text:
    A92A2137.
    BURGESS v. THE STATE.
    (427 SE2d 614)
   Johnson, Judge.

James Burgess appeals from his convictions of burglary, attempted rape and aggravated sodomy. Burgess contends that the court erred in denying his motion for a new trial on the ground that the State failed to disclose an agreement it had with Burgess’ accomplice; Burgess claims that the State agreed to recommend a lenient sentence to the court on behalf of the accomplice in exchange for his testimony against Burgess.

A trial court’s findings, of fact after hearing evidence on a motion for new trial shall not be disturbed if there is any evidence to support them. Allen v. State, 199 Ga. App. 365, 368 (6) (405 SE2d 94) (1991); Dudley v. State, 148 Ga. App. 560, 564 (5) (251 SE2d 815) (1978). In the instant case, there was conflicting evidence at the motion for new trial hearing. The accomplice’s attorney claimed that the State agreed to recommend a lenient sentence in exchange for the accomplice’s testimony against Burgess. The State’s attorney, however, stated in his place that no such deal was made with the accomplice. “An officer of the court may make a statement in his place which is taken to be prima facie true unless verification of such statement is required by the opposing party at the time the statement is made.” (Emphasis in original; citations and punctuation omitted.) Sams v. State, 197 Ga. App. 201, 204 (5) (397 SE2d 751) (1990). “Attorneys are officers of the court and their statements in their place, if not objected to, serve the same function as evidence.” (Citations, punctuation and emphasis omitted.) Ga. Bldg. Svcs. v. Perry, 193 Ga. App. 288, 300 (6) (387 SE2d 898) (1989). The trial court, acting as a factfinder, resolved the contradictory claims of the attorneys in favor of the State’s attorney. Because the statement of the State’s attorney supported the court’s finding that there was no deal between the State and the accomplice, the denial of the motion for a new trial shall not be disturbed.

Decided February 5, 1993.

Donna L. Avans, for appellant.

Timothy G. Madison, District Attorney, Jeffery G. Morrow, Assistant District Attorney, for appellee.

Judgment affirmed. Pope, C. J., and Carley, P. J., concur.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A92A2212.
    THE STATE v. MACK.
    (427 SE2d 615)
   Johnson, Judge.

Michael Leo Mack was arrested for driving under the influence of alcohol and speeding. He filed a motion to suppress evidence, which the trial court granted in part and denied in part. The court denied the motion as to statements made by Mack prior to his arrest and as to the results of a breath test taken by Mack. The court granted the motion as to an implied consent warning form signed by Mack. The form stated that Mack agreed to take a breath test requested by the arresting officer pursuant to OCGA §§ 40-5-55 and 40-6-392. The court ruled that the form was inadmissible because Mack, who was in custody at the time he signed it, had not been informed of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). The State appeals from the portion of the court’s order granting the motion to suppress.

1. Mack’s motion to dismiss the appeal is denied as the State may directly appeal from an order granting a motion to suppress evidence. OCGA §§ 5-7-1 (4) and 5-7-2.

2. The choice afforded a suspect under OCGA §§ 40-5-55 and 40-6-392, either to agree or refuse to take a blood-alcohol test, is not protected by the privilege against self-incrimination. State v. High-smith, 190 Ga. App. 838, 839 (380 SE2d 272) (1989); Wessels v. State, 169 Ga. App. 246 (1) (312 SE2d 361) (1983). Because the form signed by Mack, agreeing to take a breath test, is not protected by the privilege against self-incrimination, the court erred in suppressing it based on the officer’s failure to inform Mack of his Miranda rights.

Judgment reversed. Pope, C. J., and Carley, P. J., concur.

Decided February 5, 1993.

Keith C. Martin, Solicitor, Leigh A. Moore, Assistant Solicitor, for appellant.

Alan Z. Eisenstein, for appellee.


author: Blackburn, Judge.

text:
    A92A2351.
    HABACHY v. GEORGIA HEALTH GROUP, P. C.
    (427 SE2d 808)
   Blackburn, Judge.

The appellant, Dr. Jeannette S. Habachy, was employed as a staff physician with the Georgia Health Group (GHG) from July 1, 1990, until August 30, 1990, when GHG terminated her employment. Thereafter, Dr. Habachy mailed a written demand to GHG for $5,052.42, which she claimed was owed to her as additional salary. GHG responded by letter, disputing the number of hours Dr. Habachy had worked which remained unpaid. Dr. Habachy addressed GHG’s dispute in another letter and repeated her demand for the entire $5,052.42. Subsequently, on December 4, 1990, GHG again corresponded with Dr. Habachy, discussed its calculation of her salary due, and tendered a check for gross pay of $3,206.67. The letter emphasized that the enclosed check “represents full and complete payment of all claims pertaining to your employment by Georgia Health Group, P. C. In the event this is unacceptable to you, you should return the enclosed check to us immediately.” Dr. Habachy cashed the check without protest.

Almost a year later, Dr. Habachy commenced this action to recover $1,845.75, representing the difference between the $5,052.42 she had originally demanded from GHG and the $3,206.67 she had received. The trial court granted summary judgment for GHG, on the grounds that Dr. Habachy’s acceptance and negotiation of the check tendered by GHG constituted an accord and satisfaction, and this appeal followed.

“If the debtor tenders a sum of money less than the amount claimed upon the condition, express or implied, that it satisfied the entire debt, and the creditor accepts the tender, an accord and satisfaction results. [Cit.]” M. Walter & Co. v. North Highland Assembly of God, 188 Ga. App. 852, 854 (374 SE2d 792) (1988). However, acceptance of such a lesser amount shall not constitute an accord and satisfaction unless a bona fide dispute or controversy exists as to the amount due, or the payment is made pursuant to an independent agreement between the parties that it shall satisfy the debt. OCGA § 13-4-103 (b); Lewis v. Alfred L. Simpson & Co., 183 Ga. App. 166 (358 SE2d 262) (1987).

In the instant case, it was uncontroverted that GHG and Dr. Habachy disagreed upon the amount of back pay Dr. Habachy was actually owed. The letter in which GHG tendered the check for $3,206.67 clearly conditioned the tender as “full and complete payment of all claims pertaining to your employment by Georgia Health Group, P. C.” It further emphasized that Dr. Habachy should return the check immediately if it was unacceptable to her. Under these circumstances, Dr. Habachy’s acceptance of the check from GHG without any protest resulted in an accord and satisfaction. Generally, whether or not there is an accord and satisfaction is a jury question, but where, as here, there is no genuine issue of material fact, summary adjudication is appropriate. Mobley v. Fulton Roofing Co., 173 Ga. App. 563 (327 SE2d 540) (1985). The trial court properly determined that GHG was entitled to summary judgment as a matter of law.

On appeal, Dr. Habachy seeks to inject an issue of fact in the case by noting that her dispute with GHG also concerned an earlier $889.93 deduction from her pay, representing the costs of a diagnostic test which Dr. Habachy had ordered for a patient and which GHG had deemed unnecessary. She contends that GHG’s tender pertained only to the salary dispute arising over the questioned number of hours she had worked. Dr. Habachy’s written demands to GHG for payment of back salary in the amount of $5,052.42 included an accounting of how she arrived at that figure which only reflects a shortage in the number of her work hours counted by GHG. However, her correspondences discussed some dispute over the justification of the MRI test, and GHG’s responses addressed that dispute. As noted above, the letter in which GHG tendered the check for $3,206.67 conditioned the tender as “full and complete payment of all claims” pertaining to Dr. Habachy’s employment. This condition was clear and included any dispute with regard to the MRI test, and Dr. Habachy’s acceptance of the tender accepted the condition.

As an indication of a remaining dispute over the earlier deduction for the costs of the test, Dr. Habachy notes that GHG’s last letter related its medical director’s request that she contact him about the test. However, that message was given in the context of further communication expected in the event Dr. Habachy rejected or wanted clarification of the tendered amount, and does not indicate the existence of two separate disputes over the remuneration due Dr. Habachy. Cf. State Farm Fire &c. Co. v. Fordham, 148 Ga. App. 48 (250 SE2d 843) (1978).

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.

Decided February 5, 1993.

Ernest H. Stanford, Jr., for appellant.

Finestone, Morris & Wildstein, Robert D. Wildstein, Caryl W. Cohen, for appellee.


author: Cooper, Judge.

text:
    A92A1937.
    SMITH v. THE STATE.
    (428 SE2d 95)
   Cooper, Judge.

Appellant was convicted by a jury of theft by taking property with a total value exceeding $500, theft by receiving stolen property, and two counts of giving false identification information to a law enforcement officer. He appeals from the trial court’s denial of his amended motion for a new trial.

Viewed in a light most favorable to the verdict, the evidence presented at trial showed that as Judy and Neeley Melvin emerged from a bowling alley and approached their truck, they saw appellant reaching into Mr. Melvin’s toolbox in the bed of the truck. When appellant saw them he moved away from the truck and walked toward them, engaging Mr. Melvin in conversation. Mrs. Melvin continued to the passenger side of the truck, where she found her husband’s Makita circular saw lying on the ground in the place appellant had been. When she told her husband what she had found, appellant ran to the car parked next to the Melvins’ truck, jumped in, and tried to drive off. However, Mr. Melvin stopped him and was able to hold him there until the police arrived. During subsequent questioning, appellant gave the police several different names and dates of birth. When the police checked the tag on appellant’s car, they discovered the vehicle was stolen. They then arrested appellant and inventoried the car, discovering a red toolbox and numerous Snap-On and Craftsman tools belonging to Richard Schaeffer, another bowling alley patron who kept his tool box in the bed of his truck. Mr. Schaeffer testified that, based on what he had paid for the tools new, he estimated the value of the tools at $1,500 and the box at $150. He testified on cross-examination that the tools were in used rather than new condition, but also pointed out that the price of new tools had increased, so that the cost of the same tools today would be more than $1,500. In addition to hearing this testimony regarding the tools, the jury viewed a videotape of the stolen tools. The jury found appellant guilty of felony theft of Mr. Schaeffer’s tools and toolbox, receiving a stolen car, and two counts of giving false information, but acquitted him of theft of Mr. Melvin’s saw.

1. Appellant first contends that the evidence was insufficient to prove felony theft because the record contains no expert testimony that the total value of the stolen goods exceeded $500. However, “[t]estimony of the owner of the value of stolen items based upon his experience in buying them, coupled with the jury’s awareness of the value of ‘everyday objects,’ is sufficient to allow the jury to consider such opinion evidence and make reasonable deductions exercising their own knowledge and ideas. [Cits.]” Moore v. State, 171 Ga. App. 911, 912 (2) (321 SE2d 413) (1984). Although the tools had been purchased several years before the theft, the jurors viewed the tools on videotape and appellant was able to point out their age and used condition to the jury. Like the garden tiller at issue in Yarber v. State, 144 Ga. App. 781 (242 SE2d 372) (1978), used brand-name tools are “everyday objects” whose value can be estimated based on the knowledge and experience of the jurors coupled with the testimony of the owner, without the need for expert testimony. Accordingly, viewing the evidence in the light most favorable to the jury’s verdict, we conclude that a rational trier of fact could have found appellant guilty of felony theft beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In his second enumeration of error, appellant argues that his trial counsel did not render effective assistance as guaranteed by the Sixth Amendment. Specifically, appellant alleges that his counsel’s performance was deficient because (1) counsel urged him to plead guilty without investigating the facts of the case and then would not allow him to plead guilty on the false information counts when he wished to; (2) counsel based his defense in part upon his confusion at the time of his arrest, and the State was able to turn this defense around and use it against him in its closing argument; and (3) counsel failed to call an expert witness regarding the value of the stolen tools.

“To establish ineffective assistance of counsel, [appellant] must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. [Cits.] The proper measure of attorney performance is reasonableness under prevailing professional standards. [Cits.]” Gross v. State, 262 Ga. 232, 233 (1) (416 SE2d 284) (1992). Appellant’s first allegation, regarding counsel’s failure to investigate and refusal to allow him to plead guilty on the false identification counts, is based on assertions belied by the record and disputed by counsel at the evidentiary hearing on the motion. The trial court found counsel’s testimony at the hearing credible, and this finding is not clearly erroneous. Appellant’s second allegation, regard-J ing counsel’s reliance on appellant’s confusion as a defense to the false information charges, challenges counsel’s judgment in her choice of strategy and tactics. However, “[a]s to deficient performance, errors in judgment and tactical errors do not constitute denial of effective assistance of counsel. [Cit.]” Thompson v. State, 188 Ga. App. 508, 509 (373 SE2d 292) (1988); see also Hosch v. State, 185 Ga. App. 71 (2) (363 SE2d 258) (1987). Appellant’s third allegation, regarding counsel’s failure to call an expert witness on the value of the tools, also cannot provide the basis for a claim of ineffective assistance of counsel. As discussed in Division 1, expert testimony on the value of the tools was not necessary, so counsel’s decision not to obtain expert testimony was a tactical one which, even if erroneous, could not constitute the deficient performance necessary to constitute ineffective assistance.

Decided February 8, 1993.

Ronald C. Conner, for appellant.

Cheryl F. Custer, District Attorney, William F. Todd, Jr., Assistant District Attorney, for appellee.

The record shows that appellant’s trial counsel filed numerous pre-trial motions and challenged the admissibility of statements made by appellant in a Jackson-Denno hearing. Trial counsel testified that she unsuccessfully tried to track down witnesses who might support appellant’s story, with little help from appellant who could give her only first names and no addresses. The trial transcript reveals that counsel made objections, actively cross-examined witnesses, presented appellant as a witness, and moved for a directed verdict. After an evidentiary hearing at which both appellant and counsel testified, the trial court found that “the trial counsel’s performance was in no way deficient” and that appellant had received effective assistance from trial counsel. “A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. [Cit.] The trial court’s finding in the instant case is not clearly erroneous.” Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990). We therefore conclude that this enumeration of error is also without merit.

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


author: Pope, Chief Judge.

text:
    A92A1943.
    R. J. REYNOLDS TOBACCO COMPANY v. FISCHER.
    (427 SE2d 810)
   Pope, Chief Judge.

This appeal arises from a protective order entered by the Superior Court of Richmond County with regard to discovery sought in an action pending in a California court. Plaintiff Janet Mangini filed suit in a California trial court against R. J. Reynolds Tobacco Company and other defendants. Plaintiff Mangini filed her action as a private attorney general under applicable California law, alleging unfair business practices by defendants in their “Joe Camel” advertising campaign and seeking an order requiring corrective advertising and providing other injunctive relief. Defendant Reynolds then caused a deposition subpoena duces tecum to be issued to Dr. Paul M. Fischer, a Georgia resident who is not a party to the California suit. Reynolds sought to depose Fischer concerning the research he conducted for an article published in a medical journal on the effects of advertising on young children. Fischer obtained from the Richmond County court a protective order precluding the discovery sought by Reynolds.

1. Fischer has moved to dismiss this appeal on the grounds that the order appealed from was not a final judgment and thus an application for interlocutory appeal was required under OCGA § 5-6-34 (b). Even if an order does not specify that it is a grant of final judgment, “ ‘it nevertheless constitutes a final judgment within the meaning of (OCGA § 5-6-34 (a) (1)) where it leaves no issues remaining to be resolved, constitutes the court’s final ruling on the merits of the action, and leaves the parties with no further recourse in the trial court. (Cit.)’ [Cit.]” Vurgess v. State of Georgia, 187 Ga. App. 700, 701 (1) (371 SE2d 191) (1988). The only issue to be resolved by the Georgia trial court was the question whether Fischer was entitled to a protective order. Once the court granted the motion for protective order, Reynolds had no further recourse in the trial court. Consequently, Reynolds was entitled to appeal directly from the court’s order.

In his motion, Fischer also contended the issue raised is moot because summary judgment was granted defendants in the California action. The parties to the appeal have subsequently stipulated that the appeal is not moot because the plaintiff in the California action has appealed the grant of summary judgment.

2. Reynolds contends the trial court abused its discretion in completely disallowing discovery when the discovery was reasonably calculated to lead to the discovery of admissible evidence and less restrictive measures were available.

The purpose of the discovery rules “ ‘is to enable the parties to prepare for trial so that each party will know the issues and be fully prepared on the facts. Discovery is specifically designed to fulfill a two-fold purpose: issue formulation and factual revelation. The use of the discovery process has been held to be broadly construed.’ [Cit.]” Intl. Svcs. Ins. Co. v. Bowen, 130 Ga. App. 140, 143 (202 SE2d 540) (1973). Notwithstanding this policy in favor of broad construction of the discovery rules, trial courts also have wide latitude in determining whether proposed discovery is germane to the issues presented in the case. Henson v. American Family Corp., 171 Ga. App. 724, 732 (10) (321 SE2d 205) (1984); see Jackson v. Gordon, 122 Ga. App. 657 (178 SE2d 310) (1970). In previous cases, we have found no abuse of discretion in a trial court’s decision to limit or preclude discovery the court finds is not reasonably calculated to lead to the discovery of admissible evidence. Olukoya v. American Assn. of Cab Cos., 202 Ga. App. 251, 254 (3) (414 SE2d 275) (1991); Henson, supra.

Decided February 8, 1993.

Fulcher, Hagler, Reed, Hanks & Harper, James W. Purcell, for appellant.

Robert W. Hunter III, Solicitor, for appellee.

In the California case out of which this discovery dispute arises, plaintiff is contending that defendant Reynolds’ use of the “Joe Camel” logo on promotional material without including the federally mandated warning labels constitutes an unfair business practice under California law. The complaint included quotations from two articles published in the Journal of the American Medical Association concerning the effectiveness of the “Joe Camel” advertising campaign. In the same issue of the Journal, Fischer published an article entitled “Brand Logo Recognition by Children Aged 3 to 6 Years, Mickey Mouse and Old Joe the Camel,” which detailed the results of his research findings that young children absorb and remember advertising messages. Although no party to the California action has expressed a desire to call Fischer as a witness, Reynolds contends it is entitled to depose Fischer concerning the methodology and findings of his study and the identities of the participants because plaintiff might call a witness who might rely on Fischer’s findings.

We find no error in the trial court’s conclusion that the evidence sought was beyond the bounds of discoverable evidence. Plaintiff’s cause of action is based not on a contention that the Joe Camel advertising campaign influences young children, but on an allegation that the omission of the federal warning from the logo is an unfair business practice. Therefore, Fischer’s findings are not relevant to the claim as alleged in the complaint. Since the effect of the advertising is not in issue, any discovery from Fischer would not be reasonably likely to lead to admissible evidence. Accordingly, under the circumstances of this case, we find no abuse of the trial court’s discretion. See Olukoya, supra; accord Reece v. Selmonosky, 179 Ga. App. 718 (2) (347 SE2d 649) (1986).

3. Given our holding in Division 2, we need not address Reynolds’ remaining enumerations of error.

Judgment affirmed. Carley, P. J., and Johnson, J., concur.


text:
    A92A2402.
    BESS v. THE STATE.
    (427 SE2d 813)
   Johnson, Judge.

A jury found Tommy Lee Bess guilty of possession of cocaine with intent to distribute and possession of less than one ounce of marijuana. He appeals his conviction and the denial of his motion for a new trial, raising three enumerations of error.

1. Bess first contends that the state violated Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986) by exercising its peremptory strikes in a discriminatory manner. The state exercised five of its ten peremptory strikes. Each of the state’s peremptory strikes was used to excuse an African-American. Following a Batson motion made by the defense, the court made an inquiry concerning the number of African-Americans on the jury. The state’s attorney pointed out that 30.95 percent of the venire were black and the percentage of black members on the jury selected equalled 41.67. Based on that statement, the court concluded that the state had met its burden regarding the constitution of the jury and overruled the Batson motion.

The Georgia Supreme Court recently considered two cases in which Batson challenges were raised: Berry v. State, 262 Ga. 614 (422 SE2d 861) (1992), and Ford v. State, 262 Ga. 558 (423 SE2d 245) (1992). In Ford, 90 percent of the state’s peremptory strikes were exercised against African-Americans. The court noted, “As in Gamble v. State, 257 Ga. 325, 326 (357 SE2d 792) (1987) (quoting from Batson), this ‘overwhelming’ ‘pattern’ of strikes establishes a prima-facie inference of racial discrimination.” Id. at 559. At that point, the burden is placed on the prosecutor to prove that “the disproportionate exclusion of black jurors was not the result of the prosecutor’s conscious or unconscious animus against black jurors but was instead mere happenstance.” Id. In this case 100 percent of the strikes were exercised against African-American veniremen, and the trial court went no further than a statistical analysis of the racial composition of the venire and the jury. It did not require or even ask the state to offer any explanation regarding the basis of its strikes. In this respect, this case is similar to Berry, supra. In Berry, the Supreme Court remanded the case to the trial court for a hearing to conduct the “additional scrutiny” required by Weems v. State, 262 Ga. 101 (416 SE2d 84) (1992). In Weems, Berry, and this case, the percentage of African-Americans on the jury exceeded the percentage of African-Americans on the array. This factor alone is not determinative. See Gooden v. State, 204 Ga. App. 62 (418 SE2d 632) (1992). As in Weems and Berry, this case must be remanded to the trial court for a hearing on the issue of whether the prosecution’s strikes were racially neutral.

2. In his second enumeration of error, Bess asserts that the trial court erred in denying his motion for mistrial after his character had been improperly put into issue. Specifically, he points to the testimony of a police officer who stated that Bess had been under investigation three weeks prior to this particular incident, and later in his testimony, that he had “had dealings” with Bess previously. Objections to the testimony and motions for mistrial were timely made. The motions were overruled and the court gave curative instructions to the jury regarding the evidence. “[Wjhere prejudicial matters have been presented to the jury, the trial court, in its discretion, may determine whether a mistrial is required or whether the giving of cautionary instructions to the jury is an adequate remedial device. The granting or refusing of a motion for mistrial is necessarily a matter largely within the discretion of the trial judge, and unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial, the exercise of the judge’s discretion will not be interfered with.” (Citations and punctuation omitted.) Owens v. State, 204 Ga. App. 579, 580 (420 SE2d 79) (1992). We do not find that the trial court abused its discretion in giving cautionary instructions and refusing to grant a mistrial.

Decided February 8, 1993.

Jay P. Wells, for appellant.

John R. Parks, District Attorney, Henry O. Jones III, Assistant District Attorney, for appellee.

3. Finally, Bess argues that the court’s refusal to give his requested charge on circumstantial evidence was error. The trial court gave the jury the suggested pattern charge on circumstantial evidence. “A requested charge needs to be given only where it embraces a correct and complete principle of law adjusted to the facts and which is not otherwise included in the general instructions given.” (Citations and punctuation omitted.) Pace v. State, 201 Ga. App. 475, 476 (411 SE2d 361) (1991). After reviewing the charge submitted by Bess, we have determined that it does not differ in substance from the charge given. We therefore find no error in the court’s refusal to give Bess’ charge as submitted.

Judgment affirmed and case remanded for hearing. Pope, C. J., and Carley, P. J., concur.


text:
    A92A1996.
    CONSULTING CONSTRUCTION CORPORATION et al. v. EDWARDS.
    (427 SE2d 789)
   Blackburn, Judge.

Marilyn Edwards brought suit on a note against Consulting Construction Corporation (“the corporation”) and its president, Judson Breedlove, as guarantor. The defendants answered and counterclaimed, alleging fraud and deceit. After discovery was commenced, the plaintiff moved the court for summary judgment on both the note and counterclaim. The defendants subsequently moved to compel the discovery of various business records and other documents. The trial court denied defendants’ motion to compel discovery, but granted plaintiff’s motion for summary judgment on the note and the counterclaim, from which both defendants appeal.

The record reveals that the appellee operated a secretarial service and at one time subleased an office to the corporation and Breedlove. When Breedlove learned that the appellee desired to sell her business and move to Florida, he expressed an interest in purchasing certain assets of the business. The parties entered into negotiations concerning the sale of the equipment and inventory in addition to the secretarial service consulting portion of the business. The appellee submitted a proposal on the intangibles associated with the business, including the name of the business and client list. On March 8, 1990, the parties executed a “Sale of Assets Agreement” pursuant to which the corporation simultaneously signed a note and Breedlove signed a personal guaranty. The agreement represented “the entire agreement and understanding between the parties,” superseding “any prior agreement or understanding relating to the subject matter of [the] agreement.” The corporation made payment pursuant to the agreement during the months of March, April, May, and June of 1990. The corporation subsequently failed to make payments as they became due, and appellee, through counsel, exercised her right to accelerate the loan, demanding the entire balance. The appellants offered to negotiate the terms of the agreement by providing a cash repayment and returning some equipment. However, the parties were unable to resolve the appellant’s default and this action ensued.

1. The appellants contend that the trial, court erred by granting summary judgment to appellee on appellants’ counterclaim when genuine issues of fact remained to be decided concerning fraud and rescission. During the negotiations leading to the sale of assets, appellee proposed as a basis for the sale price of the business a sum that she represented as corresponding to one-twelfth of the business’ yearly gross receipts. The figure given by appellee was accepted by appellants, and the sale proceeded based thereon. Appellants now argue that the figure disclosed by appellee, which they claim induced them to purchase the business, was false.

A party opposing a motion for summary judgment is to be given the benefit of all favorable inferences that may be drawn from the evidence. Georgia Intl. Life Ins. Co. v. Huckabee, 175 Ga. App. 343, 345 (333 SE2d 618) (1985). Although the appellants assert that there is an issue of fact as to whether the contract was rescinded, the record shows that the appellants attempted to rescind the contract on December 2, 1991, in an averment in Breedlove’s affidavit proffered in opposition to appellee’s motion for summary judgment. Rescission must occur prior to and “ ‘as a condition precedent to the bringing of the action. . . .’ (Emphasis supplied.) [Cit.]” Nexus Svcs. v. Manning Tronics, 201 Ga. App. 255, 256 (2) (410 SE2d 810) (1991). The appellants’ attempt to rescind the contract in response to the appellee’s motion for summary judgment was untimely and not sufficient to authorize their recovery. As a result, the appellants affirmed a contract which contained a merger clause. “ ‘(W)here the purchaser affirms a contract which contains a merger or disclaimer provision and retains the purchased articles, he is estopped from asserting that he relied upon the seller’s misrepresentation and his action for fraud must fail. (Cit.)’ [Cit.]” Roth v. Bill Heard Chevrolet, 166 Ga. App. 583, 584 (305 SE2d 31) (1983). The appellants have affirmed the contract and are bound by its terms, which include a merger and entire-ties clause, providing that the contract constituted “the entire agreement and understanding between the parties and supersede any prior agreement and understanding relating to the subject matter of [the] agreement.” Construing the evidence in the light most favorable to the appellants, we hold that the trial court properly granted the appellee’s motion for summary judgment on the appellants’ counterclaim as a matter of law.

Even assuming, arguendo, that a question of fact exists as to whether appellants affirmed the contract and consequently whether their counterclaim sounds in tort rather than in contract, an action for misrepresentation requires proof of five elements, including appellants’ justifiable reliance on appellee’s false representations. See Ekstedt v. Charter Med. Corp., 192 Ga. App. 248, 249 (1) (384 SE2d 276) (1989). Before signing the sales contract, appellants did not request that appellee disclose income tax records for the purpose of verifying appellee’s statements regarding the gross receipts of the business they were purchasing. They simply accepted appellee’s figure. Under these circumstances, their blind reliance on this figure must be considered unjustified as a matter of law. See Bennett v. Clark, 192 Ga. App. 698, 699 (1) (385 SE2d 780) (1989); Roller-Ice v. Skating Clubs of Ga., 192 Ga. App. 140, 143 (384 SE2d 235) (1989) (Beasley, J., concurring specially). Accordingly, as an essential element of a fraud claim was missing, summary judgment in appellee’s favor was proper. Bennett v. Clark, supra at 699.

2. Because we have held in Division 1 that appellants’ fraud claim is precluded as a matter of law, it follows that the trial court did not err by denying appellants’ motion to compel discovery.

3. Appellants maintain that the trial court erroneously awarded prejudgment interest to the appellee. Appellants argue that OCGA § 13-6-13 has been construed as vesting discretion to award prejudgment interest exclusively in the factfinder, and because appellants had requested a jury trial, the trial court was not the factfinder and consequently was without authority to make such an award. We find no merit in this enumeration. Section 13-6-13 is applicable to cases involving unliquidated damages. Braner v. Southern Trust Ins. Co., 255 Ga. 117, 119 (1) (335 SE2d 547) (1985). A debt is liquidated when it is certain how much is due and when it is due. Typo-Repro Svcs. v. Bishop, 188 Ga. App. 576, 579 (2) (373 SE2d 758) (1988). Because the amount due on the note and personal guaranty forming the subject matter of this action were ascertainable under the terms of the instruments, the damages sought were liquidated. Consequently, OCGA § 7-4-15, which provides that “[a]ll liquidated demands . . . bear interest from the time the party shall become liable and bound to pay them,” is the statute applicable to the award of prejudgment interest in the case at bar. The award of prejudgment interest pursuant to OCGA § 7-4-15 is mandatory rather than discretionary, Brandt v. Eckman, 79 Ga. App. 47, 55 (8) (52 SE2d 665) (1949), and is awarded by a judge as a matter of law. See American Family Life Assur. Co. v. U. S. Fire Co., 885 F2d 826, 836 (18) (C) (11th Cir. 1989). Accordingly, the trial court did not err by including prejudgment interest in the summary judgment awarded to appellee.

Decided January 22, 1993

Reconsideration denied February 9, 1993

B. Dean Grindle, Jr., for appellants.

Jackson & Tyler, Michael A. Dominy, for appellee.

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.


text:
    A92A1871.
    SHAW v. RUIZ.
    (428 SE2d 98)
   Blackburn, Judge.

Appellee Manuel C. Ruiz filed a suit on a promissory note and for damages against Armour Alloy, Inc. and appellant Neil Shaw. After the filing of responses and counterclaims, a pretrial order was issued setting forth a succinct outline of the facts and contentions to be tried, as follows: Ruiz and Shaw were the co-owners of Armour Alloy, Inc. Ruiz sold his stock back to the corporation so that Shaw would be the sole owner in exchange for $20,000 cash and a promissory note in the amount of $50,000. Industrial Equipment Company, another corporation owned by Shaw which was added by amendment as a party defendant, made two payments on the note but no payments were received from Shaw or Armour Alloy. The defendants were also alleged to have refused to pay Ruiz certain sales commissions and design fees owed him in the amount of $4,710. Ruiz further claimed that Shaw fraudulently transferred all of Armour Alloy’s assets to Industrial Equipment Company so that Armour Alloy was unable to pay the note. He sought to recover the sum of the promissory note plus accrued interest, his commission and design fees and punitive damages as a result of Shaw’s fraudulent conduct. The issues were tried before a jury which returned a verdict in favor of Ruiz, including special interrogatories finding that Armour Alloy was not insolvent when it issued the promissory note and that the corporate veil had been pierced. The jury awarded Ruiz $70,911.65 in general damages, $10,636.75 attorney fees and $12,500 punitive damages. Shaw appeals from the denial of his amended motion for new trial, enumerating 17 separate errors.

1. Shaw contends that the trial court erred in failing to bifurcate the trial on the issue of punitive damages as required by OCGA § 51-12-5.1 (d) (2). The cause of action arose here subsequent to the effective date of the statute, and thus it should have controlled the trial procedure. However, this court has previously held that where this occurs a litigant cannot acquiesce in the form of the verdict used and then contest it on appeal. Miles Rich Chrysler-Plymouth v. Massachusetts, 201 Ga. App. 693 (1) (411 SE2d 901) (1991); Dunkin’ Donuts v. Gebar, 202 Ga. App. 450 (3) (414 SE2d 683) (1992). Here the trial transcript shows that there was a prolonged, detailed discussion between the parties concerning the jury interrogatories and the form of the verdict, but at no time was the bifurcation issue raised nor was any objection made either before or after the jury was instructed. Accordingly, there is no basis for complaint in this regard.

2. Likewise, no reversible error occurred because the trial court’s charge to the jury applied the principles found in OCGA § 51-12-5, which have been replaced by those enunciated in OCGA § 51-12-5.1. The judge specifically inquired at the end of his jury instructions if either counsel had any objections, and both attorneys stated that they had none. Such specific acquiescence waives any objections to the charge as given. Von Hoff v. Carmichael, 204 Ga. App. 760 (1) (420 SE2d 643) (1992).

There was no error in the charge so substantial as to be harmful as a matter of law, which would require our review under the exception set forth in OCGA § 5-5-24 (c). Tahamtan v. Tahamtan, 204 Ga. App. 680 (6) (420 SE2d 363) (1992). Under the charge given, the jury was to award punitive damages only if they found fraud had been committed; OCGA § 51-12-5.1 (b) also authorizes punitive damages when fraud has been shown. Contrary to Shaw’s assertion, no mention was made of compensation to the plaintiff. Rather, the jury was told to award such damages to deter the wrongdoer from repeating the wrong, which is in accordance with OCGA § 51-12-5.1 (c). Shaw also argues that under the bifurcation procedure in OCGA § 51-12-5.1 (d) (2), which allows new evidence of what amount of damages is sufficient to deter, penalize or punish the defendant, the jury would have realized his weak financial condition at the time and might have awarded less or no punitive damages. This contention is at best conjectural and there is no evidence of record in regard to his financial status. “The burden is on the one who asserts error to show it affirmatively by the record, and the briefs of the parties cannot be used in lieu thereof for adding evidence to support or refute a claim. [Cit.]” Miller v. Tranakos, 198 Ga. App. 668, 671 (3) (402 SE2d 772) (1991).

3. Shaw insists that the trial court erroneously denied his motions for directed verdict on the issue of punitive damages because all legal theories pursuant to which the evidence was presented were based upon the old law in OCGA § 51-12-5, and the evidence was not adjusted to the new principles. For the reasons set forth above, there is no merit in this claim.

4. Shaw complains that the trial court erred in sustaining an objection on the ground of relevance when he asked Ruiz how he got certain work in South America after he sold his stock and left Armour Alloy. Pretermitting any issue of whether such evidence was admissible for impeachment purposes, the trial transcript shows that this question was asked and answered in subsequent cross-examination, thereby curing and rendering harmless any error in sustaining the objection complained of. Seay v. Urban Medical Hosp., 172 Ga. App. 344 (2) (323 SE2d 190) (1984).

5. Shaw protests the trial court’s overruling his objection based on lack of relevance to questions about whether he was initially unwilling to incorporate the partnership with Ruiz because of his ongoing divorce proceedings. The questions objected to alluded to a letter from Shaw’s attorney to his accountant, which was admitted in evidence without objection, explaining that in early 1985 Shaw “was not willing to incorporate because of his then hotly contested divorce.” Shaw testified only that he was not trying to hide anything from his wife and that he could not answer why his lawyer made the statement. “No other grounds for the objection appear in the record. Objections based on the irrelevancy of evidence are insufficient to show reversible error. [Cit.] Further, ‘(q)uestions of relevancy are within the domain of the trial court.’ [Cit.] The trial court did not abuse its discretion in allowing the testimony, and there was no reversible error.” Davis v. Knight, 195 Ga. App. 726 (2) (394 SE2d 634) (1990).

6. Shaw contends that the trial court incorrectly ruled that two invoices from a company in Cartersville, Georgia, to an individual in Columbia, which he tendered in support of his allegations of fraud and conspiracy on the part of Ruiz, as well as the insolvency of Armour Alloy, were irrelevant because they did not show interference with contractual relations and were therefore inadmissible. The trial court pointed out to Shaw at the time of his objection that he had not pled fraud and the issue was not included in the pre-trial order. During a lengthy colloquy outside the presence of the jury, Shaw’s attorney admitted the invoices did not show that any money was lost by Armour Alloy. Moreover, Shaw did not prepare or supervise preparation of the documents, and thus could not connect them to the case to prove any element of contractual interference. “ ‘Testimony concerning information acquired solely through books and records kept by a third person is inadmissible as hearsay.’ [Cits.]” Dunwoody-Woodlands Condo. Assn. v. Hedquist, 199 Ga. App. 91, 92 (2) (403 SE2d 893) (1991). Again, no reversible error has been shown.

7. In Enumerations 7 and 8, Shaw complains about the trial court’s sustaining an objection to his asking Ruiz to look at a stock purchase agreement and testify how much cash Armour Alloy had on a certain date. The trial transcript reveals that this document had already been introduced in evidence and there had been other testimony about it. There being competent evidence concerning the stock purchase agreement, the refusal to allow Ruiz’s testimony in this regard was not reversible error. Ogletree v. Brokers South, 192 Ga. App. 53 (4) (383 SE2d 900) (1989).

8. The trial court sustained an objection on the basis that a legal conclusion was called for when Shaw was asked if he felt Ruiz had “a responsibility for that equipment in South America and a responsibility for a portion of its payment, and if so, why?” Shaw suggests that this question does not call for a legal conclusion, but for an opinion which any lay person might be likely to have concerning business investments. “[W]hether a question calls for a legal conclusion^] or principally a fact which incidentally involves a legal word or phrase, is within the sound discretion of the trial court. [Cits.]” Gage v. Tiffin Motor Homes, 153 Ga. App. 704, 708 (2) (266 SE2d 345) (1980). Shaw made no proffer of what he expected this testimony to show, nor did he rephrase the question to clarify that the “responsibility” he asked about did not refer to a contractual requirement or statutory duty to pay for the equipment, thereby calling for Shaw’s conclusion as to the legal import of Ruiz’s actions. Under these circumstances, we find no abuse of discretion by the trial court in prohibiting the witness from answering the question. Compare Dept. of Transp. v. Franco’s Pizza &c., 200 Ga. App. 723 (2) (409 SE2d 281) (1991).

9. Enumeration 10, which asserts error in the trial court’s refusal to admit a document which Shaw claimed would show Ruiz’s efforts to divert business away from Armour Alloy, is without merit. This exhibit was a purchase order from one company to another, neither of which were parties to the litigation, and no witnesses representing them were called to testify as to the authenticity of the document. “Before a writing or record is admissible, under OCGA § 24-3-14 (b), a foundation must be laid through the testimony of a witness who is familiar with the method of keeping the records and who can testify thereto and to facts which show that the entry was made in the regular course of . . . business at the time of the event or within a reasonable time thereafter. [Cit.]” (Emphasis omitted.) Hertz Corp. v. McCray, 198 Ga. App. 484, 485 (2) (402 SE2d 298) (1991).

10. Shaw argues that the trial court erred in refusing to grant his motions for directed verdict as to his personal liability on the basis that the transactions involved were corporate undertakings. The trial judge denied the motion on the grounds that material questions of fact existed as to whether Shaw used corporate funds to pay a personal debt and whether subsequent to entering into the stock purchase agreement Shaw transferred the assets of Armour Alloy to another corporation of which he was the sole stockholder; and that it was a jury question as to whether or not this action and conduct would warrant piercing the corporate veil and holding Shaw personally liable.

“When determining whether a trial court erred by denying a motion for a directed verdict, this court reviews and resolves the evidence and any doubts or ambiguities in favor of the verdict. A directed verdict is not authorized unless there is no conflict in the evidence on any material issue and the evidence introduced, with all reasonable deductions demands a certain verdict. OCGA § 9-11-50 (a); Southern Store &c. Co. v. Maddox, 195 Ga. App. 2, 3 (392 SE2d 268) [1990].” Canal Ins. Co. v. Wilkes Supply Co., 203 Ga. App. 35, 36 (2) (416 SE2d 105) (1992). Our review of the record discloses conflicting evidence in regard to these material issues which does not demand a verdict in Shaw’s favor. “Where there exist disputed issues of material fact, as in the case sub judice and there is any evidence in the record from which the jury could find in favor of the party opposing the motion, it would be improper for the trial court to direct a verdict. Accordingly, the trial court properly denied [Shaw’s] motion for a directed verdict.” (Emphasis omitted.) Swint v. Smith, 204 Ga. App. 54, 55 (1) (418 SE2d 375) (1992).

11. Shaw protests the trial court’s grant of Ruiz’s motion for directed verdict on two counts of Shaw’s counterclaim for breach of contract seeking damages for lost profits as a result of Ruiz’s alleged failure to use his best and reasonable efforts to generate sales. He argues that there is evidence of record that Ruiz quit work before termination of an agency agreement to maintain sales at or above the level Armour Alloy had achieved in previous years; that there was evidence indicating that Ruiz breached the term of the agreement prohibiting him from representing any other business marketing the same or similar products; and that the jury thus had some basis to conclude that the breach of this agreement resulted in a loss of sales and could “calculate a projection” for lost sales and profits as an amount of damages.

The evidence presented was insufficient to create any material issues of fact for jury resolution. The agreement expressly provided that Ruiz was not required to “devote all of his working time and efforts” to Armour Alloy’s business. To establish damages, Shaw could only estimate his profit margin to be 15 to 20 percent of gross sales and was unable to produce any past records of sales to substantiate the $79,154 in lost sales he claimed. The figures were based solely upon written and telephone inquiries Shaw testified he made to customers, and he admitted on cross-examination that the amount of $79,000 was gross sales from which he would have earned only $10,000 to $15,000 in profit.

“Ordinarily, anticipated profits are too speculative to be recovered, ‘but where the business has been established, has made profits and there are definite, certain and reasonable data for their ascertainment, and such profits (were) in the contemplation of the parties at the time of the contract, they may be recovered . . . even though they can not be computed with exact mathematical certainty.’ [Cit.] However, a claimant may recover lost profits ‘only if the business has a proven “track record” of profitability. The jury is not permitted to speculate as to what the allegedly lost profits might have (been). (Cit.)’ [Cits.]” Empire Shoe Co. v. Nico Indus., 197 Ga. App. 411, 413-414 (2) (398 SE2d 440) (1990).

“ ‘[T]o recover lost profits one must show the probable gain with great specificity as well as expenses incurred in realizing such profits. In short, the gross amount minus expenses equals the amount of recovery.’ [Cit.] Further, the losses must be directly traceable to the acts of the other party. [Cit.]” Grossberg v. Judson Gilmore Assoc., 196 Ga. App. 107, 108-109 (2) (395 SE2d 592) (1990). We agree with the trial court that Shaw’s alleged lost profits were too remote and speculative to be recovered as “there is no evidence of either net profits or data from which [Armour Alloy’s] net profits from [such sales] could be calculated.” Id. at 109.

12. A directed verdict was also granted as to Court 3 of the counterclaim for malicious interference with contractual relations and Count 5 alleging that Ruiz breached a covenant not to sue. Shaw contends this was erroneous because there was sufficient conflict in the evidence to raise a jury question on these issues. However, the transcript discloses that when the trial judge was considering the motion for directed verdict and offered to let Shaw present evidence on these allegations if he had any, his attorney replied that he had no such evidence.

13. Shaw claims further error in the grant of directed verdict on Count 4 of the counterclaim in which he sought punitive damages. OCGA § 51-12-5.1 (b) permits the award of punitive damages only in tort actions where it is proved by clear and convincing evidence that the defendant’s actions showed wilful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences. The trial court correctly ruled that there had been no such evidence presented to authorize an award of punitive damages. Moreover, Shaw renewed his objection to the directed verdict only as to Counts 1 and 2 for breach of contract, and his lawyer agreed when the judge pointed out that even if these counts went to the jury punitive damages would not be authorized on a contract claim.

14. Shaw’s Enumeration 16, assigning error to the denial of his motion for judgment n.o.v., has not been argued in his brief and is in any event without merit. See Stone v. Allen, 201 Ga. App. 842 (1) (412 SE2d 605) (1991).

15. Shaw asserts that the trial court improperly ruled that an amendment to his counterclaim filed on the first day of trial seeking return of funds he had paid Ruiz on the promissory note was a compulsory counterclaim under OCGA § 9-11-13 (a) because it arose out of the same transaction that was the subject matter of Ruiz’s suit. Shaw argues that the claim did not arise until a factual determination was made whether Armour Alloy was insolvent at the time of the transaction, and under these peculiar circumstances the law should allow an amendment. However, Shaw did not seek leave of court to file the amendment.

As noted by the trial judge, the correct procedure for the late filing of a compulsory counterclaim is pursuant to OCGA § 9-11-13 (f), which provides that leave of court is necessary before an omitted counterclaim may be set up. Permitting the filing of such a counterclaim is within the discretion of the trial court. Martin & Jones Produce v. Lundy, 197 Ga. App. 38 (2) (397 SE2d 461) (1990). Ruiz introduced in evidence two letters he received from Shaw’s attorney three to four months after the note involved in the suit was executed claiming that Armour Alloy was insolvent and unable to pay off the note. “[T]his court has held that compulsory counterclaims may not be added by amendment where the defendant has knowledge of the claims at the time the defensive pleadings were prepared and filed in the first instance. [Cit.]” Haire v. Suburban Auto Body, 204 Ga. App. 16, 17 (2) (418 SE2d 163) (1992). We find no abuse of discretion, and conclude that the amended motion for new trial was properly denied.

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.

Decided February 9, 1993.

Davis, Gregory & Christy, Hardy Gregory, Jr., for appellant.

McCurdy & Candler, Dana B. Miles, Donald C. Suessmith, Jr., for appellee.


text:
    A92A1879.
    MITCHELL v. THE STATE.
    (427 SE2d 814)
   Cooper, Judge.

Appellant was convicted by a jury of aggravated assault (OCGA § 16-5-21) and appeals from the judgment of conviction, sentence, and denial of his motion for a new trial.

The victim testified at trial that as she and her seven-year-old daughter were getting into their car in a mall parking lot, a man came up behind her and grabbed her. When she turned around to look at her assailant, he hit her in the face, threw her in the car, and told her he had a gun and would kill her. He went through her purse looking for money, but she did not have any. He then told the victim to move over and let him in the car. She looked up and said her husband was coming, and the assailant dropped the purse and fled. After the attacker fled, the victim reported the incident to mall security and the police, giving them a description of her assailant. Appellant was arrested across the street from the mall approximately forty-five minutes after the assault and approximately five minutes after the description of the attacker was transmitted over police radio. The attack occurred early in the afternoon on a very sunny day and a police officer testified that appellant fit the victim’s description almost exactly. The victim identified appellant as her attacker at trial and had identified him from a photo line-up the day after the incident. Appellant’s ex-girl friend testified as an alibi witness for him and stated that she had been talking on the phone with him at the time the attack occurred.

1. Appellant argues that the trial court improperly allowed the State to place his character in issue by eliciting testimony regarding appellant’s prior bad acts during its cross-examination of his alibi witness. Specifically, he objects to the State’s questions regarding two occasions on which appellant beat the witness so seriously that she took out warrants for his arrest. “ ‘It is proper for the State’s counsel, in the cross-examination of a witness for the accused, to bring out the relationship existing between the witness and the accused, for the purpose of showing the bias or prejudice of the witness, or for the purpose of showing the probability that the witness is testifying in behalf of the accused by reason of duress or fear.’ [Cits.]” Whatley v. State, 165 Ga. App. 13 (1) (299 SE2d 87) (1983). As in Whatley, the State’s questions in this case were for the purpose of showing that the witness may have had reason to fear or be intimidated by appellant, and “[a] defendant’s character is not placed in evidence in the sense that doing so is proscribed where the evidence, offered for another purpose, may tend incidentally to do so. [Cits.]” Collins v. State, 129 Ga. App. 87, 88 (2) (198 SE2d 707) (1973). Contrary to appellant’s assertions, the State’s questioning on this subject was not needlessly repetitive or extensive, and the discussion of the aftermath of the arrests which appellant contends was highly prejudicial occurred outside the presence of the jury. Accordingly, the trial court did not err in denying appellant’s motion for new trial on this ground.

2. Appellant contends that the evidence against him was insufficient because the victim was the only eyewitness and she did not view her assailant long enough or well enough to be able to state with certainty that appellant was her attacker. We disagree. The victim was attacked in broad daylight on a sunny day. Although the incident was brief, she was able to look directly at her assailant for at least several seconds. She gave a description of the attacker and his clothing to the police, and appellant matched this description almost exactly when he was arrested across the street from the mall approximately 45 minutes after the assault. The victim identified appellant from a photo array one day after the attack and independently from memory at trial. On cross-examination of the victim, appellant was able to emphasize to the jury the brevity of the victim’s view of her assailant as well as the fact that she was upset at the time, but these factors did not demand a conclusion that the victim’s identification of appellant was unbelievable. “The credibility of the witnesses is a question of fact for the jury. [Cit.]” Howard v. State, 165 Ga. App. 555 (1) (301 SE2d 910) (1983). Viewing the evidence in a light to support the verdict, rational jurors could find appellant guilty of aggravated assault beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

In the same enumeration of error, appellant asserts that the victim’s pre-trial identification of appellant from a photo line-up was improper because the procedures used may have been unduly suggestive of appellant’s guilt. Having reviewed the record, we find nothing therein that “intimates” that the photo line-up procedures were improper as appellant suggests. Moreover, appellant made no objection at trial when the State briefly questioned the victim about the photo line-up; nor did he mention the line-up in his brief in support of his motion for new trial. Because this argument is presented for the first time on appeal, it presents nothing for review. Holland v. State, 197 Ga. App. 496 (1) (398 SE2d 810) (1990).

3. Lastly, appellant argues that the trial court erred in failing to sua sponte inquire into appellant’s competency prior to entry of judgment and sentencing, citing Baker v. State, 250 Ga. 187 (1) (297 SE2d 9) (1982). Appellant contends that the court was required to do so when appellant’s mother testified in mitigation in a pre-sentence hearing that appellant had always been slow, could hardly read and write, had attended special education classes in school and had been called mentally retarded. In response to defense counsel’s question regarding whether she thought appellant understood the proceedings, she responded that she did not think he did. “The constitutional guarantees require the trial court to inquire into competency, even when state procedures for raising competency are not followed, if evidence of incompetence comes to the court’s attention.” Baker, supra at 190. We reject the State’s argument that appellant waived his right to a determination of competency because the alleged evidence of incompetence did not come to the court’s attention until after the jury had rendered its verdict. See id. at 190-191 (“ ‘[I]f at any time while criminal proceedings are pending, the court observes facts which raise doubt as to the sanity of the accused, or such facts are brought to its attention by counsel, the question of his sanity should be settled before further steps are taken.’ [Cit.]”) Thus, the question is posed: “ ‘Did the trial judge receive information which, objectively considered, should reasonably have raised a doubt about defendant’s competency and alerted him to the possibility that the defendant could neither understand the proceedings or appreciate their significance, nor rationally aid his attorney in his defense?’ [Cit.]” Id. at 190. The information which gives rise to such a doubt generally will include reports of the accused’s irrational behavior, the accused’s demeanor at trial, or expert medical opinions regarding the accused’s competency. See Norris v. State, 250 Ga. 38, 41 (3) (295 SE2d 321) (1982); White v. State, 202 Ga. App. 424, 425 (414 SE2d 328) (1992). While this list is not necessarily all-inclusive, we note that no information of this nature was present in this case. Moreover, at the time the court received appellant’s mother’s testimony, it had just finished a trial in which it had the opportunity to view appellant behaving normally and cooperating with counsel in his defense to the extent of producing an alibi witness. Under these circumstances, the testimony of appellant’s mother did not constitute information which, objectively considered, should reasonably have raised a doubt about appellant’s competency. Accordingly, the trial court did not err in failing to inquire further into appellant’s competency sua sponte.

Decided February 9, 1993.

Valerie T. Bryant, for appellant.

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

H. Lamar Cole, District Attorney, Robert T. Gilchrist, Assistant District Attorney, for appellee.


text:
    A92A1981.
    SHELLMAN v. THE STATE.
    (427 SE2d 817)
   Cooper, Judge.

Appellant appeals his conviction by a jury of armed robbery. He enumerates as error the trial court’s charge to the jury on armed robbery and the trial court’s refusal to accept appellant’s guilty plea to a lesser charge.

The trial transcript reveals that early one morning appellant entered a convenience store. The store clerk noticed something bulging at appellant’s waistband, and believing the bulge to be a gun, she activated the silent alarm. Appellant approached the counter and placed a package of cigarettes on the counter. The store clerk rang up the amount of the cigarettes. Appellant then reached into his pants, and the clerk could see something sticking out which looked like a gun barrel. Appellant demanded that the clerk give him all of the money in the drawer, and as the clerk took the money out of the drawer, she set off another alarm. The clerk then gave the money to appellant, and appellant ran out of the store but was subsequently apprehended by the police.

1. In his first enumeration of error, appellant contends that the trial court erred in charging the jury on armed robbery. Appellant argues that the charge was not authorized because there was no evidence of a weapon being used by appellant. The store clerk testified that she saw a bulge on the right side of appellant’s waistband which appeared to her to be a gun barrel. She stated further that appellant had something underneath his shirt which he was pointing at her. “ ‘The presence of a weapon during commission of a robbery, necessary to a conviction for armed robbery, may be established by circumstantial evidence, and a conviction for armed robbery may be sustained even though the weapon itself was neither seen nor accurately described by the victim. Some physical manifestation of a weapon is required, however, or some evidence from which the presence of a weapon may be inferred.’ [Cit.]” Hughes v. State, 185 Ga. App. 40, 41 (363 SE2d 336) (1987). We conclude that there was evidence from which the presence of a weapon could be inferred. Accordingly, the trial court did not err in charging the jury on armed robbery.

2. In his second enumeration of error, appellant contends that the trial court erred in not accepting his guilty plea to the lesser included offense of robbery by intimidation. After the jury had been selected and before opening statements, appellant attempted to enter a plea of guilty to the lesser charge of robbery by intimidation. However, when the trial judge questioned appellant about the facts of the case, appellant maintained that he argued with the store clerk about short changing him and the clerk gave him the money in the cash register. Appellant also stated that he did not do anything to create a fear of danger in the mind of the store clerk. The trial judge determined that there was no factual basis for the guilty plea because appellant was not admitting his guilt to robbery by intimidation. “[A] trial court is not required to accept a criminal defendant’s plea of guilty. [Cits.]” Echols v. State, 167 Ga. App. 307, 308 (1) (306 SE2d 324) (1983). In light of appellant’s testimony to the court, we find no error in the trial judge’s refusal to accept appellant’s guilty plea.

Decided February 9, 1993.

Jon G. Branan, for appellant.

Dupont K. Cheney, District Attorney, Charles D. Howard, Assistant District Attorney, for appellee.

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


text:
    A92A2009.
    HALL v. BUSSEY et al.
    (427 SE2d 818)
   Blackburn, Judge.

Harold Bussey and Annie Ealy Bussey brought suit against Mattie Hall, alleging that Hall’s operation of a day care center at her home constituted a nuisance. After a jury found that the center was a nuisance, the trial court entered judgment against Hall, ordering that the nuisance be abated and permanently enjoining her from “maintaining said nuisance.” The trial court dismissed Hall’s notice of appeal for failure to timely file the transcript, and this court affirmed the dismissal. Hall v. Bussey, 200 Ga. App. 311 (408 SE2d 430) (1991). In March 1992, the Busseys filed a petition for contempt, claiming that Hall had failed to comply with the prior judgment. The court entered an order holding Hall in contempt, and she appeals.

1. Appellant first contends the trial court erred by proceeding with the contempt hearing without allowing her 30 days to respond to the petition as required by USCR 6.2. The record reveals that appellees filed their petition on March 13, 1992, and mailed a service copy to appellant’s counsel on that date. On the same day, appellees also obtained and served upon appellant a rule nisi setting a hearing for March 25.

USCR 6.2, when read in conjunction with USCR 6.1, provides that when motions are filed in civil actions prior to trial, the opposing party shall file a response “not later than 30 days after service of the motion.” A contempt petition, however, is not a pretrial motion, but is an independent proceeding. Gibson v. Gibson, 234 Ga. 528, 529-530 (2) (216 SE2d 824) (1975); see OCGA § 15-1-4 (a) (3). Thus, USCR 6.2, which governs pretrial motions, does not apply. Accord Gibson, supra (OCGA § 9-11-6 (d) (former Ga. Code Ann. § 81A-106 (d)), which sets time for service of written motions and notices of hearings, does not apply to contempt proceedings).

Decided February 9, 1993.

John M. Clark, for appellant.

Evita A. Paschall, for appellees.

2. Appellant next contends the trial court abused its discretion in declining to grant her a continuance for the March 25 hearing. While no transcript of the contempt hearing is included in the record, appellant’s counsel in the trial on the nuisance action testified by affidavit that he appeared at the contempt hearing on appellant’s behalf and requested a continuance, but the court denied the request and proceeded with the hearing.

“It is well established that all continuances for which express provision has not been made [by statute] are granted or denied in the discretion of the trial court, and this court will not reverse such decisions absent a clear abuse of discretion. [Cits.]” Payton v. Green, 179 Ga. App. 438, 439 (346 SE2d 884) (1986). We deduce from the affidavit of appellant’s, counsel that he appeared at the hearing and requested a continuance on the ground that he had not had adequate time to prepare, but the trial court, after considering the circumstances, found insufficient justification to grant the continuance. “In the absence of the transcript of that hearing or other showing by appellant that the trial court abused its discretion by denying the motion, we will not reverse the decision. [Cits.]” Id. at 440.

3. In her final enumeration of error, appellant contends the trial court found her in contempt of the prior judgment without hearing evidence of abatement of the nuisance. “In the absence of a transcript of evidence, we must assume that the trial court’s order is supported by sufficient evidence. [Cit.]” Manufacturers Nat. Bank v. Tri-State Glass, 201 Ga. App. 253, 254 (1) (410 SE2d 808) (1991). Accordingly, we must assume sufficient evidence was presented at the hearing to support the trial court’s finding that appellant had failed to comply with the prior judgment compelling her to abate the nuisance. Id.

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.


text:
    A92A2376.
    PAYNE v. THE STATE.
    (428 SE2d 103)
   Blackburn, Judge.

The appellant, George Donald Payne, was convicted of incest and two counts of rape, with each offense involving his mentally retarded twenty-two-year-old daughter. He was sentenced to two life sentences for the rape convictions, and to twenty years in prison for the incest conviction, all to be served consecutively, and this appeal followed.

At the trial, the appellant’s daughter testified that her mother usually took her sister to the doctor on Wednesdays, and that she was left alone with the appellant. On those occasions, the appellant would take her upstairs to her bedroom, tell her to lie down on the bed, and then make her have sex with him. She described his erection, ejaculation, and use of a condom. On another occasion, they had also had sexual intercourse in the woods. After each incident, the appellant told her not to tell anyone about what they had done, and she had felt threatened by that instruction. When asked how many times her father had made her have sex with him, she initially indicated once, but later stated that it occurred every Wednesday. She denied having sexual experiences with anyone else.

An emergency room physician examined the appellant’s daughter on August 19, 1991, and observed inflammation of the vaginal wall that was suggestive of sexual abuse over an extended period of time. The daughter’s hymen was absent. A clinical psychologist evaluated the daughter on September 17, 1991, and found her to have a full scale IQ of 59, which fell within the middle range of mild mental retardation. The psychologist estimated that the daughter had the mental development of an 11- or 12-year-old child, and was of the opinion that she was incapable of relating in an adult-like manner or consenting to sexual activity.

After interviews with several members of the appellant’s family, including his wife, daughter, and son, an investigator with the Dade County Sheriff’s Department obtained an arrest warrant for the appellant around August 16, 1991. When the appellant was finally apprehended a few weeks later, he gave custodial statements in which he stated that things would not have happened to his daughter if he had not been drinking so heavily at the time, and indicated that it had only happened two or three times. He admitted that he needed help for his “drinking and sex problem.”

The appellant’s wife testified against him and told how she had suspected that he had been abusing their daughter for several years. In fact, about 12 years earlier, she had instigated his arrest for such sexual abuse, but the charges were dropped when the daughter would not talk about the matter. She also stated that she and the appellant had remained sexually active up until the time she reported his sexual abuse of their daughter to the police in August 1991. The only problem she had noticed regarding the appellant’s sexual activity had been his insatiable appetite. She stated that he had never gone to any doctor regarding a problem with sexual dysfunction.

The state presented evidence of similar transactions in which the appellant had sexually abused two of his nieces. One incident involved his fondling and kissing a 13-year-old niece in July 1991. Two other incidents involved his fondling of a seven- or eight-year-old niece in 1978 or 1979, and his subsequent rape of that same niece when she was 13 years old.

The appellant testified and denied any sexual contact between him and his daughter, and with any of his nieces. He stated that he could not have engaged in the alleged sexual experiences with his daughter because he has been impotent since a back operation in 1984. He also claimed to have been examined by a physician for that problem, but he could not remember the name and location of that doctor. The appellant acknowledged initialling the custodial statements made after his arrest, but stated that he had not actually read what was written down by the interrogating officer. He suggested that so many members of his family had accused him of sexual offenses because they wanted to get rid of him.

1. The appellant contends that the trial court erred in denying his motion for a continuance, which was based upon counsel for the appellant not having sufficient time to prepare for trial. The appellant’s attorney indicated that he had been appointed as counsel for the appellant on October 22, 1991, and had first met with him three days later. He was able to interview several of the state’s witnesses, including the daughter, and at first it was anticipated that the appellant would enter a guilty plea on November 1, 1991. On that date, however, the appellant changed his mind, resulting in the matter going to trial on November 13, 1991.

The appellant’s attorney asserted that because of his heavy trial load in other cases, he had not had time to locate a physician who supposedly examined the appellant for his complaint of impotency. The attorney acknowledged that the appellant could not remember the name and location of the doctor in question, but suggested that the orthopedic surgeon in Tennessee who performed the appellant’s back surgery might be able to provide that information.

The state points out that during a calendar call on November 4, 1991, the appellant had announced ready. The motion for continuance was not made until the case was actually called for trial nine days later on November 13, 1991. When the motion for continuance was made, the state objected to delaying the trial because of the inconvenience it would present to the many witnesses who were present. The assistant district attorney invited the appellant’s attorney to interview the witnesses, and was willing to assist him in trying to locate the doctor. The trial court agreed to take a recess during the trial, if needed, during which the appellant’s attorney could telephone the orthopedist and inquire about the identity and location of the other doctor, but denied the motion for continuance.

A motion for continuance predicated upon a claim of insufficient time to prepare for trial is addressed to the sound discretion of the trial court, and will not be interfered with unless it is clearly shown that the court abused its discretion. OCGA § 17-8-22, generally; Cantrell v. State, 154 Ga. App. 725 (270 SE2d 12) (1980). In this case, counsel for the appellant acknowledged that he had interviewed several of the state’s witnesses prior to the trial, and the motion for continuance was not based upon lack of preparation in that regard. Rather, the motion concerned the need for more time to locate a doctor who possibly had treated the appellant for impotency.

In Corbin v. State, 212 Ga. 231 (1) (91 SE2d 764) (1956), as grounds for continuance, it was asserted that counsel for the defendant had been employed only two weeks, had been handling other cases, and had been unable to find some of the defendant’s witnesses. The Supreme Court held that it “will not hold that the trial judge abused his discretion in refusing a continuance where counsel had been employed for two weeks and was unprepared because he had been handling other cases. [Cit.] In all applications for continuances upon the ground of the absence of a witness, it must be shown to the court that a named witness is absent; that he has been subpoenaed; that his testimony is material; that such witness is not absent by the permission, directly or indirectly, of such applicant; that he expects to be able to procure the testimony of such witness at the next term of the court; and that such application is not made for the purpose of delay, but to enable the party to procure the testimony of such absent witness; and the facts which the applicant expects to prove by the absent witness must be stated.” Id.

In the instant case, the appellant’s attorney was unable to show the actual existence, much less the identity, of the doctor sought as a witness. Further, the attorney was unable to show whether the doctor was within the jurisdiction of the court. The trial court tried to accommodate the appellant by offering to take a recess at some point in the proceeding, so that the attorney could contact the orthopedist for any information regarding the other doctor, and the state even offered to provide what assistance it could in locating the possible witness. Under these circumstances, the trial court did not abuse its discretion in denying the motion for continuance.

2. The appellant next contends that the trial court erred in admitting the evidence of similar transactions, on the grounds that the other incidents were not similar to the alleged offenses perpetrated against his daughter, and that the prejudicial impact of the evidence outweighed whatever relevance it had. We disagree.

In order for evidence of similar transactions to be admissible, it must be shown that the defendant was the perpetrator of the other transactions, and “there must be some evidence to establish between the independent crime and the crime on trial such similarity to and logical connection with each other so that proof of the independent crime tends to establish, by evidence of identity, bent of mind, or intent, the commission of the crime ... on trial.” Stephens v. State, 261 Ga. 467, 469 (405 SE2d 483) (1991). This exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses, Stine v. State, 199 Ga. App. 898 (2) (406 SE2d 292) (1991), but even where sexual offenses are involved, the evidence should not be admitted unless the prejudice it creates is outweighed by its relevancy. Hicks v. State, 232 Ga. 393, 397 (207 SE2d 30) (1974); Bloodworth v. State, 173 Ga. App. 688 (1) (327 SE2d 756) (1985).

One of the similar transactions occurred around July 31, 1991, and involved the appellant’s 13-year-old niece, when she was at home alone. The niece testified that the appellant rubbed her chest and leg, tried to run his hand up her short pants, and tried to kiss her on the mouth. She told him to stop, and before he left he told her not to tell anyone about the incident.

The other two incidents involved another niece. This niece testified that around 1972, when she was seven or eight, she took a trip with the appellant and his son in the appellant’s tractor trailer. One night, the appellant invited her to lie down with him on the trailer. She refused, and instead got into the sleeper compartment where the appellant’s son already was asleep. The appellant then got into the truck and tried to touch her in her private areas. At that time, he had told her not to tell anyone, or else he would no longer allow her to smoke and cuss. Years later, when she was 13 years old, the niece baby-sat for the appellant and his wife, and slept in their home. One night, she was awakened by the appellant having sexual intercourse with her. Afterwards, he told her that if she told anyone about it, he would tell her mother that she was no longer a virgin.

This evidence demonstrated that the appellant was in fact the perpetrator of the other sexual offenses, and the circumstances surrounding (and the nature of) the offenses were sufficiently similar so as to render the evidence admissible under the above exception. During the hearing to determine the admissibility of the similar transactions evidence, the trial court did not specifically state that it had weighed the prejudicial impact of this evidence against its relevancy to the issues currently on trial, as should have been done, but it is clear in this case that the relevancy of this extraneous evidence outweighed that prejudice. Such evidence is particularly relevant and needed, where the victim of such sexual abuse is mentally retarded.

The lapse of time between the prior occurrences involving one of the nieces and the offenses currently charged goes to the weight and credibility of the evidence, and not its admissibility. Cooper v. State, 173 Ga. App. 254 (1) (325 SE2d 877) (1985) (admission of evidence of similar sexual offenses was upheld despite a lapse of 19 years). See also Gilstrap v. State, 261 Ga. 798 (1) (410 SE2d 423) (1991).

3. In its instructions to the jury, the trial court stated: “I charge you that the testimony of the victim is sufficient, if believed, to be legally adequate to sustain the conviction of rape.” The appellant now complains that this charge constituted an impermissible comment on the evidence prohibited by OCGA § 17-8-57. The record shows that following its jury charge, the trial court inquired as to any objections, and counsel for the appellant merely reserved the right to raise objections later.

“While such a reservation is sufficient to attack charges given or refused, it is not adequate to maintain an objection under OCGA § 17-8-57.” Butts v. State, 198 Ga. App. 368, 369 (401 SE2d 763) (1991). “ ‘The question of whether [OCGA § 17-8-57] has been violated is not reached unless an objection or motion for mistrial is made.’ Therefore, this enumeration of error is without merit.” Driggers v. State, 244 Ga. 160, 162 (2) (259 SE2d 133) (1979).

4. The appellant also contends that the evidence was insufficient to support his two convictions for rape, because the state failed to prove the essential element of lack of consent. However, in so contending, the appellant overlooks the expert testimony of the clinical psychologist that the appellant’s daughter had a full scale IQ of 59, which fell within the middle range of mild mental retardation, equipped her with the mental development of an 11- or 12-year-old child, and rendered her incapable of relating in an adult-like manner or consenting to sexual activity. This evidence sufficiently demonstrated the element of lack of consent on the part of the victim in this case. “Sexual intercourse with an imbecile female, who is incapable of giving an intelligent assent or dissent or of exercising judgment in the matter, constitutes rape.” Whitaker v. State, 199 Ga. 344, 350 (34 SE2d 499) (1945).

Viewing the evidence in the light most favorable to uphold the jury’s verdict, we find that the evidence authorized a rational trier of fact to find the appellant guilty beyond a reasonable doubt of incest and rape. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

5. The indictment contained two separate but identical counts charging the appellant with raping his daughter on or about July 25, 1991. The state acknowledges that the date alleged was not a material averment. Under these circumstances, the appellant correctly points out that he could be sentenced on only one of the rape convictions. Miller v. State, 141 Ga. App. 382 (1) (233 SE2d 460) (1977). In the instant case, “[sjince the sentences imposed were consecutive, it is necessary that the judgments be reversed and that only one sentence be imposed. Compare LaPan v. State, 167 Ga. App. 250, 254 (305 SE2d 858) (1983).” Roberts v. State, 174 Ga. App. 471 (330 SE2d 597) (1985).

Decided February 9, 1993.

John R. Emmett, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Mary Jane Palumbo, Assistant District Attorney, for appellee.

Judgment affirmed in part, and reversed and remanded in part for proceedings as to sentencing. McMurray, P. J., and Cooper, J., concur.


author: Cooper, Judge. Blackburn, Judge,

text:
    A92A1666.
    ECHOLS v. SMITH.
    (427 SE2d 820)
   Cooper, Judge.

We granted appellant’s application for discretionary appeal to determine whether the trial court erred in granting visitation rights to the paternal grandmother of three minor children after the children’s natural father voluntarily terminated his parental rights and the children were adopted by their stepfather.

The natural parents of the children, Leslie and Jeffery Smith, were divorced, and Mrs. Smith was awarded custody of the children. A year later, Mrs. Smith and appellant were married. Shortly thereafter, Mr. Smith voluntarily terminated his parental rights to the children. Appellant then petitioned to adopt the children, and appellee, Mr. Smith’s mother and the paternal grandmother of the children, intervened in the adoption proceedings seeking visitation rights pursuant to OCGA § 19-7-3 (b). The trial court granted both the adoption and appellee’s petition for visitation. Appellant appeals only from that portion of the judgment granting grandparent visitation.

Appellant contends that the grant of visitation rights to appellee was not authorized by OCGA § 19-7-3 (b) because the minor children were adopted by their stepfather, who is not a blood relative, after their father voluntarily surrendered his parental rights. We agree. This case is controlled by the decision rendered in Campbell v. Holcomb, 193 Ga. App. 474 (388 SE2d 65) (1989). Based on virtually identical facts, this court explained that “OCGA § 19-7-3 clearly sets forth the single limited exception to the OCGA § [19-8-19] provisions which sever all former relationships of the adopted child. This limited exception occurs when the adoption is by a blood relative of the minor child. In all other adoptions, the severance provisions of OCGA § [19-8-19] control, thereby extinguishing any rights of visitation to the former grandparents. [Cits.]” Id. at 475. Accord Murphy v. McCarthy, 201 Ga. App. 101 (410 SE2d 198) (1991). As in Campbell, “the minor child [ren were] adopted by [their] stepfather, not by a blood relative; thus the situation here does not fall under the sole statutory exception of OCGA § [19-8-19]. Therefore, the [grandmother is] not entitled to visitation rights, and the trial court erred in granting them.” Campbell, supra. Appellee concedes that the instant case is on all fours with Campbell, and her attempt to distinguish Campbell based on earlier versions of OCGA § 19-7-3 is unpersuasive because the statutory language construed by the court in Campbell is identical to the current versions of OCGA §§ 19-7-3 and 19-8-19.

Because appellee did not have a viable claim for visitation under OCGA § 19-7-3 (b), we need not specifically address appellant’s second enumeration of error, that the trial court erred in using the “best interest of the child” standard in granting visitation rights.

Judgment reversed. McMurray, P. J., concurs. Blackburn, J., concurs specially.

Blackburn, Judge,

concurring specially.

I am constrained to agree with my colleagues that the trial court erred in granting visitation to the paternal grandmother after the adoption of the minor children by a stepfather who is not a blood relative. The legislature has specifically limited the visitation rights of grandparents after an adoption to those instances in which the adopting parent is a blood relative. It is most unfortunate that, as a matter of law, every grandparent is denied the right of visitation in every instance of adoption by a non-blood relative, without regard for what may be in the best interest of the child. While arguably such a result may be in the best interest of an unknowing infant, who would make the case that the interest of a child who has had a loving, on-going relationship for years with a caring grandparent are necessarily served by severing such relationship. Such decisions should be made by a judge based upon the facts of each case. It is the prerogative of the legislature to address this matter.

Where the language of the statute is plain, unambiguous and positive, and is not capable of two constructions, no court has a right to construe it to mean anything other than what it says. Sirota v. Kay Homes, Inc., 208 Ga. 113 (65 SE2d 597) (1951); Ga. Const. of 1983, Art. I, Sec. II, Par. III.

Decided February 10, 1993.

Patrice S. Howard, for appellant.

Mary P. Schildmeyer, for appellee.


author: McMurray, Presiding Judge.

text:
    A92A1803.
    WEBB v. ASSOCIATES COMMERCIAL CORPORATION.
    (427 SE2d 821)
   McMurray, Presiding Judge.

Associates Commercial Corporation (“Associates”) filed a three-count complaint against Robert E. Webb, d/b/a The Webb Company, alleging that Webb “owes [Associates] $64,894.00 principal, plus interest on a lease [(Count 1); that Webb] owes [Associates] $29,471.16 principal, plus interest on a contract [(Count 2) and that Webb] owes [Associates] $83,242.20 principal, plus interest on a lease [(Count 3)].” Webb denied the material allegations of the complaint and Associates filed a motion for summary judgment with the supporting affidavit of Jerry D. Birkes, Assistant Vice President of Associates.

In support of Count 1, Birkes identified a “TRUCK LEASE AGREEMENT,” that Webb entered with Associates; and testified that Webb “defaulted under the terms of said lease[; that] the leased property was sold for $106,000.00 which amount was credited to [Webb’s] indebtedness^ that no] additional payment has been made by [Webb] on the indebtedness . . . and [that Webb] is indebted to [Associates] in the principal sum of $64,894.00. . . .” In support of Count 2, Birkes identified a “PROMISSORY NOTE,” that Webb entered into with Associates; and testified that Webb “defaulted under the terms of said contract[; that] the collateral securing the contract was sold at public auction for $25,000.00, which amount was credited to [Webb’s] indebtedness [; that no] payment has been made by [Webb] on the indebtedness . . . and [that Webb] is indebted to [Associates] in the principal sum of $29,471.16. . . .” In support of Count 3, Birkes identified an equipment lease agreement, that Webb entered into with Associates; and testified that Webb “defaulted under the terms of said lease[;]” that “the leased property was sold at public auction for $60,000.00, which amount was credited to [Webb’s] indebtedness [; that no] additional payment has been made by [Webb] on the indebtedness . . . and [that Webb] is indebted to [Associates] in the principal sum of $83,242.20. ...”

Webb opposed the motion for summary judgment with an affidavit showing that the collateral was sold for less than its fair market value. Associates responded with the affidavit of Scott A. Sorrells, who deposed that the equipment subject to the “TRUCK LEASE AGREEMENT” was worth $96,000 (“Mack RD6905 Truck — $48,000.00 [and] Mack RD6905 Truck — $48,000.00”). Sorrells deposed that the collateral securing the “PROMISSORY NOTE” and sold “at public auction for $25,000.00 . . .” was worth $28,750 (“Leeboy Asphalt Paver — $22,500 [and] Leeboy Model 400 Roller — $6,500.00”). Sorrells further deposed that the equipment subject to the equipment lease agreement identified in Count 3 of Associates’ complaint and “sold at public auction for $60,000.00 . . .” was worth $73,000 (“Dresser 412B Motor Scraper”).

The trial court granted Associates’ motion for summary judgment, awarding damages in the exact amounts alleged in the complaint, plus interest. This appeal followed. Held:

1. The issues before the trial court as to Count 1 of Associates’ complaint relate to the proper construction of the “TRUCK LEASE AGREEMENT.” However, provisions of the “TRUCK LEASE AGREEMENT” relating to description of the equipment subject to the lease, the purchase price of said equipment and terms of payment under the lease are not included in the record.

The movant has the burden to prove the non-existence of any genuine issue of material fact. See Haire v. City of Macon, 200 Ga. App. 744, 746 (409 SE2d 670). In the case sub judice, Associates failed to present essential evidence regarding terms of the “TRUCK LEASE AGREEMENT.” Consequently, the trial court’s order granting Associates’ motion for summary judgment as to Count 1 of the complaint must be reversed. Rivergate Corp. v. BCCP Enterprises, 198 Ga. App. 761, 762 (403 SE2d 65).

2. Webb contends material issues of fact exist under Counts 2 and 3 of the complaint, arguing that Associates failed to prove the fair market value of the collateral at the time of repossession.

“ ‘(A) creditor who . . . fails to prove that the disposition (sale), including its method, manner, time, place and terms, was commercially reasonable, is barred from obtaining a deficiency judgment, (cit.), except where the sole defect is the adequacy of the sale price, in which event the creditor is not barred from recovery but must overcome the presumption that the value of the collateral equals the debt on it. (Cits.) This presumption is overcome by proving the fair and reasonable value of the collateral, whereupon the creditor is entitled to a deficiency judgment in the amount of the debt (plus or minus any payments or charges properly applicable to the disposition) less the fair and reasonable value of the collateral proved by the creditor (if the resale price is less than the fair and reasonable value proved). (Cit.)’ Farmers Bank v. Hubbard, 247 Ga. 431, 436-437 (276 SE2d 622) (1981).” Gilbert v. Farmers &c. Bank, 192 Ga. App. 700 (1), 701 (385 SE2d 782).

In the case sub judice, there is no evidence regarding the method, manner, time, place and terms of the sale of any of the collateral. Further, there are opposing affidavits disputing the fair and reasonable value of the collateral. In fact, the affidavit of Scott A. Sorrells, filed on behalf of Associates, indicates that the collateral securing the “PROMISSORY NOTE” and the equipment subject to the equipment lease agreement (i.e., the lease identified in Count 3 of Associates’ complaint) was sold for below fair market value. Under these circumstances, the trial court erred in granting summary judgment in favor of Associates on Counts 2 and 3 of the complaint. “[T]here exists a genuine issue of material fact as to whether the sale price equal-led the fair market value of the [collateral], and consequently, whether [Associates is] entitled to a deficiency judgment and, if so, in what amount.” Gilbert v. Farmers &c. Bank, 192 Ga. App. at 702.

Decided February 10, 1993.

Harrison & Willis, Randall P. Harrison, for appellant.

Bryant, Davis & Cowden, James W. Hays, for appellee.

Judgment reversed. Cooper and Blackburn, JJ., concur.