits’ of Knight’s case.” He contends that because the dismissal with prejudice did not “adjudicate the merits of the first suit,” and because there was no express finding of lack of due diligence in service of process, Knight was entitled to refile his complaint.

These arguments are off-point. The trial court’s dismissal with prejudice obviously constituted a ruling that the first action was void, and the plain reason was that the plaintiff had not served the action until 293 days after the expiration of the statute of limitation.

No ruling “on the merits” was required to dismiss the suit with prejudice for failure to perfect service for 293 days after the statute of limitation had expired. It is well settled in Georgia law that in order for a case to qualify as a renewal action, the earlier filed suit must have been a valid action with proper service on the defendant. Brooks v. Young, 220 Ga. App. 47 (467 SE2d 230); Finch v. Weaver, 213 Ga. App. 514, 515 (1) (445 SE2d 289). The first action in this case was clearly not a valid action, as there was. no proper service on the defendant.

The trial court evidently based its ruling on a statement in Hobbs v. Arthur, supra at 360-361, that in an action refiled under OCGA § 9-2-61 (a), “any delay in service in a valid first action is not available as an affirmative defense in the renewal action.” (Emphasis supplied.) Urrea v. Flythe, supra. This reliance was misplaced. The plaintiff in Hobbs filed his first complaint two days before the statute of limitation expired and perfected service two months later; he then voluntarily dismissed his first suit and refiled the suit within six months. See Hobbs v. Arthur, 209 Ga. App. 855 (434 SE2d 748). We held that because of Hobbs’ lack of due diligence in serving his first action, the statute of limitation was not tolled by the late service and the renewed action was thus barred by the expiration of the statute of limitation. Id. at 857. We said that to hold that diligence of service is measured only from the institution of a renewed suit “allows the dilatory plaintiff to escape his or her lack of diligence in timely perfecting, service and compels the defendant to face a claim which would be stale but for the narrow grace of the renewal statute . . . [which was not intended] to allow a party guilty of laches to avoid the consequences by simply dismissing the suit and refiling it whenever a defendant raises the issue [of lack of due diligence in serving the first action]. Such would obliterate the requirement of due diligence and would allow lawsuits to be filed just within the statute of limitation and then suffer inexcusable delay in notifying defendant by timely service, without adverse consequences to the guilty party.” Id.

Decided January 13, 1998

Reconsideration denied April 1, 1998

However, the Supreme Court apparently concluded that if the first-filed suit is voluntarily dismissed after the statute of limitation has expired, no amount of delay in service of that first suit after the expiration of the statute of limitation, and no lack of due diligence of the plaintiff in serving his first suit, will bar the suit from being “renewed” under OCGA § 9-2-61 (a). This ruling, however, cannot be applied to this case because the Supreme Court also acknowledged: “A suit is also void and incapable of renewal under OCGA § 9-2-61 (a) if there has been a judicial determination that dismissal is authorized. . . . [Ujnless and until the trial court enters an order dismissing a valid action, it is merely voidable and not void.” (Emphasis supplied.) Id. at 360. Furthermore, the Supreme Court ultimately held that “inasmuch as diligence in perfecting service of process in an action properly refiled under OCGA § 9-2-61 (a) must be measured from the time of filing the renewed suit, any delay in service in a valid first action is not available as an affirmative defense in the renewal action.” Id. at 360-361. According to this statement, the reasoning that diligence in perfecting service must be measured from the filing of the renewed suit, applies only to suits which are “properly refiled.” Id.

The trial court dismissed the first action in this case with prejudice, thus declaring it void and actually declaring that it could not be refiled. Therefore a second action could not be “properly refiled” (Hobbs, supra at 360-361) under the renewal statute. Brooks, supra; Finch, supra.

The trial court erred in denying appellant Black’s motion to dismiss or for summary judgment.

Judgment reversed.

Ruffin and Eldridge, JJ, concur.

Arrington & Hollowell, Gary W. Diamond, Joni C. Hamilton, for appellant.

Scott E. Tinnon, for appellee.